Appeal from the Judgment of Sentence of October 11, 2000, in the Court of Common Pleas of Centre County, Criminal Division, at No: CP-14-CR-0001994-1999.
The opinion of the court was delivered by: Strassburger, J.:
BEFORE: STEVENS, P.J., BOWES, J., and STRASSBURGER, J.*fn1
OPINION BY STRASSBURGER, J.:
Thomas J. Huddleston (Appellant) appeals from the October 11, 2000 judgment of sentence of life imprisonment following his convictions for second-degree murder, conspiracy to commit second-degree murder, and robbery.*fn2 We affirm.
The facts and procedural history of this case were summarized by another panel of this Court as follows.
This case arises out of the robbery and murder of David Camargo. [Appellant] and Heath Quick agreed to shoot Camargo and steal his marijuana, any money he had, and his car. [Appellant] and Quick set up a meeting with Camargo at a K-Mart in State College to buy some drugs. After meeting at the K-Mart, Quick, Camargo and [Appellant] agreed to drive to a new meeting spot. Quick got into the car with Camargo and followed [Appellant], who was driving his girlfriend's vehicle, to the new meeting spot in Black Moshannon State Park. After entering the park, [Appellant] stopped his vehicle and got out to urinate. It was at this time that Quick shot and killed Camargo. [Appellant] and Quick then took Camargo's body and placed it into [Appellant's] trunk. [Appellant] drove his girlfriend's vehicle with Camargo's body in the trunk and Quick drove Camargo's vehicle. The two men drove to a place called "Devil's Elbow," where they threw Camargo's body down an embankment. When Camargo's body did not go far enough down, [Appellant] went down the embankment and pushed the body further down. [Appellant] and Quick split up the marijuana and money they took from Camargo. The police eventually arrested both [Appellant] and Quick. [Appellant] gave a statement to the police detailing his role in Camargo's death.
The Commonwealth charged [Appellant] with murder of the first degree, conspiracy to commit murder of the first degree, murder of the second degree, conspiracy to commit murder of the second degree, robbery, and conspiracy to commit robbery. A jury trial was held on October 9 through 11, 2000. At the conclusion of the trial, the jury found [Appellant] guilty of murder of the second degree, robbery and conspiracy to commit murder of the second degree and robbery. The Honorable Thomas King Kistler sentenced [Appellant] to life in prison. [Appellant] filed post-trial motions on October 18, 2000, raising various errors. On March 13, 2001, Judge Kistler denied the motions. On April 12, 2001, [Appellant] filed a notice of appeal. On April 18, 2001, Judge Kistler ordered [Appellant] to file a Pa.R.A.P. 1925(b) statement. On May 8, 2001, Judge Kistler had not received a Rule 1925(b) statement from
[Appellant] or his attorney. Accordingly, he found this failure to evidence a waiver of all of [Appellant's] claims. [Appellant] through his attorney filed a Rule 1925(b) statement that same day. On June 28, 2002, this Court agreed with Judge Kistler's finding and found all objections to the judgment of sentence to be waived. See Commonwealth v. Huddleston, 806 A.2d 461 (Pa. Super. 2002) (Table). Our Supreme Court denied allocatur on April 22, 2003. See Commonwealth v. Huddleston, 820 A.2d 703 (Pa. 2003).
Commonwealth v. Huddleston, 943 A.2d 314 (Pa. Super. 2007) (Table). Appellant hired new counsel no later than December of 2003. It was not until March 13, 2006, however, that counsel filed on Appellant's behalf a petition pursuant to the Post Conviction Relief Act (PCRA),*fn3 seeking reinstatement of his direct appeal rights. Judge Kistler granted the petition and reinstated Appellant's appeal rights over the Commonwealth's objection to the timeliness of the PCRA petition. On Appellant's nunc pro tunc appeal, this Court agreed with the Commonwealth and quashed the appeal, determining that the PCRA court lacked jurisdiction to grant Appellant PCRA relief. See id. Counsel did not inform Appellant of the outcome of his appeal until September 12, 2008, long after the time had expired for
Appellant to seek review by our Supreme Court.
Appellant filed a second PCRA petition on September 22, 2008, again seeking reinstatement of his direct appeal rights based upon prior PCRA counsel's ineffectiveness in failing to file a timely petition for relief under the PCRA. Appellant claimed that the petition satisfied a timeliness exception because it was filed within 60 days of discovering that prior PCRA counsel effectively abandoned him. The Commonwealth again challenged the PCRA court's jurisdiction to entertain an untimely petition.
On May 9, 2011, the PCRA court held an evidentiary hearing concerning the allegations of Appellant's petition. On August 22, 2011, Judge Kistler held another hearing to resolve the remaining factual issues concerning the timeliness of Appellant's second PCRA petition. Based upon the evidence offered, Judge Kistler found that Appellant hired his first PCRA counsel "shortly after the PCRA clock began to run, yet the attorney waited over two years to file a PCRA petition[,]" which constituted attorney abandonment as discussed in Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007). PCRA Court Opinion, 9/16/2011, at 5. Because Appellant filed his second PCRA petition within 60 days of discovering the abandonment, Judge Kistler entered an order reinstating Appellant's direct appeal rights. Id. at 10.
Appellant filed a timely notice of appeal from the October 11, 2000 judgment of sentence, and both Appellant and the PCRA court complied with Pa.R.A.P. 1925. Appellant presents two questions for our consideration.
