J-S01014-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TERRANCE WILLIAMS                          :
                                               :
                       Appellant               :   No. 2515 EDA 2018

             Appeal from the PCRA Order Entered October 20, 1998
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0823621-1984


BEFORE:      BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BOWES, J.:                                  FILED JUNE 22, 2020

        Terrence Williams appeals nunc pro tunc from the October 20, 1998

order denying Appellant’s first petition for relief under the Post-Conviction

Relief Act (“PCRA”). After careful review, we conclude that Appellant’s request

for the reinstatement of his appellate rights was untimely filed under the

PCRA.1     Thus, we vacate the PCRA court’s July 31, 2018 order reinstating

Appellant’s appellate rights nunc pro tunc and quash this appeal.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1  This petition constitutes Appellant’s fifth filing under the PCRA. Rather than
asserting new claims for relief under the PCRA, Appellant requested the
reinstatement of his appellate rights with respect to his first PCRA petition that
was previously appealed of right to our High Court in 2004, which affirmed
the PCRA court’s denial of Appellant’s first petition. The Commonwealth did
not oppose Appellant’s request for reinstatement, and the PCRA court granted
it. As explained infra, our analysis focuses upon the timeliness of Appellant’s
request for reinstatement of his appellate rights, which we raise sua sponte.
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      For our purposes, the factual history of this case is straightforward.

Appellant’s underlying conviction relates to the June 11, 1984 murder of Amos

Norwood (the “victim”), which Appellant committed with his co-defendant,

Marc Draper. On that day, Appellant and Mr. Draper robbed, bound, and beat

the victim to death in a secluded area near Ivy Hill Cemetery in Philadelphia,

Pennsylvania. See Commonwealth v. Williams, 570 A.2d 75, 77-79 (Pa.

1990) (“Williams I”); PCRA Court Opinion, 1/13/99, at 1-2. Ostensibly, the

defendants were motivated in their crimes by recent gambling losses. They

used the victim’s cash and credit cards to continue their escapades in Atlantic

City, New Jersey. However, due to “incautious” usage of the victim’s credit

cards, the defendants were quickly implicated in the victim’s death. Appellant

fled the jurisdiction, but Mr. Draper “made a full confession, describing his

own role in the murder and [Appellant’s] role in the killing and aftermath.”

Eventually, Appellant also turned himself in and proceeded to trial.

      During the trial, the then-district attorney of Philadelphia, Ronald

Castille, approved the trial prosecutor’s request to seek the death penalty

against Appellant.   Ultimately, a jury found Appellant guilty of first-degree

murder, criminal conspiracy, and robbery.        With respect to first-degree

murder, the jury returned a verdict of death.      On the remaining charges,

Appellant was sentenced to an aggregate, concurrent term of fifteen to thirty

years of imprisonment.      On direct appeal, our Supreme Court upheld

Appellant’s conviction. Thereafter, Appellant filed three unsuccessful petitions


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for PCRA relief that were reviewed by the Pennsylvania Supreme Court on

appeal. See Commonwealth v. Williams, 863 A.2d 505, 523 (Pa. 2004)

(“Williams II”), Commonwealth v. Williams, 909 A.2d 297 (Pa. 2006) (per

curiam order); Commonwealth v. Williams, 962 A.2d 609 (Pa. 2009)

(same). Appellant also sought habeas relief from the U.S. Court of Appeals

for the Third Circuit, which denied his request. See Williams v. Beard, 637

F.3d 195, 238 (3d Cir. 2011) (“Williams III”).

       During this same period of time, then-DA Castille was elected to serve

as a justice of the Pennsylvania Supreme Court.2 He participated, inter alia,

in the adjudication of Williams II by voting with the majority to affirm the

dismissal of Appellant’s first PCRA petition.    There is no indication in the

certified record before us that Appellant ever sought then-Justice Castille’s

recusal from, or raised any objection regarding his participation in, these

earlier proceedings.       On March 9, 2012, Appellant filed his fourth PCRA

petition.   Appellant’s petition asserted, inter alia, that the prosecutor had

procured “false testimony” from Mr. Draper. Appellant did not raise any claim

or argument related to then-Chief Justice Castille’s participation in the earlier

proceedings presented in Appellant’s fourth PCRA petition.       The trial court

directed the Commonwealth to produce various “previously undisclosed files”


____________________________________________


2  Specifically, then-Justice Castille was elected to the bench in 1993, and
served as a justice of the Pennsylvania Supreme Court from January 1994
until he retired in December 2014. He served as the chief justice of the
Pennsylvania Supreme Court from January 2008 until his retirement.

