J-A26034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

EMMETT M. LOCKHART

                            Appellant                     No. 110 MDA 2015


         Appeal from the PCRA Order Entered on December 23, 2014
            In the Court of Common Pleas of Cumberland County
                Criminal Division at No.: CP-21-0001591-2000


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                              FILED DECEMBER 07, 2015

       Emmett Lockhart appeals the December 23, 2014 order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§   9541-46.        Lockhart’s     petition   was   untimely   under   the   PCRA’s

jurisdictional time limits. Consequently, we affirm.1
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
       The PCRA court dismissed Lockhart’s petition on the merits, implicitly
determining that Lockhart had successfully pleaded and proved that the
newly-discovered fact exception to the PCRA’s time limits should apply to his
case, conferring jurisdiction over the petition upon the PCRA court.
However, “[e]ven where neither party nor the PCRA court have addressed
[jurisdiction], it is well-settled that we may raise it sua sponte since a
question of timeliness implicates the jurisdiction of our Court.”
Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa. Super. 2012) (internal
quotation marks omitted). Because the PCRA court lacked jurisdiction to
consider the merits of Lockhart’s petition, it should have dismissed
Lockhart’s petition upon that basis.
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       We previously have provided the following abridged factual history of

this case:

       On the evening of April 24, 2000, a Shippensburg University
       student named Sydney Bull left a study group meeting sometime
       between 9:00 and 9:45 p.m. with the stated intention of
       returning. His charred body was discovered several hours later
       when members of the South Newton Township Fire Company
       responded to a forest fire alarm call. Traces of gasoline were
       found in soil samples, leaves, and other debris taken from the
       area where the body was found. An autopsy revealed that
       Mr. Bull was blasted in the face with a shotgun and killed before
       his body was set on fire.

       The police investigation eventually focused on [Lockhart],
       Dontae Chambers, and Matthew Norris. A jury found Chambers
       guilty of second-degree murder and the predicate offenses of
       kidnapping and robbery.        In a separate proceeding [that
       occurred several months before Chambers’ trial, Lockhart] and
       Norris were tried jointly before a jury . . . . [T]he jury found
       [Lockhart] guilty of first-degree murder, kidnapping, arson,
       robbery, theft by unlawful taking, abuse of corpse, and five
       counts of criminal conspiracy . . . .[2] On July 23, 2001, the trial
       court sentenced [Lockhart] to life imprisonment with no
       possibility of parole and also directed [Lockhart] to serve a
       concurrent aggregate term of ten to twenty years[’]
       incarceration on the remaining counts.

Commonwealth v. Lockhart, 484 MDA 2002, slip op. at 1-2 (Pa. Super.

2003) (unpublished memorandum).

       Lockhart then filed post-sentence motions, which were denied.          He

filed a direct appeal to the this Court.         A panel of this Court affirmed

Lockhart’s judgment of sentence on October 7, 2003. Lockhart then filed a
____________________________________________


2
     See 18 Pa.C.S. §§ 2502(a), 2901, 3301, 3701, 3921, 5510, and 903,
respectively.



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timely first PCRA petition.       On January 13, 2005, the PCRA court granted

Lockhart leave to file a petition for allowance of appeal nunc pro tunc to the

Supreme Court. All remaining claims were denied. Lockhart filed a petition

for allowance of appeal, and, on August 1, 2005, the Pennsylvania Supreme

Court denied review of the appeal. Commonwealth v. Lockhart, 880 A.2d

1237 (Pa. 2005) (per curiam).

       On May 18, 2014, Lockhart filed the instant PCRA petition on the basis

of newly-discovered facts, alleging that he had discovered a previously

unknown and unavailable witness whose testimony would have contradicted

that of the prosecution’s lead witness, co-defendant Chambers.3               On

December 18, 2014, immediately following a hearing, the PCRA court denied

Lockhart’s request for relief, specifically citing the court’s determination that

the new witness was not credible. Notes of P.C.R.A. Testimony (“N.P.T.”),

12/18/2014, at 75-76.

