J-S27042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROBERT OUTLAW,

                            Appellant                 No. 1530 EDA 2015


                    Appeal from the PCRA Order May 12, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-1101321-2003


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

MEMORANDUM BY PLATT, J.:                                   FILED MAY 02, 2017

        Appellant, Robert Outlaw, appeals from the order dismissing his

second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546.          We vacate the order denying PCRA relief, and

remand this matter to the PCRA court for further proceedings.

        A prior panel of this Court set forth the factual and procedural history

of this case as follows:

               Just after midnight on September 3, 2000, Appellant,
        positioned behind a wall, fired at the nineteen[-]year[-]old
        victim, Jamal Kelly, with whom he had argued over money
        [earlier] in the day, threatening him with a firearm.[ 1] Kelly,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Relevant to this appeal, Appellant contends that he was sixteen years old
at the time of the offense. (See Appellant’s Brief, at 14, 28, 30, 33).
(Footnote Continued Next Page)
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      struck in the back by two bullets as he sat on the steps of a
      house with a young woman, crawled a short distance down the
      block and collapsed; he died from internal injuries thirteen days
      later.

             In December of 2004, Appellant was convicted by a jury of
      first degree murder and possessing an instrument of crime for
      Kelly’s death, as well as aggravated assault, intimidation, and
      conspiracy related to an attack on one of the three eyewitnesses
      to the murder. The sentence of mandatory life imprisonment
      plus a consecutive ten to twenty year term for the remaining
      charges was affirmed on direct appeal, and Appellant’s petition
      for allowance of appeal to the Pennsylvania Supreme Court was
      denied [on August 16, 2007].

             In September of 2007, Appellant filed [a] timely PCRA
      petition pro se. Appointed counsel filed an amended petition
      which was denied without a hearing, and [Appellant appealed]. .
      ..

(Commonwealth v. Outlaw, 2376 EDA 2009 (unpublished memorandum)

at *1-2 (Pa. Super. filed Dec. 2, 2010)). On December 2, 2010, this Court

affirmed the PCRA court’s order.            (See id. at *1).   Our Supreme Court

denied Appellant’s petition for allowance of appeal on August 11, 2011.

(See Commonwealth v. Outlaw, 26 A.3d 1101 (Pa. 2011)).

      On May 18, 2011, Appellant, acting pro se, filed the instant PCRA

petition.   Retained counsel filed amended petitions on July 3, 2012 and

October 8, 2013, maintaining that Appellant’s sentence is unconstitutional

                       _______________________
(Footnote Continued)

Documents included in the certified record list Appellant’s date of birth as
November 9, 1983, thereby supporting this contention.           (See Pretrial
Services Investigation Report, 8/03/03, at 1; Philadelphia Police Department
Arrest Report, 9/04/03, at 1). The Commonwealth states that there has
been no judicial finding with respect to Appellant’s age at the time of the
offense. (See Commonwealth’s Brief, at 20).



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pursuant to Miller v. Alabama, 132 S.Ct. 2455 (2012),2 and raising a

newly-discovered facts claim based on the affidavit of Katima Jackson, in

which she averred she witnessed another man perpetrate the shooting.3 The

PCRA court held an evidentiary hearing on November 24, 2014, and it

entered its order denying the petition on May 12, 2015. The court did not

explain the basis for its decision in the order. (See Order, 5/12/15).

       On May 18, 2015, Appellant, acting pro se, filed a timely notice of

appeal, and then a timely court-ordered concise statement of errors

complained of on appeal.         See Pa.R.A.P. 1925(b).   On October 13, 2015,

after consideration of Appellant’s pro se petition requesting remand, this

Court remanded the matter to the PCRA court for a hearing pursuant to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).              On December 31,

2015, the PCRA court entered an opinion, in which it stated that Appellant’s

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2
  In Miller, the United States Supreme Court held that it is unconstitutional
for states to sentence juvenile homicide defendants to mandatory sentences
of life imprisonment without the possibility of parole. See Miller, supra at
2460. Subsequently, while this appeal was pending, the Court determined
in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), that the holding of
Miller is a substantive rule of constitutional law that must be applied
retroactively to cases on collateral review. See Montgomery, supra at
736.
3
  Despite his representation by counsel, Appellant filed myriad pro se
documents in the PCRA court. However, our Supreme Court has made clear
that a criminal defendant is not entitled to hybrid representation. See
Commonwealth v. Blakeney, 108 A.3d 739, 763 n.21 (Pa. 2014), cert.
denied, 135 S.Ct. 2817 (2015).




