J-S10028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

PAUL PARKS

                          Appellant                   No. 1840 EDA 2018


             Appeal from the PCRA Order entered June 1, 2018
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0703321-2004


BEFORE: GANTMAN, P.J.E, STABILE, and COLINS,* JJ.

MEMORANDUM BY STABILE, J.:                               FILED MAY 16, 2019

      Appellant, Paul Parks, appeals pro se from the June 1, 2018 order

entered in the Court of Common Pleas of Philadelphia County, dismissing as

untimely his third petition for collateral relief pursuant to the Post Conviction

Relief Act, 42 Pa.C.S.A. §§ 9541-46. Appellant claims the Commonwealth

failed to disclose, in violation of Brady v. Maryland, 373 U.S. 83 (1963), that

charges against a prosecution witness had been nolle prossed prior to

Appellant’s 2005 trial. He contends he was unaware that the charges were

nolle prossed until January 17, 2018. Following review, we affirm.

      The PCRA judge, who presided over Appellant’s 2005 trials as well as

his first two PCRA proceedings, provided the following procedural history:

      On December 19, 2005, following a jury trial1 before this court,
      [Appellant] was found guilty of first-degree murder [18 Pa.C.S.A.

* Retired Senior Judge assigned to the Superior Court.
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       § 2502(a)] and criminal conspiracy [18 Pa.C.S.A. § 903]. Post-
       sentence motions were filed on March 13, 2006, and denied by
       operation of law on July 12, 2006. Superior Court affirmed
       [Appellant’s] judgment of sentence on September 10, 2007. On
       July 10, 2008, our Supreme Court denied [Appellant’s] petition for
       allowance of appeal. [Appellant] filed a timely pro se [PCRA]
       petition on June 19, 2009. After counsel was appointed to
       represent [Appellant] for his PCRA proceedings, [Appellant]
       requested to proceed pro se on December 9, 2009. On February
       8, 2010, this court held a Grazier[1] hearing and determined that
       [Appellant] was knowingly, intelligently, and voluntarily waiving
       his right to counsel.      That same date, this court ordered
       [Appellant] to file an amended pro se PCRA petition[.]
              1
                Appellant was originally tried in June 2005, but this court
              declared a mistrial by agreement of both parties when the jury
              was unable to reach a verdict as to the two charges for which
              [Appellant] was ultimately convicted. [Appellant’s] sole claim in
              the instant petition concerned the testimony of a witness, Malik
              Mustafa, whose testimony differed between [Appellant’s] first
              and second trials.

PCRA Court Opinion, 8/2/18, at 1-2 (additional footnotes and some

capitalization omitted). Appellant filed an amended pro se petition as ordered

and the Commonwealth responded with a motion to dismiss. Ultimately, the

PCRA court conducted an evidentiary hearing on a single claim of trial counsel

ineffectiveness relating to failure to call a witness to testify as to Appellant’s

non-violent character. In accordance with Pa.R.Crim.P. 904(D),2 counsel was

appointed to represent Appellant solely for that evidentiary hearing.


____________________________________________


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

2 Pa.R.Crim.P. 904(D) provides: “On a second or subsequent petition, when
an unrepresented defendant satisfies the judge that the defendant is unable
to afford or otherwise procure counsel, and an evidentiary hearing is required



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       Following the evidentiary hearing, the PCRA court advised Appellant that

the litigated issue was without merit. Upon consideration of the remaining

claims, the court determined they were likewise without merit and issued a

Rule 907 notice of intention to dismiss and, subsequently, an order dismissing

the petition.    Appellant filed an appeal to this Court and we affirmed. On

November 5, 2014, our Supreme Court denied Appellant’s petition for

allowance of appeal.

       On December 19, 2014, Appellant filed a second PCRA petition based on

alleged newly-discovered facts relating to an eyewitness to the shooting for

which Appellant was convicted. The PCRA court granted Appellant a hearing

on the petition and again appointed counsel in accordance with Pa.R.Crim.P.

904(D) for purposes of the hearing only. Following the filing of an amended

petition and the Commonwealth’s response, Appellant communicated to the

court that he was displeased with counsel.       The court ordered removal of

counsel and appointment of new counsel.          On the date of the hearing,

Appellant’s witness failed to appear. The court granted a continuance based

on appointed counsel’s representation that Appellant would present other

witnesses. Appellant sought to withdraw his petition based on lack of witness

cooperation and his conclusion that other witnesses would not provide helpful

____________________________________________


as provided in Rule 908, the judge shall appoint counsel to represent the
defendant.”




