J-S51022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CARLTON BENNETT

                            Appellant                 No. 253 EDA 2014


                  Appeal from the PCRA Order January 14, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0933202-1991


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

MEMORANDUM BY LAZARUS, J.:                       FILED FEBRUARY 09, 2016

        Carlton Bennett appeals from the trial court’s order dismissing his

second petition, after several days of evidentiary hearings, filed pursuant to

the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.1         After careful

review, we affirm.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  We review an order denying collateral relief under the PCRA to determine
whether evidence of record supports the findings of the PCRA court and
whether its legal conclusions are free of error.          Commonwealth v.
Mitchell, 105 A.3d 1257, 1265 (Pa. 2014). “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.” Id. (citation omitted). Additionally, courts “will not entertain a
second or subsequent request for PCRA relief unless the petitioner makes a
strong prima facie showing” that the proceedings resulting in his conviction
were so unfair that a miscarriage of justice occurred “or that that he was
innocent of the crimes for which he was charged.” Commonwealth v.
(Footnote Continued Next Page)
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        Bennett was involved in the fatal shooting of a matriculated University

of Pennsylvania medical student in August 1991.         Following the murder,

Bennett confessed to the police that he and his co-conspirators had agreed

to commit a robbery2 and that he was a couple of steps away from Dwayne

Bennett, his cousin, when Dwayne fatally shot the victim.3

        In January 1993, Bennett was convicted of second-degree murder and

related offenses. Our Court set forth the relevant facts underlying the case

as follows:

        Six men, including appellant, were wandering around the streets
        of Philadelphia in the early morning hours of August 9, 1991.
        Shortly after 5:00 a.m., the group came upon the victim,
        Roberts Janke, a recent college graduate about to matriculate at
        the University of Pennsylvania School of Medicine, in a telephone
        booth at the corner of 17th and South Streets. Three of the men
        walked ahead, while the other three, appellant[,] Dwayne
        Bennett, and Giovanni Reed, lagged behind. Appellant and Reed
        each grabbed an arm and Dwayne held Janke by the neck. They
        strong-armed the victim down the street and pushed him up
        against a metal gate. Dwayne held a gun to Janke’s temple,
        demanded his money, and began looking through his pockets.
        Dissatisfied with the amount of money Janke produced, Dwayne
        fired the gun. Janke slumped to the ground and the three men
        fled.

        Dwayne Bennett pled guilty to first-degree murder, and
        appellant and Re[i]d were tried before a jury in January, 1993.
                       _______________________
(Footnote Continued)

Medina, 92 A.3d 1210, 1214-15 (Pa. Super. 2014) (en banc) (citations
omitted).
2
    The perpetrators recovered $5 from the victim.
3
  See Statement of Carlton Bennett (Investigation Interview Record),
8/17/91, at 1-3.



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Commonwealth v. Bennett, 02276 Philadelphia 1993 (memorandum

decision) (Pa. Super. filed 2/17/94), at 1-2.

       On June 23, 1993, Bennett was sentenced to life in prison for murder.4

Post-verdict motions were denied and Bennett’s judgment of sentence was

affirmed by this Court in February 1994. Commonwealth v. Bennett, 643

A.2d 701 (Pa. Super. filed Feb. 17, 1994). Bennett did not file a petition for

allowance of appeal.       However, on March 17, 1995, Bennett filed his first

PCRA petition alleging violations of his right to testify and several claims of

ineffectiveness of counsel. The court denied his petition on April 10, 1997,

after an evidentiary hearing.

       Bennett appealed that decision and our Court dismissed his appeal for

failure to file a brief.     In July 1997, Bennett filed a serial PCRA petition,

claiming that counsel was ineffective for failing to file a brief following the

notice of appeal from the denial of Bennett’s first PCRA petition and that he

was entitled to file an appeal nunc pro tunc.        Counsel was appointed to

represent Bennett and an amended petition was filed on his behalf.

Ultimately, the trial court denied the petition in June 1998.       In February

2000, Bennett filed a motion for reappointment of counsel which the trial

court treated as a third PCRA petition; the petition was ultimately denied.


