J-S80024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARNELL GRIMSLEY                           :
                                               :
                       Appellant               :    No. 1454 EDA 2018

                   Appeal from the PCRA Order April 20, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0900701-2006


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BOWES, J.:                                 FILED MARCH 29, 2019

       Darnell Grimsley appeals from the order dismissing his second PCRA

petition as untimely. After careful consideration, we affirm.

       Appellant was convicted of first-degree murder and possession of an

instrument of crime (“PIC”) for the April 8, 2006 shooting death of Devin

Dunbar in Philadelphia.1           The trial court imposed a sentence of life

imprisonment for first-degree murder and a consecutive one-to-two-year term

of incarceration for PIC.       We affirmed the judgment of sentence, and our

Supreme      Court     denied    allowance     of   appeal   on   May   25,   2011.

Commonwealth v. Grimsley, 2 A.3d 1055 (Pa.Super. 2010) (unpublished

memorandum), appeal denied, 21 A.3d 1190 (Pa. 2011).

____________________________________________


1 Appellant’s first trial ended in a mistrial when the jury deadlocked on the
charge of first-degree murder.
J-S80024-18


       Appellant filed a timely pro se PCRA petition in which he alleged that he

was entitled to PCRA relief because trial counsel failed to visit him to prepare

for trial; trial counsel failed to present an alibi defense; the trial prosecutor

(hereinafter “prosecutor”), presented false testimony from Eric Barnes and

failed to disclose Barnes’s entire criminal record to the jury; Eric Barnes’s

testimony drastically changed from the first to the second trial; Officer Gary

McNeil gave false testimony; trial counsel failed to question the medical

examiner properly; the prosecutor committed misconduct when he repeatedly

referred to the area of the incident as a heavy drug area; and trial counsel

improperly gave the jury the impression that the prosecutor’s theory of the

case was correct. PCRA Petition (supplement), 5/2/12, at 7.

       The PCRA court appointed counsel, who filed a Turner/Finley2 letter

and corresponding motion to withdraw as counsel. The PCRA court issued its

notice of intent to dismiss pursuant to Pa.R.Crim.P. 907 and Appellant filed a

pro se response. The court ultimately dismissed the PCRA petition without a

hearing and granted counsel’s motion to withdraw on March 21, 2014. A pro

se appeal followed. We affirmed the denial of Appellant’s PCRA petition, and

our Supreme Court denied allowance of appeal.              Commonwealth v.

Grimsley, 133 A.3d 69 (Pa.Super. 2015) (unpublished memorandum), appeal

denied, 131 A.3d 490 (Pa. 2016).


____________________________________________


2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

                                           -2-
J-S80024-18


       On February 13, 2018, Appellant filed a pro se motion entitled “Newly-

Discovered Evidence,” in which he alleged that he had discovered new

evidence in support of his earlier PCRA claims that the prosecutor engaged in

prosecutorial misconduct by using Barnes’s perjured testimony; failing to

reveal Barnes’s criminal history and then vouching for his credibility; violating

the sequestration order by soliciting information from the victim’s family

members about Appellant’s first trial; and making inflammatory remarks

during the playing of a tape recording wherein he suggested that Appellant

kidnapped an absent witness.           PCRA Petition, 2/13/18, at 1-2.   Appellant

averred that he had recently learned of a January 5, 2018 newspaper article

reporting that the prosecutor had been fired by the newly-elected District

Attorney. Id. Appellant concluded his motion by asking for an evidentiary

hearing so that District Attorney Larry Krasner could state his reasons for firing

the prosecutor. Id.

       On March 9, 2018, without ordering the Commonwealth to file an

answer, the court properly construed Appellant’s motion as a PCRA petition,3

and issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition as

untimely.    In its notice, the PCRA court found that Appellant “fail[ed] to


____________________________________________


3It is well-settled that the PCRA is intended to be the sole means of achieving
post-conviction relief. See 42 Pa.C.S. § 9542; Commonwealth v. Deaner,
779 A.2d 578, 580 (Pa.Super. 2001) (noting a collateral petition that raises
an issue that the PCRA statute could remedy is to be considered a PCRA
petition).