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information. The PCRA court granted his motion to withdraw and provided

Appellant the opportunity to notify the court within 30 days in the event he

reconsidered. Appellant did not provide any such notice to the court.

       On January 29, 2018, Appellant filed the instant pro se PCRA petition,

his third. Following review, the court determined the petition did not satisfy

any exception to the PCRA’s timeliness requirements and, on May 2, 2018,

issued a Rule 907 notice. The court noted:

       [A]s the information indicating that the Commonwealth declined
       to pursue charges against Mustafa was ascertainable to
       [Appellant] by the application of due diligence at the time of his
       December 2005 trial, this claim fails to satisfy the timeliness
       exception for newly-discovered facts and is thus untimely.
       Therefore, this court lacks jurisdiction over [Appellant’s] petition.

PCRA Court Rule 907 Notice, 5/1/18, at 5 (capitalization omitted).

       In response to the notice, Appellant submitted a letter suggesting that

Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017), applied to him as an

incarcerated pro se prisoner and, in essence, defeated any due diligence

argument with respect to “public record” information. Letter in Response to

Rule 907 Notice, 5/21/18, at 1.3 The court considered Appellant’s response

and determined it failed to cure the timeliness defect. Therefore, on June 1,

2018, the court issued its order dismissing the petition as untimely.          This


____________________________________________


3 In Burton, our Supreme Court held that “the presumption 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.” Id.
at 638 (emphasis in original).


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timely appeal followed.      Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

      Appellant asks us to consider one issue in this appeal:

      I.      Whether the PCRA court erred by denying Appellant’s Brady
              claim concluding that Appellant’s PCRA petition was
              untimely on the premise that Appellant did not exercise due
              diligence to discover that Malik Mustafa had charges nolle
              prosse[d] prior to Appellant’s second trial and Burton
              specifically, precluded the public record rule to apply to
              incarcerated pro se defendants?

Appellant’s Brief at 5.

      Our standard of review from the denial of PCRA relief is well settled. “In

PCRA proceedings, an appellate court’s scope of review is limited by the

PCRA’s parameters; since most PCRA appeals involve mixed questions of fact

and law, the standard of review is whether the PCRA court’s findings are

supported by the record and free of legal error.” Commonwealth v. Pitts,

981 A.2d 875, 878 (Pa. 2009) (citation omitted).

      As this Court explained in Commonwealth v. Johnston, 42 A.3d 1120

(Pa. Super. 2012),

      As a threshold jurisdictional matter, however, the timeliness of
      the PCRA petition must be addressed. 42 Pa.C.S. § 9545(b) sets
      forth the time limitations for filing of a PCRA petition as follows:

           (b) Time for filing petition.—

              (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:


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                (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

                (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)(1)-(2).

      Petitioners must plead and prove the applicability of one of the
      three    exceptions     to   the    PCRA    timing     requirements.
      Commonwealth v. Perrin, 947 A.2d 1284 (Pa. Super. 2008);
      Commonwealth v. Geer, 936 A.2d 1075, 1078–1079 (Pa.
      Super. 2007). “If the petition is determined to be untimely, and
      no exception has been pled and proven, the petition must be
      dismissed without a hearing because Pennsylvania courts are
      without jurisdiction to consider the merits of the petition.” Perrin,
      947 A.2d at 1285.

Id. at 1126.     See also Commonwealth v. Abu-Jamal, 941 A.2d 1263,

1267-68 (Pa. 2008) (“The PCRA’s timeliness requirements are jurisdictional in

nature and must be strictly construed; courts may not address the merits of

the issues raised in a petition if it is not timely filed.”).




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       As reflected in the procedural history, our Supreme Court denied

Appellant’s petition for allowance of appeal on direct appeal on July 10, 2008.

He did not seek a writ of certiorari from the United States Supreme Court.

Therefore, his judgment of sentence was final 90 days later, on October 9,

2008. See U.S.Sup.Ct.R. 13. In accordance with the PCRA, Appellant was

required to file any PCRA petition on or before October 9, 2009, unless his

petition   alleged    and   proved     an      exception   to   the   PCRA’s   timeliness

requirements.      Appellant’s instant petition was filed on January 29, 2018,

more than eight years after his judgment of sentence became final. Therefore,

Appellant’s petition is facially untimely and we may not consider the merits, if

any, of the petition unless he has presented and proved an exception to the

PCRA’s timeliness requirement. 42 Pa.C.S.A. § 9545(b)(1).

       Here, Appellant suggests his claim is saved from the PCRA’s time bar

based on the newly-discovered fact exception of Section 9545(b)(1)(ii).

