J-S30043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

DANIEL CARTER

                         Appellant                  No. 1996 EDA 2015


                  Appeal from the PCRA Order June 8, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1213321-1992


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED MAY 06, 2016

      Appellant Daniel Carter appeals from the June 8, 2015 order of the

Philadelphia Court of Common Pleas dismissing as untimely his petition filed

pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.      We

affirm.

      This Court has summarized the factual history of this case as follows:

          On July 3, 1992, at approximately 1:30 a.m., [Appellant]
          and one Jamal Jones arrived at the home of Daniel
          Witherspoon at 711 Mercy Street in Philadelphia.
          Appellant requested to speak with Shawn “Ali” Bain, who
          was Witherspoon’s step-son and resided with him.
          Appellant asked Bain if he could borrow his twelve gauge
          sawed-off shotgun.      Bain agreed and retrieved the
          shotgun, loaded with three shells, from his bedroom.
          Appellant and [Jones] left with the shotgun and met one
          Wayne “Hawk” Witherspoon. The three men proceeded to
          a playground, approximately one and one-half blocks from
          [Daniel] Witherspoon’s house. Once inside the playground,
          [Appellant] approached the victim, Darryl Chinn, who was
          sitting on a park bench facing the basketball court.
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           Appellant fired a single, fatal shot into Chinn’s groin and
           pelvis from approximately two yards away.

                                           ***

           On October 31, 1992, [Appellant] was arrested and
           charged with the murder of Darryl Chinn.

Commonwealth v. Carter, 661 A.2d 390, 391-92 (Pa. Super. 1995).

        This Court has summarized the procedural history of this case as

follows:

           At the conclusion of a two-day bench trial, the trial court
           found Appellant guilty of first-degree murder, possession
           of an instrument of crime, [possession of prohibited
           offensive    weapon,]      and     criminal   conspiracy.[1]
           Subsequently, the trial court sentenced Appellant to life in
           prison for his murder conviction, and a suspended
           sentence on the remaining convictions. Appellant filed a
           timely [notice of] appeal to this Court. On June 6, 1995, a
           divided panel affirmed Appellant’s judgment of sentence.
           Carter, supra. On April 9, 1996, our Supreme Court
           denied Appellant’s petition for allowance of appeal.
           Commonwealth v. Carter, 675 A.2d 1242 (Pa. 1996).

           On July 7, 1997, Appellant filed a pro se PCRA petition.
           The PCRA court appointed counsel, and PCRA counsel filed
           an amended petition. The PCRA court held two days of
           evidentiary hearings. By opinion and order dated January
           5, 1999, the PCRA court denied relief. Appellant filed a
           timely appeal to this Court. In an unpublished
           memorandum filed on March 7, 2000, we adopted the
           PCRA court’s opinion as our own in affirming its denial of
           post-conviction relief. Commonwealth v. Carter, 757
           A.2d 990 (Pa. Super. 2000) (unpublished memorandum).
           On July 5, 2000, our Supreme Court denied Appellant’s
           petition for allowance of appeal. Commonwealth v.
           Carter, 785 A.2d 87 (Pa. 2000).

____________________________________________


1
    18 Pa.C.S. §§ 2502, 907, 908, and 903, respectively.



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          On September 21, 2010, Appellant filed a second PCRA
          petition. The PCRA court appointed counsel, and PCRA
          counsel filed an amended petition. While acknowledging
          that his serial petition was untimely, Appellant asserted
          that he filed it within sixty days of obtaining . . . new
          evidence. The PCRA court summarized the claim within the
          amended petition as follows:

              In this Amended Petition, [Appellant] claimed that on
              July 20, 2010, a woman named Raynell[e] Allen
              wrote [Appellant] a letter in which she informed him
              that her then-boyfriend [Jamal Jones], had
              confessed to her on the night of the shooting at issue
              in this case that he, and not [Appellant,] committed
              the murder of which [Appellant] was convicted.
              [Jamal Jones] passed away on December 22, 2005.

          PCRA Court Opinion, 11/7/13, at 2 (footnote and citations
          omitted).

