J-S53037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    MUHAMMED LEACH                             :
                                               :
                       Appellant               :       No. 592 EDA 2018

                  Appeal from the PCRA Order January 24, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0806991-2006


BEFORE:      GANTMAN, P.J., OTT, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.:                         FILED OCTOBER 17, 2018

        Appellant, Muhammed Leach, appeals pro se from the order entered in

the Philadelphia County Court of Common Pleas, which dismissed Appellant’s

serial petition brought under the Post Conviction Relief Act (“PCRA”).1 We

affirm.

        The relevant facts and procedural history of this case are as follows. On

March 8, 2002, Appellant and three cohorts planned to rob Victim at gunpoint.

During the robbery, one of Appellant’s accomplices fatally shot Victim. The

Commonwealth subsequently charged Appellant with criminal homicide,

criminal conspiracy, robbery, possessing an instrument of crime (“PIC”), and

related offenses. Appellant proceeded to a jury trial on October 24, 2007.


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1   42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     The PCRA court summarizes the evidence presented at trial as follows:

       On March 8, 2002, [Appellant] and his accomplices, Kareem
       Kellam, Lamonte Green, and Tyree Cartwright, waited in a
       vehicle until [Victim] left the home of his girlfriend, Ms.
       Joyce Mack. Prior to entering the vehicle, [Appellant] told
       another co-conspirator, Robert White, in the presence of
       Vincent Mack, “I need to hold your gun. I need to get some
       money.”      At some point while [Appellant] and his
       accomplices were driving, [Appellant] gave the gun to Mr.
       Cartwright who planned to use it to rob [Victim].

       At approximately 8:30 p.m., [Victim] left the house and
       began driving to the Melrose Bar, which was located at 7 th
       Street and Girard Avenue.         Unbeknownst to [Victim],
       [Appellant] and his accomplices were following him and as
       [Victim] exited his vehicle, Cartwright attempted to rob him
       and shot him in the stomach. [Victim] made his way into
       Melrose Bar and declared, “I’ve been shot.” The barmaid,
       Pam Kellam, heard [Victim] make this statement before he
       collapsed on the ground. [Victim] died as a result of the
       gunshot wound.

       Rosa Gonzalez witnessed the incident and gave testimony
       indicating that she saw two men outside the bar and heard
       the gunshot. Following the incident, she provided a general
       description of the shooter that matched Cartwright.

       The day after the shooting, White, who was Kellam’s cousin
       and knew [Appellant], had a conversation with [Appellant]
       during which [Appellant] told him that Cartwright shot
       [Victim] while [Appellant] remained in the vehicle. White
       and [Appellant] agreed that, if questioned by police, they
       would blame Leonard Edwards for the murder. Later in the
       week, White spoke to Kellam, who also said that Cartwright
       shot [Victim]. Both men also agreed to place the blame on
       Edwards.

       Months later, White was arrested in an unrelated matter.
       Homicide detectives told him that he was being accused of
       having murdered [Victim] herein.        White denied the
       allegation and informed the detectives that [Appellant],
       Cartwright, and Greene were involved. White gave a second
       statement a week later implicating his cousin, Kellam. He

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         also told detectives that after the murder, Cartwright had
         used the gun he shot [Victim] with to shoot Greene’s
         television set.6

            6 Vincent Mack, who was interviewed by Homicide and
            testified at trial, gave an account of the incident that
            corroborated White’s version of it.

         The investigation stalled for three years until detectives
         from the Cold Case squad interviewed White, then in
         custody for federal bank robbery charges. In his third
         statement to police he made inculpatory remarks that led to
         his arrest. He eventually was permitted to plead guilty to
         robbery, conspiracy, and weapons charges in exchange for
         his testimony against [Appellant] and the other participants.
         At trial, White testified seeing [Appellant] and his
         accomplices pull off in a car after hearing the gunshot. He
         also testified that he expected that the gun would be used
         in the robbery, but did not expect [Appellant] to hand the
         gun to Mr. Cartwright, or expect that his gun would be used
         for a murder.

         Other evidence established that police were aware that
         [Appellant] lived in a half-way house just a few blocks from
         the Melrose Bar. A check of the sign-in sheet kept at the
         half-way house indicated that [Appellant] had signed out
         prior to the murder and that he signed back in within twenty
         minutes of the murder.

