J-S38035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PERCY LEE                                  :
                                               :
                       Appellant               :   No. 2100 EDA 2017

           Appeal from the Judgment of Sentence September 20, 2005
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0511562-1986


BEFORE:      OTT, J., DUBOW, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                              FILED AUGUST 30, 2019

        Appellant, Percy Lee, appeals from the judgment of sentence of two

terms of life imprisonment without parole, which was imposed at his

resentencing on September 20, 2005, for his jury trial convictions for two

counts each of murder of the first degree and possessing instruments of

crime.1 On June 1, 2017, the Court of Common Pleas of Philadelphia County

entered an order reinstating Appellant’s direct appeal rights nunc pro tunc

following his second petition filed under the Post Conviction Relief Act

(“PCRA”).2    We reverse the PCRA order, without prejudice for Appellant to

revisit any claim pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and



____________________________________________


1   18 Pa.C.S. §§ 2502(a) and 907, respectively.
2   42 Pa.C.S. §§ 9541–9546.


*    Retired Senior Judge assigned to the Superior Court.
J-S38035-19


Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and quash as untimely

Appellant’s appeal from his judgment of sentence.

      The facts underlying this appeal were previously set forth by the

Supreme Court of Pennsylvania in Commonwealth v. Lee, 662 A.2d 645,

648 (Pa. 1995).     Thus, we have no reason to restate them.           For the

convenience of the reader, we briefly note that Appellant’s convictions resulted

from an incident that occurred between 2:00 A.M. and 3:30 A.M. on

February 27, 1986, in which he and his co-defendant, Russell Cox, entered

the apartment of Evelyn Brown and killed both her and her daughter, T.B.

      “[Appellant] and Cox were tried jointly before a jury.” Id. at 649. “At

the conclusion of the penalty phase of [Appellant]’s trial, the jury returned a

sentence of death for each of the two murder convictions.” Id. at 648.

      [Appellant] filed a notice of appeal in the Pennsylvania Supreme
      Court. . . . In an opinion dated July 21, 1995, the Pennsylvania
      Supreme Court rejected [Appellant]’s claims and affirmed the
      judgment of sentence. [Lee, 662 A.2d 645.] . . .

      [Appellant] sought review in the United States Supreme Court.
      On May 20, 1996, the Supreme Court denied certiorari. Lee v.
      Pennsylvania, 517 U.S. 1211, 116 S.Ct. 1831, 134 L.Ed.2d 935
      (1996).

      [Appellant] filed a timely [first] petition pursuant to [the PCRA].
      After appointing counsel . . . , the Honorable William J. Manfredi
      dismissed the PCRA petition. [See PCRA Court Memorandum
      Opinion and Order, filed June 18, 2002.]
      ...

      On July 17, 2002, [Appellant], through counsel, filed a notice of
      appeal in the Pennsylvania Supreme Court. On May 16, 2005,
      without considering the merits of his appeal, the Supreme Court
      of Pennsylvania remanded the case to the PCRA Court to permit
      [Appellant] to present a claim pursuant to the then recently

                                     -2-
J-S38035-19


       decided Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161
       L.Ed.2d 1 (2005).[3] Commonwealth v. Lee, [873 A.2d 1285
       (Pa. 2005)]. On September 2[0], 2005, Judge Manfredi vacated
       the sentence of death [and] sentenced [Appellant] to consecutive
       life sentences for the two murders[.]

Lee v. Collins, No. CIV.A. 09-4023, 2010 WL 5059517, at *2-*3 (E.D. Pa.

July 22, 2010) (footnote omitted).             “Because [Appellant was] no longer

sentenced to death, [Appellant]’s appeal of the June 18, 2002 Order denying

his PCRA Petition was forwarded to this Court for disposition[,]” and it affirmed

the order.      Commonwealth v. Lee, No. 586 EDA 2006, unpublished

memorandum at 4 (Pa. Super. filed April 16, 2008). Appellant petitioned for

allowance of appeal to the Supreme Court of Pennsylvania, and his petition

was denied on October 17, 2008. He thereafter sought redress in the federal

courts, where relief was denied. See Lee v. Shannon, No. 09-CV-4023, 2010

WL 5059544, at *1 (E.D. Pa. Dec. 10, 2010) (adopting report and

recommendation of Lee v. Collins, No. CIV.A. 09-4023), aff’d sub nom. Lee

v. Smeal, 447 F. App’x 357 (3d Cir. 2011).

       On August 23, 2012, Appellant, represented by the Federal Community

Defender Office for the Eastern District of Pennsylvania, filed a PCRA petition,

his second, raising the claim that his sentences of life imprisonment without

____________________________________________


3 Roper held “that the Eighth Amendment prohibits application of the death
penalty to offenders who were younger than eighteen years of age at the time
of the offense[.]” Commonwealth v. Towles, 208 A.3d 988, 1009 (Pa.
2019).     Appellant was 17 years old at the time of the crimes.
Commonwealth v. Cox, 204 A.3d 371, 374 (Pa. 2019).