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related to Appellant’s claims of prosecutorial misconduct, which happened to

include a memorandum signed by then-DA Castille approving the pursuit of

the death penalty in Appellant’s case.

       Separate from this apparent revelation, the PCRA court granted

Appellant’s fourth PCRA petition on the grounds that the trial prosecutor had

suppressed material, exculpatory evidence in violation of Brady v. Maryland,

373 U.S. 83 (1963), and engaged in prosecutorial gamesmanship. The PCRA

court stayed Appellant’s execution and ordered new sentencing proceedings.

The Commonwealth appealed to the Pennsylvania Supreme Court, where

Appellant sought the recusal of Chief Justice Castille, who denied the request

without explanation.       Thereafter, the Pennsylvania Supreme Court vacated

the stay of execution entered by the PCRA court and reinstated Appellant’s

death penalty. See Commonwealth v. Williams, 105 A.3d 1234, 1245 (Pa.

2014) (“Williams IV”).

       Appellant filed a petition for a writ of certiorari with the U.S. Supreme

Court, which granted it. See Williams v. Pennsylvania, ___ U.S. ___, 136

S.Ct. 1899, 1904 (2016) (“Williams V”). It concluded that Appellant’s due

process rights were violated by Chief Justice Castille’s participation in the

adjudication of Appellant’s case in Williams IV.3        Accordingly, the U.S.

____________________________________________


3  There was no indication that then-DA Castille had knowledge of, or
participated in, the prosecutorial misconduct identified by the PCRA court in
adjudicating Appellant’s fourth PCRA petition. See Williams V, supra at



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Supreme Court vacated Williams IV and remanded for “further proceedings

not inconsistent with this opinion.”

       On remand, the Pennsylvania Supreme Court equally split over whether

Appellant was entitled to relief. See Commonwealth v. Williams, 168 A.3d

97 (Mem) (Pa. 2017) (per curiam order affirming based upon an equally

divided court). Thus, the PCRA court’s order entering a stay of execution and

ordering a new penalty phase was affirmed. On December 29, 2017, Appellant

was resentenced to life without parole as to his first-degree murder conviction.

The remainder of Appellant’s sentence was identical to the original order.

       Contemporaneously with his resentencing, Appellant filed his fifth PCRA

petition seeking the reinstatement of his appellate rights with respect to his

first PCRA petition, which was adjudicated by our Supreme Court in Williams

II over sixteen years ago. Specifically, Appellant sought reinstatement upon

the basis that then-Justice Castille had also participated in that adjudication.

See Appellant’s Fifth PCRA Petition, 10/10/17, at ¶¶ 5, 7. The Commonwealth

did not oppose the petition.         On July 31, 2018, the PCRA court granted

Appellant’s request and reinstated his appellate rights:

       [Appellant’s PCRA] appellate rights are hereby reinstated nunc pro
       tunc for appellate review from the PCRA Court’s October 20, 1998
       dismissal of the petition filed under the instant case number.
____________________________________________


1908 (“[T]here is no indication that Chief Justice Castille was aware of the
alleged prosecutorial misconduct . . . .”). Indeed, the U.S. Supreme Court
never concluded that Chief Justice Castille had committed actual misconduct,
but only found that his participation in the consideration of Appellant’s appeal
in Williams IV created an “unacceptable risk of actual bias.” Id.

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     [Appellant’s] prior appeal of this matter, [Williams II], was
     resolved in a manner that implicates due process pursuant to
     [Williams V].

Order, 7/31/18, at unnumbered 1. This order was not appealed. Rather, all

parties proceeded with the instant nunc pro tunc appeal that was granted by

the PCRA court, and which arguably lies from the denial of Appellant’s first

PCRA petition in October 1998. Under that assumption, both Appellant and

the PCRA court have complied with the mandates of Pa.R.A.P. 1925.