       On January 15, 2015, Lockhart timely filed a notice of appeal of the

PCRA court’s ruling. On January 16, 2015, the PCRA court directed Lockhart

to file a concise statement of errors complained of on appeal pursuant to
____________________________________________


3
       Actually, the new witness’ testimony would have contradicted
Chambers’ testimony on direct examination, which directly implicated
Lockhart in the murder, but would have corroborated Chambers’ recantation
of that testimony during cross-examination, supporting Chambers’
contention that he was not a witness to Bull’s murder. That is to say, in
effect, the new witness’ testimony would, at best, have provided support for
one of two inconsistent accounts of events that Chambers offered the jury at
trial.



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Pa.R.A.P. 1925(b). Lockhart timely complied on February 4, 2015. On April

30, 2015, the PCRA court filed a Rule 1925(a) opinion. Therein, the court

explained, as it had done at the conclusion of the hearing, that it found the

new witness’ testimony incredible.   It further added that the testimony in

question would have served only to impeach Chambers’ trial testimony, and

consequently could not, without more, justify granting Lockhart a new trial.

See Trial Court Opinion (“T.C.O.”), 4/30/2015, at 3-4.

      Lockhart raises the following issue on appeal:

      Whether a PCRA Court has abused its discretion when it
      dismisses a PCRA petition for relief[] on the basis of witness
      credibility alone, thereby preventing compelling evidence of
      innocence from reaching a jury, where the four (4) prongs of
      after-discovered evidence . . . have not been met, the witness in
      question is an air traffic controller responsible for thousands of
      lives daily, and is an [h]onorably discharged veteran of the
      United States Air Force, with two (2) [c]ommendation medals,
      and where there was no evidence of untruthfulness in the
      witness’ testimony[?]

Brief for Lockhart at 4.

      Well-established principles govern our review of an order denying

post-conviction relief:

      Our standard of review of the denial of a PCRA petition is limited
      to examining whether the court’s determination is supported by
      the evidence of record and 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. Further, the PCRA
      court’s credibility determinations are binding on this Court,
      where there is record support for those determinations.




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Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)

(citations omitted).

        It is well-established that the PCRA time limits are jurisdictional, and

are meant to be both mandatory and applied strictly by the courts to all

PCRA petitions, regardless of the potential merit of the claims asserted.

Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011);

Commonwealth v. Murray, 753 A.2d 201, 202-03 (Pa. 2000). “[N]o court

may properly disregard or alter [these filing requirements] in order to reach

the merits of the claims raised in a PCRA petition that is filed in an untimely

manner.”     Murray, 753 A.2d at 203; see Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000).

        Despite facial untimeliness, a tardy PCRA petition nonetheless will be

considered timely if (but only if) the petitioner pleads and proves one of the

three     exceptions    to   the    one-year    time    limit   enumerated    in

subsection 9545(b) of the PCRA, which provide as follows:

        (1) Any petition under this subchapter, including a second or
        subsequent petition, shall be filed within one year of the date the
        judgment becomes final, unless the petition alleges and the
        petitioner proves that:

           (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


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          (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) Any petition invoking an exception provided in
       paragraph (1) shall be filed within 60 days of the date the claim
       could have been presented.

42 Pa.C.S. § 9545(b).

       A judgment of sentence “becomes 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). Lockhart’s judgment of

sentence became final on October 31, 2005.4             Thus, the deadline for

Lockhart to file a timely PCRA petition was October 31, 2006. Lockhart filed

the instant PCRA petition on June 4, 2014. Thus, Lockhart’s instant petition

is facially untimely under the PCRA.

       Lockhart does not dispute this fact.      Instead, he invokes the newly-

discovered fact exception to the PCRA’s time limit set forth in subsection

9545(b)(1)(ii), contending that the new facts in question were unknown to


____________________________________________


4
      The Pennsylvania Supreme Court denied Lockhart’s petition for
allowance of appeal on August 1, 2005. As of that date, he had ninety days
to seek a writ of certiorari from the United States Supreme Court, which
deadline fell on October 30, 2005. Because that was a Sunday, October 31,
2005 was the deadline for Lockhart to petition for a writ of certiorari. See
U.S. Sup. Ct. R. 13. Because he did not do so, his judgment of sentence
became final on that date.



