J-S17003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

MARVIN PRICE,

                          Appellant                  No. 3175 EDA 2018


           Appeal from the PCRA Order Entered October 10, 2018
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0503251-2004


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                           FILED MAY 17, 2019

      Appellant, Marvin Price, appeals pro se from the post-conviction court’s

order dismissing his third petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The PCRA court summarized the procedural and factual history of this

case as follows:
      PROCEDURAL HISTORY

             The instant matter involves the killing of Troy Jones on
      November 7, 2003. [Appellant] was tried for that murder before
      this [c]ourt and a jury between January 15, 2008[,] and January
      18, 2008. On January 18, 2008, the jury found [Appellant] guilty
      of first-degree murder and possession of an instrument of crime.
      This [c]ourt thereafter sentenced [Appellant] to life imprisonment
      and a concurrent sentence of two and a half to five years’
      incarceration for the possession of an instrument of crime charge.

           [Appellant] filed a timely appeal from the judgment of
      sentence, arguing, inter alia, that the Commonwealth’s evidence
      — consisting of dying declarations and excited utterances — was
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       insufficient to sustain a conviction and that this [c]ourt abused its
       discretion in admitting testimony of Philadelphia Police Officer
       Dawn Benton regarding the victim’s dying declaration. The
       Superior Court of Pennsylvania issued a memorandum and order
       on December 21, 2009, affirming the judgment of sentence. See
       Commonwealth v. Price, [990 A.2d 52] (Pa. Super. 2009). The
       Supreme Court of Pennsylvania denied allocatur on June 22, 2010.
       Commonwealth v. Price, 997 A.2d 1177 (Pa. 2010).[1]

                                           ***

       FACTUAL HISTORY

              On November 7, 2003, Troy Jones was gunned down outside
       of his parents’ house … in Philadelphia. At about 10:00 p.m., that
       night, Troy Jones went to his parents’ home to visit his nephew,
       who was recuperating from a serious automobile accident. He
       stayed for about an hour. At about 11:00 p.m., Troy Jones walked
       out of his parents’ house into an ambush of bullets. He was shot
       four times. The shooter sped off.

             Darnell Gantt, Troy Jones’[s] nephew, rushed outside the
       house. Troy Jones collapsed into his arms and said, “Marvin shot
       me.” Seconds later, Dorothy and Richard Jones ran onto their
       front porch. As they entered the chaos, Troy Jones said, “Mom,
       I’m shot …[.] Marvin, Marvin Price shot me.”

             Dorothy Jones called 9-1-1.      Philadelphia Police and
       Emergency Medical Technicians arrived shortly thereafter. Officer
       Dawn Benton arrived at the scene and positioned herself behind
       Richard Jones, who was kneeling over his severely injured son.
       She overheard Troy Jones say, “Marvin shot me.” However, the

____________________________________________


1 After our Supreme Court denied Appellant’s petition for allowance of appeal,
he did not seek review with the U.S. Supreme Court. Thus, his judgment of
sentence became final on September 20, 2010, when the time for filing a
petition for writ of certiorari to the U.S. Supreme Court expired. 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); U.S.Sup.Ct.R. 13 (providing that “[a] petition for a writ of certiorari
seeking review of a judgment of a lower state court that is subject to
discretionary review by the state court of last resort is timely when it is filed
with the Clerk within 90 days after entry of the order denying discretionary
review”).

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     Commonwealth was unaware of this until January 17, 2008, the
     last day of the Commonwealth’s case-in-chief.

           The notes of testimony from January 17, 2008, show that
     before the jury entered the courtroom that morning, both counsel
     for [Appellant] and the Commonwealth met with this [c]ourt in
     chambers. During this conference, the prosecutor informed this
     [c]ourt that just moments earlier, Officer Benton provided her
     with new evidence. Officer Benton told the prosecutor that[,]
     while she was at the Jones[es’] front porch on November 7, 2003,
     she heard Troy Jones say, “Marv shot me.” Defense counsel
     objected to the admissibility of this evidence. This [c]ourt
     overruled the objection, stating that the witness “was subject to
     your cross-examination.”

