J-S85035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

MARIO COURTLIN PARKER

                          Appellant                   No. 1113 WDA 2017


               Appeal from the PCRA Order entered July 7, 2017
              In the Court of Common Pleas of Allegheny County
               Criminal Division at No: CP-02-CR-0007624-2009


BEFORE: BOWES, PANELLA, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                             FILED APRIL 25, 2018

      Appellant, Mario Courtlin Parker, appeals from the July 7, 2017 order

entered in the Court of Common Pleas of Allegheny County, dismissing his

second petition for collateral relief filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Following review, we vacate and

remand.

      When we considered Appellant’s appeal from denial of his first PCRA

petition, we provided the following procedural history:

             Following a trial that began on June 29, 2010 and concluded
      on July 2, 2010, a jury convicted Appellant of the May 2009
      murders of sisters Rachel and Daneen Robinson at their home in
      the Hazelwood section of Pittsburgh. On September 20, 2010, the
      trial court sentenced Appellant to two life sentences plus twenty
      to forty years’ imprisonment for additional convictions of burglary,
      violations of the firearms act, unlawful restraint, and criminal
      conspiracy. On March 5, 2013, this Court affirmed his judgment
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      of sentence. Appellant filed a petition for allowance of appeal to
      our Supreme Court, which denied the petition on July 31, 2013.
      Commonwealth v. Parker, 2013 WL 11273762 (Pa. Super.
      March 5, 2013), appeal denied, 72 A.3d 602 (Pa. 2013).

            Appellant filed a timely pro se PCRA petition on March 17,
      2014. Following substitution of counsel and the filing of an
      amended petition [asserting ten ineffectiveness of counsel
      claims], the PCRA court dismissed the petition without a hearing
      on April 22, 2015. [A] timely appeal followed.

Commonwealth v. Parker, No. 821 WDA 2015, unpublished memorandum

at 1-2 (Pa. Super. filed August 10, 2016).

      In his appeal, Appellant asked us to consider seven claims of

ineffectiveness.   While the case was pending on appeal, Appellant filed a

petition for remand, claiming a Commonwealth witness, D’Andre Freeman

(Freeman), had recanted his trial testimony identifying Appellant as one of

two shooters involved in the murders.     Because this Court had jurisdiction

over the matter, Appellant asked that we remand to the PCRA court for an

evidentiary hearing on the newly-discovered evidence resulting from the

recantation.   A divided panel of this Court denied Appellant’s petition for

remand, finding Appellant “has not asserted, and consequently has not

demonstrated, that Freeman’s recantation could not have been obtained prior

to trial through reasonable diligence and because he has not shown that it

would compel a different result[.]” Id. at 5. We then considered the merits




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of his ineffectiveness claims and affirmed the PCRA court’s dismissal of the

PCRA petition. Id.1

       Appellant filed a petition for allowance of appeal to our Supreme Court,

which that Court denied on February 22, 2017. Commonwealth v. Parker,

166 A.3d 1234 (Pa. 2017).

       On March 21, 2017, Appellant filed a PCRA petition “based on after-

discovered evidence pursuant to 42 Pa.C.S.[A.] § 9543(a)(2)(vi).”               The

Commonwealth filed its response on May 18, 2017. On June 2, 2017, the

PCRA court issued a notice of intention to dismiss the petition pursuant to

Pa.R.Crim.P. 907, stating:

       [Appellant] raised this after-discovered evidence claim (namely,
       the recantation of witness D’Andre Freeman) to the Superior Court
       on March 27, 2016, during the pendency of his direct appeal. In
       its Opinion filed August 10, 2016, the Superior Court held that
       Petitioner failed to demonstrate that he could not have obtained
       the evidence prior to trial, and furthermore, ruled on the merits of
       the claim in finding that [Appellant] failed to show that the new
       evidence would have compelled a different result. As such, this
       claim was previously litigated before the Superior Court, and the
       Superior Court ruled on the merits of the claim. Furthermore,
       even if the trial court were to find that the claim was not previously
       litigated, it is bound by the law of the case doctrine to not reopen
       a question already decided by an appellate court.

PCRA Court Notice of Intention to Dismiss, 6/2/17, at 1.

       On June 2, 2017, Appellant filed a response to the notice of intention to

dismiss. By order entered July 7, 2017, the PCRA court denied Appellant’s


____________________________________________


1 The dissenting panel member concluded Appellant sufficiently established a
right to an evidentiary hearing and would have remanded to the PCRA court.

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petition. This timely appeal followed. In an order entered August 3, 2017,

the court explained that the reasons for denying Appellant’s PCRA petition

were set forth in its June 2, 2017 notice of intention to dismiss.

      Appellant presents two issues for our consideration:

      Whether the lower court erred in denying [Appellant’s] PCRA
      petition based on after-discovered evidence without granting a
      hearing, finding that the claim has been previously litigated and
      no purpose would be served by any further proceedings.

