J-S47024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

LEWIS WRIGHT

                          Appellant                    No. 1714 EDA 2016


                  Appeal from the PCRA Order May 4, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0903461-2003


BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.:                        FILED DECEMBER 15, 2017

      Lewis Wright appeals pro se from the May 4, 2016 order of the

Philadelphia County Court of Common Pleas dismissing without a hearing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

      The trial court set forth the history of this case as follows:

            On August 16, 2005, [Wright] was found guilty after a
         jury trial, presided over by the Honorable Rose Marie
         DeFino-Nastasi, of Attempted Murder, 18 Pa.C.S. §§ 901,
         2502, as a felony of the first degree; Aggravated Assault,
         18 Pa.C.S. § 2702, as a felony of the first degree;
         Possession with the Intent to Deliver (PWID), 35 Pa.C.S. §
         780-113(a)(30), an ungraded felony; Violation of the
         Uniform Firearms Act (VUFA), 18 Pa.C.S. § 6106, as a felony
         of the third degree; and Possession of an Instrument of
         Crime (PIC), 18 Pa.C.S. § 907, as a misdemeanor of the first
         degree.
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           On November 3, 2005, [Wright] was sentenced as
       follows: twenty to forty years for the attempted murder
       conviction; five to ten years for the PWID conviction; three-
       and-a-half to seven years for the VUFA § 6106 conviction;
       two-and-a-half to five years for the PIC conviction; all
       sentences to run concurrently.

          On June 15, 2007, the Superior Court affirmed the
       judgment of sentence. 434 EDA 2006.

         On May 29, 2008, the Supreme Court denied allocatur.
       370 EAL 2007.

          On December 15, 2008, [Wright] filed his first PCRA
       petition, which was formally dismissed on November 20,
       2009. On March 28, 2011, the Superior Court affirmed. 134
       EDA 2010. On November 1, 2011, the Supreme Court
       denied allocatur. 336 EAL 2011.

           On May 4, 2011, [Wright] filed a second PCRA petition
       while the appeal of the denial of his first PCRA petition was
       still pending before the Supreme Court.           This court
       dismissed that petition on September 8, 2011.

          On January 8, 2015, [Wright] filed the instant PCRA
       petition, his third. He filed a supplemental PCRA petition on
       May 1, 2015, and a second, supplemental PCRA petition and
       “Motion for Leave to File an Amended PCRA Petition” on
       December 7, 2015.

           In those PCRA petitions, [Wright] claims that he
       submitted a request to the Pennsylvania State Police in
       November 2014, seeking the criminal record for
       Commonwealth witness, Joseph Farley. After receiving this
       “after-discovered evidence,” [Wright] then obtained copies
       of the criminal docket sheets for Farley’s cases under docket
       numbers CP-51-CR-709201-1999 (35 [P.S.] § 780-
       113(a)(35), Possession with the Intent to Deliver), CP-51-
       CR-0807551-2001 (18 Pa.C.S. § 5121, Escape), CP-51-CR-
       707601-2005 (35 [P.S.] § 780-113(a)(30), PWID), and MC-
       51-CR-1016551-2002 (18 Pa.C.S. § 5902, Prostitution; 18
       Pa.C.S. § 5902, Solicitation).

          [Wright] argues that the docket sheets reveal that Farley
       was awaiting hearings for violations of probation under
       docket numbers CP-51-CR-709201-1999 and CP-51-CR-

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           0807551-2001 at the time that Farley testified against
           [Wright] at trial, and that Farley received favorable
           treatment from the Commonwealth in exchange for his
           testimony, which was not exposed to the jury. [Wright]
           claims that (1) Farley did not testify truthfully regarding his
           prior convictions or any benefits that he would receive in
           exchange for his testimony against [Wright]; (2) that trial
           counsel, Gerald Stein, Esq., was ineffective under
           Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
           80 L.Ed.2d 674 (1984) for failing to investigate Farley’s
           complete criminal history and exposing this history to the
           jury; and that (3) the Assistant District Attorney violated
           Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
           L.Ed.2d. 215 (1963) by concealing evidence of a deal
           between the Commonwealth and Farley and by knowingly
           using Farley’s false testimony against [Wright].

