J-S54018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    WILLIAM BOYD                               :
                                               :
                      Appellant                :   No. 25 WDA 2017

                Appeal from the PCRA Order December 14, 2016
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0002211-1993

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    WILLIAM RICKY BOYD                         :
                                               :
                      Appellant                :   No. 26 WDA 2017

                Appeal from the PCRA Order December 14, 2016
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0002209-1993


BEFORE:      OTT, J., MOULTON, J., and FITZGERALD, J.

MEMORANDUM BY OTT, J.:                               FILED NOVEMBER 07, 2017

        William Ricky Boyd (“Boyd”), brings this counseled appeal from the

order entered December 14, 2016, in the Court of Common Pleas of

Allegheny County, dismissing his sixth petition for relief pursuant to the Post

____________________________________________



    Former Justice specially assigned to the Superior Court.
J-S54018-17


Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. Boyd seeks relief

from the judgment of sentence of 50 to 100 years’ imprisonment, imposed

on June 29, 2004.         At Criminal Docket Nos. CR-0002209-1993 and CR-

0002211-1993, a jury found Boyd guilty of one count of criminal conspiracy,

four counts of aggravated assault, and two counts of violating the Uniforms

Firearms Act,1 stemming from shootings that took place on January 11,

1991, and January 22, 1991.             Boyd contends the PCRA court erred in

dismissing his petition without an evidentiary hearing on his claim of newly

discovered evidence. For the reasons set forth below, we affirm.

        In this Court’s prior memorandum affirming the dismissal of Boyd’s

first PCRA petition, we set forth the relevant factual background of this case.

Therefore, there is no need to repeat it here.        See Commonwealth v.

Boyd, 835 A.2d 827 (Pa. Super. 2003) (unpublished memorandum, at 1–4),

appeal denied, 859 A.2d 767 (Pa. 2004).

        On April 26, 1994, a jury convicted Boyd of the above-stated charges,

and on June 29, 1994, the trial court sentenced him to an aggregate term of

50 to 100 years’ imprisonment. On June 17, 1996, this Court affirmed the

judgment of sentence, and the Pennsylvania Supreme Court denied his

petition for allowance of appeal on January 15, 1997. Commonwealth v.



____________________________________________


1
    See 18 Pa.C.S. §§ 903, 2702, and 6106, respectively.



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Boyd, 679 A.2d 1284 (Pa. Super. 1996), appeal denied, 689 A.2d 230 (Pa.

1997).

       On March 27, 1997, Boyd filed his first PCRA petition, which was

dismissed without an evidentiary hearing on September 26, 2000.           This

Court affirmed the PCRA court’s decision on September 4, 2003, and the

Pennsylvania Supreme Court denied Boyd’s petition for allowance of appeal

on August 31, 2004. Commonwealth v. Boyd, 835 A.2d 827 (Pa. Super.

2003) (unpublished memorandum), appeal denied, 859 A.2d 767 (Pa.

2004).

       On November 18, 2004, Boyd filed his second PCRA petition, which

was untimely and unsuccessful. Commonwealth v. Boyd, 938 A.2d 1108

(Pa. Super. 2007) (unpublished memorandum).

       On January 22, 2010, Boyd filed his third PCRA petition. In this PCRA

petition, Boyd asserted he was entitled to a new trial on the basis of newly

discovered evidence, specifically, that a non-testifying witness, Terrell Bush,

had come forward and was willing to testify that Boyd did not commit the

criminal acts in question.      Boyd further asserted that Childress, his

codefendant at trial, was willing to provide testimony that would exonerate

him.     Following an evidentiary hearing, the PCRA court dismissed Boyd’s

third PCRA petition as untimely. This Court affirmed, and the Pennsylvania

Supreme Court denied allowance of appeal. Commonwealth v. Boyd, 60




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A.3d 557 (Pa. Super. 2012) (unpublished memorandum), appeal denied, 67

A.3d 792 (Pa. 2013).