____________________________________________


4
  Bennett was also sentenced to concurrent terms of 10-20 years in prison
for robbery, 5-10 years’ imprisonment for conspiracy and 1-2 years in prison
for possessing an instrument of crime.



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Bennett appealed that decision and, on May 29, 2001, our Court reversed

and remanded the petition for appointment of new counsel. On remand, the

trial court granted Bennett’s petition for the limited purpose of a nunc pro

tunc appeal.     On May 15, 2002, our Court remanded the case to the trial

court, permitting current appellate counsel the opportunity to develop

Bennett’s claims with the benefit of necessary files in the possession of

Bennett’s prior counsel.       Bennett appealed and, on August 28, 2003, our

Court affirmed the dismissal of Bennett’s first petition. Commonwealth v.

Bennett, 1290 EDA 2000 (Pa. Super. filed Aug. 28, 2003).

        On April 25, 2006,5 Bennett filed another petition6 raising the issue of

after-discovered evidence. Specifically, Bennett claimed that on March 13,

2006, he became aware of a new eyewitness to the murder, the victim’s

roommate, Wayne Richman.                Bennett alleged that Richman made a

statement to co-defendant’s counsel in Tennessee, asserting that there was

only one individual involved in the victim’s shooting and that no one else

was within 15-20 feet of the victim when he was shot by Dwayne Bennett.

On January 24, 2007, the court dismissed the petition, without a hearing, as

time-barred under the PCRA.           Bennett appealed this decision, asking our

Court to remand the case to present an additional claim of new evidence in
____________________________________________


5
  Bennett’s petition was amended on May 21, 2008, and supplemented on
July 16, 2008.
6
    Bennett titled the petition as a brief in support of post-conviction relief.



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the form of a statement made by the shooter, Dwayne Bennett, recanting

his prior statements that his cousin, the Appellant, was an active participant

in the crime.7 Our Court entered an order granting Bennett’s application for

relief, ordering Bennett to file an amendment to his PCRA petition including

information described in his application, remanding the case to the trial court

for further proceedings in connection with Bennett’s amended petition, and

relinquishing jurisdiction.

       At an evidentiary hearing on his after-discovered evidence claim, the

Commonwealth permitted Richman to testify; Richman acknowledged that

he was drunk and using cocaine when he allegedly saw the events in

question from a distance of about three hundred feet.           After hearing

Richman’s testimony, the trial judge8 found his inconsistent accounts9

incredible and denied PCRA relief. This appeal follows.

       On appeal, Bennett presents the following issues for our consideration:

       (1)    Did the court below err in assessing witness Wayne
              Richman’s credibility when it did not weigh[] factors
____________________________________________


7
  On appeal Bennett raises only the newly discovered facts with regard to
Wayne Richman. He does not raise any claim with regard to the alleged
recantation evidence of Dwayne Bennett.
8
  After the original PCRA judge’s retirement from the bench, the case was
reassigned to the Honorable Rose Marie DeFino-Nastasi.
9
  Richman gave four post-trial statements in the underlying murder case
which the PCRA court found to be “contradictory, implausible and unduly
influenced[.]” PCRA Court Opinion, 11/22/13, at 6. Moreover, the court
found his accounts of the murder “rife with inconsistencies.” Id. at 10.



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              bolstering his credibility, exaggerated evidence of defense
              coercion, and refused to hear testimony of law
              enforcement coercion?

       (2)    Did the court below apply incorrect legal standards in
              assessing the materiality of after-discovered evidence in
              (a) requiring that the evidence – credible or not –
              “exonerate” Appellant, (b) ruling that Richman’s testimony
              was “solely impeachment” because it contradicted trial
              witnesses’ testimony, (c) relying almost exclusively on
              credibility in assessing the Richman evidence’s materiality,
              and (d) refusing to consider evidence favorable to
              Appellant which would be heard at a new trial though it
              was not presented at the first trial?

