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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                            :
                                            :
                                            :
 SAWUD DAVIS                                :
                                            :
                    Appellant               :    No. 705 MDA 2019

            Appeal from the PCRA Order Entered March 21, 2019
              In the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-CR-0003752-2012


BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.:                      FILED NOVEMBER 08, 2019

      Sawud Davis appeals from the order entered in the Luzerne County

Court of Common Pleas denying his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely

following a hearing. Davis argues that his facially untimely PCRA petition was

entitled to review under the newly discovered fact exception to the PCRA’s

time-bar, 42 Pa.C.S.A. § 9545(b)(1)(ii). After our review of the parties’

arguments and the transcript of the PCRA hearing held on these issues, we

conclude that Davis is not entitled to relief.

      On October 24, 2012, Davis was charged, as a principal or an

accomplice, with three counts of criminal homicide, one count of criminal

attempt to commit criminal homicide and four counts of robbery for his
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participation in a deadly shooting, which occurred on July 7, 2012. Davis was

sixteen at the time of the crimes, but was charged as an adult.

      On December 20, 2013, the parties appeared for a status conference

regarding a petition to decertify the case. At the hearing, the parties advised

the court that a plea agreement had been reached in which Davis agreed to

withdraw his petition for decertification and instead would plead guilty to three

counts of third-degree murder and one count of robbery. The Commonwealth

agreed to withdraw the remaining charges. The parties further agreed to a

sentence of twenty to forty years’ incarceration on the murder charges and

five to ten years’ incarceration for robbery, all of which to run concurrently.

As part of the plea, Davis admitted to the factual basis put forth by the

Commonwealth. After conducting a colloquy, the court imposed the agreed

upon sentence. No post sentence motions or direct appeal was filed.

      On June 6, 2014, Davis filed his first PCRA petition, which he

subsequently withdrew. On September 19, 2018, Davis filed another PCRA

petition, alleging he discovered exculpatory evidence that was not available

to him at the time of his guilty plea. Counsel was appointed, who filed a

supplemental PCRA petition on January 17, 2019.

      Through his filing, Davis specifically recognized that the petition was

facially untimely, but asserted his claim met the newly discovered fact

exception, 42 Pa.C.S.A. § 9545(b)(1)(ii), to the PCRA’s time-bar.




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      On February 25, 2019, a PCRA hearing was held. Defense counsel

presented testimony from Davis and Dashawn Armstrong, a new witness with

allegedly exculpatory evidence. Davis testified that he did not meet Armstrong

until August of 2018, and at that time learned of the “newly discovered facts.”

See N.T., PCRA Hearing, 2/25/2019, at 4. He further testified that he became

aware of Miller v. Alabama, 567 U.S. 460 (2012) (ruling imposition of

mandatory     life   without   parole   sentences    on   juvenile   offenders   is

unconstitutional), in August of 2018, when he received help in the law library

from a fellow inmate to prepare his PCRA petition based on the new

information from Armstrong. See id., at 5. Davis testified that he would not

have plead guilty if he had known the information from Armstrong at the time,

or if he knew he would not have been facing a sentence of life without parole.

See id., at 5-8. He testified repeatedly that his plea counsel, Attorney John

Pike, informed him numerous times that if he went to trial he could receive a

life without parole sentence. See id., at 6-8, 11.

      Armstrong testified that on July 7, 2012, he went to Plymouth to rob

“two black guys” who were going to be in the area. See id., at 16. He was

waiting in his car when he saw one of the “two black guys” he was going to

rob come out of a house, who he identified as Davis. See id., at 17-18. He

was wondering where the other “guy was when he heard gunshots go off

inside the house, while Davis was still on the front porch”. See id., at 18.




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      Attorney Pike testified for the Commonwealth. He indicated that by the

time he was appointed to represent Davis, there were already discussions

regarding a potential plea. See id., at 25. He therefore never discussed the

potential outcome of a trial because everyone was in agreement regarding the

plea, and in his experience the court typically accepted a plea agreement. See

id., at 27. Attorney Pike recollected that Davis plead guilty to save his brother

from a capital charge which would have entailed the death penalty. See id.,

at 25, and 29-30.

      Ultimately, the court determined Davis failed to overcome the PCRA’s

time-bar. The court found that the testimony from Davis and Armstrong was

not credible and therefore did not prove an exception to the time-bar. Further,

the court found that Miller was part of the public record since June of 2012,

and therefore Davis could have known about it prior to August of 2018.

Because Davis did not prove the timeliness exception, the PCRA court denied

his petition as untimely. This timely appeal followed.