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J-A26034-15



him at the time of trial; that he could not have ascertained them before

April 20, 2014; and that he filed the instant PCRA petition within sixty days

of when he learned of the new facts.5

       The newly-discovered fact in question is embodied in a sworn affidavit

offered by Michelle Greer. At the time of the murder in question, Greer was

married to Joseph Brenize. In her affidavit, she asserts that, on the night of

the murder, she and Brenize (collectively, “the Brenizes”) hosted a two-

month wedding “anniversary” party, and that she remembers that Chambers

was present at the party. Consequently, he could not simultaneously have

been at the scene of the murder.               Were this the case, it would support

Chambers’ recantation testimony during Lockhart’s trial to the effect that he

was not present at the scene of the murder (and thus, knew nothing of who

was there or what they did), and that the elaborate, self-incriminating,

contrary account that he provided to investigators (and again during his

direct examination at trial), which evidently was entirely consistent with the

physical evidence, was in fact a fabrication that he offered in an effort to

____________________________________________


5
       Specifically, Lockhart contends that a colleague of his brother, Shakhir
Lockhart, alerted Shakhir on April 18, 2014, to newspaper article indicating
that Norris had filed a PCRA petition based upon the testimony of a then
unidentified witness that would contradict Chambers’ incriminating account
of events; that Shakhir, in turn, informed Lockhart about the article during a
prison visit on April 20, 2014; and that Lockhart received a clipping of the
article, which had been mailed by Shakhir, on April 24, 2014, coincidentally
exactly fourteen years after the murder. See Pro Se PCRA Petition at 2
¶¶ 5-7.



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appease investigators. In her affidavit, Greer also asserts that shortly after

the events in question, and before any of the defendants’ trials, she enlisted

in the United States Air Force, and successfully sought postings a great

distance from Shippensburg, eventually arriving at Panama City, Florida,

where she still lived at the time of the PCRA hearing.

       Greer attests that she never was contacted by investigators or

attorneys associated with either of the trials spawned by the murder of

Sydney     Bull.     Indeed,     having    already   left   Shippensburg   while   the

investigation of Bull’s murder was ongoing, she claims to have been wholly

unaware of any trial. Instead, she claims that it was only in 2013, when she

was contacted via Facebook by Norris’ sister, that she heard of Norris’,

Lockhart’s, and Chambers’, convictions for Bull’s murder.6             Norris’ sister
____________________________________________


6
       Somewhat supporting the PCRA court’s determination that Greer’s
testimony at the PCRA hearing was less than convincing, her attempt during
cross-examination to establish the chronology regarding her establishment
of a Facebook account, Norris’ sister’s unsolicited effort to reach out to Greer
through that account, and the events that followed, including when she first
contacted Norris in prison to discuss with him her recollection of the evening
of April 24, 2000, revealed several inconsistencies. For example, Greer
testified that she established the account a year or two before Norris
contacted her. However, defense counsel presented her with a document
providing the “born-on date” for Norris’ account, which indicated that she
had established it in September 30, 2013. Her notarized affidavit was dated
December 13, 2013, approximately six weeks later. However, she also
testified that, before preparing a notarized affidavit, she had discussions
with Norris and, on at least two occasions, sent him versions of her affidavit
that were not notarized, each of which was returned to her because she
failed to address the post in compliance with prison requirements—and only
thereafter did she have her affidavit notarized and successfully transmit it to
Norris. N.P.T. at 30-35. Although the matter is not developed at length by
(Footnote Continued Next Page)


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J-A26034-15



allegedly asked whether Greer would be willing to provide Norris, who was

working up his own PCRA petition, with a full accounting of Greer’s

recollections from the night of the murder. She agreed to speak with Norris,

who ultimately convinced her to prepare the notarized statement. She did

so and had it notarized on December 13, 2013.7

      Lockhart alleges that he could not have learned of Greer’s account any

sooner than he did because only upon the publication of the newspaper

article concerning Norris’ conviction did he have any reason to be aware of

Greer or her potential testimony. Brief for Lockhart at 19. However, even

accepting that at face value, Lockhart’s petition was not filed within sixty

days of that date.           Rather, he satisfies the sixty-day requirement in

subsection 9545(b)(2) only if he is granted the benefit of his assertion that

he could not be aware of the article and its indication that a new witness had

emerged until his brother brought it to his attention, approximately two

months after the article ran on February 11, 2014.
                       _______________________
(Footnote Continued)

either party or the PCRA court, this timeline, as related by Greer, simply
does not add up.
7
       Although it mattered more to the PCRA court’s merits review—and
specifically its assessment of Greer’s credibility—than it does to our
jurisdictional ruling, we find it noteworthy that it emerged at the PCRA
hearing that during or in the wake of Greer’s initial conversations with
Norris, she and Norris became involved in something resembling a romantic
relationship. See N.P.T. at 35-36. The trial court treated this as a fact that
undermined Greer’s credibility. See T.C.O. at 3 (“When [Greer] conceded
on cross-examination that she was currently, and had been for some time,
in a romantic relationship with Norris, her credibility was destroyed.”).