            After the parties, judge, and jury returned to the courtroom,
     the Commonwealth called Officer Benton to the stand. Under
     oath, she testified that she was standing on the front porch as
     officers tended to Troy Jones[’s] injuries. Troy Jones “was alert,
     his eyes were open … and he was talking.” She then testified that
     she heard Troy Jones say, “Marvin shot me.”

           [Appellant’s] trial counsel thoroughly cross-examined
     Officer Benton, asking questions such as: “… are you telling us
     that you didn’t bring up to anybody in preparation for going to
     court in this case that you heard Troy Jones say the word
     ‘Marvin’”; “… isn’t that an important point, isn’t that something
     you would bring up to somebody if that’s what you heard?”; and[,]
     “Did you ever prepare a document memorializing in any way,
     shape, or form that you heard Troy Jones say the word ‘Marvin’?”

           In her responses to these questions, Officer Benton testified
     that[,] according to her recollection, she informed the
     Commonwealth       about    this  statement     throughout     trial
     preparations, including preparations occurring in November 2007.

           After the Commonwealth rested, defense counsel moved for
     a mistrial, arguing that when the prosecutor interviewed Officer
     Benton in November 2007, she obtained discoverable material
     that she failed to pass to [Appellant]. The prosecutor defended
     her position, arguing that “although [Officer Benton] thinks a
     couple years ago she told me, whether she did or not, I can’t
     remember her telling me….” This [c]ourt denied the motion,
     reasoning:



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         I do think you were effective in cross-examination … and
         having observed your effective cross-examination, if you
         would like to call anybody, and quite frankly, I think last
         minute witnesses cut against the Commonwealth, but you
         have a right to call whoever you want at this point, but the
         motion for mistrial is denied.

PCRA Court Opinion (PCO), 11/14/2018, at 1-2, 3-5 (internal citations and

footnote omitted; some brackets added).

      On July 24, 2018, Appellant filed pro se his third PCRA petition. Therein,

he alleged that he found newly-discovered evidence in the form of a June 7,

2018 news article, which led to him discovering Detective Thomas Augustine’s

“being cited for [his] role in a wrongful conviction civil suit stemming from his

misconduct in [another] criminal matter….” PCRA Petition, 7/24/2018, at 3

(unnumbered). Appellant avers that Detective Augustine prepared false police

reports in his case, and “[w]ithout the false reports, there would not have

been direct evidence linking [Appellant] to the crime, so that the prosecutor

would not have had cause to prosecute [Appellant].” Id. at 6.

      On September 4, 2018, the PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss Appellant’s petition, indicating that the issue raised

therein was without merit. Subsequently, on September 13, 2018, Appellant

filed pro se an amended PCRA petition, in which he added that he uncovered

another newly-discovered fact, explaining that Officer Dawn Benton was not

listed in original discovery materials and that Officer Benton was signed into




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the Criminal Justice Center on the four days of Appellant’s trial as Officer Dawn

Kennedy. See Amended PCRA Petition, 9/13/2018, at 5-6.2

       On October 10, 2018, the PCRA court entered an order dismissing

Appellant’s petition. On October 16, 2018, Appellant filed a timely notice of

appeal. The PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, and he did not do so.

On November 14, 2018, the PCRA court issued its Rule 1925(a) opinion,

stating that it “denied relief with respect to [Appellant’s] newly[-]discovered

evidence claims because [Appellant] failed to establish that the information

he included in his PCRA petitions would result in a different verdict.” PCO at

7.

       Presently, Appellant raises the following issues for our review:

       Claim I. Whether the PCRA [court]           erred   in   dismissing
       [Appellant’s] petition as untimely[?]

       Claim II. Whether the PCRA [court] erred in not following the
       ruling in [Commonwealth] v. Burton[, 158 A.3d 618 (Pa.
       2017)]?

