J-S08012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 CHRISTOPHER MBEWE                       :
                                         :   No. 751 WDA 2017
                    Appellant

                  Appeal from the PCRA Order May 2, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0000592-2006


BEFORE:    LAZARUS, J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.:                           FILED MARCH 13, 2018

      Christopher Mbewe appeals from the order, entered in the Court of

Common Pleas of Allegheny County, dismissing his petition filed pursuant to

the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). Upon

careful review, we affirm.

      Mbewe was convicted by a jury of the first-degree murder of his mother-

in-law and, on October 20, 2009, was sentenced to a mandatory term of life

imprisonment without the possibility of parole. On appeal our Court affirmed

his judgment of sentence and, by order dated October 5, 2012, our Supreme

Court denied allowance of appeal. In 2012, Mbewe filed a PCRA petition. The

trial court’s dismissal of that petition was affirmed by this Court; the Supreme

Court denied allowance of appeal on April 12, 2016. That same date, Mbewe

filed a second PCRA petition and a request for a stay pending completion of


____________________________________
* Former Justice specially assigned to the Superior Court.
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appellate proceedings in the federal court with regard to Mbewe’s first PCRA

petition.1   The petition, though facially untimely, alleged newly-discovered

facts. Specifically, Mbewe claimed that he had obtained information from a

fellow inmate, Germaine Edge, that Mbewe’s then-wife, Kimberly, the

daughter of the victim, had purchased a gun six months prior to the murder.

Mbewe submitted an unsworn affidavit from Edge to that effect, and asserted

that the new facts formed the basis of a meritorious after-discovered evidence

claim that Kimberly could have also committed the crime.

       On October 13, 2016, counsel filed a motion to lift the stay, which the

PCRA court granted. Counsel subsequently moved to withdraw, which the

court permitted. Current counsel was appointed on December 13, 2016. On

February 6, 2017, the PCRA court issued a notice of intent to dismiss pursuant

to Pa.R.Crim.P. 907, to which Mbewe filed objections.      The court formally

dismissed Mbewe’s petition on May 2, 2017. This timely appeal follows, in

which Mbewe claims that the PCRA court erred in dismissing his petition

without an evidentiary hearing because the after-discovered evidence he

presented in his petition would have established an alternate viable suspect

in the homicide which would have compelled a different result at trial.

       We begin by noting our well-settled standard of review:


____________________________________________


1In filing the new PCRA petition while Mbewe’s prior appeal was still pending,
counsel acted to protect Mbewe’s rights by complying with section 9545(b)(2),
which requires that any petition invoking an exception to the time bar be filed
within sixty-days of the date the claim could have been presented.

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      On appeal from the denial of PCRA relief, our standard and scope
      of review is limited to determining whether the PCRA court’s
      findings are supported by the record and without legal error. Our
      scope of review is limited to the findings of the PCRA court and
      the evidence of record, viewed in the light most favorable to the
      prevailing party at the PCRA court level. The PCRA court’s
      credibility determinations, when supported by the record, are
      binding on this Court. However, this Court applies a de novo
      standard of review to the PCRA court’s legal conclusions.

      Additionally, courts will not entertain a second or subsequent
      request for PCRA relief unless the petitioner makes a strong prima
      facie showing that a miscarriage of justice may have occurred.
      Appellant makes a prima facie showing of entitlement to relief only
      if he demonstrates either that the proceedings which resulted in
      his conviction were so unfair that a miscarriage of justice occurred
      which no civilized society could tolerate, or that he was innocent
      of the crimes for which he was charged.

Commonwealth v. Medina, 92 A.3d 1210, 1214–15 (Pa. Super. 2014)

(citations and quotations omitted).

      A petition for relief under the PCRA, including a second or subsequent

petition, must be filed within one year of the date the judgment becomes final

unless the petition alleges, and the petitioner proves, that an exception to the

time for filing the petition is met. See 42 Pa.C.S.A. § 9545(b)(1). Any petition

invoking such an exception must be filed within 60 days of the date the claim

could have been presented. See id. § 9545(b)(2). The timeliness of a PCRA

petition implicates the jurisdiction of the PCRA court.    Commonwealth v.