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petition is meritless, and that it “cannot render a meaningful opinion”

because it had not conducted the Grazier hearing yet.            (PCRA Court

Opinion, 12/31/15, at 3; see also id. at 2); Pa.R.A.P. 1925(a).          At the

March 21, 2016 Grazier hearing, Appellant withdrew his request to act pro

se, and he proceeds in this appeal represented by counsel. The PCRA court

did not file a supplemental opinion, and the Commonwealth avers that the

judge has retired. (See Commonwealth’s Brief, at 15 n.2).

      On appeal, Appellant raises the following issues for our review:

      1. Did the PCRA court err in denying [] Appellant’s request for a
      new trial based on the after discovered evidence of eye-witness,
      Katima Jackson?

      2. Did the PCRA court err in failing to hold an evidentiary hearing
      on the statements provided to Appellant by witnesses Chris
      Holder, Lamar Rodgers, and Wesley Harmon?

      3. Is [A]ppellant’s 2005 mandatory life imprisonment without the
      possibility of parole sentence for a murder he allegedly
      committed as a 16 year old constitutional in light of Miller[,
      supra] and Montgomery[, supra]?

      4. Is there any constitutional sentencing scheme that applies to
      juveniles convicted of first degree murder prior to June 24,
      2012?

      5. If there is no constitutional sentencing scheme applicable to
      juveniles convicted of first degree murder prior to June 24,
      2012, should [A]ppellant’s conviction be vacated and should he
      be resentenced for the lesser included offense of third degree
      murder?

(Appellant’s Brief, at 4-5).

      Our standard of review is as follows:




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           Our review of a PCRA court’s decision is limited to
     examining whether the PCRA court’s findings of fact are
     supported by the record, and whether its conclusions of law are
     free from legal error. We view the findings of the PCRA court
     and the evidence of record in a light most favorable to the
     prevailing party. With respect to the PCRA court’s decision to
     deny a request for an evidentiary hearing, or to hold a limited
     evidentiary hearing, such a decision is within the discretion of
     the PCRA court and will not be overturned absent an abuse of
     discretion. The PCRA court’s credibility determinations, when
     supported by the record, are binding on this Court; however, we
     apply a de novo standard of review to the PCRA court’s legal
     conclusions. . . .

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citations

omitted).

     With regard to the PCRA’s timeliness restrictions,

     a PCRA petition, including a second or subsequent petition, must
     be filed within one year of the date that judgment becomes final.
     [See 42 Pa.C.S.A.] § 9545(b)(1). A judgment becomes final for
     purposes of the PCRA 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. Id. § 9545(b)(3).

            It is well-settled that the PCRA’s time restrictions are
     jurisdictional in nature.     As such, this statutory time-bar
     implicates the court’s very power to adjudicate a controversy
     and prohibits a court from extending filing periods except as the
     statute permits. . . .

            The exceptions to the PCRA time-bar are found in Section
     9545(b)(1)(i)–(iii) (relating to governmental interference, newly
     discovered facts, and newly recognized constitutional rights),
     and it is the petitioner’s burden to allege and prove that one of
     the timeliness exceptions applies. Whether a petitioner has
     carried his burden is a threshold inquiry that must be resolved
     prior to considering the merits of any claim. . . .

Commonwealth       v.   Robinson,   139   A.3d   178,     185–86   (Pa.   2016)

(quotation marks and case citations omitted).

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       Here, Appellant acknowledges that his petition is facially untimely,4

and he claims the benefit of two exceptions to the time-bar.                (See

Appellant’s Brief, at 21).      Appellant first argues that the newly-discovered

facts exception at section 9545(b)(1)(ii) applies, based on the affidavit of

previously unknown witness Katima Jackson.              (See id. at 19, 21-22).

Appellant also argues the applicability of the exception set forth at section

9545(b)(1)(iii), by challenging his mandatory life without the possibility of

parole sentence, and invoking the newly recognized constitutional right

outlined in Miller as a basis for relief.        (See id. at 27-33). However, we

cannot engage in meaningful appellate review of this matter, based on the

record before us.