(PCRA Court Opinion, filed February 21, 2018, at 3-5) (some internal footnotes

omitted).

      On November 6, 2007, the jury convicted Appellant of one count each

of second-degree murder (accomplice liability), conspiracy to commit murder,

robbery, and firearms not to be carried without a license. The court sentenced

Appellant on March 3, 2008, to life imprisonment without the possibility of

parole (“LWOP”). This Court affirmed the judgment of sentence on July 22,

2009. Appellant sought no further direct review.

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       On July 27, 2009, Appellant timely filed his first pro se PCRA petition.

The PCRA court appointed PCRA counsel, who filed an amended PCRA petition

on July 26, 2010. In his petition, Appellant requested a new trial based on

after-discovered evidence in the form of an allegedly exculpatory statement

of Dione Tate. Appellant attached to his petition an affidavit of Mr. Tate, in

which Mr. Tate alleged he heard Mr. White admit to shooting Victim. The PCRA

court issued Rule 907 notice on May 6, 2011, and dismissed Appellant’s

petition on September 28, 2011. This Court affirmed on October 31, 2012.

       On August 21, 2013, Appellant filed his second pro se PCRA petition,

requesting leave to file a petition for allowance of appeal nunc pro tunc from

this Court’s October 31, 2012 disposition. On December 15, 2015, the PCRA

court granted Appellant relief and reinstated his right to file a petition for

allowance of appeal nunc pro tunc from this Court’s decision affirming the

dismissal of Appellant’s first PCRA petition.    Appellant filed a petition for

allowance of appeal nunc pro tunc on January 4, 2016.

       While Appellant’s petition for allowance of appeal was pending,

Appellant filed his third and current pro se PCRA petition on April 21, 2016.2

____________________________________________


2 Under prevailing law, the PCRA court should have dismissed Appellant’s April
21, 2016 PCRA petition for lack of jurisdiction. See Commonwealth v. Lark,
560 Pa. 487, 746 A.2d 585 (2000) (holding court has no jurisdiction to review
subsequent PCRA petition that is filed while appeal from previous PCRA
petition is still pending). See also Commonwealth v. Davis, 816 A.2d 1129,
1134 (Pa.Super. 2003), appeal denied, 576 Pa. 710, 839 A.2d 351 (2003)
(stating appellant is precluded from filing additional PCRA petition while prior



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In his petition, Appellant alleged he learned in April 2016, that an individual

named Kinte Ford claimed to have been present at the scene on the night of

the shooting. Appellant attached to his petition a signed affidavit of Mr. Ford,

in which Mr. Ford states he saw two men, Mr. White3 and another male Mr.

Ford did not recognize, approach the scene of the shooting and then flee in

different directions after Mr. Ford heard a gunshot. Mr. Ford also stated he

alerted nearby police officers that a shooting had occurred, and an officer took

his name and questioned him at the scene.

        The PCRA court issued Rule 907 notice as to Appellant’s current PCRA

petition on May 17, 2017. Appellant filed a pro se response to the Rule 907

notice on May 24, 2017. On May 30, 2017, Appellant filed a second pro se

response to the Rule 907 notice, in which he raised for the first time a Brady4

claim. The PCRA court dismissed Appellant’s current petition as untimely on

January 24, 2018. On February 5, 2018, Appellant timely filed a pro se notice

of appeal. The PCRA court did not order Appellant to file a concise statement

of errors complained of on appeal per Pa.R.A.P. 1925(b), and Appellant filed


____________________________________________


PCRA petition is pending on appeal). The PCRA court, however, allowed
Appellant’s current PCRA petition to linger on the docket until the Supreme
Court denied Appellant’s petition for allowance of appeal nunc pro tunc
concerning his previous petition on May 10, 2016. Thus, we deem Appellant’s
current petition as filed on May 10, 2016.

3 In his affidavit, Mr. Ford refers to Mr. White as “Robert Boone.” The record
indicates Robert White is an alias of Robert Boone.

4   Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

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none.

        Appellant raises two issues for our review:

           DID THE PCRA COURT ERR IN DENYING [APPELLANT]’S
           PCRA PETITION AS UNTIMELY WHEN [APPELLANT]
           ESTABLISHED THAT HIS AFTER DISCOVERED FACTS CLAIM
           WAS WITHIN THE PLAIN LANGUAGE OF THE TIMELINESS
           EXCEPTION PURSUANT TO 42 PA.C.S.A. § 9545(B)(1)(II)
           AND SECTION 9545(B)(2)?