                                           -3-
J-S80024-18


properly invoke an exception to the timeliness provision of the Post Conviction

Relief Act.” See Pa.R.Crim.P. 907 Notice, 3/9/18, at 1. In response, on March

27, 2018, Appellant filed a second motion, also entitled “Newly-Discovered

Evidence.” In this filing, Appellant asserted that he had uncovered more new

evidence. He reiterated an earlier argument by eyewitness William Cooper

that the Philadelphia police had coerced his identification by beating him up.

Amended PCRA petition, 3/27/18, at 1. Appellant proffered that the name of

Philadelphia Police Officer Michael Long appeared on a document released by

Philadelphia’s former district attorney as one of sixty-six officers facing

allegations of misconduct, and whose names appeared on a “do not call list.”

Brief for Appellant, 12/17/18, at Exhibit C.4

       On April 20, 2018, the PCRA court properly construed Appellant’s second

filing as an amendment to his PCRA petition and dismissed the petition as

untimely, since Appellant still had not invoked an exception to the PCRA time

bar. This pro se appeal followed.

       Appellant presents two issues in his brief, which we reproduce as

follows:

____________________________________________


4 According to the article, the document listed sixty-six current and former
Philadelphia police officers who were divided into three sections: (1) do not
call as a witness in court unless approved by a high-ranking DA; (2) may use
as witness but first inform the defense attorney of the officer’s alleged
misconduct; and (3) use without restriction, but be aware of the noted
misconduct. The section of the article provided by Appellant does not specify
under which section of the document Officer Long was listed.



                                           -4-
J-S80024-18


       1. Whether [the PCRA court] erroneously found petitions for
       newly[-]discovered evidence as untimely[.]

       2. Did the [PCRA court] abuse [its] discretion by dismissing
       [A]ppellant’s newly[-]discovered evidence without due process of
       law[.]5

Appellant’s brief at 3 (unnecessary capitalization omitted).

       “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the record evidence and free of legal error.”          Commonwealth v.

Whitehawk, 146 A.3d 266, 269 (Pa.Super. 2016).

       In order for a petition to be timely under the PCRA, it must be filed

within one year of the date that the petitioner’s judgment of sentence became

final. 42 Pa.C.S. § 9545(b)(1). Appellant’s petition, filed more than five years

after his judgment of sentence became final, is patently untimely.        Thus,

unless Appellant pled and proved one of the three exceptions to the PCRA




____________________________________________


5We will address Appellant’s issues jointly, notwithstanding the fact that his
argument section does not correspond to his statement of issues.




                                           -5-
J-S80024-18


time-bar outlined in 42 Pa.C.S. § 9545(b)(1)(i-iii),6 we cannot address the

claims he asserts therein. See Commonwealth v. Miller, 102 A.3d 988, 992

(Pa.Super. 2014) (“[N]either this Court nor the trial court has jurisdiction over

[an untimely] petition”).

        When considering a claim seeking to invoke the newly-discovered fact

exception, our Supreme Court requires that a petitioner establish that: “(1)

the facts upon which the claim was predicated were unknown and (2) they

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

Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016) (citation omitted). If

the petitioner alleges and proves these two components, then the PCRA court

has jurisdiction over the claim under this subsection.        Commonwealth v.

Bennett, 930 A.2d 1264, 1272 (Pa. 2007).



____________________________________________


6   These exceptions 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).

                                           -6-
J-S80024-18


       First, Appellant asserts that he learned on January 8, 2018, that the

prosecutor in his murder trial was just “fired for [d]ubious convictions and/or

misconduct allegations.”         Appellant’s brief, at 6-7, Exhibit B.      Second,

Appellant alleged that he recently discovered that Officer Long, who

transported two of the eyewitnesses in his case, one of whom “accused

Philadelphia police officers of beating him up from day one on the record,” was

placed on a “do not call” list in the district attorney’s office.        Id at 8.