                                           -3-
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the possibility of parole were unconstitutional pursuant to Miller v. Alabama,

567 U.S. 460 (2012). Appellant conceded that his petition was untimely but

contended that it qualified for one of the exceptions to the PCRA time bar

pursuant to 42 Pa.C.S. § 9545(b)(1).4 Specifically, Appellant argued that his

petition qualified for an exception under § 9545(b)(1)(iii), “based upon a

retroactively applicable constitutional right that was recognized by the United

States Supreme Court” in Miller. PCRA Petition, 8/23/2012, at 4.

       On December 23, 2013, Appellant filed a motion for leave to amend his

PCRA petition, along with a copy of his proposed amended PCRA petition;

nothing in the certified record or docket indicates that the PCRA court granted

leave to amend.5 On March 21, 2016, Appellant filed another motion for leave

____________________________________________


4   The three exceptions to the PCRA timeliness requirement are:

       (i) the failure to raise the claim previously was the result of
       interference by government officials with the presentation of the
       claim in violation of the Constitution or laws of this Commonwealth
       or the Constitution or laws of the United States;

       (ii) the facts upon which the claim is predicated were unknown to
       the petitioner and could not have been ascertained by the exercise
       of due diligence; or

       (iii) the right asserted is a constitutional right that was recognized
       by the Supreme Court of the United States or the Supreme Court
       of Pennsylvania after the time period provided in this section and
       has been held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).
5This Court’s Prothonotary confirmed with the Philadelphia Office of Judicial
Records that no order granting amendment was in the trial court’s record.



                                           -4-
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to amend, along with a copy of a proposed “second” amended PCRA petition

adding that Montgomery v. Louisiana, 136 S. Ct. 718 (2016), now explicitly

made Miller retroactive; again, nothing in the certified record or docket

indicates that the PCRA court granted leave to amend. 6 Both the proposed

amended PCRA petition and the proposed second amended PCRA petition

alleged the same timeliness exception as Appellant’s 2012 PCRA petition.

       On June 6, 2016, the PCRA court entered an order appointing the

Defender Association of Philadelphia to represent Appellant. The order did not

explicitly grant leave to amend the PCRA petition. Furthermore, the Defender

Association of Philadelphia never filed anything on Appellant’s behalf, and all

of Appellant’s subsequent filings were by the Federal Community Defender

Office for the Eastern District of Pennsylvania.

       On June 9, 2016, during the pendency of Appellant’s PCRA petition, the

United States Supreme Court issued Williams v. Pennsylvania, 136 S. Ct.

1899 (2016). “In Williams the United States Supreme Court held that former

[Supreme Court of Pennsylvania] Chief Justice [Ronald] Castille’s failure to

recuse in an appeal from a case in which he participated as district attorney




____________________________________________


6 This Court’s Prothonotary again confirmed with the Philadelphia Office of
Judicial Records that no order granting amendment was in the trial court’s
record.



                                           -5-
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was a violation of Williams’ due process rights.” Commonwealth v. Cox,

204 A.3d 371, 390 n.19 (Pa. 2019).7

        On August 8, 2016, Appellant requested leave to amend his PCRA

petition, along with a copy of a proposed third amended PCRA petition.

Nothing in the certified record or docket indicates that the PCRA court granted

leave to amend.8 The proposed third amended PCRA petition claimed that

Appellant is entitled to the same remedy as Williams, because “Mr. Castille

was the District Attorney at the time of [Appellant]’s capital prosecution and

later participated as a justice in the Pennsylvania Supreme Court’s

adjudication of [Appellant]’s appeal.” Proposed Third Amended PCRA Petition,

8/8/2016, at 2 ¶ 4 (citing Williams, 136 S. Ct. 1899; Lee, 662 A.2d 645).

Appellant hence believed that, “[a]s a result of Justice Castille’s personal

involvement as both prosecutor and judge in this case, the Pennsylvania

Supreme Court’s decision in Lee, 662 A.2d 645, violated due process under

the United States and Pennsylvania Constitutions.” Id. at 11 ¶ 34.

        The proposed third amended PCRA petition additionally pleaded that it

“meets the requirements of all three exceptions” to the PCRA time bar --

        9.    This Third Amendment meets the requirements of 42 Pa.
        C.S. § 9545(b)(1)(i) & (ii) because the facts upon which it is
        predicated – District Attorney Castille’s significant, personal

____________________________________________


7   Williams is discussed in more detail below.
8 This Court’s Prothonotary once again confirmed with the Philadelphia Office
of Judicial Records that no order granting amendment was in the trial court’s
record.