       On June 18, 2013, Boyd filed his fourth PCRA petition, which failed on

the basis of untimeliness.         Commonwealth v. Boyd, 105 A.3d 41 (Pa.

Super. 2014) (judgment order), appeal denied, 105 A.3d 734 (Pa. 2014).

       On January 7, 2015, Boyd filed a fifth PCRA, which similarly failed as

untimely.     Commonwealth v. Boyd, 125 A.3d 469 (Pa. Super. 2015)

(unpublished memorandum), appeal denied, 126 A.3d 1281 (Pa. 2015).

       On December 3, 2015, Boyd filed this current PCRA petition pro se,

and a counseled, amended petition was filed on May 18, 2016.          In his

petition, Boyd asserts he is entitled to relief based upon newly discovered

evidence. Specifically, Boyd attached to his petition the affidavit of Thomas

Easley, the victim of the January 11, 1991, shooting, who states he lied in

his trial testimony identifying Boyd as the shooter. On November 3, 2016,

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

that the petition was time-barred and lacking in merit.    After Boyd filed a

December 2, 2016 response to the Rule 907 notice, the PCRA court

dismissed the petition on December 14, 2016.        This consolidated appeal

followed.2


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2
 The PCRA court did not order Boyd to file a Pa.R.A.P. 1925(b) notice. The
PCRA Court entered an order on February 9, 2017, relying on the reasoning
(Footnote Continued Next Page)


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      The sole issue Boyd raises on appeal is framed in his brief, as follows:

      Whether this Court should vacate and remand for a hearing
      where the [PCRA] court erred in dismissing Mr. Boyd’s PCRA
      petition without a hearing when (i) genuine issues of material
      fact existed as to the petition’s timelines and the merit of its
      claims and (ii) Mr. Boyd would be entitled to a new trial if the
      facts averred in the petition were, indeed, proven to be true at a
      hearing.

Boyd’s Brief at 4.

      “Our review of a PCRA court’s decision is limited to examining whether

the PCRA court’s findings of fact are supported by the record, and whether

its conclusions of law are free from legal error.” Commonwealth v. Cox,

146 A.3d 221, 226 n.9 (Pa. 2016) (citation omitted).


      As a threshold issue, we must consider the timeliness of Boyd’s

petition.   A PCRA petition must be filed within one year of the date the

underlying judgment becomes final.                 42 Pa.C.S. § 9545(b)(1).   The

judgment 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).                 Here, Boyd’s judgment of sentence

became final on April 16, 1997, 90 days after the Pennsylvania Supreme

Court denied his petition for allowance of appeal from his direct appeal, and
                       _______________________
(Footnote Continued)

set forth in the Rule 907 notice, in support of his decision to dismiss the
petition.




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he failed to petition for a writ of certiorari in the United States Supreme

Court. See U.S. Sup. Ct. Rule 13. Therefore, Boyd had until April 16, 1998,

to file a timely petition.        As such, Boyd’s present petition is patently

untimely.

         Nevertheless, an untimely PCRA petition may still be considered if one

of the      three   time-for-filing exceptions applies.        See 42   Pa.C.S. §

9545(b)(1)(i)-(iii). Any petition raising a statutory exception must be filed

“within 60 days of the date the claim could have been presented.”              42

Pa.C.S. § 9545(b)(3).          Here, Boyd asserts that his petition meets the

timeliness exception set forth at Section 9545(b)(1)(ii) for newly discovered

facts.


         The newly discovered fact exception requires a petitioner to plead and

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)   (emphasis   added).

