J-S11035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :               IN THE SUPERIOR COURT OF
                             :                     PENNSYLVANIA
                             :
          v.                 :
                             :
                             :
 MARVIN WOODS,               :
                             :
               Appellant     :                    No. 2175 EDA 2017

                    Appeal from the PCRA Order June 14, 2017
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division at No(s): CP-51-CR-0946111-1991

BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED APRIL 20, 2018

      Marvin Woods (“Woods”) appeals, pro se, from the Order dismissing his

fourth Supplemental Petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court summarized the relevant history underlying this appeal

as follows:

      [Woods] was arrested and subsequently charged in connection
      with the fatal shooting of John Preston [(“Preston”)] on September
      3, 1991, at the Barrett Junior High School playground in
      Philadelphia. After an argument ensued during a basketball game,
      [Woods] retrieved a handgun and shot Preston three times in the
      back and buttocks from short range, killing him. [Woods was
      under the age of 18 at the time of the murder.] On April 7, 1992,
      following a non-jury trial …, [Woods] was convicted of first-degree
      murder and possession of an instrument of crime. The trial court
      sentenced [Woods, under a mandatory minimum sentencing
      statute,] to life imprisonment for the murder conviction and a
      lesser concurrent term of incarceration for the possessory offense.
      Following a direct appeal, the Superior Court affirmed the
      judgment of sentence on July 20, 1993, and the Pennsylvania
      Supreme Court denied allocatur on April 7, 1994.               [See
      Commonwealth v. Woods, 633 A.2d 1226 (Pa. Super. 1993)
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       (unpublished memorandum), appeal denied, 644 A.2d 735 (Pa.
       1994).]

              On June 8, 2004, nearly ten years after his judgment of
       sentence became final, [Woods] filed a pro se PCRA [P]etition, his
       first. [PCRA counsel] was appointed[,] who subsequently filed an
       [A]mended [P]etition on August 24, 2004. The PCRA court
       dismissed the [P]etition as untimely on June 27, 2005. The
       Superior Court affirmed the dismissal on April 18, 2006. [See
       Commonwealth v. Woods, 902 A.2d 984 (Pa. Super. 2006)
       (unpublished memorandum).]

             [Woods] was unsuccessful in obtaining collateral relief
       through subsequent [PCRA P]etitions filed in 2010 and 2011.
       [Woods withdrew the second PCRA Petition that he filed in 2010.
       Concerning the Petition he filed in August 2011 (hereinafter, the
       “Third PCRA Petition”), Woods asserted that he had recently
       discovered information that satisfied the “newly-discovered facts”
       exception to the PCRA’s one-year filing deadline. This Court
       affirmed the PCRA court’s dismissal of the Third PCRA Petition as
       untimely. See Commonwealth v. Woods, 75 A.3d 555 (Pa.
       Super. 2013) (unpublished memorandum).]

              On December 17, 2013, [Woods] filed his fourth PCRA
       [Petition,] seeking relief on the basis of Miller v. Alabama, 132
       S. Ct. 2455 (2012) and Montgomery v. Louisiana, 136 S. Ct.
       718 (2016).[1, 2] The Commonwealth endorsed [Woods’s] claim
       for relief. On January 17, 2017, [Woods] filed a supplemental
       PCRA [P]etition [(hereinafter, the “Supplemental PCRA Petition”)]
       iterating a previously[-]raised newly-discovered [facts] claim
       [(i.e., the claim that Woods raised in his Third PCRA Petition)].
       The PCRA court determined that [Woods] is entitled to relief
____________________________________________


1 In Miller, the United States Supreme Court held that sentencing schemes
that mandate life in prison without parole for defendants who committed their
crimes while under the age of eighteen violate the Eighth Amendment’s
prohibition on “cruel and unusual punishments.” Miller, 132 S. Ct. at 2460.
The Montgomery Court held that Miller applies retroactively. Montgomery,
136 S. Ct. at 736. Accordingly, in the instant case, the Miller holding would
apply to Woods.

2Woods invoked Montgomery in a March 2016 Amendment to his fourth
PCRA Petition.


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        pursuant to Miller/Montgomery insofar as he was under the age
        of eighteen at the time he murdered Preston. Pursuant to
        Pennsylvania Rule of Criminal Procedure 907, [Woods] was served
        [N]otice of the PCRA court’s intention to dismiss his non-Miller
        claim[, presented in the Supplemental PCRA Petition,] on March
        20, 2017.[FN, 3] [Woods] submitted responses to the Rule 907
        [N]otice on April 7 and May 5, 2017. On June 14, 2017, the PCRA
        court issued an [O]rder dismissing [Woods’s Supplemental PCRA]
        [P]etition as untimely.[4] On June 22, 2017, [Woods timely filed
        a] [N]otice of appeal … to the Superior Court.