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      Before reviewing the merits of his claim, we first must ascertain

whether Lockhart has successfully pleaded and proved the newly-discovered

fact exception.    To gain the benefit of that exception, the petitioner must

prove that “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.”    42 Pa.C.S. § 9545(b)(1)(ii).   Additionally, the petitioner must

demonstrate that the petition has been filed within sixty days after the date

the claim could have been presented, i.e., when he learned of the evidence

in question. See 42 Pa.C.S. § 9545(b)(2).

      The newly-discovered fact timeliness exception is distinct from the

newly-discovered evidence basis for relief stated in 42 Pa.C.S. § 9543. To

be eligible for relief under section 9543, the “petitioner must plead and

prove by a preponderance of the evidence . . . [t]hat the conviction or

sentence resulted from . . . 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.

§ 9543.       Conversely, the newly-discovered fact exception set forth in

subsection 9545(b)(1)(ii) “does not require any merits analysis of the

underlying claim. Rather, the exception merely requires that the ‘facts’ upon

which such a claim is predicated must not have been known to appellant,

nor could they have been ascertained by due diligence.” Commonwealth

v. Bennett, 930 A.2d 1264, 1271 (Pa. 2007) (quotations and citations

omitted).     In other words, “[a] petitioner must clear the first hurdle, the

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exception to the PCRA time limit . . ., in order to obtain review on the

merits” under section 9543. Commonwealth v. Soto, 983 A.2d 212, 215

n.6 (Pa. Super. 2009).

      While Lockhart may have filed his petition within the sixty days of the

time he first learned of Greer’s potentially exculpatory evidence, thereby

satisfying subsection 9545(b)(2), the record discloses an absence of

evidence that Lockhart could not have learned of Greer many years sooner

than he did through the exercise of due diligence. To begin, a number of

guests were present at the Brenizes’ April 24, 2000 party. In her affidavit,

Greer names a total of nine in attendance, including herself. At least one of

the partygoers testified at Lockhart’s trial. Specifically, Brenize testified as a

witness for the prosecution. See Notes of Trial Testimony Vol. 1 (“N.T.T.1”),

5/3/2001, at 56-98.      However, Lockhart asserts that because information

about the party was not elicited at his trial, from Brenize or otherwise, he

could not be expected to have uncovered the prospect that Chambers was at

the party either before his trial or at any time earlier than when he finally

did, over a decade later.      Lockhart asserts that he “didn’t know about

Michelle Greer at the time. And they had no realistic way to find out about

her.” Brief for Lockhart at 19. Notably, Brenize mentioned Greer, whom he

identified as his wife, during his testimony at Lockhart’s trial, albeit it in an

unrelated connection. N.T.T.1 at 85. Thus, at a minimum, it is unrealistic to

maintain that Lockhart did not know that she existed and was Brenize’s

spouse.

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J-A26034-15



      Lockhart also asserts that in the immediate wake of his trial, and

ostensibly following Chambers’ trial, Greer would have been beyond his

reach due to her active duty status with the Air Force then and for years

thereafter. This bald assertion, however, is belied by both common sense

and the record. Steven Junkin, at the time of the PCRA hearing the Chief of

Police for Hampden Township Police Department, and a corporal in the

Pennsylvania State Police during the investigation of Bull’s murder, testified

that, in connection with other investigations, he had located active-duty

military personnel with little difficulty.    N.P.T. at 56-57.   When asked to

elaborate, he explained how one might locate active military personnel:

      First is you could contact family members and ask them where
      the person is located. You could go to a recruiting station and
      ask them to locate. In the area here, there’s the Army War
      College, there’s the Navy Depot, there’s various places that you
      could go and reach out and ask them.

Id.   In this connection, Greer testified that she had numerous family

members that still resided in the area, both in the years immediately

following Lockhart’s trial and at the time of the PCRA hearing. Id. at 27-29.