1. Whether the court below abused its discretion in admitting the statements of the principal in the killing that were made to a police officer during a traffic checkpoint stop that occurred after the killing, which statements had been objectedto as hearsay and not relevant?
2. Whether the court below erred in finding that the evidence sufficed to convict [Appellant] of second-degree murder, conspiracy/second-degree murder, and offenses merged or included, in that the evidence failed to prove a killing in the perpetration of a felony, aid or agreement for complicity, a plan or shared intent for conspiracy, or the intent for conspiracy?
Before we address the merits of Appellant's questions, we consider the Commonwealth's argument that the PCRA court erred in reinstating Appellant's direct appeal rights. We begin by examining the law concerning attorney abandonment as a basis for invoking a timeliness exception to the PCRA.
Section 9545(b)(1)(ii) of the PCRA provides that a PCRA petition must be filed within one year of the date on which the judgment of sentence became final, unless the petitioner alleges and proves 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). If the petitioner so alleges and proves, the petition will not be dismissed as untimely if it was "filed within 60 days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).
In Bennett, supra, our Supreme Court found that attorney abandonment may constitute a factual basis for the section 9545(b)(1)(ii) timeliness exception. In that case, the appeal from the dismissal of Bennett's first, timely, PCRA petition was dismissed by this Court because counsel failed to file a brief. 930 A.2d at 1266. Bennett filed a second PCRA
petition alleging that he had attempted to find out the status of his PCRA appeal, did not learn that it was dismissed due to counsel's failure to file a brief until he received a letter from this Court explaining what had transpired,*fn4 and filed a new PCRA petition within 60 days of so learning. Id. at 1274. The PCRA court granted Bennett leave to appeal the dismissal of his first PCRA petition nunc pro tunc, but this Court quashed the appeal as untimely. Our Supreme Court reversed this Court, holding that Bennett sufficiently alleged that he had been abandoned by counsel on his first PCRA petition and acted with due diligence in ascertaining the fact of the abandonment to satisfy the timeliness exception of the PCRA found at section 9545(b)(1)(ii). Id. at 1272.
In Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011), Watts's direct appeal was dismissed in 2002 because counsel failed to file a docketing statement. Within 60 days of learning of the dismissal in August 2003, Watts filed a PCRA petition seeking reinstatement of his direct appeal rights nunc pro tunc. Id. at 981. The PCRA court dismissed the petition as untimely, and this Court affirmed in August 2005, noting that Watts did not exercise due diligence in determining the status of his appeal. Id. at 982. Watts did not seek review of our decision by our Supreme Court. In 2007, Watts filed a second PCRA petition, again alleging attorney abandonment, but claiming that his petition met the timeliness exception of section 9545(b)(1)(ii) because it was filed within 60 days of the Bennett decision.
Id. The PCRA court dismissed the petition as untimely, this Court reversed, and our Supreme Court reversed us, holding that the PCRA court properly dismissed Watts' second PCRA petition. The Court held that the Bennett decision was not a fact upon which Watts could rely in meeting the timeliness exception of section 9545(b)(1)(ii). Id. at 986. The factual predicate of Watts' claim was his counsel's abandonment, which Watts discovered in 2003, within the one-year PCRA deadline. As such, the abandonment could not serve to satisfy section 9545(b)(1)(ii) for a petition filed in 2007. Id.
This Court sought to explain the interplay of the Bennett and Watts decisions and the language of section 9545(b) in Commonwealth v. Smith, 35 A.3d 766 (Pa. Super. 2011). In that case, Smith's first, timely, PCRA petition was dismissed in 2001 after counsel did not file a brief on appeal. Id. at 767. Less than two weeks after the appeal was dismissed, Smith filed a second PCRA petition seeking reinstatement of his direct appeal rights nunc pro tunc, which the PCRA court granted. This Court quashed the nunc pro tunc appeal in 2005, determining that Smith's second PCRA petition was untimely, and the Pennsylvania Supreme Court denied allowance of appeal. Id. at 768. In 2007, within 60 days of the filing of the Bennett decision, Smith filed a third PCRA petition, claiming that the petition was timely because Bennett afforded him a new method for obtaining collateral review. Id. at 769. The PCRA court dismissed the petition as untimely. This Court reversed, holding that because Smith, unlike Watts, had attempted to "become Bennett" by seeking allowance of appeal from our Supreme Court, yet had his diligent efforts to avail himself of the opportunities of the PCRA thwarted by counsel's initial abandonment, he was now entitled to have the merits of his PCRA petition addressed by a court. Id. at 772. Although the factual predicate of Smith's claims for purposes of section 9545(b)(1)(ii) was the dismissal of his first PCRA petition in 2001 due to counsel's abandonment, the subsequent change in law that occurred in 2007 with the Bennett decision afforded Smith his first opportunity to present his claim pursuant to section 9545(b)(2). Id. at 771. Therefore, this Court held that Smith's third PCRA petition satisfied the section 9545(b)(1)(ii) timeliness exception because it was filed within 60 days of the Bennett decision, i.e., within 60 days of the date that the claim could have been presented. Id.
Turning to the instant case, the Commonwealth claims that the outcome here is controlled by Watts rather than Bennett. The Commonwealth asserts that Appellant is attempting to use the Bennett decision as a new "fact" to satisfy the timeliness exception provided by section 9545(b)(1)(ii). Commonwealth's Brief at 16-17. The Commonwealth argues that the PCRA court here improperly "fashioned an ...