J-S06004-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 EDMOND CALLOWAY                           :
                                           :
                    Appellant              :   No. 468 EDA 2019

           Appeal from the PCRA Order Entered January 25, 2019
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0509401-1995,
                         CP-51-CR-0509411-1995


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

MEMORANDUM BY LAZARUS, J.:                       FILED FEBRUARY 20, 2020

      Edmond J. Calloway appeals, pro se, from the order denying as untimely

his fourth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. Upon careful review, we affirm.

      This Court previously set forth the relevant facts of this case as follows:

      [On April 8, 1995], [Calloway] went to a speakeasy in search of
      [Tyrone Hill], where, upon arrival, he repeatedly struck [Hill’s
      cousin, Richard McCray] with a baseball bat, rendering him
      unconscious.      [Calloway] then demanded to know [Hill]’s
      whereabouts. Shortly thereafter, when [Hill] approached the
      speakeasy in his car, [Calloway] fired three shots into the vehicle,
      causing [Hill] to crash. [Calloway] then ran up to the automobile
      and fired three shots inside, [killing Hill].

Commonwealth v. Calloway, 2895 EDA 2016 (Pa. Super. filed June 1,

2017) (unpublished memorandum).
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        On April 4, 1996, a jury found Calloway guilty of first-degree murder,1

aggravated assault,2 and two counts of possessing an instrument of crime

(PIC).3 On September 5, 1996, the Honorable James Lineberger sentenced

Calloway to life imprisonment for first-degree murder, a consecutive term of

seven to fourteen years’ imprisonment for aggravated assault, and no further

penalty for PIC.      This Court affirmed Calloway’s judgment of sentence on

March 23, 1998. Commonwealth v. Calloway, 715 A.2d 500 (Pa. Super.

1998) (Table). Calloway did not seek review by the Pennsylvania Supreme

Court. On June 4, 1999, Calloway filed his first pro se PCRA petition. After

appointed counsel filed a “no-merit” letter pursuant to the dictates of

Commonwealth v. Turner, 522 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), the PCRA Court

dismissed the petition on April 11, 2003. This Court affirmed the PCRA Court’s

dismissal on October 1, 2004. Commonwealth v. Calloway, 1295 EDA 2003

(Pa. Super. filed Oct. 1, 2004) (unpublished memorandum).

        Calloway filed his second pro se PCRA petition on November 4, 2009,

and an amended petition on July 20, 2010 (collectively, “Second Petition”).

        In a memorandum attached to the Second Petition, [Calloway]
        alleged that newly-discovered facts, in the form of new
        exculpatory eyewitness Jacqueline Davis, proved he did not
        commit either the aggravated assault or the murder of which he
____________________________________________


1   18 Pa.C.S.A § 2502(a).

2   18 Pa.C.S.A § 2702.

3   18 Pa.C.S.A § 907.

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      was convicted. [Calloway] did not, however, submit an affidavit
      or witness certification from [Davis], but instead relied on two
      witnesses who claimed to have spoken with her and heard her
      exculpatory comments. [Calloway] also claimed a second newly-
      discovered fact in the form of a civil complaint, filed by [McCray,]
      the victim of [Calloway’s] aggravated assault, in which [McCray]
      alleges damages resulting from a traffic accident that took place
      on the same day as the assault.

PCRA Opinion, 5/9/19, at 2. The PCRA court dismissed as untimely the Second

Petition on February 3, 2012.     This Court affirmed dismissal of Calloway’s

Second Petition on December 5, 2012. Commonwealth v. Calloway, 64

A.3d 10 (Pa. Super. 2012) (Table).

      On October 18, 2013, Calloway filed his third pro se PCRA petition, and

appointed counsel filed an amended petition on January 8, 2015 (collectively,

“Third Petition”). The Third Petition included an affidavit from Davis, who was

available to testify in person. Calloway again asserted that newly-discovered

facts—specifically, Davis’ testimony—proved that he did not commit either the

aggravated assault or murder of which he was convicted.            Following an

evidentiary hearing on this issue on October 20, 2015, the court dismissed his

Third Petition as untimely on August 17, 2016. We affirmed the dismissal on

June 1, 2017. Commonwealth v. Calloway, 2895 EDA 2016 (Pa. Super.

filed June 1, 2017) (unpublished memorandum). On November 21, 2017, the

Supreme Court denied allowance of appeal.

      Calloway filed the instant petition, his fourth pro se PCRA petition, on

January 19, 2018, and he filed an amended petition on April 4, 2018

(collectively, “Fourth Petition”). In this Fourth Petition, Calloway again claims



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newly-discovered facts in the form of: (1) McCray’s 1997 civil complaint,

which, according to Calloway, proves McCray’s injuries were caused by a

traffic accident and not by Calloway’s assault; and (2) Barbara McCollough’s

statement to police from 1995, which Calloway claims the Commonwealth

never disclosed to him in violation of Brady v. Maryland, 373 U.S. 83 (1963).