              On January 19, 2016, the Commonwealth filed a Motion
           to Dismiss.

              On March 4, 2016, the court issued a [Pennsylvania Rule
           of Criminal Procedure] 907 notice. N.T. 03/04/16 at pp. 2-
           4.

              On March 15, 2016, [Wright] filed a timely response to
           the 907 notice, claiming that the court failed to rule on his
           December 7, 2015 motion to amend his PCRA petition.

               On May 4, 2016, the court indicated on the record that it
           had received [Wright]’s timely response to the 907 notice
           and that it had implicitly accepted [Wright]’s supplemental
           PCRA petitions by acknowledging those findings at the
           listing on March 4, 2016, and ruling on he claims raised
           therein.   N.T. 05/04/16 at p. 2.       The court formally
           dismissed [Wright]’s PCRA petition that same day.

             On May 23, 2016, [Wright] filed the instant appeal to the
           Superior Court.

Trial Ct. Op., 10/5/16, at 1-3.1

____________________________________________


       1The underlying facts of this case are set forth in our memorandum
affirming Wright’s judgment of sentence. See Commonwealth v. Wright,
No. 434 EDA 2006, unpublished mem. at 1-3 (Pa.Super. filed June 15, 2007).

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      Wright raises the following issues on appeal:

         [1.] Whether the PCRA court abused its discretion by failing
         to liberally construe Wright’s pro se pleadings as required
         by the Supreme Court precedent of Haines v. Kerner[, 404
         U.S. 519 (1972).]

         [2.] Whether the PCRA court abused its discretion by failing
         to properly evaluate Wright’s claims as required by the
         Supreme Court precedent of Kyles v. Whitley[, 514 U.S.
         419 (1995).]

         [3.] Whether the PCRA court abused its discretion by
         misconstruing, misinterpreting, or mischaracterizing either
         Wright’s claims, the record or other evidence presented in
         support thereof[.]

         [4.] Whether the PCRA court abused its discretion by
         denying Wright a hearing to resolve genuine issues of
         material fact insofar as it relates to the PCRA court’s
         timeliness assessment and, if so, whether the PCRA court
         abused its discretion by denying Wright’s request for court-
         appointed counsel and discovery of the prosecutor’s files
         from both Wright and Farley’s cases[.]

          [5.] Whether the PCRA court abused its discretion by
         misapplying controlling federal principles to the facts in this
         case[.]

Wright’s Br. at 4 (full capitalization omitted).

      Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

      We must first determine whether Wright’s PCRA petition is timely. A

PCRA petition, “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).


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A judgment is 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 the review.” 42 Pa.C.S.

§ 9545(b)(3).

       The trial court sentenced Wright on November 3, 2005, he appealed,

and this Court affirmed his judgment of sentence on June 15, 2007. Wright

petitioned for allowance of appeal, which the Pennsylvania Supreme Court

denied on May 29, 2008. Wright did not file a petition for writ of certiorari

with the United States Supreme Court and, therefore, his judgment of

sentence became final on August 27, 2008.2 He had one year from that date,

or until August 27, 2009, to file a timely PCRA petition. His current petition,

filed on January 8, 2015, is therefore facially untimely.

       To overcome the time bar, Wright was required to plead and prove one

of the following exceptions: (i) unconstitutional interference by government

officials; (ii) newly discovered facts that could not have been previously

ascertained with due diligence; or (iii) a newly recognized constitutional right

that has been held to apply retroactively. See 42 Pa.C.S. § 9545(b)(1)(i)-

(iii). To invoke one of these exceptions, Wright must have filed his petition

within 60 days of the date the claim could have been presented.             See 42

____________________________________________


       2Wright had 90 days from the date the Pennsylvania Supreme Court
denied his petition for allowance of appeal to file a petition for writ of certiorari
with the United States Supreme Court. See U.S.S.Ct.R. 13.