Importantly, there is a distinction between the newly discovered facts

timeliness exception found in Section 9545(b)(1)(ii), and a substantive claim

for PCRA relief based upon after-discovered evidence, 42 Pa.C.S. §

9543(a)(2)(vi):


         The timeliness exception set forth in Section 9545(b)(1)(ii)
         requires a petitioner to demonstrate he did not know the facts
         upon which he based his petition and could not have learned
         those facts earlier by the exercise of due diligence.
         Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,

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     1271 (2007). Due diligence demands that the petitioner take
     reasonable steps to protect his own interests. Commonwealth
     v. Carr, 2001 PA Super 54, 768 A.2d 1164, 1168 (Pa.Super.
     2001). A petitioner must explain why he could not have learned
     the new fact(s) earlier with the exercise of due diligence.
     Commonwealth v. Breakiron, 566 Pa. 323, 330-31, 781 A.2d
     94, 98 (2001); Commonwealth v. Monaco, 2010 PA Super 84,
     996 A.2d 1076, 1080 (Pa.Super. 2010), appeal denied, 610 Pa.
     607, 20 A.3d 1210 (2011). This rule is strictly enforced. Id.
     Additionally, the focus of this exception “is on the newly
     discovered facts, not on a newly discovered or newly willing
     source for previously known facts.” Commonwealth v.
     Marshall, 596 Pa. 587, 596, 947 A.2d 714, 720 (2008)
     (emphasis in original).

     The timeliness exception set forth at Section 9545(b)(1)(ii) has
     often mistakenly been referred to as the “after-discovered
     evidence” exception. Bennett, supra at 393, 930 A.2d at 1270.
     “This shorthand reference was a misnomer, since the plain
     language of subsection (b)(1)(ii) does not require the petitioner
     to allege and prove a claim of ‘after-discovered evidence.’” Id.
     Rather,   as    an initial     jurisdictional threshold,     Section
     9545(b)(1)(ii) requires a petitioner to allege and prove that
     there were facts unknown to him and that he exercised due
     diligence in discovering those facts. See 42 Pa.C.S.A. §
     9545(b)(1)(ii); Bennett, supra. Once jurisdiction is established,
     a PCRA petitioner can present a substantive after-discovered-
     evidence claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining
     that to be eligible for relief under PCRA, petitioner must plead
     and prove by preponderance of evidence that conviction or
     sentence resulted from, inter alia, unavailability at time of trial of
     exculpatory evidence that has subsequently become available
     and would have changed outcome of trial if it had been
     introduced). In other words, the “new facts” exception at:

        [S]ubsection (b)(1)(ii) has two components, which must
        be alleged and proved. Namely, the petitioner must
        establish that: 1) the facts upon which the claim was
        predicated were unknown and 2) could not have been
        ascertained by the exercise of due diligence. If the
        petitioner alleges and proves these two components, then
        the PCRA court has jurisdiction over the claim under this
        subsection.



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      Bennett, supra at 395, 930 A.2d at 1272 (internal citations
      omitted) (emphasis in original). Thus, the “new facts” exception
      at Section 9545(b)(1)(ii) does not require any merits analysis of
      an underlying after-discovered-evidence claim. Id. at 395, 930
      A.2d at 1271.

Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015) (some

emphasis added).

      Here, Boyd argues that the affidavit he submitted from Thomas

Easley, the victim of the January 11, 1991, shooting, satisfies the newly

discovered facts timeliness exception, and that the PCRA court erred in

dismissing his petition without conducting an evidentiary hearing.     In the

affidavit, dated October 29, 2015, Mr. Easley attests:

      I recall the night of January 11, 1991, when I was shot. The
      shooting was an “ambush” type situation. I was at the Jeffries
      residence. I was shot outside, and it was dark out. I was with an
      individual by the name of Terrell Bush.

      When I was questioned by police, I told them that I did not know
      who shot me. That was true. It was dark out, and I could only
      vaguely see the individual who shot me.

      Later, in 1993, I identified William R. Boyd as the person who
      shot me. I had been indicted in a separate drug case, and the
      police pushed me to identify Boyd as my shooter. I testified that
      it was Boyd who shot me, but this was based on the information
      I heard the night of the shooting. I did not actually see who shot
      me, and I truthfully did not know if it was Boyd who shot me or
      not.

      I also testified that my original statements to the police where I
      said I did not know who shot me, were false. Those statements
      were actually true.

      There were no real issues between Boyd and myself during the
      time the shooting occurred.