           [FN]Upon the resolution of [Woods’s] newly-discovered
           evidence claim, [i.e., via the Superior Court’s decision in
           the instant appeal,] the [PCRA] court will address his
           remaining Miller sentencing claim.

PCRA Court Opinion, 8/15/17, at 1-3 (several footnotes in original omitted,

one footnote retained, footnotes added).

        In this timely appeal, Woods presents the following questions for our

review:

        A. Did the Court of Common Pleas appropriately dismiss[]
           [Woods’s] after discovered fact as previously known facts?

        B. Should the [PCRA c]ourt have considered [Woods’s] limited
           access to public information?

Brief for Appellant at 4 (unnumbered).           We will address Woods’s issues

simultaneously.

        When reviewing an order dismissing a PCRA petition, we examine

whether the determination of the PCRA court is supported by the record and


____________________________________________


3The PCRA court expressly stated in its Rule 907 Notice that Woods’s claim
under Miller/Montgomery was preserved.

4   The Order did not dismiss Woods’s December 17, 2013 fourth PCRA Petition.

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free of legal error. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super.

2014). The merits of a PCRA petition cannot be addressed unless the PCRA

court has jurisdiction. Commonwealth v. Albrecht, 994 A.2d 1091, 1093

(Pa. 2010). Jurisdiction does not exist if the PCRA petition is untimely filed.

Id.

      Any PCRA petition must be filed within one year of the date the judgment

of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). In the instant case,

Woods concedes that his Supplemental PCRA Petition is facially untimely, as

he filed it over two decades after July 1994, when his judgment of sentence

became final.

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth under

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) (hereinafter “timeliness exception(s)”). Any

PCRA petition invoking one of the timeliness exceptions “shall be filed within

60 days of the date the claim could have been presented.” Id. § 9545(b)(2);

see also Albrecht, 994 A.2d at 1094.

      In the instant case, Woods invokes the “newly-discovered facts”

timeliness exception, set forth at section 9545(b)(1)(ii).     Concerning this

exception, this Court has explained that it

      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 diligence. Due diligence
      demands that the petitioner take reasonable steps to protect his
      own interests. A petitioner must explain why he could not have
      learned the new fact(s) earlier with the exercise of due diligence.
      This rule is strictly enforced. Additionally, the focus of this

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      exception is on the newly discovered facts, not on a newly
      discovered or newly willing source for previously known facts.

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

and quotation marks omitted).

      Moreover, it is well settled that a PCRA petitioner cannot obtain PCRA

review of previously litigated claims by presenting those claims again in a

PCRA petition and setting forth new theories of relief in support thereof.

Commonwealth v. Hutchins, 760 A.2d 50, 55 (Pa. Super. 2000); see also

42 Pa.C.S.A. § 9543(a)(3) (providing that previously litigated claims are not

cognizable under the PCRA).

      Woods argues that the PCRA court erred in determining that he failed to

meet the newly-discovered facts exception to the PCRA’s time bar. See Brief

for Appellant at 9-10 (unnumbered). Namely, Woods relies upon information

that he had recently discovered, from other criminal defendants who had been

interrogated by the same officer who had interrogated Woods, Detective

Thomas Augustine (“Detective Augustine”), i.e., that Detective Augustine had

subjected them and Woods to unlawful interrogation techniques to coerce a

confession.   Id.    Additionally, Woods contends that “the PCRA court

misapprehended the requirements for establishing the newly-discovered facts

exception[.]” Id. at 10 (unnumbered). Finally, Woods complains that the

PCRA court failed to take into account his limited access to legal materials and

information of public record while in prison. Id. at 10-11.