Brief of Appellant, at 11-16. On January 25, 2019, the PCRA court dismissed

as untimely Calloway’s Fourth Petition.      Instantly, Calloway appeals the

dismissal of his Fourth Petition and raises the following issues for our review:

      1. Whether the PCRA court erred in dismissing [Calloway’s Fourth
      Petition], when [Calloway] established that the facts upon which
      the claim is predicated were unknown to him, which qualifies for
      an exception to the PCRA time limitation under 42 Pa.C.S.A. §
      9545(b)(1)(ii) and 42 Pa.C.S.A. § 9545(b)(2).

      2. Whether the PCRA court erred in dismissing [Calloway’s Fourth
      Petition] as untimely where [Calloway] asserts the evidence
      presented in his [Fourth Petition] constitutes after-discovered
      evidence placing his petition squarely within the timeliness
      exception to the one year limitations period pursuant to 42
      Pa.C.S.A. § 9543(a)(2)(vi).

      3. Whether the PCRA court erred in dismissing [Calloway’s Fourth
      Petition] on an erroneous basis of timeliness, when the newly-
      discovered fact exception applies an[d] the court refused to
      conduct the required hearing, refusing to conduct an independent
      review of the matters relating to [Calloway’s] claims as no
      prejudice was pled by the Commonwealth; thereby violating
      [Calloway’s] right to due process of law.

      4. Whether the PCRA court erred in dismissing [Calloway’s Fourth
      Petition], by denying [Calloway] due process of law under the
      State and Federal Constitution[s] and his right to proper legal
      evaluation on his claim of a Brady violation.

Brief of Appellant, at 2 (unnecessary capitalization omitted).



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        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).

We are bound by a PCRA court’s credibility determinations, but with regard to

a court’s legal conclusions, we apply a de novo standard. Id. Before reaching

the issues that Calloway raises in his appellate brief, however, we must first

ascertain whether the PCRA court correctly determined that his Fourth Petition

was untimely filed. See Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.

2000) (PCRA time limit is jurisdictional; court may only review untimely

petition if statutory exception applies).

        Generally, a petition for relief under the PCRA, including a second or

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

of sentence becomes final unless the petitioner alleges, and proves, an

exception to the time for filing the petition, set forth at 42 Pa.C.S.A. §§

9545(b)(1)(i), (ii), and (iii).4 A PCRA petition invoking one of these statutory
____________________________________________


4   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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



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exceptions must “be filed within 60 days of the date the claims could have

been presented.” See Commonwealth v. Hernandez, 79 A.3d 649, 651-

52 (Pa. Super. 2013) (citations omitted); see also 42 Pa.C.S.A. §

9545(b)(2).5

       Calloway’s judgment of sentence became final on April 22, 1998, thirty

days after this Court affirmed his judgment of sentence.6 Therefore, Calloway

had one year, until April 22, 1999, to timely file a PCRA petition. 42 Pa.C.S.A.

§ 9545(b)(1).       His Fourth Petition, filed over 18 years later, is patently

untimely.     Accordingly, Calloway must plead and prove that one of the

statutory timeliness exceptions applies, and he must have filed the Fourth

Petition within sixty days of the date the claim could have been brought. 42

Pa.C.S.A. §§ 9545(b)(1)-(2).

       Here, Calloway asserts that his petition is timely under the newly-

discovered facts exception, codified at 42 Pa.C.S.A. § 9545(b)(1)(ii).      This
____________________________________________


       of Pennsylvania after the time period provided in this section and
       has been held by that court to apply retroactively.

42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).

5 On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
to enlarge the time in which a petitioner may invoke a PCRA time-bar
exception from 60 days to one year from the date the claim arises. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018].
However, the amendment applies only to claims arising on December 24,
2017, or thereafter. Id. at § 3. In this case, Calloway’s claims stem from
actions taken in 1995-1997, when the police and prosecutor allegedly began
withholding potentially exculpatory evidence from him.

6A judgment is deemed final “at the conclusion of direct review . . . or at the
expiration of time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

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exception “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 been

ascertained by the exercise of due diligence.” Commonwealth v. Bennett,

930 A.2d 1264, 1272 (Pa. 2007); 42 Pa.C.S.A. § 9545(b)(1)(ii). Due diligence

requires a petitioner to take reasonable efforts to uncover facts that may

support a claim for collateral relief. Commonwealth v. Burton, 121 A.3d

1063, 1071 (Pa. Super. 2015) (en banc). A petitioner must explain why he

could not have learned the new fact(s) earlier by exercising due diligence.

Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001). Additionally,

the focus of this 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).

      Calloway’s first purported newly-discovered fact is a civil complaint from

1997 in which his assault victim, McCray, sought damages arising out of a

traffic accident that occurred on the same day Calloway assaulted him. Brief

of Appellant, at 11-13. Calloway raised this exact claim in his Second Petition,

which was dismissed as untimely. In affirming the dismissal, we noted that

McCray’s complaint was a matter of public record, and therefore, the facts

contained therein were not unknown to Calloway when he filed his Second

Petition in 2009. Commonwealth v. Calloway, 752 EDA 2012, at 3 (Pa.