      Whether the lower court erred in determining that even if it found
      that [Appellant’s] claim had not been previously litigated, it is
      bound, under these circumstances, by the law of the case doctrine
      to not reopen a question already decided by an appellate court.

Appellant’s Brief at 2-3.

      Before discussing the merits of Appellant’s issues, we must determine

whether we have jurisdiction to consider them.     As required by 42 Pa.C.S.A.

§ 9545(b)(1), all PCRA petitions, “including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final” unless

an exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s

time restrictions are jurisdictional in nature.   Thus, [i]f a PCRA petition is

untimely, neither this Court nor the [PCRA] court has jurisdiction over the

petition. Without jurisdiction, we simply do not have the legal authority to

address the substantive claims.” Commonwealth v. Chester, 895 A.2d 520,

522 (Pa. 2006) (first alteration in original) (internal citations and quotation

marks omitted).    As timeliness is separate and distinct from the merits of

Appellant’s underlying claims, we first determine whether this PCRA petition


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is timely filed.   See Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa.

2008) (consideration of Brady claim separate from consideration of its

timeliness).

      As reflected in the excerpt from our 2016 Memorandum, Appellant was

sentenced on September 20, 2010, following a jury trial. He appealed to this

Court and, following our affirmance, sought allowance of appeal to our

Supreme Court. Our Supreme Court denied Appellant’s petition for allowance

of appeal on July 31, 2013. He did not seek certiorari to the United States

Supreme Court. Therefore, his judgment of sentence was final ninety days

after his petition for allowance of appeal was denied, i.e., on October 30, 2013.

Absent an exception to the PCRA’s timeliness requirements, any petition for

relief under the PCRA had to be filed by October 30, 2014, one year after the

date his judgment of sentence was final. See U.S. Sup.Ct.R. 13; 42 Pa.C.S.A.

§ 9545(b)(3).

      Appellant filed the instant petition, his second, on March 21, 2017, two

and a half years after the deadline for filing a petition. Therefore, his petition

is untimely on its face.

      The PCRA affords a petitioner the opportunity to save his petition from

the PCRA’s time bar if the petition alleges and the petitioner proves one of the

exceptions recognized in § 9545(b)(1)(i)-(iii).    Relevant here is subsection

(b)(1)(ii), which provides an exception to the PCRA’s time bar if the petition

alleges and the petitioner proves that “the facts upon which the claim is


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predicated were unknown to the petitioner and could not have been

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

Relevant also is the requirement that any petition invoking this exception

“shall be filed within 60 days of the date the claim could have been presented.”

42 Pa.C.S.A. § 9545(b)(2).

      In his March 21, 2017 petition, Appellant contends Freeman recanted

his testimony on February 11, 2016 and signed an affidavit on February 23,

2016 “explaining his experience as a witness in [Appellant’s] case and why he

felt unable to come forward any sooner with the truth.”         PCRA Petition,

3/21/17, at ¶ 14. He explained that his appeal from denial of his first PCRA

petition was pending before this Court and that he filed the petition for remand

that we denied on August 10, 2016. It was not until the Supreme Court denied

his petition for allowance of appeal and remanded the record that he was able

to file the instant petition with the PCRA court. Id. at ¶¶ 15, 22. He submits

that the instant petition is timely because it was brought to the attention of

this Court (in the petition for remand) within 60 days of the discovery of new

evidence and the “any filing with [the PCRA court] prior to March 15 th would

have been premature because the record had not been returned to the [PCRA

court] until that date.”   Id. at ¶ 24.   He also explains that his first PCRA

petition alleged only ineffectiveness of counsel and that the PCRA court did

not have any earlier opportunity to consider his after-discovered evidence

claim. Id. at ¶ 23.


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         The Commonwealth argues that Appellant’s petition is untimely on its

face and that Appellant cannot invoke an exception to the time bar for newly-

discovered evidence.      Commonwealth Brief at 14.       The Commonwealth

contends that this Court, in our August 10, 2016 memorandum opinion,

“correctly determined that [A]ppellant’s petition for remand did not claim that

he could not have obtained recantation evidence at or prior to the conclusion

of trial through reasonable diligence.” Id. The Commonwealth concludes that

this Court’s 2016 findings are binding on this Court and are binding on the

PCRA court as a previously litigated claim. Id.

         We agree with the Commonwealth’s assessment that the August 10,

2016 order denied Appellant’s remand petition because Appellant did not

assert or demonstrate that Freeman’s recantation could not have been

obtained prior to trial. However, unlike his petition for remand, his current

PCRA petition does make those assertions.         Moreover, his current PCRA

petition was filed within 60 days after our Supreme Court denied Appellant’s

petition for allowance of appeal. The current petition presented Appellant his

first opportunity to raise his after-discovered evidence claim before the PCRA

court.

         In Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000), our Supreme

Court held that “a subsequent PCRA petition cannot be filed until the resolution

of review of the pending PCRA petition by the highest state court in which

review is sought, or upon the expiration of the time for seeking such review.”


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Id. at 588. Our Supreme Court reasoned that “[a] second appeal cannot be

taken when another proceeding of the same type is already pending.” Id.

