J-S59044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                       v.

LARRY MULLINS

                             Appellant                 No. 115 EDA 2016


                Appeal from the PCRA Order December 28, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-1011611-1995

BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 07, 2016

        Appellant, Larry Mullins, appeals from the order dismissing his second

Post Conviction Relief Act1 (“PCRA”) petition. Appellant claims that newly-

discovered evidence from a witness, who was previously interviewed prior to

his trial, warrants relief. We affirm.

        We adopt the facts and procedural history set forth in the PCRA court’s

opinion.    PCRA Ct. Op., 1/27/16, at 1-3.      Appellant timely appealed and

timely filed a court-ordered Pa.R.A.P. 1925(b) statement. Appellant raises

the following issue:

           Did the PCRA court err when it denied Appellant PCRA
           relief in the absence of an evidentiary hearing since
           Appellant is entitled to PCRA relief in the form of a new
           trial based upon the existence of after-discovered
           evidence?

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J-S59044-16


Appellant’s Brief at 4.       Appellant contends he obtained newly-discovered

evidence     from   the     victim’s     girlfriend,   Tameka   Ledbetter,   who   was

interviewed by the police after the victim’s death.

       Before addressing the merits of Appellant’s claims, our Supreme Court

has required this Court to examine whether we have jurisdiction to entertain

the underlying PCRA petition. See Commonwealth v. Fahy, 737 A.2d 214,

223 (Pa. 1999). “Our standard of review of a PCRA court’s dismissal of a

PCRA    petition    is    limited   to    examining     whether   the   PCRA   court’s

determination is supported by the evidence of record and free of legal error.”

Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en

banc) (citation omitted). A PCRA petition “must normally be filed within one

year of the date the judgment becomes final . . . unless one of the

exceptions in § 9545(b)(1)(i)-(iii) applies and the petition is filed within 60

days of the date the claim could have been presented.” Commonwealth v.

Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (internal citations and footnote

omitted).

                Jurisdictional time limits go to a court’s right or
           competency to adjudicate a controversy. These limitations
           are mandatory and interpreted literally; thus, a court has
           no authority to extend filing periods except as the statute
           permits. Unlike a statute of limitations, a jurisdictional
           time limitation is not subject to equitable principles such as
           tolling except as provided by statute. Thus, the filing
           period is only extended as permitted; in the case of the
           PCRA, the time limitations are extended upon satisfaction
           of the exceptions found in § 9545(b)(1)(i)-(iii) and timely
           filing pursuant to (b)(2). As it has been established that
           the PCRA’s time restrictions are jurisdictional, we hold that


                                             -2-
J-S59044-16


         the period for filing a PCRA petition is not subject to the
         doctrine of equitable tolling, save to the extent the
         doctrine is embraced by § 9545(b)(1)(i)-(iii).

Fahy, 737 A.2d at 222 (citations omitted).

      The three timeliness exceptions are:

            (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. § 9545(b)(1)(i)-(iii).

      “[S]ubsection (b)(1)(ii) does not require the petitioner to allege and

prove a claim of ‘after-discovered evidence.’ Rather, it simply requires

petitioner to allege and prove that there were ‘facts’ that were ‘unknown’ to

him and that he exercised ‘due diligence.’”    Commonwealth v. Bennett,

930 A.2d 1264, 1270 (Pa. 2007) (footnote omitted).          “If the petitioner

alleges and proves these two components, then the PCRA court has

jurisdiction over the claim under this subsection.” Id. at 1272.

      Instantly, we review whether the PCRA court erred by holding

Appellant’s second PCRA petition was untimely.            See 42 Pa.C.S. §



                                     -3-
J-S59044-16


9545(b)(1); Fahy, 737 A.2d at 222.          After careful review of the parties’

briefs, the record, and the decision by the PCRA court, we affirm on the

basis of the PCRA court’s decision.    See PCRA Ct. Op. at 4-6 (holding (1)

Appellant failed to establish due diligence because witness was known to him

in 1993 and thus, he could have raised claims on direct appeal and in prior

PCRA petitions; and (2) Appellant failed to establish due diligence of the

alleged Brady violation; as our Supreme Court held, even evidence of a

Brady violation must be pursued with due diligence by the defendant).

        Further, as the PCRA court noted, a prior panel of the Superior Court

addressed Appellant’s claim with respect to his co-defendant, James Kelly.