Williams, 35 A.3d 44, 52 (Pa. Super. 2011). No court has jurisdiction to hear

an untimely PCRA petition. Id.

      Here, Mbewe’s judgment of sentence became final on or about January

3, 2013, at the expiration of the 90-day period for filing a petition for writ of



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certiorari to the U.S. Supreme Court.       See 42 Pa.C.S.A. § 9545(b)(3)

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

expiration of period for seeking such review); Sup. Ct. R. 13. Thus, Mbewe

had until January 3, 2014, to file a timely PCRA petition. The instant petition

was filed on April 12, 2016, more than three years after his judgment of

sentence became final. Accordingly, Mbewe’s petition was patently untimely

and the PCRA court lacked jurisdiction to consider his claims unless he pled

and proved one or more of the exceptions to the time bar.

      In his petition and on appeal, Mbewe invokes the newly-discovered facts

exception to the jurisdictional time bar under section 9545(b)(1)(ii).       This

Court recently clarified a petitioner’s burden under section 9545(b)(1)(ii) as

follows:

      The timeliness exception set forth at [s]ection 9545(b)(1)(ii) has
      often mistakenly been referred to as the “after-discovered
      evidence” exception. This shorthand reference was a misnomer,
      since the plain language of subsection (b)(1)(ii) does not require
      the petitioner to allege and prove a claim of “after-discovered
      evidence.” Rather, as an initial jurisdictional threshold, [s]ection
      9545(b)(1)(ii) requires a petitioner to allege and prove that there
      were facts unknown to him and that he exercised due diligence in
      discovering those facts. Once jurisdiction is established, a PCRA
      petitioner can present a substantive after-discovered-evidence
      claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be
      eligible for relief under PCRA, petitioner must plead and prove by
      preponderance of evidence that conviction or sentence resulted
      from, inter alia, unavailability at time of trial of exculpatory
      evidence that has subsequently become available and would have
      changed outcome of trial if it had been introduced). In other
      words, the “new facts” exception at subsection (b)(1)(ii) has two
      components, which must be alleged and proved. Namely, the
      petitioner must establish that: 1) the facts upon which the claim
      was predicated were unknown and 2) [those facts] could not have

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       been ascertained by the exercise of due diligence. If the petitioner
       alleges and proves these two components, then the PCRA court
       has jurisdiction over the claim under this subsection.

       Thus, the “new facts” exception at [s]ection 9545(b)(1)(ii) does
       not require any merits analysis of an underlying after-discovered-
       evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176–77 (Pa. Super. 2015) (some

internal citations, quotation marks and punctuation omitted).

       Thus, prior to addressing the merits of Mbewe’s after-discovered

evidence claim, we must determine whether the trial court possessed

jurisdiction to consider Mbewe’s facially untimely claim.2 The Commonwealth

argues that Mbewe has not satisfied the requirements of the newly-discovered

fact exception to the time bar3 because Edge’s unsworn affidavit did not

contain a newly-discovered fact. Rather, the Commonwealth asserts that it

contained “only information that might have led to the discovery of other facts,

i.e., that [Kimberly] was in a position to use that gun on the day in question
____________________________________________


2 Here, the PCRA court omitted to address the threshold question of whether
Mbewe satisfied the jurisdictional requirement under section 9545(b)(1)(ii)
and proceeded directly to an after-discovered evidence analysis, after which
it concluded that Mbewe was not entitled to relief. As the Commonwealth
correctly points out, this conflation of two distinct determinations – one
jurisdictional and one substantive – was error on the part of the PCRA court.
However, we may affirm a decision of the trial court when it is correct on any
basis. Commonwealth v. Ahlborn, 683 A.2d 632, 641 n.14 (Pa. Super.
1996).

3We note that, in its answer filed in the PCRA court to Mbewe’s petition, the
Commonwealth conceded that Mbewe had satisfied the newly-discovered facts
exception to the time bar.