Furthermore, a March 19, 2018 news article indicated that Officer Long had

been arrested, one year earlier, for animal cruelty.        Id. at 8, Exhibit C.

Appellant contends that he exercised due diligence, as he could not have

discovered sooner the facts disclosed in the articles and that he presented

them in PCRA petitions within sixty days of discovery.7 Id. at 7, 9.

       In its Rule 1925 opinion, the court observed that Appellant did not meet

the newly-discovered fact exception, reasoning that Appellant did not

adequately     demonstrate      any    connection   between the   alleged    newly-

discovered facts and the underlying substantive issues raised, and failed to

show due diligence.           PCRA Court Opinion, 6/20/18, at 4-5.             The




____________________________________________


7Since the filing of Appellant’s brief, § 9545(b)(2) has been amended to allow
petitioners one year to present claims, in lieu of the previously-allotted sixty
days.




                                           -7-
J-S80024-18


Commonwealth agrees.8 We find that Appellant is not entitled to any relief,

because he failed to show any connection between the underlying claims and

his newly-discovered facts.9

       We are mindful that our Supreme Court has previously admonished our

Court for conducting merits-based assessments of an after-discovered

evidence claim in the confines of a § 9545(b)(1)(ii) analysis. Bennett, supra

at 1271-72. Herein, we analyze the nature of the underlying claim for the

limited purpose of determining whether the newly-discovered facts alleged are

based on information that is relevant to those claims and that could not have

been discovered sooner through due diligence.          Commonwealth v.

Robinson, 185 A.3d 1055, 1061-62 (Pa.Super. 2018); Chmiel, supra, at

626 n.7 (holding that because hair comparison analysis was used at Chmiel's

____________________________________________


8 The Commonwealth was not given the opportunity to file an answer in the
PCRA court. On appeal, the Commonwealth proffers that the prosecutor was
never fired and remains employed with the Philadelphia district attorney’s
office. However, the PCRA court has not had the opportunity to assess the
Commonwealth’s factual allegation and it is not part of the certified record.
As such, we are unable to consider the Commonwealth’s assertion herein.

9 Although the PCRA court found waiver on the basis that Appellant had not
adequately pled an exception to the PCRA time bar, we decline to do so here.
While the specific PCRA exception was not explicitly invoked, Appellant did
assert the necessary requirements in his pleadings, since he contended that
he had discovered a new fact; that he could not have discovered that fact
sooner; he explained how it allegedly was connected to his case; and he filed
his petition supposedly within sixty days of discovery. Therefore, we decline
to find waiver on the basis that the time bar exception was not specifically
stated, and proceed to determine whether Appellant has met the newly-
discovered fact exception.