       Claim III. Whether [Appellant] qualifies for the exception to the
       PCRA…?

Appellant’s Brief at 4, 6, 11.3
____________________________________________


2Appellant did not conventionally number the pages of his amended petition
so we disregard his pagination.

3 In his brief, Appellant does not include a Statement of Questions Involved
section in accordance with Pa.R.A.P. 2116. See Pa.R.A.P. 2116(a) (setting
forth requirements for the Statement of Questions Involved section).
Nevertheless, he divides his Argument section into three parts, so we rely on
the headings of those parts to determine the issues Appellant wishes to raise.

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      Initially, we note that our standard of review regarding an order denying

post-conviction relief is whether the findings of the court are “supported by

the record and free of legal error.” Commonwealth v. Albrecht, 994 A.2d

1091, 1093 (Pa. 2010) (citations omitted).        Even though the PCRA court

neglected to address the timeliness of Appellant’s petition, we must begin

there because “[t]he PCRA’s time restrictions are jurisdictional in nature. …

Without jurisdiction, we simply do not have the legal authority to address the

substantive claims.” Id. (citations omitted). Further, our Supreme Court has

observed that, “even where the PCRA court does not address the applicability

of the PCRA timing mandate, this Court will consider the issue sua sponte, as

it is a threshold question implicating our subject matter jurisdiction and ability

to grant the requested relief.” Commonwealth v. Whitney, 817 A.2d 473,

475-76 (Pa. 2003) (citations omitted).

      With respect to timeliness, the PCRA provides, in pertinent part, the

following:
      (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

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              (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). Additionally, at the time Appellant filed his

petition, Section 9545(b)(2) required that any petition attempting to invoke

one of these exceptions “be filed within sixty days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).4

       In this case, as stated above, Appellant’s judgment of sentence became

final on September 20, 2010. Therefore, his present petition, filed in July of

2018, is clearly untimely, and Appellant must meet one of the exceptions to

the timeliness requirement set forth in Section 9545(b)(1)(i)-(iii), supra.

       First, in his petition, Appellant alleged that “a recent article from [the]

June 7, 2018[] Daily Newspaper[] led to an inquiry of the actual case matter

resulting in the discovery of Detective Thomas Augustine[’s] being cited for

[his] role in a wrongful conviction civil suit stemming from his misconduct in

[another] criminal matter….” PCRA Petition at 3. He claims that “[Detective]

Augustine and others uniformly provided … prosecutors with false, misleading,

and incomplete information in order to obtain approval for [Appellant’s] arrest

and prosecution.” Id. at 4. Appellant says that, at trial, he “did not attack

____________________________________________


4 A recent amendment to Section 9545(b)(2), which became effective on
December 24, 2018, changed the language to require that a petition “be filed
within one year of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).



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[Detective] Augustine’s prior conduct because he had no basis to challenge

his credibility.   Thus, the evidence may be used to attack the veracity of

[Detective] Augustine’s warrant, reports[,] and the evidence surrounding

[Appellant’s] arrest.” Id. at 5.5

       Appellant argues that this claim meets the governmental interference

exception under Section 9545(b)(1)(i), and the newly discovered fact

exception pursuant to Section 9545(b)(1)(ii).          See PCRA Petition at 1;

Amended Petition at 2.           We reject this argument because — although

Appellant attaches to his petition and brief various news articles regarding

wrongful convictions that occurred in Philadelphia — none of them mentions

Detective Thomas Augustine.6,        7   See Pa.R.Crim.P. 902(D) (“The defendant

shall attach to the petition any affidavits, records, documents, or other

evidence which show the facts stated in support of the grounds for relief, or


____________________________________________


5 Appellant reiterates these claims in his amended petition. See Amended
Petition at 10-14.

6 Appellant does not point us to where exactly Detective Augustine is
referenced, and our own review does not uncover where he is mentioned.
Further, Appellant attaches no other documents connecting Detective
Augustine to a ‘wrongful conviction civil suit.’

