J-S17014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

KIRK A. BROWN,

                           Appellant                 No. 2184 EDA 2017


             Appeal from the PCRA Order Entered June 21, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0712711-2006


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY BENDER, P.J.E.:                           FILED MAY 11, 2018

      Appellant, Kirk A. Brown, appeals pro se from the June 21, 2017 order

denying, as untimely, his second petition filed under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546.           After careful review, we are

constrained to affirm.

      This Court previously summarized the facts of this case on direct

appeal, as follows:

            On July 7, 2005, around 5:00 p.m., Donovan Lindsay
      returned to his home in North Philadelphia and discovered
      someone had entered his home and removed some clothing and
      personal effects belonging to [Appellant]. Around 5:45 p.m.,
      Lindsay drove to a West Philadelphia neighborhood and parked
      and left his car in the middle of the street, engine still running.
      He walked over to a fence separating the sidewalk and the rear
      yard of a residence at 216 S. 49th Street where [Appellant] and
      several others were sitting. For several moments, and just a few
      feet apart, [Appellant] and Lindsay argued over the fence. When
      [Appellant] pulled a semiautomatic handgun from his belt,
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      Lindsay, who was unarmed, turned and ran off past his car[,] and
      across and down the street. [Appellant] fired off five rounds while
      moving onto the sidewalk, hitting Lindsay in the back with two
      rounds that pierced his heart, liver, lung and kidney and caused
      his death at the scene.

Commonwealth v. Brown, No. 534 EDA 2008, unpublished memorandum

at 3-4 (Pa. Super. filed April 3, 2009) (citations to the record and footnotes

omitted).

      After the shooting, Appellant was arrested and charged with various

offenses, including murder. He proceeded to a non-jury trial in December of

2007, at the close of which he was convicted of first-degree murder,

possessing an instrument of crime, and carrying a firearm without a license.

On February 7, 2008, Appellant was sentenced to an aggregate term of life

incarceration, without the possibility of parole.    This Court affirmed his

judgment of sentence on direct appeal. See Brown, supra. Our Supreme

Court denied Appellant’s subsequent petition for allowance of appeal on

September 9, 2009.     See Commonwealth v. Brown, 980 A.2d 604 (Pa.

2009).

             On February 1, 2010, [Appellant] filed his first pro se PCRA
      petition. Counsel was appointed who subsequently filed multiple
      amended petitions. The PCRA court denied relief on October 21,
      2011. On December 18, 2012, the Superior Court affirmed the
      PCRA court’s denial of post-conviction relief.4 On July 25, 2013,
      our Supreme Court denied [Appellant’s] request for allowance of
      appeal.5
         4Commonwealth v. Brown, 64 A.3d 25 (Pa. Super. 2012)
         (unpublished memorandum).
         5   Commonwealth v. Brown, 70 A.3d 808 (Pa. 2013).




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             On July 6, 2015, [Appellant] filed the instant pro se PCRA
      petition, his second. Pursuant to [Pa.R.Crim.P.] 907, [Appellant]
      was served notice of the PCRA court’s intention to dismiss his
      petition on March 22, 2017. [Appellant] submitted a response to
      the Rule 907 notice on April 7, 2017. On June 21, 2017, the PCRA
      court dismissed his PCRA petition as untimely. On June 29, 2017,
      the instant notice of appeal was timely filed to the Superior Court.

PCRA Court Opinion (PCO), 8/17/17, at 1-2.

      Appellant filed a Pa.R.A.P. 1925(b) statement on August 28, 2017,

despite not being ordered to do so by the PCRA court, which had already filed

an opinion addressing the issues presented in Appellant’s petition. On appeal,

Appellant raises three claims for our review:

      1. The PCRA court abused its discussion [sic] by ruling that
         [Appellant’s] PCRA petition was untimely. This ruling is legal
         error and not supported by the record.

      2. [The] PCRA court erred by dismissing the petition without a
         hearing on the merits.

      3. [The] PCRA court erred by denying [Appellant’s] motion to
         amend as it was defective pursuant to Pa.R.Crim.P. 902[.]

Appellant’s Brief at iii (unnecessary capitalization omitted).

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

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

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007). Under the PCRA, any petition for post-conviction relief, including a



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second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, 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 that:

            (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).    Any petition attempting to invoke one of

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

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

      Here, Appellant’s judgment of sentence became final on December 8,

2009, at the conclusion of the 90-day time-period for seeking review by the

United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (stating that a

judgment of sentence becomes final at the conclusion of direct review or the

expiration of the time for seeking the review); Commonwealth v. Owens,



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718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the PCRA,

petitioner’s judgment of sentence becomes final ninety days after our

Supreme Court rejects his or her petition for allowance of appeal since

petitioner had ninety additional days to seek review with the United States

Supreme Court). Thus, Appellant’s present petition filed on July 6, 2015, is

patently untimely, and for this Court to have jurisdiction to review the merits

thereof, Appellant must prove that he meets one of the exceptions to the

timeliness requirements set forth in 42 Pa.C.S. § 9545(b).