Commonwealth v. Kelly, 3544 EDA 2013, 2014 WL 10795093 at *3 (Pa.

Super. Oct. 10, 2014).2      The Kelly Court rejected Ledbetter’s evidence:

“the Commonwealth presented sufficient evidence to establish Kelly’s guilt,

such that Ledbetter’s identification of Sharif Curry as the shooter would not

likely have changed the outcome of the trial.”      Commonwealth v. Kelly,

3544 EDA 2013, 2014 WL 10795093 at *4 (Pa. Super. Oct. 10, 2014). The

Kelly panel explained as follows:

           the Commonwealth presented the testimony of two
           eyewitnesses who identified Kelly and Mullins. The first,
           Ernestine Williams, witnessed Kelly hand an object to
           Mullins, who placed the object inside his jacket and held
           onto it inside the jacket as he approached the victim; he
           then removed his hand from his jacket, holding a gun, and

2
    We acknowledge the non-precedential designation of this decision.




                                      -4-
J-S59044-16


        shot the victim multiple times. Williams testified that
        there was “no doubt in [her] mind” that Kelly and Mullins
        were the individuals involved in the shooting. N.T. Trial,
        8/14/96, at 132. Williams further testified as follows:

             [Williams]: I remember seeing [Kelly and Mullins] at
             the corner of my block making a transaction, and I
             remember seeing [Mullins] shoot [the victim], I seen
             him shoot him in his head behind his ear and he fell
             in his arms and he laid him on the ground and he
             stood back and he shot him again. I remember
             that very well. And I’ll never forget it.

             [Defense Counsel]: You saw these two men doing a
             transaction?

             A: Yes.

             Q: What kind of transaction?

             A: [Kelly] handed [Mullins] something. And [Mullins]
             never took his hand out until he got to [the victim].

        Id. at 176 (emphasis added).

           A second witness, Colie Baxter, testified that he was
        driving his car at the intersection of 25th and Diamond
        Streets when he heard “five to six shots.” N.T. Trial,
        8/15/96, at 8. He pulled his car over and then witnessed
        two men, who he later identified as Kelly and Mullins, run
        out of an alleyway, get into a car, and drive away. One of
        the men was “holding something down by [his] side.” Id.

Id. at *4.     “Ledbetter’s statement, even if true, would neither have

exculpated Kelly nor changed the outcome of his trial.” Id. at *6. We agree

with the reasoning of the Kelly Court and similarly conclude that Ledbetter’s

statement, even if true, would not have exculpated Appellant, particularly

since—unlike Kelly—Appellant was identified as the shooter.      Accordingly,




                                     -5-
J-S59044-16


having discerned no abuse of discretion or error of law, we affirm.   See

Wilson, 824 A.2d at 333.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/7/2016




                                  -6-
                                                                                         Circulated 08/24/2016 10:02 AM




                                    IN THE COURT OF COMMON PLEAS
                               FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                        CRIMINAL TRIAL DIVISION

            COMMONWEALTH OF                                                   CP-51-CR-1011611-1995
            PENNSYLVANIA

                   v.                                                                          FIL~D
            LARRY MULLINS                                                                  JAN 2 / 201&
                                                       OPINION                            PostTrial Unit
            BRONSON,J.                                                                January 27, 2016

                                        I. PROCEDURALBACKGROUND

            On August 21, 1996, following a jury trial before the Honorable James A. Lineberger of

    this Cou11, defendant Larry Mullins was convicted of one count of first-degree murder ( 18

    Pa.C.S. § 2502) and one count of criminal conspiracy (18 Pa.C.S. § 903). On January 16, 1997,

    Judge Lineberger imposed a life sentence on the murder charge and a sentence of four to eight

    years imprisonment on the conspiracy charge. 1 Defendant was represented at trial and at

    sentencing by Charles Mirarchi, Esquire.

           On December 12, 1997, the Superior Court affirmed defendant's judgment of sentence.

    The Pennsylvania Supreme Court denied allocator on July 13, 1998. Defendant then filed a pro

se petition ("First Petition") under the Post-Conviction Relief Act ("PCRA") on July 21, 1999.