           DID THE PCRA COURT ERR IN FAILING TO HOLD THAT THE
           COMMONWEALTH VIOLATED BRADY V. MARYLAND[, 373
           U.S. 83, 83 S.CT. 1194, 10 L.ED.2D 215 (1963)] BY
           WITHHOLDING    AND    SUPPRESSING    EVIDENCE   IN
           VIOLATION OF ARTICLE 1, SECTION 9 OF THE
           PENNSYLVANIA CONSTITUTION AND [APPELLANT]’S DUE
           PROCESS RIGHTS PURSUANT TO THE 5TH AND 14TH
           AMENDMENTS OF THE UNITED STATES CONSTITUTION?

(Appellant’s Brief at 3).

        As a preliminary matter, the timeliness of a PCRA petition is a

jurisdictional requisite. Commonwealth v. Hackett, 598 Pa. 350, 359, 956

A.2d 978, 983 (2008), cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174

L.Ed.2d 277 (2009).         A PCRA petition, including a second or subsequent

petition, shall be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final “at

the conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

        The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition


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will be excused.   42 Pa.C.S.A. § 9545(b)(1).       To invoke an exception, a

petition must allege and the petitioner must prove:

         (i) the failure to raise the claim previously was the result
         of interference by government officials with the presentation
         of the claim in violation of the Constitution or laws of this
         Commonwealth or the Constitution or laws of the United
         States;

         (ii) the facts upon which the claim is predicated were
         unknown to the petitioner and could not have been
         ascertained by the exercise of due diligence; or

         (iii) the right asserted is a constitutional right that was
         recognized by the Supreme Court of the United States or
         the Supreme Court of Pennsylvania after the time period
         provided in this section and has been held by that court to
         apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).     Additionally, a PCRA petitioner must

present his claimed exception within sixty days of the date the claim first could

have been presented. 42 Pa.C.S.A. § 9545(b)(2). “As such, when a PCRA

petition is not filed within one year of the expiration of direct review, or not

eligible for one of the three limited exceptions, or entitled to one of the

exceptions, but not filed within 60 days of the date that the claim could have

been first brought, the [PCRA] court has no power to address the substantive

merits of a petitioner’s PCRA claims.” Commonwealth v. Gamboa-Taylor,

562 Pa. 70, 77, 753 A.2d 780, 783 (2000).

      The timeliness exception set forth in Section 9545(b)(1)(ii) requires a

petitioner to demonstrate he did not know the facts upon which he based his

petition and could not have learned those facts earlier by the exercise of due


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diligence. Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,

1271 (2007).    Due diligence demands that the petitioner take reasonable

steps to protect his own interests. Commonwealth v. Carr, 768 A.2d 1164,

1168 (Pa.Super. 2001).     A petitioner must explain why he could not have

learned the new fact(s) earlier with the exercise of due diligence.

Commonwealth v. Breakiron, 566 Pa. 323, 330-31, 781 A.2d 94, 98

(2001). This rule is strictly enforced. Commonwealth v. Monaco, 996 A.2d

1076, 1080 (Pa.Super 2010), appeal denied, 610 Pa. 607, 20 A.3d 1210

(2011). Additionally, the focus of this exception “is on the newly discovered

facts, not on a newly discovered or newly willing source for previously known

facts.” Commonwealth v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 720

(2008) (emphasis in original). “[A] witness’ admission of evidence previously

available to a petitioner cannot resurrect an untimely PCRA claim.”

Commonwealth v. Abu-Jamal, 596 Pa. 219, 226, 941 A.2d 1263, 1267

(2008), cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 L.Ed.2d 201 (2008).

      The timeliness exception set forth at Section 9545(b)(1)(ii) has often

mistakenly been referred to as the “after-discovered evidence” exception.

Bennett, supra at 393, 930 A.2d at 1270. “This shorthand reference was a

misnomer, since the plain language of subsection (b)(1)(ii) does not require

the petitioner to allege and prove a claim of ‘after-discovered evidence.’” Id.