      In its Opinion, the PCRA court addressed Woods’s claim as follows:


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     In his [Supplemental PCRA P]etition, [Woods] repackaged his
     previously-raised grievance that Detective [] Augustine subjected
     him to unlawful interrogation methods. In [an] attempt to satisfy
     the [newly-discovered] fact exception, [at section] 9545(b)(1)(ii),
     [Woods] appended[, to his Response to the PCRA court’s Rule 907
     Notice (the “Response”),] an affidavit from Bobby Harris
     [(“Harris”)], an inmate who claimed that Detective Augustine
     [had] coerced his confession prior to his murder trial in 1989.
     Harris’[s] affidavit, dated May 2, 2017, iterated the alleged abuse
     disclosed during his trial. [Woods] also attached [to his Response]
     the United States District Court’s decision in Hill v. Wetzel, 2016
     WL 6648583 (E.D. Pa. Nov. 10, 2016), which pointed out that
     numerous       defendants,    including   Harris,    have   claimed
     mistreatment at the hands of Detective Augustine.            Finally,
     [Woods] attached a civil complaint filed by Anthony Wright, one
     of the defendants referenced in the Hill decision[,] who alleged
     misconduct by Detective Augustine.

           Addressing [Woods’s] prior attempt to present Detective
     Augustine’s alleged misconduct as newly-discovered [facts], the
     Superior Court stated, [i.e., concerning the PCRA court’s Order
     dismissing Woods’s Third PCRA Petition, as follows:]

         Relying on the newly[-]discovered facts exception to the
         time bar set forth in Section 9545(b)(1)(ii) of the PCRA,
         Woods asserts that it was not until 2008, when a fellow
         inmate showed him newspaper articles from 2001, that
         he learned of allegations of misconduct against Detective
         Augustine. He does not explain why he could not have
         discovered this evidence in the nearly fourteen years that
         passed between the highly publicized acquittal of [two
         defendants in a separate Philadelphia rape and murder
         case investigated by Detective Augustine,] [Herbert]
         Haak and [Richard] Wise[,] on March 14, 1997[,] and the
         filing of [Woods’s Third PCRA P]etition …. Having failed
         to establish that he could not have discovered the
         evidence through due diligence, Woods’[s] [P]etition was
         untimely. See Commonwealth v. Breakiron, 781 A.2d
         94, 98 (Pa. 2001) (claim untimely because petitioner
         failed to explain why he could not have obtained
         documents in question earlier with exercise of due
         diligence).

         Furthermore, the sole value of the evidence is to support
         a claim that Detective Augustine engaged in improper

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             interrogation tactics. The alleged newly[-]discovered
             facts simply support a previously known “fact,” and
             therefore do not satisfy the exception to the time bar.
             Commonwealth v. Marshall, 947 A.2d 714, 721 (Pa.
             2009) (“the after-discovered facts exception focuses on
             fact, ‘and not on a newly discovered or newly willing
             source for previously known facts,’ and accordingly
             [petitioner] fails to demonstrate that his claim falls under
             this exception.”) (citation omitted).

       Commonwealth v. Woods, [75 A.3d 555] (Pa. Super. [] 2013)
       [(unpublished memorandum at 5-7)].

       Undeterred by his prior lack of success, [Woods] is again
       presenting allegations of Detective Augustine’s misconduct in
       unrelated cases in attempt to trigger the PCRA court’s jurisdiction.
       The documents advanced by [Woods], including Harris’[s]
       affidavit, are merely new sources for a previously known fact and
       therefore failed to satisfy the timeliness provision.       See []
       Marshall, 947 A.2d [at] 720 [].

PCRA Court Opinion, 8/15/17, at 4-5 (footnote and citations to record

omitted). We agree with the PCRA court’s cogent analysis and determination,

which is supported by the record and the law. Accordingly, we affirm on this

basis in concluding that the PCRA court properly found that Woods’s facially

untimely Supplemental PCRA Petition failed to meet the newly-discovered

facts exception or any other timeliness exception.         See id.; see also 42

Pa.C.S.A. § 9543(a)(3) (providing that previously litigated claims are not

cognizable under the PCRA).5 Neither of Woods’s issues on appeal entitle him

to relief.



____________________________________________


5 Moreover, there is no merit to Woods’s bald claim that the PCRA court
misapprehended the requirements for establishing the newly-discovered facts
exception.
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      Accordingly, because Woods failed to properly plead or prove any

exception to the PCRA’s one-year time-bar, the PCRA court properly dismissed

his Supplemental PCRA Petition without a hearing, as the court lacked

jurisdiction to address it. See Albrecht, supra. We likewise lack jurisdiction

to address the merits of Woods’s claims, and thus affirm the PCRA court’s

Order dismissing the Supplemental PCRA Petition. However, for the reasons

discussed above, we must remand the case for the PCRA court to address the

matter   of   the   illegality   of   Woods’s   mandatory   life   sentence   under

Miller/Montgomery.

      Order affirmed; case remanded for further proceedings consistent with

this Memorandum; Woods’s Application for Discontinuance denied; Superior

Court jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/18




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