Super. filed Dec. 5, 2012) (unpublished opinion). The Pennsylvania Supreme

Court subsequently held in Commonwealth v. Burton “that the presumption

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that information which is of public record cannot be deemed ‘unknown’ for

purposes of subsection 9545(b)(1)(ii) does not apply to pro se prisoner

petitioners.” 158 A.3d 618, 638 (Pa. 2017) (emphasis in original).

      Calloway “now rel[ies] upon the rationale employed in [Burton] . . . for

[the] purpose of proving the [n]ewly-[d]iscovered [f]acts exception to the

time requirements of the [PCRA].” Brief of Appellant, at 12. Calloway further

asserts that Burton created “a new constitutional right for [his] relief” under

subsection 9545(b)(1)(iii). Id. Neither claim has merit.

      The ruling in Burton does not constitute a newly-discovered fact for

purposes of subsection 9545(b)(1)(ii); it merely sets forth a new legal

principle.   In Commonwealth v. Watts, 23 A.3d 980, (Pa. 2011), our

Supreme Court expressly held “that subsequent decisional law does not

amount to a new ‘fact’ under section 9545(b)(1)(ii) of the PCRA.” Id. at 987.

Additionally, Burton was “a case of statutory construction” that did not create

a new constitutional right. Commonwealth v. Kretchmar, 189 A.3d 459,

463 (Pa. Super. 2018).    “Indeed, there is not a single reference to either

Constitution in [that] opinion.” Id.; see also Burton, supra.        Therefore,

Calloway has not alleged nor proved that the timeliness exceptions under

subsections 9545(b)(1)(ii) or (iii) apply to him by virtue of Burton.

      Regarding McCray’s civil complaint, Calloway has been aware of the

facts therein since his trial in 1996. In ruling on Calloway’s Second Petition,

the court noted that the 1997 complaint does not reveal anything new; McCray

testified at Calloway’s trial that he was hit by a cab on the day Calloway

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assaulted him, that he was hospitalized, and that at the hospital he was not

specifically treated for the wounds Calloway inflicted to his head. Trial Court

Opinion, 5/16/12, at 5-6. The complaint, therefore, “merely provided a new

source of information already known to [Calloway].” Id. This is insufficient

to meet the newly-discovered fact exception. Marshall, supra.

      Moreover, Calloway failed to prove that he exercised due diligence in

discovering the civil complaint or the facts therein. On February 11, 1998,

Calloway sent a letter to the Assistant District Attorney who tried his case

requesting McCray’s medical records and information related to his injuries.

Amended Petition, 4/4/18, at 2. Having received no response, Calloway did

not attempt to obtain this information again until October 21, 2008. Id. Given

Calloway’s knowledge of McCray’s trial testimony, his ten-year delay in

attempting to uncover additional facts falls short of the reasonable efforts a

petitioner must take to protect his interests to support a claim for collateral

relief. See Commonwealth v. Shiloh, 170 A.3d 553, 559 (Pa. Super. 2017)

(“due diligence inquiry is fact-sensitive and dependent upon the circumstances

presented”); 42 Pa.C.S.A. § 9545(b)(1)(ii).

      Calloway’s second purported newly-discovered fact is that McCollough

gave a statement to police on April 8, 1995. Calloway alleges the prosecution

withheld this statement from him in violation of Brady, supra.         Brief of

Appellant, at 15-16. We agree with the PCRA court that the record establishes

Calloway did not exercise due diligence. See PCRA Opinion, 5/9/19, at 9.

Two police reports from 1995, given to Calloway before trial, indicate that

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three witnesses, including McCollough, gave statements to police; because

Calloway received statements from two of those witnesses before trial, he

could have discovered McCollough’s statement earlier if he acted with due

diligence. Id.; see Shiloh, supra at 558. Calloway’s failure to explain why

he could not have requested this statement earlier, when 20 years have

passed since his trial, “demonstrates that he failed to plead and/or prove that

he acted with diligence.” Commonwealth v. Smith, 914 A.3d 126, 135 (Pa.

Super. 2018) (16 year lapse between trial and request for victim’s autopsy

evidence disproves appellant’s due diligence).7

       Calloway has not established that any of the statutory exceptions to the

PCRA’s timeliness requirement apply to him.        Accordingly, the PCRA court

correctly determined that it lacked jurisdiction to address the merits of his

untimely Fourth Petition.

       Order affirmed.8




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7 “Furthermore, there is no indication that McCollough’s statement actually
contains any exculpatory material if in fact such a statement exists. . . .
Accordingly, [Calloway’s] claim is speculative and does not proffer any facts
upon which a claim could be presented. For those reasons, the newly-
discovered fact exception does not apply.” PCRA Opinion, 5/9/19, at 9.

8 On January 21, 2020, Calloway filed an application, titled as a motion for
continuance, requesting an extension of time to file a reply brief. Because
this is Calloway’s fourth untimely PCRA petition, his motion is hereby denied.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/20




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