J-S12020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                     v.

ROBERT CLINTON HOSBY,

                          Appellant                   No. 905 MDA 2017


             Appeal from the PCRA Order, entered April 17, 2017,
               in the Court of Common Pleas of Dauphin County,
             Criminal Division, at No(s): CP-22-CR-0004975-2006.


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

MEMORANDUM BY KUNSELMAN, J.:                            FILED MAY 02, 2018

      Robert Clinton Hosby appeals from the order denying his serial petition

for post-conviction relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The pertinent facts and procedural history have been summarized as

follows:

           While drinking at a local bar, [Hosby] and his cousin,
           Tamara Hosby, encountered Tara Layton and her friends
           and arranged for Tamara to fight Soraya Layton, Tara’s
           cousin. The fight was arranged because Soraya provided
           the Harrisburg Police Department with information related
           to criminal activity involving Tamara’s brother. During the
           early morning hours of October 8, 2006, [Hosby] drove
           Tamara to Tara’s residence at 2118 Susquehanna Street to
           engage in the pre-arranged fist-fight with Soraya.

              When [Hosby] and Tamara arrived at the location, they
           exited the vehicle and walked together along the sidewalk
           towards Tara’s residence, and Tamara shouted at Soraya
           as she approached the residence. Soraya turned around
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        to walk away; however, Tamara grabbed her hair and
        punched her in the face, leading to the physical
        altercation. Hosby urged Tamara to “beat Soraya up” as
        the fight was occurring.

           Anthony Chadwick, Tara’s boyfriend, broke up the fight
        between Soraya and Tamara and they walked away from
        the residence still arguing.    Around the same time,
        [Hosby] and Tara were arguing about the winner of the
        altercation between Soraya and Tamara. [Hosby] punched
        Tara in the face, and Anthony intervened and pushed
        [Hosby] away. [Hosby] then turned and walked to his car.

           Witnesses testified that once [Hosby] arrived at his
        vehicle he opened the door and reached inside, pulled out
        a gun and placed it in his rear pocket. After witnessing
        [Hosby] loading the gun and placing it in his rear pocket,
        Tara’s cousin, Laticia Jackson, instructed him to leave.
        [Hosby] ignored the demand and walked towards Tara’s
        residence, intoning, “They keep running their mouth”.
        When [Hosby] approached the residence, Tara grabbed a
        plastic lawn chair and ran towards him. As she was
        shouting for him to leave, she hit [Hosby] a few times with
        the chair and pieces of the chair went flying. [Hosby] then
        backed away, pulled out his gun, and shot Tara in the
        chest, killing her instantly. After shooting Tara, [Hosby]
        turned away, returned to his car and left with Tamara.

            [Hosby] was later arrested and processed by the City of
        Harrisburg, Bureau of Police. Trial was convened, a jury
        convicted [Hosby for first-degree murder and related
        charges], and he was sentenced [to an aggregate term of
        life in prison]. Post-trial motions were filed and denied,
        following which a timely notice of appeal was filed.


Commonwealth v. Hosby, 965 A.2d 265 (Pa. Super. 2007), unpublished

memorandum at 1-3 (citations omitted).       On December 17, 2008, we

rejected Hosby’s claims on direct appeal and affirmed his judgment of

sentence.   Id.   On May 27, 2009, our Supreme Court denied Hosby’s




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petition for allowance of appeal. Commonwealth v. Hosby, 972 A.2d 520

(Pa. 2009).

         On August 26, 2009, Hosby filed a timely pro se PCRA petition, and

the PCRA court appointed counsel.       Thereafter, PCRA counsel filed a “no-

merit” letter and motion to withdraw, pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc), based upon PCRA counsel’s

conclusion that Appellant’s petition was without merit. On June 24, 2011,

the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss

Hosby’s PCRA petition without a hearing, and granted PCRA counsel’s motion

to withdraw.     Hosby filed a response on July 25, 2011.    By order entered

December 7, 2011, the PCRA court dismissed the petition.         Hosby filed a

timely appeal to this Court, and we affirmed in an unpublished memorandum

filed on December 14, 2012. Commonwealth v. Hosby, 64 A.2d 22 (Pa.

Super. 2012).

         On March 28, 2016, Hosby filed a second pro se PCRA petition. The

PCRA court again appointed counsel, and PCRA counsel filed a motion to

withdraw.      After issuing Pa.R.Crim.P. 907 notice and granting counsel’s

motion, the PCRA court, by order entered August 18, 2016, denied Hosby’s

second petition.