       Before reaching the merits of Bennett’s claims on appeal, we first must

address the jurisdictional requirements of the PCRA.                A PCRA petition,

including a second or subsequent one like Bennett’s, shall be filed within one

year of the date the underlying judgment becomes final. See 42 Pa.C.S. §

9545(b)(1).      Instantly, Bennett’s judgment of sentence became final on

March 17, 1994, the date that the time within which to file a petition for

allowance of appeal with our Supreme Court expired. See Pa.R.A.P. 1113.

His current PCRA petition was filed on April 25, 2006 – more than 12 years

after his judgment of sentence became final. Accordingly, Bennett’s PCRA

petition is patently untimely.

       In order to overcome the PCRA time bar, Bennett has invoked the

newly-discovered       evidence      exception   set   forth   in    42   Pa.C.S.   §

9545(b)(1)(ii).10 Under section 9545(b)(1)(ii), a petitioner must plead and
____________________________________________


10
   There are two other statutory exceptions to the timeliness provisions of
the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i) (governmental interference
(Footnote Continued Next Page)


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prove that “the facts upon which the claim is predicated were unknown to

[him] and could not have been ascertained by the exercise of due

diligence[.]”    42 Pa.C.S. § 9545(b)(1)(ii).11 When a patently untimely

petition is not eligible for one of the three exceptions outlined in section

9545(b)(1), a PCRA court has no jurisdiction to address the substantive

merits of the petitioner’s claims. Commonwealth v. Gamboa-Taylor, 753

A.2d 780 (Pa. 2000).

      With regard to Bennett’s claim that the trial court applied an incorrect

legal standard in assessing his claim, we note that our Court recently

clarified the distinction between a newly-discovered facts exception under

the PCRA and an after-discovered evidence claim:

      The timeliness exception set forth at Section 9545(b)(1)(ii) has
      often mistakenly been referred to as the “after-discovered
      evidence” exception. [Commonwealth v.] Bennett, [930 A.2d
      1264, 1270 (Pa. 2007)].       “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 he
      exercised due diligence in discovering those facts. See 42
      Pa.C.S.A. § 9545(b)(1)(ii); Bennett, supra. Once jurisdiction is
                       _______________________
(Footnote Continued)

exception); id. at (b)(iii) (newly-recognized constitutional right exception).
Neither of these exceptions is relevant to the current appeal as Bennett has
not pled them.
11
   Additionally, in order to proffer an exception to the PCRA time-bar, a
petitioner must prove that he presented the newly discovered evidence
within 60 days of the date the claim could have been presented. See 42
Pa.C.S. § 9545(b)(2).



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       established, a PCRA petitioner can present a substantive after-
       discovered evidence claim. 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 1271.

Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015)

(italics in original).

       Instantly, Bennett has pleaded that he was unaware of Richman’s

testimony and that it was not until he read the 2006 transcribed statement

Richman made to La Tasha Williams of an audio recorded conversation that

he discovered the new facts. This claim satisfies the first “unknown facts”

prong of section 9545(b)(1)(ii).

       With regard to the “due diligence” prong of section 9545(b)(1)(ii),

Bennett asserts that “Richman was ruled out by police as having relevant

information about the killing on the day that it occurred, when [Richman]

gave a statement to the police indicating that he saw nothing of

importance,”12 and that he “simply had no reason to believe that this witness

had any relevant information to provide and therefore he would not have

discovered     his   information     through     the   exercise   of   due   diligence.”

Petitioner’s Supplement to Amended PCRA Petition, 12/230/12, at 8-9.
____________________________________________


12
   Interestingly, in his February 6, 2006 email to Williams about the crime,
Richman indicated that he had a little bit of information about co-defendant
Reid’s case and that “the police never came by to question [him.]” Email to
Giovanni@giovannireid.com, 2/6/06 (emphasis added). Moreover, in the
video-taped deposition Richman gave to Williams in March of 2006, he
stated that he did not remember giving the police a signed statement after
the crime occurred. Videotaped Deposition of Wayne Edward Richman,
3/13/06, at 13 (emphasis added).