                                           -6-
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      involvement in this and other capital prosecutions – were
      suppressed by the Philadelphia District Attorney’s Office and by
      Mr. Castille since the outset of this case. . . . Williams illuminates
      the factual basis, not previously known to [Appellant], to establish
      that, through their mischaracterizations of District Attorney
      Castille’s role in capital prosecutions and through their failure to
      disclose documents and information reflecting his actual role, the
      Philadelphia District Attorney’s Office interfered with [Appellant]’s
      ability to present this claim earlier.            See 42 Pa. C.S.
      § 9545(b)(1)(i). Similarly, because of those non-disclosures and
      mischaracterizations, and because the Supreme Court only
      recently ruled that those mischaracterizations are not creditable,
      the facts upon which this claim is predicated could not have been
      ascertained earlier by the exercise of due diligence. See 42 Pa.
      C.S. § 9545(b)(1)(ii).

      10. This Third Amendment also meets the requirements of 42
      Pa. C.S. § 9545(b)(1)(iii) because it is being filed within 60 days
      of the Williams decision. Williams is retroactive on its face.

Id. at 4 ¶¶ 9-10.

      At the same time, Appellant filed a motion for discovery, citing Williams

and “seek[ing] disclosure of any authorization documents or other records in

possession or control of the Philadelphia District Attorney’s Office reflecting

former District Attorney Castille’s personal involvement in this case.” Motion

for Discovery, 8/8/2016, at 2. On March 20, 2017, the Commonwealth moved

to dismiss Appellant’s petition and attached to its motion a 1987 memorandum

reflecting District Attorney Castille’s approval of the request of the Deputy

District   Attorney   of   the   Trial   Division   to   seek   the   death   penalty.

Commonwealth’s Motion to Dismiss, 3/20/2017, Exhibit B.

      On May 18, 2017, Appellant filed another motion for leave to amend,

along with a copy of his proposed fourth amended PCRA petition.                   The

proposed fourth amended PCRA petition pleaded that Appellant’s claims

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J-S38035-19


qualified for the exceptions pursuant to § 9545(b)(1)(i) and (ii); it did not cite

to § 9545(b)(1)(iii). Proposed Fourth Amended PCRA Petition, 5/18/2017, at

2 ¶ 4. The proposed petition further pleaded:

        The Commonwealth’s recent, first-time disclosure of records
        reflecting Castille’s personal decision to authorize this death
        penalty prosecution provides additional compelling factual bases
        for [Appellant]’s claim for relief. The disclosure also strongly
        supports [Appellant]’s assertions that these factual bases were
        suppressed by the Philadelphia District Attorney’s Office and by
        Mr. Castille for three decades, and that these facts were unknown
        and not ascertainable by [Appellant] during that time.

Id. at ¶ 5. Once again, nothing in the certified record or docket indicates that

the PCRA court granted leave to amend.9

        On April 24, 2017, the PCRA court held a hearing.        See Trial Court

Opinion, filed November 6, 2017, at 2.10

        On June 1, 2017, the PCRA court entered an order granting Appellant’s

PCRA petition “and all amendments thereto . . . IN PART,” pursuant to

Williams only, “without prejudice” to revisit the Miller and Montgomery

claim, if necessary, and reinstating Appellant’s direct appeal rights nunc pro

tunc. Order, 6/1/2017 (emphasis in original). The order additionally stated:

“The [PCRA] court finds jurisdiction as [Appellant] has proven by a

preponderance of evidence that ‘the facts upon which the claim is predicated

____________________________________________


9This Court’s Prothonotary confirmed with the Philadelphia Office of Judicial
Records that no order granting amendment was in the trial court’s record.
10   The certified record does not contain notes of testimony from the hearing.



                                           -8-
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were unknown to the petitioner and could not have been ascertained by the

exercise of due diligence.’ See [42] Pa. Cons. Stat. § 9545(b)(1)(ii).” Id. at

n.1. The order makes no mention of 42 Pa.C.S. § 9545(b)(1)(i) or (iii). See

generally id. On June 28, 2017, Appellant filed this appeal.11

       Appellant presents the following issues for our review:

       A.    Did not the introduction and use of very incriminating
       statements of the non-testify[ing] jointly tried co-defendant
       violate [Appellant]’s Confrontation Clause rights?

       B.   Was not the prosecutor’s closing argument replete with
       misconduct, that individually and collectively violated state law,
       due process and other constitutional rights?

       C.     Were not the trial court’s instructions explaining the
       difference between direct and circumstantial evidence, and the
       examples given from Commonwealth witness testimony,
       prejudicially erroneous in violation of state law and due process
       protections?

       D.     Because the prior inconsistent statements under oath of a
       key witness were admissible as substantive evidence, did not the
       [trial] court clearly err by repeatedly telling the jury that the
       statements could not be considered for that purpose, but only for
       the limited purpose of evaluating credibility?

       E.    Is this not a case where not only the individual errors, but
       also cumulative error that violated state law and due process
       rights, entitle [Appellant] to a new trial?

