J-S74011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
MALIK HOOD                              :
                                        :
                  Appellant             :   No. 3428 EDA 2016

             Appeal from the PCRA Order September 30, 2016
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0303561-2000


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 27, 2017

     Malik Hood appeals from the September 30, 2016 order denying him

PCRA relief. We affirm.

     After a jury convicted him of first-degree murder and two violations of

the Uniform Firearms Act, Appellant was sentenced on November 4, 2002, to

life imprisonment.   The convictions arose from the November 24, 1997

shooting death of Anthony Taylor, whose murder was generated by the fact

that Appellant, as the head of a drug operation centered on North Creighton

Street, Philadelphia, began to conduct his enterprise from 229 N. Creighton

Street, which was owned by the boyfriend of Mr. Taylor’s mother.         In

November 1997, Mr. Taylor moved to 229 N. Creighton Street, and, after

viewing the criminal operation, informed Appellant and his accomplices to

leave and cease selling cocaine from the residence.
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      When they refused to vacate 229 N. Creighton Street, Mr. Taylor went

to a neighbor’s house to telephone the police, but one of Appellant’s cohorts

followed him and told Appellant that the victim had called the police.

Appellant confronted Mr. Taylor as he was leaving the neighbor’s home; the

victim again told Appellant that he could no longer use the premises in

question to sell drugs. In response, Appellant shot Mr. Taylor to death and

fled, avoiding capture until January 6, 2000.

      While there were numerous witnesses to these events, they refused to

come forward as they feared retaliation from Appellant and the members of

his drug gang. Eventually, two people agreed to testify against Appellant; in

order to protect them, the Commonwealth was able to keep their identities

secret. Not only did both witnesses state at trial that they saw Appellant

shoot Mr. Taylor, the Commonwealth played recordings of two telephone

calls made to 911 immediately after the incident.         Appellant was clearly

identified as Mr. Taylor’s murderer during those calls.

      After Appellant was found guilty and sentenced, he filed a direct

appeal, wherein he claimed that the 911 calls were improperly admitted at

trial, that the judge erred in issuing an order to protect the identity of the

two eyewitnesses, and that the prosecutor committed misconduct. After we

rejected those contentions and affirmed, our Supreme Court denied

allowance of appeal on October 27, 2005. Commonwealth v. Hood, 872

A.2d 175 (Pa.Super. 2005), appeal denied, 889 A.2d 88 (Pa. 2005).




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      After Appellant filed a timely pro se petition, counsel was appointed

and presented an amended petition. PCRA counsel averred that trial counsel

was ineffective for not seeking a continuance after the identities of the two

witnesses were revealed and for failing to present Kerper Yenglee as a

witness.    In the counseled PCRA petition, Appellant averred that Yenglee

would have identified a man named Sharif as the shooter. The court denied

PCRA relief, and, on appeal, we affirmed, Commonwealth v. Hood, 984

A.2d 1014 (Pa.Super. 2009) (unpublished memorandum), appeal denied,

997 A.2d 1175 (Pa. 2010).        This Court ruled that trial counsel was not

ineffective for failing to present Yenglee as a witness because Appellant

failed to establish either that trial counsel knew or should have known of

Yenglee or that Yenglee was willing and able to testify at trial.

      On August 24, 2012, Appellant, who was not a juvenile when he

murdered Mr. Taylor, filed a second PCRA petition, claiming that he was

entitled to application of Miller v. Alabama, 132 S.Ct. 2455 (2012),

wherein the United States Supreme Court held that it was unconstitutional

for juvenile homicide offenders to be sentenced automatically to life

imprisonment without parole. Counsel was appointed and filed an amended

petition averring the existence of newly-discovered facts in the form of two

witnesses, Diane Matthews and Ramses Lee. In statements attached to the

amended petition, Matthews and Lee identified Sharif as Mr. Taylor’s

murderer.    The PCRA court ruled that the August 24, 2012 petition was

untimely since Appellant did not exercise due diligence in ascertaining the

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existence of Matthews and Lee.                This appeal followed, and Appellant

presents this claim:

               1. The PCRA court erred when it refused to hold a hearing
               because the statements of Diane Matthews and Ramses
               Lee created material issue of disputed Fact regarding the
               guilt-innocence issue and whether the Commonwealth
               violated Brady and if so whether the suppressed evidence
               undermines confidence in the jury’s verdicts.

Appellant’s brief at 4 (citation omitted).