Furthermore, it is not at all clear that Greer would not have been subject to

the court’s subpoena authority while serving. Indeed, in attesting that she

was available and willing to testify, Greer at least suggests that she could

have made efforts to arrange to attend the trial.      Id. at 16-18. That she

visited Shippensburg on leave on at least two occasions during her service

further reinforces that conclusion. Finally, Greer served in the Air Force for



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six years before her honorable discharge. Consequently, even if she had not

been available during her service, she was a civilian who could have been

located for the latter half of the time between Lockhart’s trial and the date of

filing for the instant PCRA petition.

       In any event, neither Lockhart nor she provides a concrete basis

beyond conclusory assertions upon which to conclude that Greer could not

have been located, had Lockhart or his counsel endeavored to do so, or that

she would not have been amenable to process or otherwise available at the

time of trial or during the years that separated her service from when she

furnished the affidavit upon which Lockhart’s petition relies.             Thus, this

argument is not responsive insofar as Lockhart’s mere pleading that she

would not have been accessible to him until after her discharge satisfies, at

most, his burden to plead that fact. It did not obligate the PCRA court to

conclude that he had proved it.

       Setting aside Lockhart’s ability to discover her location and contact

her, we are left with a more important basis upon which to conclude that

Lockhart did not diligently investigate these matters in a way that would

have led him to contact Greer. During the PCRA hearing, Lockhart testified

that he had spent years in the prison library researching his case.               See

N.P.T. at 51 (testifying that he has “always been researching [his] case” and

that   he   has   done   so   “[a]ll   the   time,   because   [he   is]   innocent”).

Furthermore, he understood that Chambers, the most critical prosecution

witness against Lockhart, later was tried for the killing.       And yet Lockhart

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was entirely and unconvincingly dismissive of the very notion that, in service

of his objective, he might have educated himself as to the evidence

introduced during Chambers’ trial. See id. at 52 (responding to an inquiry

about what he knew about Chambers’ trial, “I had my own concerns right

now that I’m trying to worry about”). Although it is fair to say that, as a

state prisoner, Lockhart may have had difficulty obtaining those public

records, he does not assert or imply that he made any effort to do so. Had

he done so, he would have discovered that, at Chambers trial, Chambers

testified that he had been at the Brenizes’ party in support of his alibi

defense, and that Brenize himself was questioned regarding whether

Chambers had attended the party. Although Brenize testified that he could

not remember specifically whether Chambers attended the party, the issue

nonetheless was broached at Chambers’ trial, which presumably would have

indicated to Lockhart, had he learned of this fact, that he should investigate

whether other witnesses might be able to corroborate Chambers’ claim.8

       There is yet another obvious basis upon which to question Lockhart’s

diligence.    Chambers, of course, recanted at trial, asserting on cross-

examination that he was not involved in any way in the killing, and was not

present in the woods where it occurred at any time relevant to the
____________________________________________


8
      Ultimately, Lockhart himself acknowledged the fact and gravamen of
this testimony during his PCRA proceedings, ostensibly after reviewing the
record of Chambers’ trial.       See Lockhart’s Brief in Opposition to
Commonwealth’s Motion to Dismiss PCRA Petition Without Hearing at 3.



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prosecution. Although he was not asked, and did not offer, alibi evidence to

establish his whereabouts that evening, surely this was relevant information

that the defense (or the prosecution) might have attempted to elicit. Had

counsel done so, in an exercise of thoroughness in cross-examination,

Chambers might have mentioned the Brenizes’ party, enabling Lockhart to

seek to corroborate such an account.

     Although we appreciate that the PCRA court, perhaps in an abundance

of caution, seemed to credit Lockhart’s invocation of the newly-discovered

fact exception to the PCRA’s time requirements, we may not disregard any

cloud over jurisdiction that we discern. See Commonwealth v. Gandy, 38

A.3d 899, 902. The PCRA court appeared to assume rather than conclude

that the exception applied, because the court did not acknowledge the

timeliness issue in its Rule 1925 opinion and made no fact-finding relevant

to that question. However, after careful review, we conclude that the record

fails to provide a basis for the PCRA’s court’s implicit conclusion in that

regard.   Thus, we find that the PCRA court, and now this Court, lack

jurisdiction to evaluate the merits of Lockhart’s petition. Because the PCRA

court dismissed that petition, the outcome is the same.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/7/2015




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