J-S51023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GIOVANNI REID

                            Appellant                No. 1980 EDA 2014


                   Appeal from the PCRA Order June 16, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0933203-1991


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

MEMORANDUM BY LAZARUS, J.:                            FILED APRIL 01, 2016

        Giovanni Reid appeals pro se from the trial court’s order denying his

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

Pa.C.S.A. §§ 9541-9546.1 After careful review, we reverse and remand for

resentencing.
____________________________________________


*
    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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      Reid is currently serving a life sentence for second-degree murder and

related offenses. He was 16-years-old at the time he committed the instant

offense.   Our Court set forth the relevant facts underlying the case as

follows:

      On August 9, 1991[,] at approximately 5:00 a.m., [Reid],
      Dwayne Bennett, DeJuan Bennett, Carlton Bennett, Tyrone
      Mackey, and Richard King were walking in the area of 17th and
      South Streets in Philadelphia, when they observed [the] victim
      Robert Janke at a telephone booth. Mackey, King, and DeJuan
      Bennett walked past the victim, but [Reid], Dwayne Bennett and
      Carlton Bennett lagged behind. The three men surrounded
      Janke, grabbed him by the neck and dragged him down the
      street. Dwayne Bennett then held a gun to the victim’s head
      and demanded his money. After taking five dollars from the
      victim, [Reid] and Carlton Bennett held the victim and Dwayne
      Bennett shot him in the head, killing him.

      [Reid], Dwayne Bennett, and Carlton Bennett were arrested and
      charged with murder, robbery and conspiracy. Dwayne Bennett
      pled guilty to murder in the first degree. Appellant and Carlton
      Bennett were tried together before a jury. On January 27, 1993,
      [Reid] was convicted of murder in the second degree, robbery
      and conspiracy. The court immediately sentenced [Reid] to life
      imprisonment on the murder conviction, and concurrent terms of
      ten to twenty years of imprisonment on the robbery conviction
      and five to ten years of imprisonment on the conspiracy
      conviction.

Commonwealth v. Reed,2 1725 Philadelphia 1993 (memorandum decision)

(Pa. Super. filed 7/20/99), at 1-2.
                       _______________________
(Footnote Continued)

Medina, 92 A.3d 1210, 1214-15 (Pa. Super. 2014) (en banc) (citations
omitted).
2
  We note that a prior panel of our Court refers to the appellant as Giovanni
“Reed.”    See Commonwealth v. Reed, 1725 Philadelphia 1998
(unpublished memorandum) (filed July 20, 1999). However, in his pro se
(Footnote Continued Next Page)


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      After an unsuccessful direct appeal, see Commonwealth v. Reed,

643 A.2d 707 (Pa. Super. 1994), Reid filed his first PCRA petition, 3 pro se,

which was ultimately denied, after a hearing, on April 6, 1998.                Our Court

affirmed the dismissal of the petition on July 20, 1999.

      Reid filed the instant untimely PCRA petition, his second, on May 5,

2005.4      In   the    petition,    Reid   claimed    that   his   life   sentence   was

unconstitutional pursuant to Roper v. Simmons, 543 U.S. 551 (2005).5

However, after receiving notice from the trial court that it was going to

dismiss his petition, Reid filed a supplemental claim, on March 31, 2006,

alleging newly-discovered evidence in the form of a deposition of the murder

victim’s roommate, Wayne Richman.                In this deposition, Richman averred

that he saw and heard portions of the fatal attack while he was admittedly

drunk, having consumed about fifteen beers and a few shots of whiskey and

Sambuca in the hours before the shooting.                     Richman testified at an
                       _______________________
(Footnote Continued)

brief, appellant spells his name as Giovanni “Reid.” Therefore, we will use
that spelling in the present appeal.
3
  Reid filed his first petition, pro se, on January 17, 1996. Counsel was
appointed and filed an amended petition on January 22, 1997. Counsel filed
a supplemental PCRA claim on April 28, 1997, raising a Brady v. Maryland,
373 U.S. 83 (1963), claim.
4
   Because the trial judge, the Honorable David. N. Savitt, was no longer
sitting on the bench, the case was reassigned to the Honorable Denis P.
Cohen.
5
  See Roper, supra (declaring that death penalty sentence for juvenile
offenders under age of eighteen is unconstitutional).



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evidentiary   hearing     on   Reid’s   after-discovered   evidence     claim,

acknowledging that he was drunk and using cocaine when he allegedly saw

the events in question from a distance of about three hundred feet.