      On appeal, Davis presented five issues for consideration:

      1. The PCRA court committed error by dismissing PCRA petition
         as untimely without the PCRA court first satisfying itself that
         the court had jurisdiction to entertain the merits of the PCRA
         petition.

      2. The PCRA court committed error by denying PCRA petition on
         newly-discovered evidence where the PCRA court’s credibility
         determination is not supported by the record.

      3. The PCRA court committed error by denying PCRA petition on
         ineffective assistance of counsel for misadvising appellant
         would receive life without parole sentence if he went to trial.

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       4. PCRA counsel was ineffective for failing to subpoena to prove
          appellant did not become aware of Miller v. Alabama until
          August[] [2018], when appellant sought assistance in
          preparing his PCRA petition.[1]

       5. This case should be remanded to PCRA court for a second
          evidentiary hearing to give appellant the opportunity to plead
          and prove he did meet the exception of 42 Pa.C.S.A.
          §9545(b)(1)(ii), (b)(2), since the PCRA court’s determinations
          are not supported by the record.

Appellant’s Brief, at 2.

       Our standard of review is well settled. “When reviewing the denial of a

PCRA petition, we must determine whether the PCRA court’s order is

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

181 A.3d 1168, 1174 (Pa. Super. 2018) (citation omitted). While we are

generally bound by a PCRA court’s credibility determinations, we apply a de

novo standard to our review of the court’s legal conclusions. See id.

       A PCRA petition, including a second or subsequent one, must be
       filed within one year of the date the petitioner’s judgment of
       sentence becomes final, unless he pleads and proves one of the
       three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
       judgment becomes final at the conclusion of direct review by this
       Court or the United States Supreme Court, or at the expiration of
       the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3).
       The PCRA’s timeliness requirements are jurisdictional; therefore,
       a court may not address the merits of the issues raised if the
       petition was not timely filed. The timeliness requirements apply to
____________________________________________


1 Although we need not reach the merits of this issue due to our disposition of
this appeal, we note Davis did not preserve the claim for our review, having
not raised this claim regarding PCRA counsel in his PCRA petition. See
Commonwealth v. Ford, 44 A.3d 190, 1201 (Pa. Super. 2012) (“Claims of
PCRA counsel ineffectiveness cannot be raised for the first time after a notice
of appeal has been taken from the underlying PCRA matter.”)

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       all PCRA petitions, regardless of the nature of the individual claims
       raised therein. The PCRA squarely places upon the petitioner the
       burden of proving an untimely petition fits within one of the three
       exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (some internal

citations and footnote omitted).

       Davis does not dispute that his petition, filed over four years after his

judgment of sentence became final, is facially untimely.2 However, Davis

asserts his claim merits review because he pled, and proved, an exception to

the PCRA’s one-year time-bar in his PCRA petition.

       The PCRA provides three exceptions to its time bar:

       (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.




____________________________________________


2 Since Davis did not file a direct appeal, his judgment of sentence became
final on January 20, 2014, when his time for seeking direct review with this
Court expired. See 42 Pa.C.S.A. § 9545(b)(3)(judgment of sentence becomes
final “at the conclusion of direct review … or at the expiration of time for
seeking the review”).


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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner asserting one of these

exceptions must file a petition within 60 days of the date the claim could have

first been presented. 42 Pa.C.S.A. § 9545(b)(2). Exceptions to the time-bar

must be pled in the petition, and may not be raised for the first time on appeal.

See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007).

      Davis   asserts   he   meets   the   requirements   of   42   Pa.C.S.A.   §

9545(b)(1)(ii), i.e., the newly discovered fact exception to the PCRA’s time-

bar. The newly discovered fact exception “has two components, which must

be alleged and proved. The petitioner must establish that: 1) the facts upon

which the claim was predicated were unknown and 2) could not have been

ascertained by the exercise of due diligence. See Commonwealth v.

Bennett, 930 A.2d 1264, 1272 (Pa. 2007).

      Due diligence requires the petitioner “take reasonable steps to protect

his own interests.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.

Super. 2010) (citations omitted). However, it does not require “perfect

vigilance nor punctilious care, but rather it requires reasonable efforts by a

petitioner, based on the particular circumstances to uncover facts that may

support a claim for collateral relief.” Commonwealth v. Shiloh, 170 A.3d

553, 558 (Pa. Super. 2017) (citation omitted). As such, “the due diligence

inquiry is fact-sensitive and dependent upon the circumstances presented.”

Id. (citation omitted). “A petitioner must explain why he could not have




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obtained the new fact(s) earlier with the exercise of due diligence.” Monaco,

at 1080.