    On June IO, 2003, the PCRA Court denied defendant's First Petition and the Superior Court

dismissed defendant's subsequent appeal on September 19, 2003. Defendant filed a second pro

se PCRA petition ("Second Petition") on March 12, 2006, which the PCRA Court dismissed as

untimely on July 14, 2006. On December 31, 2012, defendant filed a Petition for Writ of


I
  Defendant was tried with his co-defendant James Kelly, who was also convicted of first-degree murder and
criminal conspiracy at docket number CP-51-CR-1011621-1995, Kelly was sentenced to life in prison on August
21, 1996.
Habeas Corpus, seeking relief due to newly discovered evidence ("Third Petition"). As Judge

Lineberger had retired from the bench, the matter was reassigned to the undersigned trial judge.

Janis Smarro, Esquire was appointed to represent defendant on March 26, 2014. On October 8,

2014, Ms. Smarro filed an Amended PCRA Petition ("Amended Petition") raising the sole claim

that defendant was entitled to a new trial due to newly discovered evidence in the form of a

statement by Tameka Ledbetter, the girlfriend of the decedent. Amended Petition at~~ 14-23.

On November 10, 2015, after reviewing defendant's PCRA Petition and the Commonwealth's

Motion to Dismiss, this Court ruled that the claims set forth in defendant's petition were without

merit.   That day, pursuant to Pa.R.Crim.P. 907, the Court issued notice of its intent to dismiss

the petition without a hearing ('~907 Notice"). On December 28, 2015, the Court entered an

order dismissing defendant's PCRA Petition. This appeal followed.

         Defendant has now appealed the Court's dismissal of his PCRA Petition, alleging that: 1)

the PCRA Court erred in denying an evidentiary hearing regarding witness Tameka Ledbetter

since Ledbetter's statement was newly discovered evidence and; 2) that the Commonwealth's

failure to inform defendant at the time of trial that Ledbetter had made a different identification

to police constituted governmental interference. Concise Statement of Errors Complained of on

Appeal. ("Statement of Errors") at pp. 1-2. For the reasons set forth below, defendant's claims

are without merit, and the PCRA Court's order dismissing his PCRA Petition should be affirmed.

                                 II. FACTUAL BACKGROUND

         The facts of this case are summarized in the Superior Court's opinion of July 9, 1999,

affirming the trial court's judgment of sentence in co-defendant Kelly's direct appeal as follows:

                 On January 1, 1993, at about 7:30 p.m., [James] Kelly and Larry
         Mullins ... were walking along N011h Bambry Street in North Philadelphia. At that
         time, the victim, Travis Hughston, was visiting his girlfriend, Tamika Ledbetter,
         at the home of her uncle. Mullins and Kelly were walking toward the home of
         Ledbetter's uncle, which Ledbetter frequented. Before they reached her uncle's
         house, Kelly passed a brown bag to Mullins, who placed the bag inside his coat.


                                                  2
       Moments later, after Hughston exited the house, Mullins shot Hughston, hitting
       him once in the arm and shoulder, and then once in the head. Both Kelly and
       Mullins immediately ran away. Rescue workers took Hughston to Allegheny
       University Hospital Medical College of Pennsylvania, where the doctors
       pronounced him dead from a gunshot wound to the back of his head.

Superior Court Opinion, Commonwealth v. Kelly, No. 1799 Philadelphia 1998, filed 7/9/99 at pp.

1-2.

                                         III. DISCUSSION

       An appellate court's review of a PCRA court's grant or denial ofrelief "is limited to

determining whether the court's findings are supported by the record and the court's order is

otherwise free of legal error." Commonwealth v. Yager, 685 A.2d 1000, 1003 (Pa. Super. 1996)

(citing Commonwealth v. Legg, 669 A.2d 389, 391 (Pa. Super. 1995)). The reviewing court "will

not disturb findings that are supported by the record." Id.

       Under the PCRA, all petitions, "including a second or subsequent petition," must be filed

within one year of the date thatjudgment on the case became final. 42 Pa.C.S. § 9545(b); see

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). This time limit is jurisdictional, and

a court may only review an untimely petition if one of the three statutory exceptions to the

timeliness requirement applies. 42 Pa.C.S. § 9545(b)(l); Commonwealth v. Murray, 753 A.2d

20 l, 203 (Pa. 2000). Furthermore, the statutory exceptions are themselves subject to a timeliness

requirement, and must be invoked "within sixty days of the date the claim could have been

presented." 42 Pa.C.S. § 9545(b)(2); see Bennett, 930 A.2d at 1267-68.