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Pa.C.S. § 9545(b)(2). Wright attempts to invoke the newly-discovered facts

and governmental-interference exceptions to the PCRA time bar.

I.     Newly-Discovered Facts Exception3

       The   newly-discovered       facts      exception   “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.”

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super.), app. denied, 125

A.3d 1197 (Pa. 2015).

       Wright claims that he requested Farley’s criminal history in November

2014 and learned that Farley had been charged with a second drug trafficking

offense and two violations of probation, which were not disclosed at the time

Farley testified at Wright’s trial. Wright further claims that he learned of “the

possibility . . . [of] an undisclosed agreement, offer, or promise made by the

District Attorney’s Office, to act with leniency in Mr. Farley’s open case.”

Amended PCRA Pet., 12/7/15, at ¶ 32.

       The PCRA court found:

           Farley’s open case and his probationary status were brought
           out by the Commonwealth on direct[-]examination and the
           defense on cross-examination. N.T. 08/10/05 at pp. 136-
           38, 144-48, 160-64, 185-89. Defense counsel attempted to
____________________________________________


       Wright has labeled his claim “after-discovered facts.” He appears to
       3

be confusing the newly-discovered fact exception to the time bar in section
9545(b)(1)(ii) with a claim of after-discovered-evidence under section
9543(a)(2). See Commonwealth v. Burton, 158 A.3d 618, 628-29 (Pa.
2017) (discussing the correct terminology to be used when referring to the
newly discovered fact exception and the after-discovered-evidence claim).

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           impeach Farley with evidence of his arrest and convictions
           for prostitution and solicitation, and the court twice
           sustained the Assistant District Attorney’s objection. Id. at
           pp. 186-88. Additionally, Farley testified that he had an
           open drug case and was in custody at the time of [Wright]’s
           trial, and that he was not receiving a benefit from the
           Commonwealth in exchange for his testimony. Id. at pp.
           136-37, 163-64.     . . .    Farley’s criminal extract and
           corresponding docket sheets merely restate the same facts
           [Wright] had known since the time of trial – that Farley had
           a lengthy criminal history; throughout the pendency of
           [Wright]’s proceedings, Farley was on probation; and that
           by the time of [Wright]’s trial, Farley was incarcerated on
           another open case.

               [Wright] has failed to prove that the “facts” upon which
           he bases his claim could not have been ascertained earlier
           with due diligence because he was present for his trial and
           heard those facts as they were testified to by Farley.[4]
           Further evidence of [Wright]’s knowledge of Farley’s open
           sentencings is the fact that he argued on direct appeal that
           Farley’s identification of [Wright] as the shooter should be
           suppressed because Farley’s “character and personal
           circumstances made it probable that he was motivated to
           give evidence in hopes of receiving consideration from the
           police.”5 Since [Wright] has failed to plead and prove both
           factors under § 9545(b)(1)(ii), the court is without
           jurisdiction to address the merits of this claim.
                 5   The PCRA requires that, in order for a
                 petitioner to be eligible for relief, his claim
                 cannot have been “previously litigated or
                 waived.” 42 Pa.C.S. § 9543(a)(3). The PCRA
                 mandates that an issue is waived if “the
                 petitioner could have raised it but failed to do so
                 . . . in a prior state post-conviction proceeding.”
                 42 Pa.C.S. § 9544(b); Com[monwealth] v.
                 Roane, 142 A.3d 79, 87-88 (Pa.Super. 2016).
                 Therefore, [Wright]’s claims are also waived as


____________________________________________


       4Further, we note that Farley’s criminal history would have been
available to counsel prior to trial.

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                   he could have raised them in his first or second
                   PCRA proceedings.

Trial Ct. Op., 10/5/16, at 12-13. We agree.