Appellant maintains that “[o]n January 17, 2018, [he] received a court

summary from his sister (Keisha Parks) that depict [sic] that Malik Mustafa

had charges nolle prossed on August 12, 2005 that was not disclosed during

[Appellant’s] trial in December 2005.”              Appellant’s Third PCRA Petition,

1/29/18, at ¶ 12.4



____________________________________________


4It is not disputed that Appellant’s petition was filed within 60 days of January
17, 2018. See 42 Pa.C.S.A. § 9545(b)(2).


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        Appellant argues the Commonwealth failed to disclose that Mustafa’s

charges were nolle prossed and that he should be a granted a new trial

because the jury should have known the maximum penalties Mustafa faced

and “the potential for expectation of leniency.”          Id. at ¶ 24 (citing

Commonwealth v. Evans, 512 A.2d 626 (Pa. 1986)).5              However, as the

PCRA court recognized:

        [Appellant] provided no evidence, short of his bare assertion, that
        the Commonwealth’s decision to drop pending charges against
        Mustafa bore any relation to Mustafa’s anticipated testimony at
        [Appellant’s] December 2005 retrial. The mere fact alone that the
        Commonwealth elected not to pursue the charges against Mustafa
        did not support an inference that the Commonwealth had some
        unofficial, undisclosed agreement with Mustafa with respect to his
        testimony.

PCRA Court Opinion, 8/2/18, at 8-9.

        The court cited an exchange between the prosecution and Mustafa at

Appellant’s first trial, noting the prosecution questioned Mustafa about his

criminal history, including the fact he was incarcerated and awaiting trial on

____________________________________________


5   In Evans, our Supreme Court held:


        [T]he right guaranteed by Art. I Section 9 of the Pennsylvania
        Constitution to confront witnesses against a defendant in a
        criminal case entails that a criminal defendant must be permitted
        to challenge a witness’s self-interest by questioning him about
        possible or actual favored treatment by the prosecuting authority
        in the case at bar, or in any other non-final matter involving the
        same prosecuting authority.

Id. at 632.



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charges of auto theft. Id. at 10 (citing Notes of Testimony, 6/15/05, at 62-

63). The court then recounted an exchange that took place during Mustafa’s

testimony at Appellant’s second trial:

      COMMONWEATLH: Do you have any open cases at this time?

      MUSTAFA: No.

      COMMONWEALTH: And you’ve had convictions in the past for
      dealing drugs; is that correct?

      MUSTAFA: Yes.

      COMMONWEALTH: Are you being promised anything by the
      District Attorney’s Office to testify here today in court?

      MUSTAFA: No.

      COMMONWEALTH: Did I promise you I would do something about
      your sentence or anything like that, try to get you out sooner?

      MUSTAFA: No.

      COMMONWEATLH: In fact, do you want to be here today?

      MUSTAFA: No, I don’t.

Id. at 11 (quoting Notes of Testimony, 12/14/05, at 106-07).         As the

testimony revealed, Mustafa was awaiting trial on auto theft charges at the

time of the June 2005 trial but had no open charges pending at the time of

the December 2005 trial.     There is no suggestion that trial counsel was

prevented from asking Mustafa about the disposition of the charges or about

any favorable treatment, including nolle prossing of charges, he might have

received in exchange for his testimony at Appellant’s December 2005 trial.




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      We further note that Appellant’s petition, which did not mention Burton,

is silent as to why he was unable to ascertain information regarding the nolle

prossed charges through the exercise of due diligence and does not even

suggest that any efforts were untaken to obtain information.        Rather, the

petition simply indicates that Appellant was not aware the charges were nolle

prossed until January of 2018. As the PCRA court recognized,

      More than a decade has passed since [Appellant’s] trial, yet
      [Appellant] failed to establish why he could not have raised a claim
      related to Mustafa’s criminal history any sooner, or even prove
      that this information was not publicly assessable prior to his
      second trial. Therefore, [Appellant’s] claim failed to meet his
      burden of proof to satisfy the due diligence requirements of either
      the timeliness exception for newly-discovered facts or
      governmental interference.

Id. at 9.

      The PCRA court also observed that Appellant first offered Burton as a

substitute for the otherwise-applicable due diligence requirement in response

to the court’s Rule 907 notice. “However, the record makes clear that the

facts underlying [Appellant’s] claim were ascertainable with the exercise of

due diligence at the time of [Appellant’s] December 2005 retrial, before

[Appellant] became incarcerated and while [Appellant] was still represented

by counsel.” Id. at 9-10 (emphasis in original).

      We find the PCRA court’s findings are supported by the record and free

of legal error. Therefore, we shall not disturb the court’s order dismissing

Appellant’s third PCRA petition as untimely.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/19




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