     Appellant presents the following questions for our consideration:

     1. Did the Commonwealth use its peremptory strikes in a racially
     discriminatory manner, thus depriving Appellant of his rights
     under the Sixth, Eighth, and Fourteenth Amendment to the [U.S.]
     Constitution and Article I, §§ 1, 9, 13, and 26 of the Pennsylvania
     Constitution? Was Appellant denied a full and fair opportunity to
     litigate this claim?

     2. Did the [PCRA] court err in failing to grant a post-conviction
     hearing on Appellant’s claims and did the court err in its limitation
     of counsel’s examination of particular witnesses, including its
     refusal to allow counsel an opportunity to review witnesses’ notes?

     3. Did the prosecution fail to disclose portions of its plea
     agreement with key witness Marc Draper and instead elicit false
     testimony in its place?

Appellant’s brief at 2-3. With respect to our standard of review, we examine

whether the PCRA court’s determinations are supported by the record and are

free of legal error. Commonwealth v. Watkins, 108 A.3d 692, 701 (Pa.

2014).   We apply a de novo standard of review with respect to the PCRA

court’s legal determinations. Id.




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      Before we can address the merits of Appellant’s issues, we must

determine if the PCRA court had the necessary jurisdiction to restore

Appellant’s appellate rights such that this nunc pro tunc appeal is properly

before us for review.   See Commonwealth v. Ballance, 203 A.3d 1027,

1030-31 (Pa.Super. 2019). With specific reference to this case, the timeliness

of a PCRA petition is a jurisdictional requisite that “may not be altered or

disregarded in order to address the merits of the petition.” Commonwealth

v. Laird, 201 A.3d 160, 161-62 (Pa.Super. 2018).            “In other words,

Pennsylvania law makes clear no court has jurisdiction to hear an untimely

PCRA petition.”   Ballance, supra at 1031 (emphasis in original) (citing

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)). Finally,

“[a]lthough neither party nor the [PCRA court] has addressed this 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. Hutchins, 760

A.2d 50, 53 (Pa.Super. 2000).

      The PCRA requires that “[a]ny petition under this subchapter, including

a second or subsequent petition, shall be filed within one year of the date the

judgment becomes final . . . .” 42 Pa.C.S. § 9545(b)(1). Under the PCRA, a

judgment of sentence becomes “final” at the conclusion of direct review,

“including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

review.” 42 Pa.C.S. § 9545(b)(3).


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      On February 8, 1990, the Pennsylvania Supreme Court affirmed

Appellant’s judgment of sentence on direct appeal. See Williams I, supra

at 84. Appellant did not appeal to the U.S. Supreme Court, and his time to

do so expired on May 9, 1990. See U.S. Sup. Ct. Rule 13(1). Consequently,

Appellant had until May 9, 1991 to file a timely PCRA petition.                Thus,

Appellant’s PCRA petition seeking the reinstatement of his appellate rights was

untimely filed by more than 25 years, which Appellant acknowledges in the

petition. See Appellant’s Fifth PCRA Petition, 10/10/17, at ¶ 23.

      This jurisdictional time bar is subject to three statutory exceptions,

which requires the petitioner to allege and prove at least one of the following:

      (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). “Where the petition alleges, and the petitioner

proves, that an exception to the time for filing the petition is met, the petition

will be considered timely.” Commonwealth v. Sanchez, 204 A.3d 524, 526

(Pa.Super. 2019) (emphasis added).




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      In pertinent part, Appellant’s PCRA petition seeking the reinstatement

of his appellate rights nunc pro tunc alleged that all three of these exceptions

should apply to his circumstances.       See Appellant’s Fifth PCRA Petition,

10/10/17, at ¶¶ 22-27. We will address his arguments seriatim.

      Appellant has discussed the “government interference” and “newly

discovered facts” exceptions collectively in his petition, as follows:

      This Petition meets the requirements of 42 Pa.C.S. § 9545(b)(1)(i)
      & (ii) because the facts upon which the claim is predicated –
      District Attorney Castille’s significant, personal involvement in this
      very case – were suppressed by the Philadelphia District
      Attorney’s Office and by [Chief Justice] Castille from the outset of
      this case. Both the District Attorney’s Office and [Chief Justice]
      Castille for years made misleading statements minimizing and
      misrepresenting his role in capital prosecutions. The Supreme
      Court’s opinion in [Williams V] 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 and [Chief] Justice Castille interfered with
      [Appellant’s] ability to present this claim earlier. Similarly,
      because of those non-disclosures and mischaracterizations, the
      facts upon which this claim is predicated could not have been
      ascertained earlier by the exercise of due diligence.