        Wright’s claim of an undisclosed agreement also fails. Wright relies on

a letter by Farley, dated August 30, 2010, which states in relevant part:

             I was the DAs [sic] star witness in an attempted murder on
             a Phila correctional officer[.] That [sic] why I was given IP
             instead of state time[.] I put him a way [sic] for a long
             time[,] without me they had nothing[.] Ive [sic] got proof
             of that two [sic]. All you have to do is ask for thes [sic]
             proof and I will give you names and every thing [sic].

Wright’s Mem. of Law in Support of Amend. Pet. For Post Conviction Relief,

12/7/15, Ex. E (some capitalization omitted).

        This letter, Wright believes, constitutes evidence of the existence of a

deal.       We disagree.   The August 30, 2010 letter does not establish the

existence of an agreement between the Commonwealth and Farley or that

Farley offered perjured testimony in Wright’s case.         Further, regardless of

whether the letter constituted a new fact, Wright has failed to prove he was

diligent in discovering it, particularly because in Wright’s second PCRA

petition, filed May 4, 2011, he alleged the existence of a deal. Accordingly,

Wright failed to prove he could not have learned of the letter earlier by the

exercise of due diligence.5 See Brown, 111 A.3d at 176 (“A petitioner must


____________________________________________


       Even if this letter constituted a new fact that Wright could not have
        5

discovered earlier through the exercise of due diligence, his underlying after-
discovered-evidence claim fails. To be successful in an after-discovered-



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explain why he could not have learned the new fact(s) earlier with the exercise

of due diligence.”).

        Therefore, Wright’s attempt to invoke the newly-discovered facts

exception to the PCRA time bar fails.

II.     Governmental-Interference Exception

        To succeed in raising the governmental-interference exception to the

PCRA time bar, a petitioner must “plead and prove that his ‘failure to raise the

claim        [or         claims]         previously   was       the       result

of interference by government officials.’” Commonwealth v. Chester, 895

A.2d 520, 523 (Pa. 2006) (emphasis in original) (quoting 42 Pa.C.S.

§9545(b)(1)(i)).

        Wright argues that the Commonwealth violated Brady v. Maryland,

373 U.S. 83 (1963), by not disclosing: (1) the underlying facts in Farley’s

convictions for prostitution and solicitation; (2) that Farley was awaiting

hearings for his violations of probation; or (3) the deal it made with Farley.




____________________________________________


evidence claim a petitioner must prove “[t]he evidence: (1) could not have
been obtained prior to trial by exercising reasonable diligence; (2) is not
merely corroborative or cumulative; (3) will not be used solely to impeach a
witness’s credibility; and (4) would likely result in a different verdict.”
Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014). Even if the letter
constituted evidence, Wright’s claim would be unsuccessful because he would
use this evidence solely to impeach Farley’s credibility, and the verdict would
not likely change.



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       Wright’s claims do not merit relief. As previously noted, Wright knew at

the time of his 2005 trial that Farley had a lengthy criminal history, including

convictions for solicitation and prostitution.6      See Trial Ct. Op., 10/5/16.

Regarding the alleged deal between Farley and the Commonwealth, as we

explained above, Wright failed to provide any evidence that there was in fact

a deal for the Commonwealth to disclose.           Wright’s attempt to invoke the

governmental-interference exception therefore also fails.

       To the extent Wright attempts to raise claims of trial counsel

ineffectiveness, these claims likewise merit no relief. “[I]t is well-settled that

couching a petitioner’s claims in terms of ineffectiveness will not save an

otherwise untimely filed petition from the application of the time restrictions

of the PCRA.”       See Commonwealth v. Robinson, 139 A.3d 178, 186

(Pa.2016).

       Accordingly, we conclude that the trial court did not err in dismissing as

untimely Wright’s third PCRA petition.

       Order affirmed.




____________________________________________


       6To the extent Wright claims he only recently learned of the facts
underlying Farley’s convictions, or that Farley was awaiting violation of
probation hearings, Wright has not explained why he could not have
discovered this information with the exercise of due diligence.

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J-S47024-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/17




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