          The PCRA court then explained the subsequent procedural
          history as follows:

              On November 16, 2012, Judge Temin ordered that
              an evidentiary hearing be held on [Appellant’s]
              [newly]-discovered evidence claim. Due to Judge
              Temin’s retirement from the bench, this PCRA
              [petition] was then reassigned to the [PCRA court].
              On July 26, 2013, following an evidentiary hearing
              and supplemental pleadings by both parties, the
              [c]ourt entered an order dismissing [Appellant’s]
              PCRA     petition.  [PCRA   counsel]   subsequently
              withdrew from representation, and [Appellant]
              requested permission to proceed pro se. The PCRA
              court held a Grazier[2] hearing and permitted
              [Appellant] to represent himself.

          PCRA Court Opinion, 11/7/13, at 2 (footnote omitted).




____________________________________________


2
    Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).



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Memorandum at 1-4, Commonwealth v. Carter, No. 2446 EDA 2013

(Pa.Super. filed Nov. 7, 2014) (unpublished memorandum).

        During the pendency of the appeal of Appellant’s second PCRA

petition, he filed an application for remand requesting a remand to the trial

court to review the declaration received from prior counsel, who had

represented Appellant during federal post-conviction proceedings.             The

declaration stated that counsel does not recall seeing the statement that

Raynelle Allen provided to police after the shooting.          This Court deferred

determination     of   the   application   to   the   merits     panel.    Order,

Commonwealth v. Carter, No. 2446 EDA 2913 (Pa.Super. filed May 28,

2014.

        Ms. Allen’s statement to the police included that she found the victim,

whom she did not know, at the playground, and called the police.            PCRA

Petition, at Exh. H. She also stated that there was no one at the playground

when she found the victim, but a “girl named Yatta” was sitting on the steps

of “609 Mercy St. and there was somebody else sitting there with her.” Id.

She also stated that “Allan” had told her he heard gunshots and that she

walked to the playground with “Allan[,] Marvetta, John and Mark.” Id. She

also stated that Yatta said she heard the gunshots.             Id.   When asked

whether she knew anyone who had ever fired a gun around the playground,

Ms. Allen responded “[a] lot of them young boys be shooting around there,”

“[o]ne of them lives on 7th and Mercy, his name is Ali,” and “[a]nother boy




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lives at 6th and McKean but I don’t know his name.”        Id. She said “[h]e

lives in a shackey looking house that I think is green.” Id.3

       On November 7, 2014, this Court affirmed the PCRA court’s order

dismissing Appellant’s second PCRA petition as untimely.

       On December 29, 2014, Appellant filed the instant PCRA petition, his

third. On May 15, 2015, the PCRA court issued notice of its intent to dismiss

the PCRA petition without a hearing pursuant to Pennsylvania Rule of

Criminal Procedure 907. On June 6, 2015, Appellant filed a response to the

notice of intent to dismiss.4 On June 8, 2015, the PCRA court dismissed the

petition as untimely.

       On June 17, 2015, Appellant filed a timely notice of appeal.     Both

Appellant and the PCRA court complied with Pennsylvania Rule of Appellate

Procedure 1925.

       Appellant raises the following issues on appeal:

          I. Did the PCRA court err in finding that the Appellant’s
          current serial PCRA petition was not timely filed?

          II. Was [p]rior PCRA counsel ineffective for failing to
          interview and subpoena witnesses for the PCRA evidentiary
          hearing?



____________________________________________


3
  At the June 21, 2013, evidentiary hearing, Ms. Allen testified that her
boyfriend, James Jones, told her that he shot the victim.
4
 This response was dated June 6, 2015, and stamped as filed on June 8,
2015.



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          III. Did the Commonwealth commit a Brady[5] violation
          when it failed to provide a pretrial statement given by
          Raynelle Allen?

Appellant’s Brief at 4.

        Pursuant to Pennsylvania law, no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa.Super.2010) (citing Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa.2003)). The PCRA provides that a 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); accord Monaco, 996 A.2d at

1079; Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). 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).

        Three exceptions to the PCRA’s time-bar exist. The exceptions allow

for limited circumstances under which a court may excuse the late filing of a

PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079.          To

establish that an exception to the PCRA time-bar applies, a petitioner must

allege and prove:

              (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
____________________________________________


5
    Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).