             [Our Supreme] Court repeatedly has explained that, in
       order to enable appellate review, PCRA courts are required to
       provide a “legally robust discussion, complete with clear findings
       of fact where required.” Commonwealth v. Dennis, 597 Pa.
       159, 950 A.2d 945, 957 (2008) (“A generic statement that the
       record proves [PCRA] claims collectively non-meritorious tells us
       too little to support review.”); see also Commonwealth v.
       Weiss, 604 Pa. 573, 986 A.2d 808, 816 n.4 (2009) (“a fact-
       finding court should support its determinations with sufficient
       explanations of the facts and law, including specific citations to
       the record for all evidence on which it relies, and to the legal
       authority on which it relies, to facilitate appellate review”);
       Commonwealth v. Daniels, 600 Pa. 1, 963 A.2d 409, 435
____________________________________________


4
  Appellant’s judgment of sentence became final on November 14, 2007,
upon expiration of the time to file a petition for writ of certiorari with the
United States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup. Ct.
R. 13. Therefore, Appellant had until November 14, 2008, to file a timely
PCRA petition, and the instant petition, filed on May 18, 2011, is patently
untimely. See 42 Pa.C.S.A. § 9545(b)(1).



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      (2009) (holding that, where PCRA court failed to explain the
      basis for its conclusion that claims were meritless, we could not
      conduct meaningful appellate review).

             Where a PCRA court fails to support its holding with
      sufficient explanations of the facts and law, or fails to provide an
      adequate opinion addressing all of the claims raised in a PCRA
      petition, including factual and credibility disputes, a remand is
      appropriate. See Daniels, supra (remanding matter to PCRA
      court for opinion addressing all of PCRA petitioner’s claims). In
      addition, such a remand may necessitate further proceedings
      below. See e.g. Commonwealth v. Roy Williams, 557 Pa.
      207, 732 A.2d 1167, 1181 (1999) (because PCRA court failed to
      make an independent credibility determination regarding
      proposed testimony, and because the PCRA court as factfinder is
      in a superior position to make such determinations, PCRA court
      was directed, on remand, to conduct a hearing, and render its
      own, independent findings of fact and conclusions of law
      regarding the credibility of the proposed testimony . . . ).

Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015) (some

citations omitted).

      Here, the PCRA court expressly recognized that its opinion was not

meaningful for purposes of facilitating appellate review, and it did not file a

supplemental opinion. (See PCRA Ct. Op., at 3). Although Appellant’s PCRA

petition is facially untimely, the court did not address its timeliness, or

whether Appellant met the initial jurisdictional threshold by establishing the

applicability of a time-bar exception. The PCRA court also did not discuss its

findings of fact, credibility determinations, or legal conclusions regarding

Appellant’s PCRA claims, and the Commonwealth acknowledges that the

principal issue before the court was Katima Jackson’s credibility.           (See

Commonwealth’s Brief, at 15 n.2). Therefore, we are constrained to remand

this matter to the PCRA court. We recognize that, because the PCRA judge

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J-S27042-17



is no longer on the bench, the matter must be assigned to another judge,

who did not preside over Appellant’s PCRA hearing. If the assigned judge is

unable to resolve Appellant’s claims on the existing record, the judge is

authorized to conduct an additional hearing, and admit evidence as

necessary. See Montalvo, supra at 411-12 (vacating PCRA court’s order

and remanding matter for further proceedings where court’s opinion was

deficient and did not provide findings of fact, credibility determinations, or

legal conclusions on appellant’s PCRA claims, and PCRA judge who initially

presided over matter had retired).

         We observe that it appears from the record that Appellant is entitled to

relief    on   his   Miller/Montgomery         sentencing   claim,   and   that   the

Commonwealth does not oppose resentencing, if the PCRA court makes a

judicial finding that Appellant was under the age of eighteen when he

committed the offense.            (See Commonwealth’s Brief, at 9-10, 20).5

____________________________________________


5
  Appellant also seeks consideration of the newly-discovered facts claims he
raised in pro se filings in the PCRA court, while he was represented by
counsel. (See Appellant’s Brief, at 25-27; pro se Amended PCRA Petition,
11/07/14, at 1-3; pro se Supplemental Amended PCRA Petition, 1/23/15, at
1-4; pro se Supplemental Amended PCRA Petition, 3/09/15, at 3-4) (raising
claims based on affidavits of witnesses Chris Holder, Lamar Rogers, and
Wesley Harmon). However, we reiterate that Appellant is not entitled to
hybrid representation. “This is especially true on collateral review, and
courts considering PCRA petitions [will not be required] to struggle through
the pro se filings of defendants when qualified counsel represent those
defendants.” Blakeney, supra at 763 n.21 (citation omitted). Therefore,
Appellant is not entitled to consideration of these claims on remand.




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Accordingly, the PCRA court’s order is vacated, and the case is remanded for

further proceedings, consistent with this memorandum.

     Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2017




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