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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
               v.                          :

    DELBERT WALKER                         :

                     Petitioner            :

                                           :   No. 965 WDA 2019

               Appeal from the PCRA Order Entered May 28, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0009822-1990


BEFORE:      McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McCAFFERY, J.:                     FILED FEBRUARY 10, 2020

        Delbert Walker (Appellant) appeals, pro se, from the order entered in

the Allegheny County Court of Common Pleas, dismissing as untimely filed his

serial petition for collateral relief under the Post Conviction Relief Act

(“PCRA”).1 Appellant contends the PCRA court erred in dismissing his petition

as untimely filed. For the reasons below, we affirm.

        The facts and procedural history underlying this appeal are well-known

to the parties, and summarized in a prior decision of this Court.         See

Commonwealth v. Walker, 816 WDA 2012 (unpub. memo. at 1-3) (Pa.

Super. Jan. 18, 2013), appeal denied, 69 A.3d 243 (Pa. 2013). Accordingly,

we need not reiterate them in detail herein. In summary, on February 5,



*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.
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1991, Appellant was found guilty by a jury on charges of second-degree

murder, robbery and criminal conspiracy2 for the 1983 death of a jitney driver.

The trial court granted Appellant’s request to arrest judgment on the robbery

and conspiracy convictions.    Thereafter, on March 2, 1991, the trial court

sentenced Appellant to a term of life imprisonment for his conviction of

second-degree murder.       A panel of this Court affirmed the judgment of

sentence on direct appeal, and the Pennsylvania Supreme Court denied

Appellant’s petition for review. Commonwealth v. Walker, 610 PGH 1991

(unpub. memo.) (Pa. Super. Jun. 26, 1992), appeal denied, 633 A.2d 151 (Pa.

1993).

        Appellant filed his first PCRA petition, pro se, on February 24, 1994.

Counsel was appointed, and filed both an amended and supplemental

amended petition. Following an evidentiary hearing, the PCRA court denied

Appellant relief.    On appeal, this Court affirmed, and the Pennsylvania

Supreme Court denied review. Commonwealth v. Walker, 2393 PGH 1997

(unpub. memo.) (Pa. Super. Mar. 23, 1999), appeal denied, 740 A.2d 1147

(Pa. 1999).

        Appellant filed a second PCRA petition on November 2, 2002, which the

PCRA court dismissed as untimely, and this Court affirmed on appeal.

Commonwealth v. Walker, 630 WDA 2005 (unpub.memo.) (Pa. Super. Jan.

26, 2006). He filed another petition on January 6, 2010, which the PCRA court

2   18 Pa.C.S. §§ 2502(b), 3701(a)(1), and 903, respectively.



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again dismissed as untimely. Appellant’s appeal to this Court was dismissed

on October 22, 2010, when he failed to filed a brief. Subsequently, on April

4, 2012, Appellant filed a petition for writ of coram nobis. The trial court

construed the filing to be another PCRA petition, and dismissed it as untimely

on May 4, 2012. Once again, this Court affirmed the ruling on appeal and the

Pennsylvania Supreme Court denied review.       Commonwealth v. Walker,

816 WDA 2012 (unpub. memo. at 1-3) (Pa. Super. Jan. 18, 2013), appeal

denied, 69 A.3d 243 (Pa. 2013).

      Appellant filed the present PCRA petition, his fifth, on April 4, 2019. On

May 8, 2019, the PCRA court provided Appellant with notice of its intent to

dismiss the petition without first conducting an evidentiary hearing pursuant

to Pa.R.Crim.P. 907. Thereafter, the court dismissed the petition by order

filed May 29, 2019. Appellant filed a response to the PCRA court’s Rule 907

notice, but it was not received by the court until May 30, 2019. This timely

appeal followed.3

      Appellant raises three issues on appeal. First, he contends the PCRA

court erred when it dismissed his petition without first appointing counsel or

considering his pro se response to the court’s Rule 907 notice. Appellant’s

Brief at 3. Second, Appellant argues the court erred when it dismissed his

petition without addressing his claim that trial counsel conceded his guilt to


3Although not ordered to do so by the PCRA court, Appellant filed a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal on August 12,
2019.


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the jury during closing arguments. Id. Third, he asserts the PCRA court erred

when it dismissed his petition as untimely after he demonstrated an exception

to the timeliness requirements, namely, the “city detective’s use of ‘the Reid

Train[ing]’ that is know[n] for causing false confessions.” Id. at 4.

      Our standard of review of an order denying PCRA relief is well-

established.   “[W]e examine whether the PCRA court’s determination ‘is

supported by the record and free of legal error.’”          Commonwealth v.