       F.     Did not trial counsel act ineffectively in prejudicially failing
       to raise meritorious record based issues without any reasonable
       tactical basis?


____________________________________________


11The trial court did not order and Appellant did not file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court
entered its opinion on November 6, 2017, and entered a supplemental opinion
on March 25, 2019.


                                           -9-
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      G.    Did not post verdict/direct appeal counsel prejudicially
      provide ineffective assistance of counsel by failing to raise and
      preserve record based meritorious issues without any reasonable
      tactical basis?

Appellant’s Brief at 3-4 (unnecessary capitalization omitted).

      Preliminarily, we must determine whether the PCRA court had

jurisdiction to grant PCRA relief to Appellant. “As a threshold jurisdictional

matter, however, the timeliness of the PCRA petition must be addressed. Even

where neither party nor the PCRA court have addressed the matter, it is well-

settled that we may raise it sua sponte since a question of timeliness

implicates the jurisdiction of our Court.” Commonwealth v. Callahan, 101

A.3d 118, 121 (Pa. Super. 2014); see also Commonwealth v. Hernandez,

79 A.3d 649, 651 (Pa. Super. 2013) (timeliness of a post-conviction petition

is jurisdictional).   A “PCRA court ha[s] no jurisdiction to restore [an

a]ppellant’s direct appeal rights nunc pro tunc via [an] untimely petition.”

Commonwealth v. Ballance, 203 A.3d 1027, 1033 (Pa. Super. 2019).

      “The question of whether a petition is timely raises a question of law,

and where a petitioner raises questions of law, our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Pew, 189 A.3d

486, 488 (Pa. Super. 2018), appeal denied, stay denied, 200 A.3d 939 (Pa.

2019).

      Generally, a petition for relief under the PCRA, “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final, unless the petition alleges and the petitioner proves” one of


                                    - 10 -
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the three exceptions to the time limitations for filing the petition set forth in

42 Pa.C.S. § 9545(b)(1)(i)-(iii). “The PCRA petitioner bears the burden of

proving the applicability of one of the exceptions.”            Commonwealth v.

Spotz, 171 A.3d 675, 678 (Pa. 2017).               Any petition attempting to invoke

these exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).12

       In the current action, Appellant was resentenced on September 20,

2005; after this Court affirmed this judgment of sentence, Appellant petitioned

for allowance of appeal to the Supreme Court of Pennsylvania, which was

denied on October 17, 2008. Judgment of sentence thus became final 90 days

after the Pennsylvania Supreme Court denied the petition – i.e., on

January 15, 2009. See U.S. Sup. Ct. R. 13. Appellant had one year thereafter

to file a PCRA petition – i.e., until January 15, 2010. 42 Pa.C.S. § 9545(b)(1).

Appellant filed the current petition on August 23, 2012 -- more than two years

late. Therefore, Appellant’s petition was patently untimely.

       In his 2012 PCRA petition, Appellant attempted to circumvent the time

bar by asserting the exception under subsection 9545(b)(1)(iii) only. PCRA



____________________________________________


12 Section 3 of Act 2018, Oct. 24, P.L. 894, No. 146, changed the timeframe
of 42 Pa.C.S. § 9545(b)(2) from 60 days to one year. The change was
effective on December 24, 2018, and applied retroactively to claims arising on
December 24, 2017, or thereafter. Appellant’s instant PCRA petition was filed
on August 23, 2012, and therefore prior to December 24, 2017. Thus, the
expansion of time to file a claim to one year does not apply to the instant
petition.

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Petition, 8/23/2012, at 4 (citing Miller, 567 U.S. 460). In his proposed third

amended PCRA petition, Appellant maintained that his petition qualifies for all

three exceptions to the PCRA time bar.                  Proposed Third Amended PCRA

Petition, 8/8/2016, at 4 ¶¶ 9-10 (citing 42 Pa.C.S. § 9545(b)(1)(i)-(iii);

Williams, 136 S. Ct. at 1903). His proposed fourth amended PCRA petition

pleaded that his claims qualified for the first and second PCRA time-bar

exceptions only, with no mention of the third exception.                 Proposed Fourth

Amended      PCRA     Petition,   5/18/2017,       at    2   ¶   4   (citing   42   Pa.C.S.

§ 9545(b)(1)(i)-(ii)).

       However, Pa.R.Crim.P. 905(A) requires leave of court to submit an

amended petition. See Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa.

Super. 2012).13 Even though Appellant requested leave to amend his petition

to add assertions as to subsection 9545(b)(1)(i) and (ii) and to alter his

argument as to subsection 9545(b)(1)(iii), the PCRA court still had to have

explicitly granted permission for amendment in order for these claims to be

preserved. See Pa.R.Crim.P. 905(A); Rykard, 55 A.3d at 1189. Hence, the

PCRA court should not have considered any pleading outside the 2012 PCRA

petition without having expressly granted permission for Appellant to file any



____________________________________________


13Rykard, decided on September 18, 2012, pre-dates Appellant’s first motion
for leave to amend, filed December 23, 2013, and Pa.R.Crim.P. 905(A) has
not changed since April 1, 2001. Ergo, the requirement that a PCRA court
must grant permission to amend a PCRA petition is not affected by the age of
this case.