Id. at ¶ 24.    We must disagree with Appellant’s assertions and claims.

Overall, Appellant’s analysis takes significant factual liberties and argues for

an unsustainable enlargement of the holding in Williams V. While the U.S.

Supreme Court addressed the narrow issue of whether Chief Justice Castille

should have granted a timely recusal request from Appellant in Williams IV,

the Court never opined as to whether these allegations were sufficient to

satisfy the timeliness requirements of the PCRA in a subsequent petition.

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       With respect to governmental interference, Appellant has offered

nothing but bald assertions that the Commonwealth or Chief Justice Castille

suppressed or mischaracterized then-DA Castille’s involvement in Appellant’s

case. In the passage above, Appellant has made no offer of proof, nor even

pleaded sufficient facts to establish the applicability of this exception.

       There is simply no evidence suggesting that this information was ever

concealed by the Commonwealth at any point in the underlying proceedings.4

Tellingly, Appellant provides no citations to the factual record in support of

these allegations concerning alleged governmental interference.          As such,

Appellant has not established the applicability of this exception.           See

Commonwealth v. Marshall, 947 A.2d 714, 720-21 (Pa. 2008) (rejecting

invocation of exception at § 9545(b)(1)(i) where the petitioner could not

substantiate “general, unsupported allegations”).

       Along similar lines, we are unpersuaded by Appellant’s arguments

concerning “newly discovered facts.” We do not dispute that Appellant first

learned of the signed memorandum authorizing the pursuit of the death

penalty in his case during the pendency of Appellant’s successful PCRA appeal

in Williams V, supra at 1904.              However, the pertinent question under



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4 On this point, we discern that Appellant is conflating the merits of his nunc
pro tunc claims alleging prosecutorial misfeasance, with his burden of proof
concerning the timeliness exceptions to the PCRA. No matter how compelling
the merits of an argument may be, we may not ignore jurisdictional
requirements in order to reach them.

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§ 9545(b)(1)(ii) is not when Appellant discovered this information, but

whether he could not have discovered it sooner through statutorily mandated

“due diligence.” See Sanchez, supra at 526 (“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 facts earlier with

the exercise of due diligence.” (emphasis added)).

      Appellant’s argument concerning due diligence is threadbare and merely

parrots the same empty allegations of governmental interference discussed

above. Critically, Appellant has failed to demonstrate why he could not have

learned of then-Justice Castille’s involvement in his case sooner. Id. In the

absence of any competent evidence suggesting obstruction of this information

by the Commonwealth, Appellant has no explanation for waiting nearly two

decades to pursue claims concerning then-Justice Castille’s participation.

      While a petitioner is not required to exercise “perfect vigilance,” he is

bound to undertake “reasonable efforts . . . to uncover facts that may support

a claim for collateral relief.” Commonwealth v. Hart, 199 A.3d 475, 481

(Pa.Super. 2018). Instantly, there is no indication that Appellant ever sought

any information concerning then-Justice Castille’s involvement, or pursued

any investigation until he was made aware of the signed memorandum by the

happenstance of discovery. See Williams V, supra at 1904.

      This paucity of diligence is especially troubling given that, both as

district attorney and on our Supreme Court, Chief Justice Castille’s association


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with the death penalty was public and well-documented according to

Appellant.5 In fact, claims related to Chief Justice Castille’s requested recusal

in other capital cases related to his service as Philadelphia’s DA were

addressed by the Pennsylvania Supreme Court in published opinions

significantly predating Appellant’s “discovery” of the signed memorandum.

See Commonwealth v. Williams (Roy), 732 A.2d 1167, 1174 (Pa. 1999)

(addressing a request for recusal of then-Justice Castille in a death penalty

case), Commonwealth v. Jones, 663 A.2d 142, 144 (Pa. 1995) (same).