       In the instant case, defendant's petition was clearly untimely, as it was filed more than

fourteen years after defendant's judgment of sentence became final. Therefore, in order for this

Court to have jurisdiction to review the merits of defendant's claim, defendant must plead and

prove that one of the three statutory exceptions to the timeliness requirement applies to his case,

and he must have filed his petition within sixty days of when the claim could have been




                                                 3
 presented. See, e.g., Commonwealth v. Geer, 936 A.2d 1075, 1077 (Pa. Super. 2007), appeal

 denied, 948 A.2d 803 (Pa. 2008). Defendant now avers that his petition is timely under both the

 newly discovered evidence exception to the PCRA and as a result of governmental interference.

 Statement of Errors at pp. 1-2.

        A. After Discovered Evidence

        The PCRA provides for an exception to its timeliness requirement when "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." 42 Pa.C.S. § 9545(b)(l)(ii). Accordingly, to

 properly rely upon this exception, defendant must demonstrate that his Third Petition is premised

 upon facts that were newly discovered by defendant within sixty days of when he filed the Third

Petition, and he must establish that he could not have discovered such facts previously through

the exercise of due diligence. "To obtain a new trial based on after-discovered evidence, the

petitioner must explain why he could not have produced the evidence in question at or before

trial by the exercise of reasonable diligence .... A defendant cannot claim he has discovered new

evidence simply because he had not been expressly told of that evidence. Likewise, a defendant

who fails to question or investigate an obvious, available source of information, cannot later

claim evidence from that source constitutes newly discovered evidence." Commonwealth v.

Padillas, 997 A.2d 356, 363 (Pa. Super.), app. denied, 14 A.3d 826 (Pa. 2010) (internal citations

omitted). Further, when a defendant had been aware of a potential witness's identity, but failed

to reasonably investigate that witness's version of the facts, the subsequent discovery of

favorable evidence from that witness does not constitute newly-discovered evidence.

Commonwealth v. Kubis, 808 A.2d 196, 201 (Pa. Super.), app. denied, 813 A.2d 839 (Pa. 2002).

       Here, the newly discovered evidence upon which defendant relies consists of a statement

by witness Tameka Ledbetter. Defendant asserts that Ledbetter, who was interviewed by a



                                                4
private investigator on co-defendant Kelly's behalf on September 18, 2012, has provided facts

that could not have been obtained by the exercise of due diligence by defendant, who was

notified of Ledbetter's interview on November 15, 2012.2 Amended Petition at 1~ 14-23.

Ledbetter was the girlfriend of defendant's victim, Travis Hughston, who was killed immediately

after leaving Ledbetter's home on January 1, 1993. See Amended Petition at~ 11. Police

interviewed Ledbetter less than two hours after Hughston's murder, and she stated that she did

not witness the shooting and was unable to identify anyone involved. See Exhibit E to Amended

Petition. More than 19 years later, co-defendant Kelly sent a private investigator to interview

Ledbetter. See Amended Petition at 1~ 16-21. Ledbetter informed the investigator that on the

night of the murder, immediately after she heard gunshots, she ran onto her porch and saw a man

whom she knew, Anthony "Sharif' Curry, walking away from the victim with a gun in his hand.

See Amended Petition at~ 17; Exhibit D to Amended Petition. Ledbetter told Kelly's

investigator that when she had given her statement to police in 1993, she had informed them that

Curry, who passed away on January 13, 1995, was the shooter, but police never wrote down the

name and insisted that the shooter was someone else. See Exhibit F to Amended Petition.

         Despite filing post-sentence motions, an appeal, and two prior PCRA petitions, defendant

never investigated Ledbetter's account of the shooting and proffers as '<newlydiscovered

evidence" a statement of Ledbetter obtained by co-defendant Kelly's investigator on September

18, 2012, nearly two decades after the shooting took place. However, Ledbetter, who was