Mitchell,   141   A.3d   1277,    1283–84    (Pa.   2016)    (citation   omitted).

Furthermore,

      a petitioner is not entitled to a PCRA hearing as a matter of right;
      the PCRA court can decline to hold a hearing if there is no genuine
      issue concerning any material fact, the petitioner is not entitled to
      PCRA relief, and no purpose would be served by any further
      proceedings.

Commonwealth v. Shaw, 217 A.3d 265, 269 (Pa. Super. 2019).

      In his first issue, Appellant asserts the PCRA court erred in dismissing

his petition without appointing counsel or considering his response to the

court’s Rule 907 notice. Preliminarily, we note that pursuant to Pa.R.Crim.P.

904(C), an indigent petitioner is entitled to the appointment of counsel to

assist him in litigating his first PCRA petition. Pa.R.Crim.P. 904(C). As noted

above, this is Appellant’s fifth request for post-conviction relief. Nevertheless,

Rule 904(D) and (E) permit a PCRA court to appoint counsel to an indigent

petitioner filing a second or subsequent petition when either “an evidentiary

hearing is required” or “the interests of justice require it.”      Pa.R.Crim.P.

904(D), (E).    Because, as we will discuss infra, we conclude Appellant’s

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petition was untimely filed, and thus no evidentiary hearing was required, we

detect no error in the PCRA court’s refusal to appoint counsel. Moreover, to

the extent Appellant complains the PCRA court dismissed his petition without

first considering his response to the court’s Rule 907 notice, no relief is

warranted.      Although it does appear Appellant’s response was timely filed

pursuant to the prisoner mailbox rule,4 his objections to the court’s order are

aptly raised in his brief on appeal. Accordingly, Appellant is entitled to no

relief on his first claim.

         Appellant’s remaining two issues involve his claims that (1) trial counsel

admitted to the jury during closing arguments that Appellant was guilty of

robbery; and (2) the detectives who took his statement obtained a false

confession from him by employing a recently debunked interrogation

procedure. However, before we address any substantive claims, we must first

determine if Appellant’s petition was timely filed.

         The statutory requirement that a PCRA petition be filed within one year

of the date the judgment of sentence becomes final is both “mandatory and

jurisdictional in nature[,]” and a PCRA court may not ignore the untimeliness

of   a    petition   to   address   the   merits   of   the   issues   raised   therein.


4The 20-day period for filing a response to the court’s Rule 907 notice expired
on May 28, 2019; Appellant’s response was not time-stamped until May 30,
2019. See Pa.R.Crim.P. 907(1) (permitting defendant to respond to court’s
Rule 907 notice within 20 days). However, “[p]ursuant to the ‘prisoner
mailbox rule,’ a document is deemed filed when placed in the hands of prison
authorities for mailing.” Commonwealth v. Wilson, 911 A.2d 942, 944 n.2
(Pa. Super. 2006). Accordingly, we consider Appellant’s response to have
been timely filed.

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Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013). See also 42

Pa.C.S. § 9545(b)(1). Here, it is undisputed Appellant’s petition was untimely

filed. As a panel of this Court found in a prior appeal,

        Appellant’s judgment of sentence became final on or about
        November 29, 1993, when the sixty-day time period for filing a
        writ of certiorari with the United States Supreme Court
        expired.   See former U.S.Sup.Ct.R. 20; 42 Pa.C.S.A. §
        9545(b)(3). Therefore, Appellant had to file this PCRA petition by
        November 29, 1994, in order for it to be timely.

Walker, 816 WDA 2012 (unpub. memo. at 5). The present petition, filed on

April 4, 2019, is manifestly untimely.

        Nevertheless, an untimely petition may be considered if one of the three

timeliness exceptions applies.      See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).5    A



5   The PCRA provides, in relevant part:

        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.

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petition invoking one of the exceptions must be filed “within one year of the

date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

      First, Appellant maintains he suffered a “gross stru[ctur]al constitutional

error” when trial counsel admitted to the jury that Appellant was guilty of

robbery. Appellant’s Brief at 21. Relying upon the United States Supreme

Court’s recent decision in McCoy v. Louisiana, 138 S.Ct. 1500 (2018),

Appellant argues trial counsel may not concede his client’s guilt. Appellant’s

Brief at 22. Appellant insists he is entitled to PCRA relief because he filed his

petition within one year of the McCoy decision, which Appellant maintains

constituted a newly discovered fact pursuant to Subsection (b)(1)(ii), or a

newly recognized constitutional right pursuant to Subsection (b)(1)(iii). We

disagree.