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However, the substance of Richman’s signed statement to the police does

not bear out these assertions.

       Six hours after the shooting, Richman made a statement to the police

in which he told them that he found out, after the fact, that he had been at

the same party with the victim on the night of the murder, that he did not

see the victim while they were at the party,13 and that he came home (4

AM) before the victim that evening.            Wayne Richman Statement to Police,

8/10/91, at 1. Richman informed the police that he worked with the victim

at the TGI Friday’s restaurant located at 22nd Street and the Benjamin

Franklin Parkway, that he had been the victim’s roommate for over one

month, and that he and the victim had known each other for two months.

Id. The detectives asked Richman if he knew how the victim arrived home

on the night of the shooting, to which Richman relied, “no.” Id. at 2. They

also asked Richman if the victim usually carries money, a wallet or any

jewelry with him when he is out; Richman replied, “money and a wallet with

credit cards.” Id.

       Notably, nowhere in the statement do the detectives ask Richman if he

witnessed the shooting or had any information about the shooting.          This is

supported by the trial court’s acknowledgement in its Rule 1925(a) opinion
____________________________________________


13
   In contrast to this statement, at the November 30, 2010 PCRA hearing,
Richman testified that while he did not go to the party with the victim that
evening, he did see the victim at the party. N.T. PCRA Hearing, 11/30/10,
at 58.



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that “Mr. Richman gave a statement to police during the initial investigation

of this incident, but was questioned merely as to his status as the victim’s

roommate.” Trial Court Opinion, 11/22/13, at 4 (emphasis added).

      In Commonwealth v. Burton, 121 A.3d 1063 (Pa. Super. 2015) (en

banc), our Court recently had the opportunity to clarify the due diligence

prong for untimely PCRA petitions invoking section 9545(b)(1)(ii).         In

Burton, the defendant had been convicted of first-degree murder in the

strangulation death of the victim in the Allegheny County jail. Burton’s co-

defendant was convicted of conspiracy, but acquitted of murder. Almost ten

years after he was sentenced, Burton purportedly received a letter from the

Pennsylvania Innocence Project which enclosed copies of a motion to

expunge filed by his co-defendant, wherein the co-defendant alleged that he

killed the victim in self-defense, had been advised not to use this defense at

trial, and as a result “an innocent man went to jail for a crime that [the co-

defendant] committed.” Id. at 1066.

      On appeal from the dismissal of his second PCRA petition, Burton

acknowledged that his PCRA petition was untimely, however, he claimed that

he had established that his after-discovered evidence claim fell within the

PCRA’s timeliness exception set forth at section 9545(b)(1)(ii).   Our Court

phrased the inquiry on appeal as what “is the appropriate level of diligence

required of an untimely PCRA petitioner” under section 9545(b)(1)(ii). Id.

at 1070. Citing to case law that analyzed the concept of due diligence, our

Court noted that “[d]ue diligence demands that the petitioner take

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reasonable steps to protect his own interests[.]”        Id. (citations omitted).

Ultimately, the Burton Court held “due diligence requires neither perfect

vigilance nor punctilious care, but rather it requires reasonable efforts by a

petitioner, based on the particular circumstances, to uncover facts that may

support a claim for collateral relief.” Id. at 1071.14

       A due diligence inquiry is, undoubtedly, fact-sensitive and dependent

upon the circumstances presented. Id. at 1070. Instantly, we do not find

that Bennett has met the due diligence prong of section 9545(b)(1)(ii) where

he failed to investigate Richman as a potential witness after the murder.

Richman was the victim’s roommate and co-worker at the time of the

shooting, had been at the same party with the victim on the evening of the

shooting, and was home when the shooting occurred down the block from

their shared apartment.15         Commonwealth v. Carr, 768 A.2d 1164 (Pa.