                                          - 12 -
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amended petitions.     Thus, the order granting PCRA relief pursuant to

Appellant’s Williams claim was improper in its entirety. Furthermore, the

PCRA court’s finding of an exception to the time bar solely pursuant to

subsection 9545(b)(1)(ii) – which was only raised in amended petitions which

were not authorized by the PCRA court itself – was improper. See Order,

6/1/2017, at n.1; Proposed Third Amended PCRA Petition, 8/8/2016, at 4

¶¶ 9-10; Proposed Fourth Amended PCRA Petition, 5/18/2017, at 2 ¶ 4.

     Nevertheless, given the confusion at the PCRA court level and the fact

that the PCRA court’s order clearly stated that the court considered “all

amendments” to Appellant’s PCRA petition, we will analyze each of the

timeliness exceptions in turn. Order, 6/1/2017.

                        42 Pa.C.S. § 9545(b)(1)(i)

     Assuming Appellant’s assertion of the exception under 42 Pa.C.S.

§ 9545(b)(1)(i) had been properly preserved, we would find such exception

inapplicable to Appellant’s action. Appellant’s reliance on § 9545(b)(1)(i) is

based on Williams, 136 S. Ct. 1899. Proposed Third Amended PCRA Petition,

8/8/2016, at 4. In Williams, as in the current action, “[o]ne of the justices

on the State Supreme Court [that decided one of the defendant’s appeals] had

been the district attorney who gave his official approval to seek the death

penalty in the prisoner’s case.” 136 S. Ct. at 1903. The underlying facts and

procedural history of Williams were as follows:

     In 1984, soon after Williams turned 18, he murdered 56–year–old
     Amos Norwood in Philadelphia. At trial, the Commonwealth

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      presented evidence that Williams and a friend, Marc Draper, had
      been standing on a street corner when Norwood drove by. . . .
      Testifying for the Commonwealth, Draper suggested that robbery
      was the motive for the crime. . . .

      In 2012, Williams filed a successive petition pursuant to [the
      PCRA]. The petition was based on new information from Draper,
      who until then had refused to speak with Williams’s attorneys.
      . . . Draper . . . admitted he had received an undisclosed benefit
      in exchange for his testimony: the trial prosecutor had promised
      to write a letter to the state parole board on his behalf. . . .

      Williams alleged in his petition that the prosecutor had procured
      false testimony from Draper and suppressed evidence regarding
      Norwood’s sexual relationship with Williams. . . . The PCRA court
      ordered the district attorney’s office to produce the previously
      undisclosed files of the prosecutor and police. These documents
      included the trial prosecutor’s sentencing memorandum, bearing
      then-District Attorney Castille’s authorization to pursue the death
      penalty.

Id. at 1903-04. The PCRA court then granted relief in the form of a new

sentencing hearing, but the Commonwealth filed an application to vacate the

stay of execution in our Supreme Court to which Justice Castille had by then

been elected.   Id. at 1904-05.     Williams responded with a motion asking

Justice Castille to recuse himself based upon his prior involvement in the case,

but Justice Castille refused to grant the motion or to refer it to the full Court

for decision. The Pennsylvania Supreme Court ultimately vacated the PCRA

court’s order and reinstated Williams’s death sentence.

      Williams appealed to the United States Supreme Court, claiming that his

due process rights were violated by Justice Castille’s adjudicating the petition

to overturn his sentence after having made the decision as District Attorney

to seek the death penalty. Id. at 1905. The United States Supreme Court


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agreed with Williams, holding that “Justice Castille’s significant, personal

involvement in a critical decision in Williams’s case gave rise to an

unacceptable risk of actual bias.” Id. at 1908.

      The Williams case was decided on June 9, 2016. Appellant first filed

his current PCRA petition in 2012, predating Williams.          Assuming, for

argument’s sake, that we utilize the date that Appellant filed his motion for

leave to amend his second amended PCRA petition and proposed third

amended PCRA petition, August 8, 2016, Appellant filed exactly 60 days after

Williams was decided. See 42 Pa.C.S. § 9545(b)(2).

      After receiving the Commonwealth’s motion to dismiss, with the 1987

memorandum reflecting then-District Attorney Castille’s approval to seek the

death penalty for Appellant, Commonwealth’s Motion to Dismiss, 3/20/2017,

Exhibit B, Appellant filed another motion for leave to amend with a proposed

fourth amended PCRA petition, alleging that “these factual bases were

suppressed by the Philadelphia District Attorney’s Office and by Mr. Castille

for three decades, and that these facts were unknown and not ascertainable

by [Appellant] during that time.” Proposed Fourth Amended PCRA Petition,

5/18/2017, at 2 ¶ 5. However, Appellant provides no proof of his allegations

of suppression and of the ascertainability of the facts underlying his claim,

beyond his bald assertions. The fact that former District Attorney Castille was

on the Supreme Court of Pennsylvania was readily ascertainable when our

Supreme Court affirmed Appellant’s judgment of sentence in 1995.