2
  Co-defendant Kelly filed a PCRA petition based on Ledbetter's interview on November 15, 2012. After this Court
dismissed Kelly's petition as untimely, the Superior Court affirmed the dismissal on October 14, 2014 and the
Pennsylvania Supreme Court denied allocator on April 24, 2015. Specifically, the Superior Court stated, "he
[Kelly] claims to have uncovered exculpatory eyewitness evidence allegedly suppressed by the police at the time of
trial. Kelly asserts that he filed his PCRA petition within 60 days of discovering this evidence and that the trial
court should, at the very least, have convened a hearing to determine whether relief was warranted. We find this
claim to be without merit." Suprior Court Opinion, 3544 EDA 2013, filed 10/10/14 at p. 6. The Superior Court
reasoned that, while Ledbetter's statements "may have been exculpatory as to Mullins, [it] would not have
benefitted Kelly, who was never accused of being the shooter." Id. at p. 9. However, the Superior Court also held
that the Commonwealth presented sufficient evidence establishing that defendant and Kelly shot the victim in this
case such that Ledbetter's identification to the contrary would not have changed the outcome of trial. Id. at 10.


                                                         5
interviewed by police on the day of the murder, was an obvious and available witness at the time

of the trial, with both the Commonwealth and defendant being aware of her identity. Despite

that fact, she was not interviewed by defendant at the time of trial, nor called as a witness by

either side. Ledbetter's interview with co-defendant's investigator more than 19 years after she

gave her statement to police clearly does not amount to newly discovered evidence. Kubis, 808

A.2d at 201. Defendant therefore cannot overcome the PCRA's time bar by the newly

discovered evidence exception to the PCRA's timeliness requirement.

        Defendant also cannot avoid the time bar by blaming the lack of due diligence on

counsel. Evidence that would have been discovered by competent counsel is not evidence that

could not have been obtained through reasonable diligence. Commonwealth v. Washington, 927

A.2d 586, 598 (Pa. 2007).

       B. Interference by Government Officials

        The PCRA provides for an exception to its timeliness requirement when "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." 42 Pa.C.S. § 9545(b)(l)(i). To properly rely on this

exception, defendant must demonstrate that his failure to raise the claim in a timely manner was

the result of a constitutional violation by government officials, and he must demonstrate that he

raised the claim within sixty days of when he discovered the violation. Here, defendant claims

governmental interference by police in attempting to get Tameka Ledbetter to say that someone

other than Sharif Curry was responsible for the shooting, and by omitting her identification of

Sharif Curry as the shooter from the statement that she signed. Statement of Errors at ~ 1 ;

Amended Petition at ~ 25.




                                                  6
        Under Brady v. Maryland, 373 U.S. 83, 87 (1963), exculpatory evidence not disclosed to

 the defense will give rise to a due process violation and will require a new trial if the exculpatory

 evidence is "material" either to guilt or punishment. 373 U.S. at 87; see also Pa.R.Crim.P.

 573(B)(l)(a) (specifying, as mandatory discovery, "[a]ny evidence favorable to the accused that

is material either to guilt or to punishment, and is within the possession or control of the attorney

for the Commonwealth"). If the police possess evidence that is favorable to the defense, then the

Commonwealth is deemed to be responsible for its disclosure even if it is solely in the possession

of the police. See Commonwealth v. Lambert, 884 A.2d 848, 853 (Pa. 2005) (quoting Brady, 373

U.S. at 87). "Although a Brady violation may fall within the governmental interference

exception, the petitioner must plead and prove the failure to previously raise the claim was the

result of interference by government officials, and the information could not have been obtained

earlier with the exercise of due diligence." Commonwealth v. Abu-Jamal, 941 A.2d 1263, I 268

(Pa. 2008).

        Here, the same lack of due diligence discussed in Section III(A), above, bars defendant's

governmental interference claim. Had defendant timely interviewed Tameka Ledbetter, he

would have discovered the alleged Brady violation. Therefore, he cannot overcome the PCRA's

time bar by the governmental interference exception to the PCRA's timeliness requirement.

Abu-Jamal, 941 A.2d at 1268. Additionally, as with defendant's after-discovered evidence claim

in Section III(A), defendant cannot avoid the time bar by blaming the lack of due diligence on

counsel. Washington, 927 A.2d at 598.




                                                 7
                                     IV. CONCLUSION
                                                 I
        For the foregoing reasons, the Court's ordfr dismissing defendant's PCRA Petition
                                                 i
should be affirmed.



                                                          BY THE COURT:



                                                       Jj~~f3-.v~
                                                          GLENN B. BRONSON, J.




                                             8