                                           -8-
J-S80024-18


trial, newly-discovered facts revealing that hair comparison analysis may be

unreliable satisfied the exception); Commonwealth v. Shannon, 184 A.3d

1010, 1017 (Pa.Super. 2018) (discussing Chmiel and finding that “the

majority of our Supreme Court believes that[,] while we need not find a ‘direct

connection’ between the newly-discovered facts and the claims asserted by a

petitioner, the statutory language requires there be some relationship

between the two”).10

       Appellant fails to make even a tenuous link between one line in an article

stating that “many of [the prosecutors let go] allegedly had dubious

convictions and/or misconduct allegations” and his case. Appellant’s Brief at

Exhibit B. Appellant’s assertion of newly-discovered facts is akin to the facts

raised by the appellant in Shannon, supra. In his request for a new trial,

Shannon purported that individuals involved with the prosecution of his case



____________________________________________


10  The author of this memorandum has previously noted that the Supreme
Court’s approach to newly-discovered facts “gives every benefit of the doubt
to the petitioner,” since “the admonishment against a merits analysis of the
underlying claim seems designed to prevent a preemptive finding that the
newly-discovered facts are either not worthy of belief or would not, on
balance, undermine the reliability of the verdict even if true.”          See
Commonwealth v. Robinson, 185 A.3d 1055, 1065 n. 5 (Pa.Super. 2018).
The Supreme Court has not embraced an approach to the analysis of newly-
discovered facts that would explicitly allow us to assess the facts presented.
See Commonwealth v. Robinson, 198 A.3d 340 (Pa. 2018) (evenly divided
court). However, it would defy reason to altogether preclude the courts from
considering the essence of the facts that the petitioner seeks to assert in
determining whether the timeliness exception is met, because § 9545(b)(1)(ii)
is intended to function as a gatekeeper. See Commonwealth v. Cox, 146
A.3d 221, 229 n.11 (Pa. 2016).

                                           -9-
J-S80024-18


may have received “offensive” and “inappropriate” emails. Shannon, supra

at 1017 n.13. This information had been made public through a newspaper

article. Our Superior Court found that appellant’s claim failed to meet the

newly-discovered facts exception since, even if he could tie individuals who

received emails to his case, he had not established any connection between

the improper emails and his case. Id. Therein, we reviewed previous cases

involving newly-discovered facts and noted that “no case . . . even [came]

close to the tenuous connection [a]ppellant [was] asserting.” Id. at n.15.

       Appellant baldly asserts that the newspaper article establishes the “fact”

that the prosecutor in his case committed misconduct. Appellant’s brief at

Exhibit B.    However, as in Shannon, the newspaper article upon which

Appellant relies does not establish that the prosecutor engaged in misconduct,

let alone that he did so in Appellant’s case.11




____________________________________________


11 Additionally, Appellant has failed to show that this fact was unknown to him
or that he acted with due diligence. The focus of this exception is “on [the]
newly[-]discovered facts, not on a newly[-]discovered or newly willing source
for previously known facts.” Commonwealth v. Marshall, 947 A.2d 714,
721-22 (Pa. 2008). As the PCRA court observed, Appellant previously raised
allegations of prosecutorial misconduct in a timely PCRA petition that was
considered and denied on its merits. PCRA Court Opinion, 6/20/18, at 5. A
newspaper article containing information that the prosecutor was allegedly
fired five years later is not a new fact upon which his claim of prosecutorial
misconduct was predicated. Discovering a new conduit for previously litigated
prosecutorial misconduct allegations does not transform Appellant’s otherwise
untimely claim into a timely one. Commonwealth v. Abu-Jamal, 941 A.2d
1264, 1269 (Pa. 2007).

                                          - 10 -
J-S80024-18


      Similarly, an article reporting that Officer Long was arrested for animal

cruelty in March of 2017 has no bearing on Appellant’s claim that the police

coerced an eyewitness to identify him. On April 8, 2006, Officer Long provided

transportation for William Cooper and one other eyewitness from the crime

scene to the homicide unit, and then took Cooper back home after his

interview was concluded. N.T. Trial, 10/10/07, at 25, 27-29, 31. Appellant

contends that the newly-discovered fact, that Officer Long was arrested over

ten years later for animal cruelty, is somehow relevant to eyewitness Cooper’s

prior allegations of police coercion.     Appellant’s brief at 8.   While a direct

connection is not needed, Appellant must show “some relationship” between

his underlying claim and the newly-discovered fact. Shannon, supra. Again,

Appellant has provided none and no connection is apparent from a review of

the record. This deficiency is fatal.

      Accordingly, we conclude that Appellant has not alleged nor offered to

prove a newly-discovered fact upon which to circumvent the PCRA time bar.

42 Pa.C.S. § 9545(b)(1)(ii). As such, his petition is untimely.

      Order affirmed.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/19

                                        - 11 -