      In McCoy, the United States Supreme Court concluded trial counsel was

ineffective when, in an effort to spare his client the death penalty, he admitted

to the jury the defendant committed the murders, despite the defendant’s

adamant objection to any admission of guilt.       McCoy, 158 S.Ct. at 1505.

Further, the Court held “counsel’s admission of a client’s guilt over the client’s

express objection is error structural in kind,” for which the defendant is

entitled to a new trial without having to show prejudice. Id. at 1511.


42 Pa.C.S. § 9545(b)(1)(i)-(iii).




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       Appellant argues McCoy is applicable to the facts of his case because

trial counsel told the jury during closing arguments that “according to

[Appellant’s] statement” to police, Appellant took the victim’s pocketknife.

N.T., 1/31/91, at 461.    Therefore, if the jury found that statement “to be

voluntary . . . the Commonwealth has proven the crime of robbery.” Id. at

465.    However, Appellant fails to acknowledge that counsel also argued

Appellant’s statement was involuntary. See id. at 467-75. In the event the

jury did not agree, counsel urged it to find that, at most, Appellant’s statement

established he committed robbery, but not conspiracy or murder.

       Even assuming, arguendo, that McCoy applies to the facts here,

Appellant is unable to establish one of the PCRA timeliness exceptions. To the

extent he maintains the McCoy decision involves a newly recognized

constitutional right, we note that the PCRA requires the petitioner to prove the

newly established right “has been held by that court to apply retroactively.”

42 Pa.C.S. § 9545(b)(1)(iii). To date, the United States Supreme Court has

not held the McCoy decision is to apply retroactively. Additionally, with regard

to the newly discovered facts exception, it is well-settled that “subsequent

decisional law does not amount to a new ‘fact’ under section 9545(b)(1)(ii) of

the PCRA.”     Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011).

Accordingly, Appellant has not established a timeliness exception based upon

McCoy.

       Lastly, Appellant contends he is entitled to relief based upon a May 2018

article denouncing the “Reid Technique” of police interrogation because it

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leads to false confessions. Appellant’s Brief at 27. He attached a copy of the

article to his PCRA petition.    See Appellant’s Motion for Post Conviction

Collateral Relief, 4/4/19, attachment. Appellant maintains the detectives who

took his statement used their “Reid Technique” training to obtain “false

statements and confessions” from him. Appellant’s Brief at 29.

      In order to obtain relief under the newly discovered facts exception, a

petitioner must plead and prove “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.” 42 Pa.C.S. § 9545(b)(1)(ii). Although the May

2018 article criticizing the “Reid Technique” was published within one year of

Appellant’s PCRA petition, the facts upon which Appellant’s claim is predicated

– i.e., the detectives who interviewed him employed questionable techniques6

– were not unknown to him. Indeed, on direct appeal, Appellant challenged

the trial court’s denial of his pretrial suppression motion. See Walker, 610

PGH 1992 (unpub. memo. at 6-9) (arguing, inter alia, his confession was

coerced when police pointed gun to his head). Moreover, we note the 2018

article explained   the “Reid Technique” was a controversial form of

interrogation for many years, and was even cited in Miranda v. Arizona, 384

U.S. 436 (1966), “as a reason suspects must be admonished of their right

against self-incrimination.”    See Appellant’s Motion for Post Conviction

6 Appellant does not identify any purported improper techniques employed by
the detectives during his interview, except for a vague reference to his belief
that he was formally under arrest when he was provided with his Miranda
warnings. Appellant’s Brief at 37.


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Collateral Relief, 4/4/19, attachment, “Controversial Police Interrogation

Technique That Often Results in False Confessions Abandoned by Influential

Training Consultant,” Criminal Legal News, May 2018. Accordingly, Appellant

cannot establish the facts underlying this claim were unknown to him or could

not have been ascertained by the exercise of due diligence. Therefore, no

relief is warranted.

      Because we agree with the decision of the PCRA court that Appellant’s

PCRA petition was untimely filed, and Appellant failed to prove the applicability

of any of the timing exceptions set forth in Section 9545(b)(1), we affirm the

order denying PCRA relief.7

      Order affirmed.

      Judge Pellegrini joins this memorandum.

      Judge McLaughlin concurs in the result.




7 We note that Appellant discusses a number of other claims in his rambling,
pro se brief. See Appellant’s Brief at 29 (there was no probable cause for his
detention); 30-31 (his taped statement to police did not support charges filed
against him); 36 (Commonwealth’s plea offer was a nullity because the
charges of robbery and conspiracy were outside the statute of limitations).
Because they were not raised in his PCRA petition, we do not address them.
See Commonwealth v. Mason, 130 A.3d 601, 639 (Pa. 2015) (issues not
included in PCRA petition or court-approved amendment are waived).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2020




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