Super. 2001) (due diligence requires that petitioner take reasonable steps to

protect own interests). Bennett knew where Richman lived and knew that

____________________________________________


14
  Although not relevant to our decision today, we note that in Burton, our
Court held that for purposes of a due diligence analysis, the presumption of
access to information available in the public domain does not apply where an
untimely PCRA petitioner is pro se.
15
  While Richman left the Philadelphia area in December 1991, he continued
to reside in the same apartment he had shared with the victim for four
months following the shooting. Richman also returned to and resided in
Bucks County, a suburb of Philadelphia, for an additional three months from
June 1992-September 1992.




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the police had met with Richman immediately following the murder. Where

the police investigation failed to reveal if Richman knew anything about the

details of the murder or, whether he, himself, could have been involved in

the crime, defense counsel’s reasonable investigation of the witness could

have uncovered the new facts earlier.

     Having failed to explain why he could not have learned the “new” facts

earlier with the exercise of due diligence, Bennett does not plead and prove

the timeliness exception under section 9545(b)(1)(ii). Cf. Commonwealth

v. Medina, 92 A.2d 1210 (Pa. Super. 2014) (defendant exercised due

diligence under section 9545(b)(1)(ii) where he had no way of knowing that

detective had allegedly coerced testimony of key murder witness which

prompted witness to lie at trial and where Commonwealth’s prosecutors

claimed   that   even   they   did   not      know   of   detective’s   conduct);

Commonwealth v. Davis, 86 A.3d 883, 891 (Pa. Super 2014) (where first-

degree murder defendant filed PCRA petition alleging witnesses testified

against him pursuant to undisclosed agreement with Commonwealth, our

Court held petitioner exercised due diligence where it was unreasonable to

expect pro se petitioner to locate transcript from unrelated case where

witness’s perjury revealed).

     Because Bennett’s petition is patently untimely and does not meet the

newly-discovered facts exception pled in his petition, the PCRA court did not

have jurisdiction to address the substantive merits of Bennett’s after-




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discovered evidence claim. Gamboa-Taylor, supra. Accordingly, the court

properly dismissed the petition.16

       Order affirmed.
____________________________________________


16
   Even if we were to find no jurisdictional hurdle to deciding Bennett’s
untimely petition, he would fail on the substantive merits of his after-
discovered evidence claim. In determining whether a petitioner is entitled to
PCRA relief upon a claim of after-discovered evidence, it is the PCRA
petitioner's burden to “[d]emonstrate [by a preponderance of the evidence]
that the evidence: (1) could not have been obtained prior to the conclusion
of the trial by the exercise of reasonable diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely to impeach the
credibility of a witness; and (4) would likely result in a different verdict if a
new trial were granted.” Commonwealth v. Pagan, 950 A.2d 270, 292
(Pa. 2008). In considering the prejudice prong of the after-discovered
evidence test, courts are to look to "the integrity of the alleged after-
discovered evidence, the motive of those offering the evidence, and the
overall    strength    of   the   evidence    supporting     the    conviction."
Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super. 2010).

       Judge DeFino-Nastasi noted that Richman did not testify that he ever
observed Bennett’s actions prior to the shooting. Rather, Richman admitted
to consuming 15 beers and several shots of whiskey on the night of the
murder. In fact, when Richman returned home on the evening of the
murder, he passed out from his alcohol consumption, and was unable to
recall how he even got home that evening. In addition, he was an admitted
cocaine addict who suffered from occasional blackouts. At the time of the
murder, Richman had just awoken from a drunken stupor. The parties
stipulated that Richman was standing approximately 295-297 feet from the
site of the homicide when he heard the victim make a whimpering sound and
heard an individual, standing approximately 10-20 feet from the victim, yell,
“no” or “don’t.” Richman then proceeded to go back to his apartment and
drink more alcohol.     Richman never told anyone about his first-hand
observations of the murder until 2006 – 15 years after the murder – after he
read information on a website about the murder. Based on these facts, we
are bound by the trial court’s credibility assessment of Richman’s testimony
as it is supported by the record. See Commonwealth v. Williams, 732
A.2d 1167, 1181 (Pa. 1999); see also Commonwealth v. Abu-Jamal, 720
A.2d 79 (Pa 1988).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2016




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