      Appellant argues that he meets the after-discovered evidence exception

of section 9545(b)(1)(ii) based on an affidavit from Rick Hughes, a man who

claims that he was present at the scene of the shooting and would testify that

Appellant was not the shooter.     More specifically, in the affidavit, Hughes

states:

      On July 7th, 2005, which I think was Thursday, I was walking down
      the 4900 block of Chancellor Street in Philadelphia, Pennsylvania.
      I passed [Appellant] and an unknown woman at the top of the
      block. Then a guy that was driving a green Chrysler kept blowing
      his horn and driving in a reckless manner. This guy stopped his
      green Chrysler in the middle of the street. He was acting crazy.
      He exited out of his car, leaving his car right there in the middle
      of the street. He walked to the fenced area and started yelling,
      very loud[ly], at the other guy in the fenced area. These two guys
      were almost face to face at the fence, yelling at each other, and I
      was watching all of this, when the guy inside the fence who had
      dreads, pulled out a gun and started shooting at the male who
      was outside the fence and whose green Chrysler was parked in
      the middle of the street. I heard four maybe five or six shots.
      The shooter then walked into the first floor apartment. I ran from
      the scene. I saw the shooting, and I saw the man with the dreads
      shoot the guy who got out of the green Chrysler. The shooter was



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      not Kirk Brown. That I am certain of.          I am willing to be
      interviewed or to testify in regard to this.

See Appellant’s PCRA Petition, 7/6/15, at “Exhibit A.”

      Hughes’s affidavit is dated June 1, 2015, and Appellant filed his PCRA

petition on July 6, 2015, thus meeting the 60-day requirement of section

9545(b)(2). The PCRA court, however, concluded that Appellant could not

rely on Hughes’s affidavit to meet the timeliness exception of section

9545(b)(1)(ii), as Appellant “failed … to demonstrate that Hughes or a

comparable witness was previously undiscoverable with the exercise of due

diligence.” PCO at 3. The court explained:

      In his affidavit, Hughes stated that prior to the shooting, he
      walked right by [Appellant] and an unknown woman on the 4900
      block of Chancellor Street where the shooting occurred. Thus,
      according to Hughes, there were at least two potentially favorable
      witnesses in close proximity to [Appellant].           [Appellant’s]
      purported unfamiliarity with Hughes did not relieve him of his
      burden to diligently search for witnesses or explain why such
      efforts would have been unsuccessful.7         [Appellant’s] vague
      assertion that he has been diligently trying to prove his innocence
      did not meaningfully address his specific burden to attempt to
      ascertain the identity of Hughes or similar witnesses. Given this
      glaring deficiency, [Appellant] failed to properly plead and prove
      subsection 9545(b)(1)(ii).
         7 For example, in [Commonwealth v.] Davis, [86 A.3d 883
         (Pa. Super. 2014),] the Superior Court found that the
         petitioner demonstrated due diligence in part by proffering
         affidavits from several friends and family members who
         claimed that they attempted, albeit unsuccessfully, to locate
         a witness.

Id. at 3-4.

      We disagree with the PCRA court’s conclusion that Appellant failed to

plead and prove due diligence.       Appellant asserted in his petition, and


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reiterates on appeal, that he did not know Hughes until they met in prison,

and he had no way of knowing that Hughes had information concerning the

shooting.1 See PCRA Petition, 7/6/15, at 1. Moreover, while Hughes stated

in his affidavit that he saw Appellant and the ‘unidentified woman,’ Hughes

did not assert that Appellant saw him or the woman, so as to establish that

Appellant was even aware that these two witnesses were at the scene. Thus,

as Appellant stresses, the fact that Hughes claims to have seen Appellant does

not mean that “Appellant even saw, or recognize[d]” Hughes at the scene of

the shooting. Appellant’s Brief at 6.

       Additionally, we deem the PCRA court’s reliance on Davis misplaced.

There, we held that Davis exercised due diligence in obtaining a recantation

affidavit from a witness, who had testified at Davis’s trial, because Davis

had attached to his PCRA petition “affidavits from several friends and family

members who claimed that they attempted to locate [the witness] after

[Davis’s] trial in order to convince [the witness] to admit that he lied on the

stand.” Davis, 86 A.3d at 891. Here, unlike in Davis, Appellant asserted in

his petition that he did not know Hughes, or have any reason to believe that

Hughes had information about the shooting, until the two men met while

incarcerated.     Thus, we disagree with the PCRA court that Appellant was

____________________________________________


1 We recognize that Hughes stated in his affidavit that he knew Appellant “prior
to coming to prison.” See PCRA Petition at “Exhibit A.” However, Hughes did
not claim that he knew Appellant at the time of the shooting and, even if he
did, that does not necessarily demonstrate that Appellant knew Hughes.