Specifically, Richman testified that he heard either Reid or his co-defendant,

Carlton Bennett, say “don’t” immediately before the shooting and that only

one person among the three conspirators (Carlton Bennett, Dwayne Bennett,

and Reid) was within arm’s length of the victim at the time of the shooting.

The two other individuals, presumably Carlton Bennett and Reid, were

approximately 20 feet away from the victim at the time of the shooting.

      Reid filed an appeal; however, on March 10, 2008, while the appeal

was pending, Reid filed a motion for remand to further amend his petition.

On April 23, 2008, our Court issued a per curiam order deferring the remand

petition to the panel assigned to decide the merits of the appeal. Ultimately,

on April 27, 2009, our Court granted Reid’s motion, permitting him to file an

amended PCRA petition and instructing the PCRA court to conduct further

proceedings “as it considers appropriate following the filing of Reid’s

amended PCRA petition[.]” Commonwealth v. Reid, No. 2122 EDA 2007

(Pa. Super. filed April 27, 2009).




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       On May 27, 2009, Reid filed an amended PCRA petition. After hearing

Richman’s testimony, the trial judge found his inconsistent accounts6

incredible and denied PCRA relief.        This appeal follows.

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

       (1) Did the Court below err in holding that the proffered
       testimony of Wayne Richman did not constitute legally sufficient
       after discovered evidence, and for making an erroneous
       credibility determination which is not supported by the record?

       (2) [T]he state court erred by not providing any relief on his
       claim raised pursuant to Miller v. Alabama, [] 132 S.Ct. 2455
       (2012), holding that a mandatory life-without-parole sentence
       for a juvenile violates the Eighth and Fourteenth Amendments to
       the United States Constitution?

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

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

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

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

9545(b)(1).      Instantly, Reid’s judgment of sentence became final, for

purposes of the PCRA, on March 17, 1994, when the time expired for him to

file a petition for allowance of appeal to our Supreme Court. See Pa.R.A.P.

1113 (30 days to file petition for allowance of appeal with Pennsylvania

Supreme Court). Thus, Reid had to file his petition within one year of that


____________________________________________


6
  Richman’s testimony was memorialized in the following ways: 3/13/06
video deposition; 3/17/07 taped statement made to LaTasha Williams;
11/30/10 testimony before Judge Hughes; and 9/11 & 12/12 Skype
conversations before the Court.



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J-S51023-15



date, or by March 17, 1995, in order for it to be considered timely under the

PCRA. See 42 Pa.C.S. § 9545(b)(3). His current PCRA petition was filed on

May 5, 2005 – more than 11 years after his judgment of sentence became

final. Accordingly, Reid’s petition is patently untimely.

       In order to overcome the PCRA time bar, however, Reid invokes the

newly-discovered facts exception set forth in 42 Pa.C.S. § 9545(b)(1)(ii).

See Amended Petition for Post Conviction Collateral Relief, 5/27/09, at ¶ 8p.

Under section 9545(b)(1)(ii), a petitioner must plead and 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).7 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

power to address the substantive merits of the petitioner’s claims.

Commonwealth v. Gamboa-Taylor, 753 A.2d 780 (Pa. 2000).

       Our Court recently clarified the distinction between a newly-discovered

evidence 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. Bennett, [930 A.2d 1264 (Pa. 2007)] at
       1270. “This shorthand reference was a misnomer, since the
       plain language of subsection (b)(1)(ii) does not require the
____________________________________________


7
 Additionally, in order to succeed under 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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      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
      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, Reid has pleaded that he was unaware of Richman’s

testimony until Richman’s “unsolicited email communication with Mr. Reid’s

supporters’ website on February 6, 2006.”           Amended Petition for Post

Conviction Collateral Relief, 5/27/09, at ¶ 8q. This claim suffices to prove

the “unknown facts” prong of section 9545(b)(1)(ii).

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

asserts that “[p]rior to the receipt of th[e February 6, 2006] email, [he] had

no reason to believe that Mr. Richman had any information relevant to the

manner in which [the victim] was killed, since the police Investigation

Interview Record did not disclose that Mr. Richman saw the murder take

place.” Id. at ¶ 8r. However, the substance of Richman’s signed statement

to the police does not bear out these assertions.

      Just 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



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did not see the victim while they were at the party, 8 and that he came home

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 replied, “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.