7 Appellant seems to restyle his argument on appeal, focusing less on alleged
misconduct by Detective Augustine, and instead averring that a slew of others
in the Philadelphia Police Department and the District Attorney’s Office
engaged in misconduct with respect to his case. See Appellant’s Brief at 4
(“For the first time on appeal, [Appellant] alleges police and prosecution
corruption.”). We do not address this argument. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”).

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the petition shall state why they are not attached.”) (emphasis added). Thus,

Appellant has failed to plead and prove facts to meet either timeliness

exception for this claim.

      In his second claim, from what we can decipher, Appellant asserts that

Officer Dawn Benton was not listed in any original discovery materials, and

she did not sign into the Criminal Justice Center under this name during

Appellant’s trial in January of 2008, but instead signed in under the name of

Officer Dawn Kennedy. See Amended Petition at 5-7. Appellant contends

that Officer Benton “was present daily at trial proceeding[s in] which she had

no immediate relation to, nor was she listed as a Commonwealth witness, until

a last minute surprise moment[,] tilting [the] scale in favor of the

prosecution.”   Id. at 6.   See also Appellant’s Brief at 11 (discussing new

evidence such as “[c]ourt [h]ouse [l]og-in/[s]ign-in [s]heet reflecting Officer

Benton (a.k.a. Kennelly [sic]) [was] present in [the] courtroom of [the]

accused daily before taking [the] stand on [the] last day of trial….”). Further,

because Officer Benton did not sign in under that name, Appellant states that

he could not cross-examine her effectively. See Amended Petition at 7. In

support of this claim, Appellant attaches to his amended petition an August 6,

2018 response to a Right to Know request he made, which provided that: “P/O

Dawn Kennedy #2741 now P/O Dawn Benton was signed into the Criminal

Justice Center on January 15, 2008 (Rm 505) & January 16, 17, 18, 2008 (Rm

602).” See Right to Know Response, dated 8/6/2018, attached to Amended

Petition.   Thus, Appellant insists that this claim meets the governmental

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interference exception under Section 9545(b)(1)(i), and the newly discovered

fact exception pursuant to Section 9545(b)(1)(ii). See Amended Petition at

2; Appellant’s Brief at 5, 8-9, 11.

       Again, we reject Appellant’s argument. To invoke timeliness exceptions

under either Section 9545(b)(1)(i) or Section 9545(b)(1)(ii), Appellant must

show why, with the exercise of due diligence, he did not uncover these facts

about Officer Benton earlier. See Commonwealth v. Fennell, 180 A.3d 778,

782 (Pa. Super. 2018) (“The timeliness exception set forth in Section

9545(b)(1)(ii) requires a petitioner to demonstrate he did not know the facts

upon which he based his petition and could not have learned those facts earlier

by the exercise of due diligence. Due diligence demands that the petitioner

take reasonable steps to protect his own interests.”) (citation omitted);

Commonwealth v. Rizvi, 166 A.3d 344, 349 (Pa. Super. 2017) (“[E]ven if

[the a]ppellant’s claim possessed substantive merit, he fails to offer a

reasonable explanation why, with the exercise of due diligence, he did not

ascertain this alleged interference of government officials earlier and seek

redress.”) (citation omitted). At trial, Officer Benton testified that, at the time

of the incident, she was not going by the last name of Benton, but rather

Kennedy.    N.T. Trial, 1/17/2008, at 32.      Additionally, the Commonwealth

called “Officer Dawn Kennedy Benton” to testify. N.T. Trial, 1/16/2008, at

102.    Appellant, therefore, has been aware that she has gone by these

different last names since at least the time of trial.        By exercising due

diligence, Appellant could have investigated earlier whether she was

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mentioned in discovery, or had signed in to the courthouse on the days of

trial.    Consequently, this claim fails to satisfy Section 9545(b)(1)(i) and

Section 9545(b)(1)(ii).     Accordingly, we affirm the PCRA court’s order

dismissing Appellant’s petition.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/19




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