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required to present affidavits from friends and family stating that they

searched for Hughes and the unidentified woman.2

        In light of these circumstances, we conclude that the PCRA court erred

by finding that Appellant did not act with due diligence in discovering Hughes’s

affidavit.   Because Appellant has also demonstrated that the information

contained in Hughes’s affidavit was not previously known by him, and that he

filed his petition within 60 days of obtaining that information, Appellant has

satisfied the timeliness exception of section 9545(b)(1)(ii).

        Nevertheless, we are compelled to affirm the PCRA court’s order denying

Appellant’s petition. At the conclusion of the court’s Rule 1925(a) opinion, it

explained that, even if Appellant had met a timeliness exception, he would not

be entitled to post-conviction relief. See PCO at 4 n.8. The court reasoned

that,

        [t]he Commonwealth presented numerous witnesses including
        two eye-witnesses who identified [Appellant] as the shooter. The
        Commonwealth also introduced corroborating medical evidence.
        The Superior Court characterized the Commonwealth’s evidence
____________________________________________


2 Moreover, we strongly reject the Commonwealth’s argument that Hughes’s
affidavit constitutes a new source of a previously known fact, because
Appellant always claimed that he was not the shooter. If we accepted the
Commonwealth’s position, it would mean that any defendant who claimed
innocence at trial could never meet a PCRA timeliness exception with new
evidence that could prove his/her innocence, as such evidence would always
be deemed a new source of the previously known fact of his/her innocence.
Additionally, the ‘new fact’ asserted by Appellant is not simply that he is
innocent; it is that he has discovered a specific witness to the murder who
could testify that he was not the shooter. Because Appellant did not previously
know about Hughes or the information he possessed, Hughes’s affidavit is not
a new source of a previously known fact.


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      as overwhelming. … Brown, [No. 534 EDA 2008,] unpublished
      memorandum at 8. [Appellant] therefore failed to demonstrate
      that the outcome of the trial would have changed based upon
      Hughes’[s] purported observations.           See 42 Pa.[C.S.] §
      9543(a)(2)(vi) [(“To be eligible for relief under this subchapter,
      the petitioner must plead and prove by a preponderance of the
      evidence … [t]hat the conviction or sentence resulted from … [t]he
      unavailability at the time of trial of exculpatory evidence that has
      subsequently become available and would have changed the
      outcome of the trial if it had been introduced.”)].

Id.

      We recognize that the merit of an underlying after-discovered evidence

claim is not at issue when determining whether a PCRA petition is timely. See

Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super. 2012). However, it

would be a waste of judicial resources to remand Appellant’s case for an

evidentiary hearing where it is clear that the PCRA court has determined that

Hughes’s proposed testimony would not have changed the outcome of

Appellant’s trial, and the record supports that determination. Notably, this

Court previously explained that at trial,

             [t]he Commonwealth produced two witnesses, Phillip
      Williams (a/k/a “King Moses,” “Moses” and Kevin Warrington) and
      Sandra Claton, who testified they saw [Appellant] shoot at
      Lindsay. Williams, a friend of both [Appellant] and Lindsay, was
      one of the persons with [Appellant] in the back yard and witnessed
      the entire shooting. He saw [Appellant] walk over to the fence by
      the sidewalk where Lindsay stood, pull his semiautomatic pistol,
      and, as Lindsay fled across and down the street, [Appellant]
      walked out to the sidewalk and continued firing. When Lindsay
      fell to the ground at the nearby street intersection, [Appellant]
      placed his handgun back in his waistband and left the area.

            Claton lived across the street with a good view of the back
      yard and Lindsay’s arrival. She saw Lindsay leave his car in the
      middle of the street and walk over to the fence. She watched



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      [Appellant] pull out his handgun and fire one time at Lindsay. She
      then retreated inside her house and called 9-1-1.

Brown, No. 534 EDA 2008, unpublished memorandum at 5-6 (citations to the

record omitted).

      Given the eyewitness identifications by Williams and Claton, we

ascertain no abuse of discretion in the PCRA court’s conclusion that Hughes’s

testimony would not likely result in a different verdict if a new trial were

granted. Accordingly, we are compelled to affirm the order of the PCRA court

dismissing Appellant’s petition.

      Order affirmed.

      Judge Lazarus joins this memorandum.

      Judge Kunselman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/18




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