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        It has been over twenty years since this shooting and
        subsequent trial, and it has weighed on my mind and conscience
        that Boyd is incarcerated for something I cannot say that he did.
        I identified him at the trial as the person who shot me, and that
        was wrong.

        I recently approached a member of Boyd’s family regarding this
        information. I took the initiative. I want to I am willing to
        testify to this information, should there be a future proceeding.

Boyd’s Amended PCRA Petition, 5/18/2016, Exhibit “C” at Exhibit “1”; Boyd’s

pro se PCRA Petition, 12/3/2015, Exhibit “A”.

        Boyd averred that he first became aware that Mr. Easley might have

information concerning the above-captioned matters on October 9, 2015,

when he received a letter from his daughter, and that he learned the

substance of Mr. Easley’s information on November 3, 2015, when he

received Mr. Easley’s affidavit.        Boyd’s pro se PCRA petition, 12/3/2015,

Exhibit “C” (Boyd Affidavit).3 Boyd states “he could not have actual proof of


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3
    Boyd stated in his affidavit:

        On October 9, 2015, I receive[d a] letter from daughter which
        stated Tom approach her and express his knowledge of my
        innocence. This occurred the first week of October 2015. On
        November 3, 2015 I received mail from Keri Bozich
        Investigations, which contained Mr. Easley’s affidavit.

       Furthermore, Boyd attached to his amended petition witness
certifications for himself, Mr. Easley, his daughter, and Ms. Bozich. The
witness certification for Ms. Bozich stated:

        Ms. Bozich is expected to testify that [Boyd] retained her on or
        about October 25, 2015, and that she located Thomas Easley
        (“Mr. Easley”) on October 27, 2015. She will further testify that
(Footnote Continued Next Page)


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Mr. Easley’s lies at trial and that Mr. Easley was pressured to provide false

testimony by law enforcement after he received his own significant charges

until Mr. Easley himself was finally willing to come forward and so admit.”

Boyd’s Amended PCRA Petition, 5/18/2016, at ¶40 (emphasis in original).

      Assuming the present petition, filed on December 3, 2015, meets

the 60-day requirement of Section 9545(b)(2) because the petition was

filed within 60 days of when Boyd received the October 9, 2015, letter

from his daughter, we conclude Boyd is entitled to no relief as he has

failed to satisfy Section 9545(b)(1)(ii) requirements of new facts and due

diligence.

      Here, the unknown “fact” alleged by Boyd is Mr. Easley’s perjury at

Boyd’s trial.    See Boyd’s Amended PCRA Petition, 5/18/2016, at ¶33

(“Mr. Boyd recently received information that Mr. Easley, now — more

than twenty years after testifying against Mr. Boyd — finally admits that

he lied at Mr. Boyd’s trial.”). However, this “fact” was already known to

Boyd. Indeed, in support of his third PCRA petition, Boyd attached the

                       _______________________
(Footnote Continued)

      she and Mr. Easley met at a notary on October 29, 2015, at
      which time Mr. Easley executed the affidavit attached to this
      certification as Exhibit 1. Ms. Bozich will also explain that she
      mailed the attached affidavit to [Boyd] on either October 29 or
      30, 2015.

Boyd’s Amended PCRA Petition, 5/18/2016, Exhibit “F”.




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2009 affidavit of Terrell Bush, who stated, inter alia, “I was aware of the

lies and perjury of Commonwealth witnesses including but not

limited to Tom Easley at Mr. Boyd’s trial and admit that I failed to

come forward until this time.”4,        5
                                            As this Court emphasized in Brown, the

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4
  Boyd’s Amended Petition, 5/18/2016, at ¶35 and Exhibit “D” (Terrell
Bush Affidavit, dated 12/22/2009, at ¶15); Boyd’s pro se PCRA Petition,
12/3/2015, at page 17 and Exhibit “E”.
5
  At the evidentiary hearing held on Boyd’s third PCRA petition, Terrell Bush
testified

       that on January 11, 1991, he drove Tom Easley (“Easley”) to the
       residence of Eric Jeffries, and that as he pulled in to the
       driveway, three men emerged from the bushes. One of the
       three men had a gun and began firing at Easley. Bush testified
       that Boyd was neither the man firing the gun nor one of the
       shooter’s two companions. Bush said that the police subpoenaed
       him to testify at Boyd’s trial and that he was in the courtroom
       during the trial, but that he was not called to testify because he
       informed the police that he did not want to be involved. He said
       that he made contact with Boyd’s family in 2010 and
       subsequently provided an affidavit indicating that Boyd was not
       the man who shot Easley on January 11, 1991.