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Nevertheless, nowhere in Appellant’s proposed third or fourth amended PCRA

petitions did Appellant contend that he had at any point prior to filing his

motion for discovery on August 8, 2016 requested the memorandum or similar

documents that the Commonwealth produced in response to said motion.

Thus,    “government     officials”   could   not     have   “interfere[d]”   with   or

“suppressed” what was never requested.              See 42 Pa.C.S. § 9545(b)(1)(i);

Proposed Fourth Amended PCRA Petition, 5/18/2017, at 2 ¶ 5.

        Appellant has also failed to identify any “mischaracterization” of Justice

Castille by the Office of the Philadelphia District Attorney that somehow

deceived him into declining to investigate any conflict. See Proposed Third

Amended PCRA Petition, 8/8/2016, at 4 ¶¶ 9-10.

        Hence, there are no averments of fact suggesting that Appellant made

any efforts in the two decades prior to the filing of his motion for discovery in

2016 to ascertain District Attorney/Justice Castille’s potential conflict of

interest due to his involvement in Appellant’s case, to say nothing of

allegations that such attempts were frustrated by governmental suppression

of this information or other interference. Thus, the proposed petitions fail to

“allege[]” and Appellant has failed to “prove[]” the governmental interference

exception to the PCRA’s time bar pursuant to 42 Pa.C.S. § 9545(b)(1)(i). See

also Spotz, 171 A.3d at 678.




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                       42 Pa.C.S. § 9545(b)(1)(ii)

     The trial court “found . . . the newly discovered fact exception was

triggered by the June 9, 2016 Williams decision.” Trial Court Opinion, filed

November 6, 2017, at 14. The trial court explained its reasoning as follows:

     [The trial] court determined [Appellant] met the timeliness
     requirement for the newly-discovered fact exception when he filed
     a petition on August 8, 2016, within sixty (60) days of the
     Williams June 9, 2016 decision - a judicial decision which
     provided a new theory or method of obtaining collateral relief.
     [The trial] court determined the clock began to run after
     publication of the Williams decision, as the decision was the
     factual predicate for the constitutional claims raised in
     [Appellant]’s PCRA petition.       Evidence of Justice Castille’s
     involvement in [Appellant]’s case, and specifically his
     authorization to seek the death penalty against [Appellant], did
     not come to light until the Williams decision elucidated the
     significance of District Attorney Castille’s signature on the death
     penalty request memorandum. . . . [The trial] court found the
     issuance of the Williams opinion triggered the newly discovered
     fact exception because [Appellant] was unaware that Justice
     Castille was significantly and personally involved in a critical trial
     decision in [Appellant]’s case until the Supreme Court of the
     United States declared it to be so in its Williams decision. Id. at
     1906.

     Further highlighting how Williams served as a factual trigger, it
     was not until twenty-two (22) years after the Supreme Court of
     Pennsylvania, including Justice Castille, affirmed [Appellant]’s
     conviction and death sentence and nine (9) years after denying
     [Appellant]’s petition for allowance of appeal, that the
     Commonwealth produced the District Attorney’s signed death
     penalty request in these PCRA proceedings which are based on
     the Williams decision.

Id. at 12-13.

     Assuming arguendo that we could consider Appellant’s attempt to

invoke the “newly-discovered fact” exception at subsection 9545(b)(1)(ii), we

would disagree with the trial court’s analysis. Primarily, we find Appellant’s

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contention unsupportable, because judicial decisions do not constitute “newly-

discovered facts.” See Commonwealth v. Watts, 23 A.3d 980, 987 (Pa.

2011) (“subsequent decision law does not amount to a new ‘fact’ under section

9545(b)(1)(ii) of the PCRA”); Commonwealth v. Brandon, 51 A.3d 231 (Pa.

Super. 2012) (subsequent decisional law does not constitute new “fact” per

§ 9545(b)(1)(ii)).

      Additionally, we believe that Williams is ultimately not controlling. In

Williams, the appellant was specifically challenging the reinstatement of his

death sentence by the Supreme Court of Pennsylvania, where the panel

rendering said decision included the individual who had authorized the

Commonwealth to seek the death penalty in the first place – i.e.,

Ronald Castille, the former District Attorney of Philadelphia who was then

serving as a justice on the Pennsylvania Supreme Court. There, the conflict

of interest was clear.

      In the current action, District Attorney Castille’s only involvement in

Appellant’s case was granting his authorization to seek the death penalty.