       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
____________________________________________


8
  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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years after he was sentenced, Burton purportedly received a letter from the

Pennsylvania Innocence Project which had 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 facts 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, we noted that

“[d]ue diligence demands that the petitioner take reasonable steps to

protect his own interests[.]” Id. (citations omitted) (emphasis in original).

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 1071.9
____________________________________________


9
  Although not relevant to our decision today, it is important to 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.
(Footnote Continued Next Page)


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

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

that Reid 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 just one block from

their shared apartment.10          Commonwealth v. Carr, 868 A.2d 1164 (Pa.

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

protect own interests). Reid knew where Richman lived and knew that 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, Reid cannot prevail on his attempt

to plead and prove the timeliness exception under section 9545(b)(1)(ii).

                       _______________________
(Footnote Continued)


10
  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. He returned to Bucks County, Pennsylvania,
and resided there for four months from June 1992-September 1992.




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Cf. Commonwealth v. Medina, 92 A.3d 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 would be unreasonable to expect pro se petitioner to locate transcript from

unrelated case where witness’s perjury revealed).

       Because Reid’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 Reid’s after-discovered

evidence claim. Gamboa-Taylor, supra.11
____________________________________________


11
   Even if we were to find no jurisdictional hurdle to deciding Reid’s untimely
petition, he would lose 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
(Footnote Continued Next Page)


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      With regard to Reid’s final issue invoking Miller v. Alabama, 132

S.Ct. 2455 (2012), we conclude that he is entitled to relief based upon the

United States Supreme Court’s recent decision, Montgomery v. Louisiana,

136 S. Ct. 718 (filed January 25, 2016, as revised on January 27, 2016).

Although at the time Reid filed his petition he was not entitled to retroactive

application of Miller, see Commonwealth v. Cunningham, 81 A.2d 1 (Pa.

2013),12 during the pendency of this appeal the United States Supreme
                       _______________________
(Footnote Continued)

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).

       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 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).
12
   In Cunningham, the Pennsylvania Supreme Court determined that the
Miller holding does not apply retroactively to an inmate, serving a life
sentence without parole, who has exhausted his direct appeal rights and is
proceeding under the PCRA. Moreover, in Commonwealth v. Cintora, 69
A.3d 759 (Pa. Super. 2013), our Court found that Miller does not qualify as
(Footnote Continued Next Page)


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Court issued Montgomery, which concluded that the holding of Miller is a

substantive rule of constitutional law to which state collateral review courts

were required, as a constitutional matter, to give retroactive effect. Id. at

736.

        The Supreme Court cautioned in Montgomery that a court has no

authority to leave in place a conviction or sentence that violates a

substantive rule like Miller, regardless of whether the conviction or sentence

became final before the rule was announced. Id. at 724. In Miller, supra,

the United States Supreme Court held that “the Eighth Amendment forbids a

sentencing scheme that mandates life in prison without possibility of parole

for juvenile homicide offenders.” Miller, 132 S.Ct. at 2469. Moreover, the

Miller Court recognized that before sentencing those juveniles, a judge or

jury must “have the opportunity to consider mitigating circumstances before

imposing the harshest possible penalty for juveniles,” id. at 2476, by

“tak[ing] into account how children are different, and how those differences

counsel against irrevocably sentencing them to a lifetime in prison.” Id. at

2469.

        In the wake of Montgomery, our Court issued a decision to reverse

and remand cases on collateral appeal where a petitioner claimed that he or


                       _______________________
(Footnote Continued)

a timeliness exception under section 9545(b)(1)(ii) or (iii) of the PCRA.
However, Cunningham, Cintora and their progeny are effectively no longer
good law as a result of Montgomery.



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she was entitled to relief pursuant to Miller.              See Commonwealth v.

Secreti, 2016 PA Super 28 (Pa. Super. 2016) (interpreting Montgomery as

making retroactivity under Miller effective as of the date of the Miller

decision).

       Accordingly, because Reid was a juvenile at the time of the instant

offense, his life sentence without parole is, by definition, unlawful under

Miller and Montgomery.            Therefore, we reverse the order of the PCRA

court, and remand this case for resentencing.13

       Order    reversed.         Remanded         for   resentencing.   Jurisdiction

relinquished.14

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2016




____________________________________________


13
    Although Reid has filed a post-submission communication attaching
Montgomery pursuant to Pa.R.A.P. 2501(b), as well as an application for
relief, we are bound to follow the procedure set forth in Secreti. Therefore,
we herein deny his application as moot.
14
  We recognize that while Reid’s second-degree murder sentence, itself,
may be unlawful, his underlying conviction stands.



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