         On December 23, 2016, Appellant filed the PCRA petition at issue, his

third.    Appellant styled this filing as a “Petition Requesting an Evidentiary

Hearing and New Trial Based on After-Discovered Evidence that was

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Unavailable during Trial Pursuant to 42 Pa.C.S. § 9543(a)(2)(vi) and Facts

that were Unknown Pursuant to 42 Pa.C.S. § 9545(b)(1)(ii).” After issuing

Pa.R.Crim.P. 907 notice, the PCRA court dismissed the petition on April 17,

2017. Hosby filed a timely pro se appeal and, following a Grazier1 hearing,

the PCRA court appointed present counsel. Both Hosby and the PCRA court

have complied with Pa.R.A.P. 1925.

       Appellant raises the following issue:

          I.        Whether the [PCRA] court erred in dismissing
                    [Hosby’s] [PCRA] petition when the Commonwealth
                    erroneously contended that [he] went back to the
                    vehicle and retrieved a firearm when in fact, [Hosby]
                    never returned to the vehicle to retrieve a firearm?

Hosby’s Brief at 5 (excess capitalization omitted).

       This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported      by    the   evidence    of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).          Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that petitioner’s claim is

____________________________________________


1   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).




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patently frivolous and is without a trace of support in either the record or

from other evidence.        Commonwealth v. Jordan, 772 A.2d 1011, 1104

(Pa. Super. 2001).

        Because this is Appellant’s third petition for post-conviction relief, he

must meet a more stringent standard. “A second or any subsequent post-

conviction request for relief will not be entertained unless a strong prime

facie showing is offered to demonstrate that a miscarriage of justice may

have occurred.”      Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa.

Super. 2003) (en banc) (citations omitted).             “A petitioner makes a prime

facie showing if he demonstrates that either 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.” Id.

        The   timeliness     of   a   post-conviction     petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

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

is final unless the petition alleges, and the petitioner proves, that an

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

9545(b)(1)(i), (ii), and (iii), is met.2 42 Pa.C.S.A. § 9545. A PCRA petition

____________________________________________


2   The exceptions to the timeliness requirement are:
(Footnote Continued Next Page)


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invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.” See Hernandez, 79 A.3d

651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).            Finally,

exceptions to the PCRA’s time bar must be pled in the petition, and may not

be raised for the first time on appeal.           Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that

issues not raised before the lower court are waived and cannot be raised for

the first time on appeal).

      Appellant’s judgment of sentence became final on August 25, 2009,

when the ninety-day time period for filing a writ of certiorari with the United

States Supreme Court expired.             See 42 Pa.C.S.A. § 9545(b)(3).    Thus,

Appellant had until August 25, 2010, to file a timely PCRA petition.            As
(Footnote Continued)   _______________________




      (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 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).




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Appellant filed the instant petition in 2016, it is patently untimely unless he

has satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Hernandez, supra.

      Within his brief, Hosby acknowledges that his latest petition is

untimely, but he asserts that he now possesses “exculpatory evidence [that]

was unavailable at the time of trial and would have changed the outcome of

the trial if it had been introduced.” Hosby’s Brief at 13. According to Hosby:

            Following his direct appeal and timely PCRA Petition and
         appeal, [Hosby] saw a fellow prisoner, Tyrelle Middleman,
         who he knew from the neighborhood. Mr. Middleman
         began to “comment about [Hosby] being incarcerated
         pertaining to [Hosby] being hit over the head with a chair
         and [Hosby] was curious about how he knew about this
         event. In response, Mr. Middleman explained that he saw
         what happened as he was approaching all the commotion
         that night.”

Hosby’s Brief at 12. In making this argument, Hosby confuses eligibility for

the PCRA’s time bar exceptions, 42 Pa.C.S.A. sections 9545(b)(1)(i)(ii)(iii),

with the eligibility for relief, via a timely PCRA petition, based upon “after-

discovered evidence” pursuant to 42 Pa.C.S.A. section 9543(a)(vi). Each of

these sections of the PCRA requires different analyses.

      When considering a PCRA’s petitioner’s claim that he or she has

established   an    exception   to   the   PCRA’s     time      bar   under   section

9545(b)(1)(ii), the petitioner must establish only that the facts upon which

the claim are predicated were unknown to him, and that he could not have

ascertained   the   facts earlier    despite   the   exercise    of due   diligence.