However, Appellant was resentenced to life imprisonment. Without a death

sentence, it is as if District Attorney Castille’s sole role in Appellant’s matter

had never transpired. For this reason, the current appeal can be distinguished

from Williams. Hence, Appellant’s and the trial court’s reliance on Williams

is inapposite, and, contrary to the PCRA court’s conclusions, it cannot serve

as the basis for an exception to the PCRA time bar for Appellant’s petition.


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       Finally, even if Williams were completely on point, 42 Pa.C.S.

§ 9545(b)(1)(ii) requires that “the facts upon which the claim is predicated

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

Appellant failed to establish due diligence for the same reason that he failed

to establish that the Commonwealth interfered with his ability to obtain the

1987 memorandum reflecting District Attorney Castille’s approval of the

request to seek the death penalty – i.e., that Appellant provided no averments

that he had made any effort prior to his August 2016 motion for discovery to

ascertain District Attorney Castille’s involvement in his case.

       Accordingly, the PCRA court should not have found an exception to the

time bar solely based on subsection 9545(b)(1)(ii). See Order, 6/1/2017, at

n.1.

           42 Pa.C.S. § 9545(b)(1)(iii) relying upon Williams14

       To the extent that Appellant now attempts to invoke the “new

constitutional right” exception predicated upon Williams instead, despite his



____________________________________________


14 Appellant’s 2012 PCRA petition had alleged that the claims therein qualified
for an exception to the time bar “based upon a retroactively applicable
constitutional right that was recognized by the United States Supreme Court”
in Miller, 567 U.S. 460. PCRA Petition, 8/23/2012, at 4. In its supplemental
opinion, the trial court stated: “Inasmuch as [Appellant] filed a PCRA petition
raising a claim pursuant to Miller/Montgomery, [the trial court], in
accordance with First Judicial District General Court Regulation No. 1 of 2016,
continued to monitor the status of his pending direct appeal.” Trial Court
Opinion, filed March 25, 2019, at 3.         Our instant decision makes no
determination as to the propriety of granting Appellant PCRA relief pursuant
to Miller and Montgomery.

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J-S38035-19


assertion in his Proposed Third Amended PCRA Petition, 8/8/2016, at 4 ¶ 10,

that “Williams is retroactive on its face[,]” Appellant has not established that

Williams announced a new constitutional right held to apply retroactively.

See 42 Pa.C.S. § 9545(b)(1)(iii) (“the right asserted is a constitutional right

that . . . has been held . . . to apply retroactively”).

                                   *     *      *

      For the reasons given above, Appellant failed to satisfy a timeliness

exception pursuant to 42 Pa.C.S. § 9545(b)(1)(i), (ii), or (iii). Accordingly,

the PCRA court lacked jurisdiction to grant Appellant relief in the form of

reinstatement of his direct appeal rights nunc pro tunc. See Ballance, 203

A.3d at 1033; Callahan, 101 A.3d at 121; Hernandez, 79 A.3d at 651.

Consequently, we reverse the PCRA court’s order dated June 1, 2017.

      In the absence of a valid reinstatement of Appellant’s direct appeal

rights, his appeal from his judgment of sentence entered pursuant to his

resentencing on September 20, 2005, is untimely and must be quashed. See

Pa.R.Crim.P. 720(A) (notice of appeal from judgment of sentence must be

filed within 30 days of the imposition of sentence or the denial of post-

sentence motions). Consequently, we reverse the PCRA court’s order dated




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June 1, 2017, without prejudice for Appellant to revisit any claim pursuant to

Miller and Montgomery.15


____________________________________________


15 Even if we had found the reinstatement of Appellant’s direct appeal rights
to be valid and were to consider Appellant’s issues raised on appeal, we would
still find that Appellant’s claims on appeal merit no relief. See Appellant’s
Brief at 3-4 ¶¶ A.-G. & 20-37 (argument for first issue), 37-52 (argument for
second issue), 52-56 (argument for third issue), 56-61 (argument for fourth
issue), 61-62 (argument for fifth issue), 63-70 (argument for sixth issue), 70-
77 (argument for seventh issue).

First, we would agree with the Pennsylvania Supreme Court that admission of
Cox’s confession did not deprive Appellant of his Sixth Amendment right of
confrontation, where Cox’s statements were redacted and contained no
explicit references to Appellant and where “the trial court gave a limiting
instruction in its charge to the jury which cautioned that Cox’s statements
were to be considered as evidence against him alone.” Lee, 662 A.2d at 651–
52 (citations to the record omitted).