      This Court reviews the “denial of PCRA relief to determine whether the

findings of the PCRA court are supported by the record and free of legal

error.” Commonwealth v. Roane, 142 A.3d 79, 86 (Pa.Super. 2016)

(quoting Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)). It is

now settled law that all PCRA petitions must be filed within one year of the

date a defendant’s judgment of sentence becomes final unless an exception

to the one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1). If a PCRA

petition is untimely, “neither this Court nor the trial court has jurisdiction

over the petition.”          Commonwealth v. Miller, 102 A.3d 988, 992

(Pa.Super. 2014) (citation omitted); see also Commonwealth v. Spotz,

___   A.3d     ___    (Pa.    CAP    731     and   734   filed    October    18,   2017);

Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006).                       The PCRA’s

time constraints are not subject to tolling or other equitable considerations.

Spotz,   supra.       There    are   three    exceptions    to    this   one-year    time

requirement: (1) interference by government officials in the presentation of

the   claim;    (2)   newly-discovered       facts;   and   (3)    an    after-recognized


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constitutional right. 42 Pa.C.S. § 9545(b)(1)(i-iii). The PCRA petitioner has

the burden of pleading and proving the existence of the exception invoked.

Spotz, supra.

      In the present case, our Supreme Court denied allowance of appeal on

October 27, 2005, and Appellant’s judgment of sentence became final ninety

days later, or on January 25, 2006, when the time for seeking review in the

United States Supreme Court expired.          42 Pa.C.S. § 9545(b)(3) (a

defendant’s judgment of sentence “becomes 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 the

time for seeking the review”). Appellant had until January 25, 2007, to file a

timely petition; on it’s face, his present 2012 petition does not meet that

constraint. Herein, Appellant invokes the newly-discovered facts exception

outlined in § 9545(b)(1)(ii). “To qualify for an exception to the PCRA's time

limitations under subsection 9545(b)(1)(ii), a petitioner need only establish

that the facts upon which the claim is based were unknown to him and could

not   have    been   ascertained   by   the   exercise   of   due   diligence.”

Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017). Due diligence

“does not require perfect vigilance and punctilious care, but merely a

showing the party has put forth reasonable effort to obtain the information

upon which a claim is based.” Commonwealth v. Cox, 146 A.3d 221, 230

(Pa. 2016) (citation and quotation marks omitted).




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      Appellant first raises the specter of a Brady v. Maryland, 373 U.S. 83

(1963), claim with respect to Matthews. “Under Brady, the prosecution's

failure to divulge exculpatory evidence is a violation of a defendant's

Fourteenth Amendment due process rights. To establish a Brady violation, a

defendant is required to demonstrate that exculpatory or impeaching

evidence, favorable to the defense, was suppressed by the prosecution, to

the prejudice of the defendant.” Commonwealth v. Cam Ly, 980 A.2d 61,

75 (Pa. 2009) (citation omitted).      On August 13, 1999, Matthews gave

police a statement, wherein he indicated that Appellant was the shooter.

Commonwealth’s Motion to Dismiss, 3/9/16, at Exhibit A.     Since the 1999

statement did not provide evidence that tended to exonerate Appellant and

since it failed to impeach or contradict any Commonwealth witnesses, there

was no Brady violation in connection with Matthews.

      Appellant next insists that he exercised due diligence in finding the

recent representations of Matthews and Lee that Appellant was not the

shooter. He maintains that he had no way of knowing that Matthews and

Lee observed the crime.     However, Appellant knew or should have known

about Matthews since Matthews gave a statement to police in 1999. As to

Lee, Lee indicated that he was with Yenglee when Yenglee saw the shooting.

Thus, Appellant could have discovered Lee’s existence simply by asking

Yenglee whether there was anyone who could corroborate Yenglee’s

identification of Sharif as Mr. Taylor’s murderer.

      As we have articulated:

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      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); Commonwealth v. Monaco,
      996 A.2d 1076, 1080 (Pa.Super.2010), appeal denied, 610 Pa.
      607, 20 A.3d 1210 (2011). This rule is strictly enforced. Id.
      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).

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015).

      The record herein establishes that Appellant did not plead sufficient

facts to establish that he could not have learned about the exonerating

evidence of Matthews and Lee earlier by simple investigation.     Hence, the

PCRA court did not abuse its discretion in concluding that Appellant could not

invoke the newly-discovered facts exception to the one-year time bar.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2017




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