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              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. § 9545(b)(1)(i)-(iii).        When invoking an exception to the PCRA

time-bar, the petition must “be filed within 60 days of the date the claim

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

       Appellant’s judgment of conviction became final on July 8, 1996, when

the time to seek review by the Supreme Court of the United States expired. 6

He had one year from that date, i.e., July 8, 1997, to file a timely PCRA

petition.   Therefore, his current petition, filed on December 29, 2014, is

facially untimely.

       Appellant’s petition remains untimely unless his PCRA petition alleged

and proved a PCRA time-bar exception.            His petition raises an ineffective

assistance of counsel claim and a Brady claim.



____________________________________________


6
   Appellant had 90 days from the date the Pennsylvania Supreme Court
denied his petition for allowance of appeal to file a petition for a writ of
certiorari with the Supreme Court of the United States. See U.S. Sup. Ct. R.
13; Commonwealth v. Owens, 718 A.2d 330, 331 (Pa.Super.1998)
(applying Rule 13 to judgment of sentence entered May 15, 1996).



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       Allegations of ineffective assistance of counsel do not establish a time-

bar exception.        Commonwealth v. Wharton, 584 A.2d 1120, 1127

(Pa.2005).7 Appellant’s Brady claim also fails to establish an exception to

the PCRA time-bar.

       Where a petitioner alleges a Brady claim in a PCRA petition filed more

than one-year after a judgment of sentence became final, the petitioner

must establish the claim qualifies under the newly-discovered evidence

exception to the PCRA time bar.           Commonwealth v. Bennett, 930 A.2d

1264, 1271-72 (Pa.2007).            To establish the newly-discovered evidence

exception, the petitioner must establish 1) “the facts upon which the claim

was predicated were unknown” and 2) the facts “could not have been

ascertained by the exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii);

Bennett, 930 A.2d at 1272.

       Appellant’s PCRA petition alleges that he learned of the statement

Raynelle Allen provided to the police following the shooting when the

Commonwealth used it to cross-examine Ms. Allen at the 2013 evidentiary

hearing.    PCRA Petition at 8. He maintains he had no knowledge of this
____________________________________________


7
  Appellant raised PCRA counsel ineffectiveness claims in his appeal of the
denial of his second PCRA petition, including a PCRA counsel ineffectiveness
claim for failing to investigate the alleged Brady violation. Memorandum at
9, Commonwealth v. Carter, No. 2446 EDA 2013 (Pa.Super. filed Nov. 7,
2014) (unpublished memorandum); Brief at 58, Commonwealth v. Carter,
No. 2446 EDA 2013 (Pa.Super. filed Apr. 7, 2014). This Court found those
claims waived, because Appellant raised them for the first time on appeal.
Memorandum at 9, Carter, No. 2446 EDA 2013.



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statement prior to the hearing.           He further maintains that following the

hearing he wrote letters to his prior counsel and hired an investigator to

determine whether they had reviewed the statement.                     Id. at 9-10.

Appellant received a declaration and verified statement from the counsel

who represented him during this federal habeas corpus proceedings, which

stated counsel had not been presented with the statement and she had no

recollection of having seen it, or any reference to Ms. Allen or her statement,

in the case notes she reviewed. Id.8 Appellant’s PCRA petition, however,

fails to state what facts in Ms. Allen’s statement he did not know, or could

not have known with due diligence.             In his appellate brief, he asserts the

statement would tend to establish that there were other individuals in the

area that had been known for shooting guns.              However, this is not a fact

that was unknown to Appellant or that could not have been ascertained with

due diligence.9
____________________________________________


8
   The declaration and verified statement from Appellant’s prior counsel is
dated April 16, 2014, and Appellant filed an application for remand on May
8, 2014. He then filed the instant petition on December 29, 2014, within 60
days of this Court’s order affirming the dismissal of his prior PCRA petition.
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa.2000) (when appellant’s
PCRA appeal is pending, a subsequent petition cannot be filed until the
resolution of review of pending PCRA petition by highest state court in which
review is sought, or upon the expiration of the time for seeking such review;
the subsequent petition must be filed within 60 days of date of order which
finally resolves the previous PCRA petition).
9
  Although there are other facts, including names of potential witnesses, in
the statement, Appellant does not assert that he did not know those facts, or
that he did not know of the existence of the witnesses, at an earlier time.



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      Accordingly, Appellant has failed to allege and prove any exception to

the PCRA time bar, and the PCRA court properly dismissed his third PCRA

petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016




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