      First, Davis contends the new information he learned from Armstrong in

August of 2018 constitutes newly discovered facts for the purposes of section

9545(b)(1)(ii). Davis asserts it was error for the PCRA court to conclude he

did not meet the newly discovered fact exception since the court’s credibility

determinations are not supported by the record. Although he frames his issue

as a challenge to the court’s credibility determination, he specifically asks us

to conduct a de novo review of the PCRA court’s “legal conclusions” because

the court found he had five years to have a witness fabricate testimony where

no evidence of fabrication was presented. See Appellant’s Brief, at 7.

      The court’s conclusion is accurately categorized as a credibility

determination rather than a legal determination. As such, we have previously

held that the PCRA court passes on witness credibility and its credibility

determinations should be provided great deference. See Commonwealth v.

Johnson, 966 A.2d 523, 539 (Pa. 2009)(citations omitted)(“one of the

primary reasons PCRA hearings are held in the first place is so credibility

determinations can be made; otherwise, issues of material fact could be

decided on pleadings and affidavits alone.”). The PCRA court was therefore in

the best position to determine the credibility of Armstrong as a witness and

we must defer to their determination that his testimony was not credible.




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      Further, section 9545(b)(1)(ii) “requires petitioner to allege and prove

that there were ‘facts' that were ‘unknown’ to him” and that he could not have

ascertained those facts by the exercise of “due diligence.” See Bennett, at

1270–72. “The focus of the exception is on the newly discovered facts, not on

a newly discovered or newly willing source for previously known facts.”

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008).

      In Commonwealth v. Abu-Jamal, 941 A.2d 1263 (Pa. 2008), the

Pennsylvania Supreme Court held that an affidavit alleging perjury did not

bring a petitioner's claim of fabricated testimony within the scope of section

9545(b)(1)(ii) because the only “new” aspect of the claim was that a new

witness had come forward to testify regarding the previously raised claim. See

id., at 1267. Specifically, the Court held “[t]he fact appellant discovered yet

another conduit for the same claim of perjury does not transform his latest

source into evidence falling within the ambit of § 9545(b)(1)(ii).” Id., at 1269;

see also Commonwealth v. Johnson, 863 A.2d 423 (Pa. 2004) (Court

rejecting petitioner’s argument that a witness's subsequent admission of

alleged facts brought a claim within the scope of section 9545(b)(1)(ii) even

though the facts had been available to the petitioner beforehand).

      Here, the actual “fact” for purposes of Section 9545(b)(1)(ii) is that

Davis was allegedly standing on the front porch when shots were fired. This is

not a “newly discovered fact.” It is clear that Davis would know where he was

when the shootings occurred, and could have brought this fact up before


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pleading guilty. Our review of the record shows no indication that Davis

attempted to bring this fact up sooner. The “fact” that Armstrong was willing

to testify to a previously known fact does not satisfy the newly discovered fact

exception to the PCRA’s time-bar.

      Davis additionally contends he filed his petition within 60 days of the

date he discovered Miller, and therefore it was error for the trial court to

conclude he did not meet the newly discovered fact exception based on his

assertion that the holding in Miller constitutes newly discovered facts. Davis

specifically claims that he would not have pleaded guilty had he known that

he could not receive a life without parole sentence pursuant to Miller.

      Initially, we note that decisional law does not amount to a new fact

under the newly discovered fact exception to the PCRA’s time bar. See

Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011) (“[S]ection

9545(b)(1)(ii) applies only if the petitioner has uncovered facts that could not

have been ascertained through due diligence, and judicial determinations are

not facts”). As a result, Davis’s attempt to shoehorn his claim based on Miller

into the newly discovered fact exception fails.

      Under the circumstances, even if Miller constituted a newly discovered

fact, the PCRA court did not err or abuse its discretion in concluding that Davis

had not established its applicability.

      At the PCRA hearing, guilty plea counsel testified that Davis agreed to

plead guilty in order to spare his co-defendant and brother, Sean James


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Hamilton, from the possibility of the death penalty. See N.T, PCRA Hearing

2/25/19, at 25, 29. Plea counsel further testified that Davis wanted the plea

agreement not for himself, but for the benefit of Hamilton. See id., at 29. The

trial court found plea counsel’s testimony credible. Therefore, the facts, as

found by the PCRA court, would not support a conclusion that Miller would

have changed Davis’s decision to plead guilty.

      As the PCRA court properly concluded Davis’s PCRA petition was

untimely and does not fall under an exception to the PCRA time bar, we affirm

the PCRA court’s order dismissing the petition.

      Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/08/2019




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