Commonwealth v. Boyd, 60 A.3d 557 [1519 WDA 2011, at 10] (Pa.
Super. 2012) (unpublished memorandum, at 10).

       This Court found that Boyd failed to establish his lack of prior
knowledge about Terrell Bush’s ability to testify regarding his innocence, and
failed to prove he acted with due diligence. This Court explained Bush “was
an obvious, available source of information about the events of January 11,
1991[, in that] Easley testified at trial that Bush drove him to Eric Jeffries’
residence and had just gotten out of the car and began to walk up the
driveway when shots started to fly in Easley’s direction from a gun in Boyd’s
hand.” Id. [1519 WDA 2011, at 11–12]. We concluded Bush’s affidavit was
not newly discovered evidence satisfying the timeliness exception of 42
Pa.C.S. § 9545(b)(1)(ii). Id. [1519 WDA 2011, at 12].



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focus of the newly discovered facts exception “is on the newly discovered

facts, not on a newly discovered or newly willing source for previously

known facts.” Brown, supra, 111 A.3d at 176 (quotations omitted). Here,

Boyd is proffering a newly willing source for previously known facts.

        Furthermore, while Boyd also argues the “new” fact that Mr. Easley

“only identified Mr. Boyd after being charged with criminal offenses himself

and receiving pressure from law enforcement,”6 Boyd’s counsel highlighted

these circumstances to the jury during cross-examination of Mr. Easley.

Specifically, Boyd’s counsel elicited Mr. Easley’s admissions that he had

initially told police and the treating physician he did not know who shot

him, and that he told police Boyd was the perpetrator on November 16,

1993, when he had a potential, favorable plea agreement for federal drug

charges he was then facing.            See N.T., Vol. I, 4/13-15/1994, at 187,

191-197, 212-213.

        Moreover, even if the facts set forth in Mr. Easley’s affidavit met the

criteria for being newly discovered facts, Boyd has not established that he

acted with due diligence in obtaining this affidavit. Boyd’s PCRA petition fails

to allege any efforts he made to locate or contact Mr. Easley to try to

convince him to recant, even after he obtained Mr. Bush’s 2009

affidavit wherein Mr. Bush stated Mr. Easley had lied at trial.            See
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6
    Boyd’s Amended Petition, 5/18/2016, at ¶36.



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Commonwealth v. Davis, 86 A.3d 883, 891 (Pa. Super. 2014) (finding

Davis established due diligence where “[a]ttached to his amended PCRA

petition, [Davis] proffered affidavits from several friends and family

members who claimed that they attempted to locate Watson after [Davis’s]

trial in order to convince Watson to admit he lied on the stand”); but see

Commonwealth v. Medina, 92 A.3d 1210, 1217–1218 (Pa. Super. 2017)

(en banc) (rejecting Commonwealth’s argument that Medina could have

discovered recantation evidence through the exercise of due diligence where

Medina could have had no way to know of the detective’s secret threats that

led to the child-witness’s testimony), appeal dismissed, 140 a.3d 675 (Pa.

2016).

      In sum, we conclude that even if Boyd’s present petition meets the 60-

day requirement of Section 9545(b)(2), Boyd has failed to satisfy the newly

discovered fact exception and, consequently, there is no jurisdiction to

review this petition on the merits. Accordingly, we affirm the PCRA court’s

dismissal of the petition without an evidentiary hearing.

      Order affirmed.

      Judge Moulton joins in this memorandum.

      Justice Fitzgerald concurs in the result.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2017




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