Next, we would agree with the United States District Court for the Eastern
District of Pennsylvania that, although Appellant is correct that the prosecutor
relied on Cox’s statements to bolster other evidence against Appellant and
that, “[w]hen viewed in the context of the testimony presented at trial, these
reliances on Cox’s statements to prove [Appellant]’s guilt” rose to the level of
prosecutorial misconduct, Appellant “failed to show” that the violation “had a
substantial and injurious effect on the fairness of his trial” and was thereby
harmless. Lee v. Collins, No. CIV.A. 09-4023, 2010 WL 5059517, at *12-
*16, report and recommendation adopted sub nom. Lee v. Shannon, No. 09-
CV-4023, 2010 WL 5059544, aff’d sub nom. Lee v. Smeal, 447 F. App’x 357.

As for Appellant’s third issue – that the trial court erroneously instructed the
jury on the difference between direct and circumstantial evidence and
provided prejudicial examples thereof – Appellant withdrew his objections to
these instructions at trial and thus failed to preserve this challenge. N.T. Trial,
5/19/1987, at 2188-89.

Appellant also failed to raise any objection to the jury charge about prior
inconsistent statements at trial, and his fourth challenge on appeal is thus
waived. See Pa.R.A.P. 302(a); Pa.R.Crim.P. 647(C).




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J-S38035-19



____________________________________________


As for Appellant’s contention that “cumulative error” merits a new trial, we
note that “no number of failed [ ] claims may collectively warrant relief if they
fail to do so individually.” Commonwealth v. Spotz, 47 A.3d 63, 129 (Pa.
2012).

As for Appellant’s claim of ineffective assistance of trial counsel, even if we
were to find that Appellant’s underlying claims had arguable merit and that
his trial counsel had no reasonable basis for his actions or inactions, Appellant
still would be unable to establish prejudice, given the remaining overwhelming
evidence of his guilt. See Commonwealth v. Medina, 209 A.3d 992, 1000
(Pa. Super. 2019) (citation omitted) (three-prong test that an appellant must
satisfy to establish ineffectiveness). Even if Appellant had established that his
trial counsel should have objected to prosecutorial misconduct during closing
arguments and to instructions that erroneously misinformed the jury about
direct and circumstantial evidence and about the proper use of the prior
inconsistent statements of Commonwealth witness Samuel Gilbert, see
Appellant’s Brief at 67-70, Appellant still would have been incapable of proving
that there was a reasonable probability of a different outcome if not for trial
counsel’s errors. See Medina, 209 A.3d at 1000 (“prejudice” for purposes of
establishing ineffectiveness, mean that “there was a reasonable probability of
a different outcome if not for counsel’s error”).

Even a cursory overview of the Commonwealth’s case demonstrates evidence
of Appellant’s guilt beyond a reasonable doubt: Sonya Brown, the daughter
of Evelyn Brown, testified as to Appellant’s motive for the killings and provided
a description of Evelyn Brown’s body in the apartment the next morning;
Denise Williams, a neighbor to the Browns, testified about Appellant’s
presence at the scene of the crime; multiple police officers testified about the
positions of both victims’ bodies and the bindings on their arms and legs; the
arresting officer testified about Appellant’s inconsistent statements to police
about his whereabouts at the time of the murders; the assistant medical
examiner testified as to the time of death, the position of the bodies, the
bindings on the bodies, the evidence that T.B. had been raped, stabbed 20
times, punctured 29 times, and slashed four times, and the evidence of 23
stab wounds, 23 puncture wounds, two slash wounds, five scrapes, and one
bruise on Evelyn Brown’s body; and the forensic evidence that Appellant’s
pants and sneakers at the time of his arrest contained a small amount of
human blood, albeit too small for DNA analysis. N.T. Trial, 4/27/1987, at 488-
93, 495-97, 502, 542-48; N.T. Trial, 4/28/1987, at 596-97, 646-49, 630-34;
N.T. Trial, 4/30/1987, at 917-23, 976-77, 985, 992-93, 1000; N.T. Trial,
5/4/1987, at 1188, 1190, 1197-1204, 1209-12; see also Lee, 662 A.2d at



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       PCRA order reversed without prejudice to revisit any Miller or

Montgomery claim. Appeal quashed.



Judge Dubow joins in the Memorandum.

Judge Ott concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/19




____________________________________________


649. (This summary excludes all of Gilbert’s evidence, giving Appellant the
benefit of the doubt that the improper instruction on prior inconsistent
statements somehow rendered all of Gilbert’s testimony erroneously
admitted.)

Thus, even without trial counsel’s alleged errors, the evidence was so
overwhelming that the outcome of the trial would not have changed.
Furthermore, had Appellant’s direct appeal rights been properly reinstated
nunc pro tunc, then his claim of ineffective assistance of his first direct appeal
counsel would be rendered moot, as he would be receiving an entirely new
direct appeal.

For these reasons, had we agreed with the PCRA court that it had jurisdiction
to grant PCRA relief and to reinstate Appellant’s direct appeal rights nunc pro
tunc, we still would have concluded that none of Appellant’s questions raised
on appeal merit relief. See Appellant’s Brief at 3-4 ¶¶ A.-G. & 20-77.

                                          - 23 -