(citation omitted).   Where a petitioner attempts to raise a subsequent,

independent claim for relief during the pendency of an earlier PCRA petition,

his “only option is to raise it within a second PCRA petition filed within [60]

days of the date of the order that finally resolves the [pending] PCRA

petition[.]” Commonwealth v. Steele, 961 A.2d 786, 808-809 (Pa. 2008).

“Of course, Appellant will still be required to plead and prove that one of the

three exceptions to the time bar under 42 Pa.C.S. § 9545(b)(1) applies.” Id.

at 809 (citing Lark and 42 Pa.C.S.A. § 9545(b)(1)).

      We agree with Appellant that his petition is timely, but for a slightly

different reason. We agree that he did not have an opportunity to file the

instant petition at any time prior to the Supreme Court’s February 22, 2017

denial of his petition for allowance of appeal.       Therefore, the fact he

insufficiently raised the newly-discovered evidence exception before this Court

in his petition for remand is of no moment.     He was required to raise the

exception in a PCRA petition “within 60 days of the date the claim could have

been presented.” 42 Pa.C.S.A. § 9545(b)(2). By filing his petition on March

21, 2017, he complied with the requirement that he file the petition within 60

days of February 22, 2017, the earliest date his claim could have been

presented. Therefore, we shall entertain the merits of his appeal.

      As this Court has recognized:


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      Our standard of review of the denial of a PCRA petition is limited
      to examining whether the evidence of record supports the court's
      determination and whether its decision is free of legal error. This
      Court grants great deference to the findings of the PCRA court if
      the record contains any support for those findings. 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 and the petitioner is not entitled to
      post-conviction collateral relief, and no purpose would be served
      by any further proceedings. A reviewing court on appeal must
      examine each of the issues raised in the PCRA petition in light of
      the record in order to determine whether the PCRA court erred in
      concluding that there were no genuine issues of material fact and
      in denying relief without an evidentiary hearing.

Commonwealth v. Smith, Q., 121 A.3d 1049, 1052 (Pa. Super. 2015)

(internal quotations, citations and brackets omitted).

      Here, the PCRA court concluded that Appellant’s current claim was

previously litigated before this Court. Notice of Intention to Dismiss, 6/2/17,

at 1. Specifically, the PCRA court’s found that Appellant, on appeal from the

denial of his first PCRA petition, “failed to demonstrate that he could not have

obtained the evidence prior to trial[.]”      Id.   Further, the PCRA court

determined that this Court “ruled on the merits of the claim in finding that

[Appellant] failed to show that the new evidence would have compelled a

different result.” Id. The record does not support those findings and, we

hold, the PCRA court committed legal error in reaching those conclusions.

      In Appellant’s previous appeal, this Court did not rule on the merits of

Appellant’s after-discovered evidence claim. Rather, we held that “Appellant’s

petition for remand does not aver that he could not have obtained Freeman’s


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recantation at or prior to the conclusion of trial through reasonable diligence.”

Commonwealth v. Parker, No. 821 WDA 2015, unpublished memorandum

at 4 (Pa. Super. filed August 10, 2016). “Because Appellant has not asserted,

and consequently has not demonstrated, that Freeman’s recantation could not

have been obtained prior to trial through reasonable diligence and because he

has not shown that it would compel a different result, we deny Appellant’s

petition for remand.” Id. at 5.

      To the extent our statement regarding compelling a different result

suggests a ruling on the merits, our statement is merely dicta.        A proper

reading of the statement reflects that Appellant’s petition for remand failed to

assert that Freeman’s recantation could not have been obtained prior to trial.

In light of the lack of assertion, Appellant could not demonstrate that the

recantation could not have been obtained earlier. Therefore, we held, he was

not entitled to a remand.     As Appellant correctly asserts, other than the

ineffective assistance of counsel claims, “the only relevant question properly

before this Court . . . was whether to grant [Appellant’s] Petition for Remand

to the PCRA court.”    Appellant’s Brief at 10.   Therefore, any observations

regarding Appellant’s ability to demonstrate a different result were properly

“obiter dicta and not necessary to this Court’s order . . . [and] did not form

the law of the case.” Id. at 16 (quoting Firetree, Ltd. V. Dep’t of Ben.

Servs., 920 A.2d 906, 910 n. 7 (Pa. Cmwlth. 2007) and citing Traxel v. A.I.

duPont Inst., 675 A.2d 314, 319 (Pa. Super. 1996)).


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      Again, unlike Appellant’s petition for remand, Appellant’s second PCRA

petition does assert that Freeman’s recantation could not have been obtained

prior to trial through reasonable diligence. However, because the PCRA court

mistakenly concluded that this Court ruled on the merits of Appellant’s claim,

Appellant was not provided a requested hearing and the opportunity to prove

his assertion. Therefore, we vacate the July 7, 2017 order denying Appellant’s

second PCRA petition and remand for an evidentiary hearing.

      Order vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2018




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