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and was a viable suspect in her mother’s murder.” Brief of Appellee, at 20. 4

We disagree.      If believed by the factfinder at a hearing, Edge’s proposed

testimony would constitute a “fact . . . unknown to the petitioner [which] could

not have been ascertained by the exercise of due diligence.” 42 Pa.C.S.A. §

9545(b)(1)(ii).     The court, however, did not hold a hearing on Mbewe’s

petition and, thus, made no determination as to the credibility of Edge’s

proposed testimony. While a remand might otherwise be necessary to allow

Mbewe to present Edge’s testimony, we conclude that any error on the part

of the court in failing to hold such a hearing was harmless because Mbewe is,

ultimately, entitled to no relief on his underlying after-discovered evidence

claim.

       Under the PCRA, a petitioner may be entitled to relief where he pleads

and proves “the unavailability at the time of trial of exculpatory evidence that

has subsequently become available and would have changed the outcome of

trial had it been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi). To be eligible

for relief under such a claim, a petitioner must prove that “(1) the evidence

has been discovered after trial and it could not have been obtained at or prior

to trial through reasonable diligence; (2) the evidence is not cumulative; (3)

it is not being used solely to impeach credibility; and (4) it would likely compel

a different verdict.” Commonwealth v. Cox, 146 A.3d 221, 228 (Pa. 2016).



____________________________________________


4 The Commonwealth does not argue that Mbewe could have discovered the
facts contained in Edge’s affidavit sooner with the exercise of due diligence.

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      Here, even if Edge’s testimony were credited by the factfinder, it would

not change the outcome of trial. The Commonwealth presented overwhelming

evidence at trial that Mbewe was the individual who killed the victim. Mbewe

was aware that Kimberly was in the process of taking their daughter and

leaving him to move into an apartment with the victim, and that the victim

had an appointment to sign a lease on the day she was murdered. He was

aware that the victim did not like him and disapproved of the manner in which

he treated Kimberly. Mbewe lived less than 1½ miles from the murder scene

and was placed by a witness with the victim less than a half hour before the

shooting.   A witness testified that she had spoken to the victim, who was

sitting in her car, less than 15 minutes prior to the shooting and that the victim

informed her she was waiting for her son-in-law. The victim was found dead

in her car at the same location of gunshot wounds fired at close range,

suggesting she knew her killer and had allowed him to enter her car.

      Additionally, Mbewe engaged in erratic behavior in the time period

following the murder, providing inconsistent and contradictory statements of

his whereabouts. He told police that a friend named Ben Adams was with the

victim the last time Mbewe saw her, but he could not provide an address or

phone number for Adams, and police were unable to locate an individual with

that name through driver’s license, police, or INS records. Mbewe repeatedly

denied to police that he owned a camouflage jacket, although he was seen

wearing one on the day of the shooting and Kimberly confirmed that he owned

one. He subsequently presented a camouflage jacket to the police, claiming

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it was his. However, police determined he had purchased it from a thrift store

several days after the murder.     Mbewe also called the police on multiple

occasions, telling them he wanted to talk to them because “he had stuff to get

off his chest” and that he “wanted to tell [them] something but he wasn't

ready yet.” N.T. Trial, 7/7-7/15/09, at 283.

      Finally, Kimberly Mbewe had an alibi for the time of the shooting.

Specifically, she was at work in another county approximately two hours from

the location of the shooting. This fact was confirmed by cell phone records of

calls placed by Kimberly from her boss’ cell phone to both Mbewe’s and the

victim’s phones near the time of the murder.

      In light of the foregoing, it is apparent that, even if Kimberly Mbewe had

purchased a gun six months prior to the murder, the result of trial would not

change. See Cox, supra. Not only did Kimberly have an alibi demonstrating

that she could not have been at the scene of the shooting at the time it

occurred, Mbewe has no proof that Kimberly was still in possession of a gun

at the time of the murder. Accordingly, the PCRA court did not err in denying

Mbewe’s petition without a hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/13/2018

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