Rather, as an initial jurisdictional threshold, Section 9545(b)(1)(ii) requires a

petitioner to allege and prove that there were facts unknown to him and that


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he exercised due diligence in discovering those facts.     See 42 Pa.C.S.A. §

9545(b)(1)(ii); Bennett, supra.      Once jurisdiction is established, a PCRA

petitioner can present a substantive after-discovered-evidence claim. See 42

Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be eligible for relief under PCRA,

petitioner must plead and prove by preponderance of evidence that conviction

or sentence resulted from, inter alia, unavailability at time of trial of

exculpatory evidence that has subsequently become available and would have

changed outcome of trial if it had been introduced). In other words, the “new

facts” exception at:

         [S]ubsection (b)(1)(ii) has two components, which must be
         alleged and proved. Namely, the petitioner must establish
         that: 1) the facts upon which the claim was predicated were
         unknown and 2) could not have been ascertained by the
         exercise of due diligence. If the petitioner alleges and
         proves these two components, then the PCRA court has
         jurisdiction over the claim under this subsection.

Bennett, supra at 395, 930 A.2d at 1272 (internal citations omitted)

(emphasis in original).      Thus, the “new facts” exception at Section

9545(b)(1)(ii) does not require any merits analysis of an underlying after-

discovered-evidence claim. Id. at 395, 930 A.2d at 1271.

      Instantly, the court sentenced Appellant on March 3, 2008, and this

Court affirmed the judgment of sentence on July 22, 2009. Appellant sought

no further direct review. Therefore, the judgment of sentence became final

on August 21, 2009, upon expiration of the time to file a petition for allowance

of appeal with our Supreme Court. See Pa.R.A.P. 1113. Appellant filed the


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current PCRA petition on May 10, 2016, which is patently untimely. See 42

Pa.C.S.A. § 9545(b)(1). In his petition, Appellant attempts to invoke the new

facts exception to the PCRA time bar based upon the statement of Kinte Ford,

which Appellant appended to his petition. See 42 Pa.C.S.A. § 9545(b)(1)(ii).

In his affidavit, Mr. Ford states he was near Melrose Bar on the night of the

shooting. Mr. Ford alleges he saw two men, one of whom was Mr. White,

approach the bar and then flee in different directions after a gunshot. Mr.

Ford added he alerted police officers to the shooting and answered officers’

questions at the scene. Notably, Appellant unsuccessfully sought relief in his

first PCRA petition based upon a similar allegation that Mr. White shot Victim.

Namely, Appellant attached to his prior PCRA petition the affidavit of Dione

Tate, in which Mr. Tate claimed he had heard Mr. White admit shooting Victim.

       Based upon the foregoing, Appellant sought relief in both his first and

current PCRA petitions based upon the premise that someone other than Mr.

Cartwright, namely Mr. White, shot Victim. Appellant does not present a new

fact in his current PCRA petition; Appellant merely relies upon a different

witness’ statement to assert Mr. White killed Victim.5 See Marshall, supra.

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5 Appellant was convicted under a theory of accomplice liability, not as the
shooter. This affidavit from Mr. Ford, like the previous affidavit from Mr. Tate,
does not exonerate Appellant. Moreover, we observe that the PCRA court
addressed the merits of Appellant’s claim before it determined if Appellant had
satisfied the new facts exception to the PCRA time bar. We emphasize that
when a PCRA petitioner files an untimely petition and attempts to invoke the
new facts exception to the PCRA timeliness requirement, the PCRA court first



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Thus, Appellant’s current claim does not satisfy the new facts exception to the

PCRA time bar. See id. Therefore, Appellant’s current petition remains time

barred, and the PCRA court lacked jurisdiction to review it.6 See Hackett,

supra. Accordingly, we affirm.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/18




____________________________________________


must determine, as a jurisdictional threshold, whether the petition satisfies
the new facts exception, which requires the court to assess if (a) the “new
fact” really is a “new fact” and, if so, (b) the petitioner’s due diligence in
ascertaining the purported “new fact.” This initial assessment does not include
a merits-based analysis of the underlying after-discovered evidence claim.
See Bennett, supra at 395, 930 A.2d at 1271. Here, the PCRA court took a
reverse approach, which is fundamentally incorrect.

6 Appellant raised his Brady claim for the first time in his second pro se
response to the PCRA court’s Rule 907 notice, which the court deemed a
supplemental PCRA petition, filed without leave of court. In any event,
Appellant failed to plead and prove his Brady claim as an exception to the
PCRA timeliness requirement. As a result, and in light of our disposition, we
decline to address Appellant’s “Brady” issue on appeal.

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