       Although the exact contours of Chief Justice Castille’s involvement in

Appellant’s case may not have been precisely known, that information appears

to us to have been discoverable through the exercise of due diligence. This is

particularly so in light of Chief Justice Castille’s decades of service as a highly

visible public servant, in roles whose potential connection to Appellant’s case

were obvious. In sum, Appellant has failed to offer any evidence establishing

his due diligence. Accordingly, we conclude that the timeliness exception at

§ 9545(b)(1)(ii) is inapplicable to Appellant’s petition. See Commonwealth

v. Stokes, 959 A.2d 306, 311 (Pa. 2008) (“[B]ecause Appellant failed to



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5   Appellant’s petition contains a two-page long parenthetical footnote
meticulously documenting Chief Justice Castille’s public association with the
death penalty in Pennsylvania periodicals around the time of his election to
the Pennsylvania Supreme Court in 1993. See Appellant’s Fifth PCRA Petition,
10/10/17, at ¶ 41 n.1. Prior to his election to our High Court, then-DA Castille
was elected to his post as Philadelphia’s district attorney in 1985. He served
in that role from January 1986 until March 1991.

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explain why he did not request these files earlier, he did not establish the due

diligence required to excuse him from over a decade of inaction.”).

       With respect to the retroactive-constitutional-right exception codified at

§ 9545(b)(1)(iii), Appellant asserts that Williams V recognized a new

constitutional right and held that it applies retroactively. See Appellant’s Fifth

PCRA Petition, 10/10/17, at ¶ 25. We disagree.

       In order to gain the benefit of this exception, Appellant must prove that:

(1) a “new” constitutional right has been recognized by either the U.S.

Supreme Court or the Pennsylvania Supreme Court; and (2) that the right

“has been held” to apply retroactively. Commonwealth v. Copenhefer, 941

A.2d 646, 649 (Pa. 2007). Appellant cannot satisfy either requirement.

       Williams V did not recognize a “new” constitutional right but merely

applied existing precedent concerning due process. See Williams V, supra

at 1905-07 (noting the “unconstitutional potential for bias” that exists “when

the same person serves as both accuser and adjudicator in a case”) (citing In

re Murchison, 349 U.S. 133, 136-37 (1955)).6            Contrary to Appellant’s

conclusory arguments, the U.S. Supreme Court’s holding in Williams V did

not announce a new rule of law, but merely granted Appellant relief under

existing precedent.      See Commonwealth v. Wojtaszek, 951 A.2d 1169,

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6 See also Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 881
(2009), Puckett v. U.S., 556 U.S. 129, 141 (2009), Withrow v. Larkin, 421
U.S. 35, 57 (1975).



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1172-73     (Pa.Super.     2008)     (holding      precedent   not   announcing   new,

retroactive constitutional right fails to satisfy § 9545(b)(1)(iii) requirements).7

Along similar analytical lines, Appellant has presented no support for his

contention that the U.S. Supreme Court’s holding in Williams V announced a

constitutional right that is retroactive in nature. Id.

       Overall, Appellant has not satisfied either of the requirements necessary

to invoke the timeliness exception at § 9545(b)(1)(iii).             See Wojtaszek,

supra at 1172-73. Thus, it does not apply in this case.

       Based on the foregoing discussion, we conclude that Appellant’s fifth

PCRA petition seeking reinstatement of his appellate rights nunc pro tunc

failed to assert and prove a valid timeliness exception.             See 42 Pa.C.S. §

9545(b)(1)(i)-(iii). Therefore, the PCRA court had no jurisdiction to restore

Appellant’s appellate rights. Accordingly, we vacate the PCRA court’s July 31,

2018 order granting Appellant leave to appeal nunc pro tunc and quash this

appeal for lack of jurisdiction. Accord Ballance, supra at 1033.

       Order vacated. Appeal quashed for lack of jurisdiction.




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7 This conclusion is in parity with recent persuasive holdings from this Court
explicitly refusing to hold that Williams V announced a new, retroactive
constitutional right. See Commonwealth v. Ivey, 2020 WL 1515893 at *4
(Pa.Super. March 30, 2020) (non-precedential decision), Commonwealth v.
Lee, 2019 WL 4131429 at *8 (Pa.Super. August 30, 2019) (same).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/20




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