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Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007).                       The

determination    of    timeliness   does    not    require   a   merits    analysis.

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).

      The   PCRA      court   concluded    that   Hosby’s    allegation   “that   the

Commonwealth erroneously contended he went back to his vehicle and

retrieved a firearm when he in fact did not, does not constitute facts

unknown and not discoverable by due diligence that would permit review

[under] the PCRA.”      PCRA Court Opinion, 9/25/17, at 3. We agree.

      Appellant has not demonstrated the exercise of due diligence.

Although he asserts he filed his latest PCRA petition within sixty days of the

discovery of the information from Middleman, he offers no explanation as to

why, with the exercise of due diligence, this information could not have been

discovered earlier.    Hosby stated that he was acquainted with Middleman

from the neighborhood, and the Commonwealth avers that both men were

housed in the same state institution for over two years before the meeting in

the prison yard. In addition, according to Mr. Middleman, he had witnessed

the “commotion” that preceded the shooting, and there is no evidence that,

with due diligence, Hosby could not have discovered Mr. Middleman’s

testimony prior to trial.

       We could affirm the PCRA court’s order denying post-conviction relief

on this basis alone. See Commonwealth v. Doty, 48 A.3d 451, 456 ((Pa.

Super. 2012) (explaining that this Court can affirm the a PCRA court’s denial


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of post-conviction relief on any basis). Nevertheless, even if the PCRA court

had found Hosby met the timeliness exception for newly-discovered

evidence, we agree with the PCRA court’s ultimate conclusion that he did not

demonstrate he is entitled to post-conviction relief based upon Middleman’s

affidavit.

      A petitioner is eligible for relief under the PCRA if he or she can

establish the “unavailability at the time of trial of exculpatory evidence that

has subsequently become available and would have changed the outcome of

the trial if it had been introduced.”      42 Pa.C.S.A. § 9543(a)(2)(vi).   This

Court has explained the test to be applied to such a claim as follows:

                To obtain relief based on after-discovered evidence, an
             appellant must demonstrate that the evidence: (1) could
             not have been obtained prior to the conclusion of trial by
             the exercise of reasonable due diligence; (2) is not merely
             corroborative or cumulative; (3) will not be used solely to
             impeach the credibility of a witness; and (4) would likely
             result in a different verdict if a new trial were granted.

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (citation

omitted).       “The test is conjunctive; the appellant must show by a

preponderance of the evidence that each of these factors has been met in

order for a new trial to be warranted.” Id. Moreover, “when reviewing the

decision to grant or deny a new trial on the basis of after-discovered

evidence, an appellate court is to determine whether the PCRA court

committed an abuse of discretion or error of law that controlled the outcome

of the case.” Id.



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     In concluding that Appellant failed to meet this burden, the PCRA court

reasoned:

           The facts that [Hosby] contends are new are that he
        was hit with a chair immediately before firing his gun
        rather than going to his car to fetch a gun prior to being
        hit with the chair. During trial, six witnesses testified that
        [Hosby] and the victim engaged in an altercation that was
        broken up, he then went to his car, and retrieved a gun.
        [Hosby] returned [and engaged] in another altercation
        with the victim who hit him with a chair; he then shot her.

           The affidavit attached to [Hosby’s PCRA petition] alleges
        that [Mr. Middleman] was walking towards the commotion
        when he saw the victim hit [Hosby] with a chair and then
        heard a pop sound. Nothing in this affidavit constitutes
        new evidence. [Mr. Middleman does not aver that he was]
        present for the entire series of events and indicates that he
        only saw the last altercation. As such, his testimony sheds
        no new light on when [Hosby] went to his car to retrieve
        his gun.

PCRA Court Opinion, 9/25/17, at 3 (citations omitted).

     Our review of the record supports the PCRA courts conclusions.       In

addition, we note that, Mr. Middleman’s proffered testimony would only

serve to impeach the testimony of the six trial witnesses who testified to a

different sequence of events. Thus, Hosby’s claim fails. Foreman, supra.

     In sum, for all of the above reasons, the PCRA court correctly

determined that Hosby was ineligible for post-conviction relief. We therefore

affirm the PCRA court’s order denying Hosby’s PCRA petition.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2018




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