February 18, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
KENDALL HARRIS, Appellant
Appeal from the PCRA Order December 21, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0902292-1996
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and OTT, JJ.
Kendall Harris appeals from the order denying his serial PCRA petition as untimely. We affirm.
A prior panel of this Court delineated the factual and procedural background of this matter as follows.
Appellant was in the passenger seat of a Buick Skyhawk driven by co-defendant Abdul King; Ricardo Fontaine and James Oliver were in the back seat. A witness, Larry Pringle, testified that he was playing sports at a playground when he observed the Buick circle the block twice and eventually come to a stop in front of a Chinese store. When Mr. Pringle approached the Buick, Appellant reached across the driver and pointed a revolver out the driver's side window. As Mr. Pringle ran away, he heard five gun shots. After the Buick drove away, Mr. Pringle returned to the scene and discovered that Aidell Corbett had been shot in the chest and James Nixon had been shot in the leg. Mr. Corbett subsequently died as a result of the gunshot wound to his chest.
Following a jury trial, Appellant was convicted of first degree murder, aggravated assault, criminal conspiracy, and possessing an instrument of crime. After the jury deadlocked on the penalty verdict, the trial court imposed a life sentence for the murder conviction. The trial court also ordered Appellant to serve a consecutive term of 2½ to 5 years' imprisonment for aggravated assault, with a concurrent aggregate term of 5 to 10 years' imprisonment on the remaining charges. Appellant's trial counsel was permitted to withdraw, and Appellant's newly-appointed counsel filed a direct appeal to this Court. Another panel of this Court affirmed Appellant's judgment of sentence and the Pennsylvania Supreme Court denied allocatur.
Commonwealth v. Harris, 881 A.2d 883 (Pa.Super. 2005) (unpublished memorandum at 1-2).
Thereafter, Appellant filed a timely pro se PCRA petition. The PCRA court appointed counsel, who filed an amended petition and supplement thereto. Following an evidentiary hearing, the court denied Appellant's claims. This Court affirmed, id., and the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Harris, 885 A.2d 41 (Pa. 2005).
Appellant again sought PCRA relief on September 8, 2006. The PCRA court dismissed that petition as untimely on November 18, 2008. Appellant did not appeal. However, on February 16, 2012, Appellant, with the aid of privately-retained counsel, filed the underlying PCRA petition herein. Therein, Appellant contended that his petition was timely based on newly-discovered facts. He attached an affidavit from victim Nixon, in which Nixon averred that Appellant was not the shooter. In the affidavit, Nixon also set forth that a person identifying himself as Appellant's attorney interviewed him and Nixon informed that individual that Appellant was not in the vehicle when the shots were fired. In addition, Appellant provided an affidavit from his co-defendant, Abdul King. King indicated that Appellant was not with him at the time of the shooting. Appellant also attached to a supplemental petition an affidavit from Dwayne Baker, who claimed that Appellant was with him at the time of the shooting.
The Commonwealth responded by conflating a timeliness analysis under the newly-discovered fact exception with merits review of an after-discovered evidence claim. See Commonwealth v. Lambert, 884 A.2d 848 (Pa. 2005). It contended that because Appellant could not establish that the alleged new evidence would entitle him to relief, his petition was untimely. The PCRA court issued a Pa.R.Crim.P. 907 notice of dismissal on November 27, 2012, finding Appellant's petition untimely. Appellant responded on December 14, 2012, and the court issued its final order on December 21, 2012. Despite being represented by counsel, Appellant filed a pro se notice of appeal. Counsel, nonetheless, indicated to the PCRA court that she continued to represent Appellant. Accordingly, the PCRA court directed counsel to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Counsel complied, and the court authored its Pa.R.A.P. 1925(a) opinion. The matter is now ready for this Court's consideration. Appellant presents the following issues for our review.
I. Whether the court of common pleas erred when it denied the PCRA petition without first conducting an evidentiary hearing to learn the facts?
II. Whether the court of common pleas erred when it assumed, without a hearing, that the petitioner was not entitled to the exception for newly discovered evidence?
III. Whether the common pleas court is required by the Constitution of the United States to consider a gateway claim of actual, factual innocence?
Appellant's brief at 2.
We begin by noting that an untimely PCRA petition renders Pennsylvania courts without jurisdiction to afford relief. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013). "The question of whether a petition is timely raises a question of law. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary." Id. (citations omitted).
Appellant's first two issues are essentially synonymous. The initial argument Appellant advances is that the affidavits he submitted to the PCRA court met "the jurisdictional gateway set forth at [42 Pa.C.S. §] 9545(b)(1)(ii) based on the discovery of previously unknown facts which could not have been ascertained through the exercise of due diligence." Appellant's brief at 11. According to Appellant, he has consistently maintained that he was not present when the shooting in this matter occurred. Thus, he could not have known who was actually present. He continues that King's affidavit alleging that Appellant was not with King at the time of the shooting is a fact which was not available to him at trial since King declined to testify at trial and was therefore unavailable.
Appellant continues that Nixon's affidavit also averred newly-discovered facts. In this respect, Appellant submits that he was not aware that Nixon saw the shooter or informed police or a person claiming to be his trial attorney that Appellant was not the shooter. Appellant baldly avers that he could not have discovered this information earlier. Lastly, Appellant alleges that Baker's affidavit is newly-discovered and provides him with an alibi.
The Commonwealth counters that "none of the affidavits contain facts that are new to the defense, or that could not have easily been appertained [sic] by exercising even a modicum of due diligence." Commonwealth's brief at 7-8. In the Commonwealth's view, the affidavits provide information from new sources that Appellant would have known about at the time of his trial. Phrased differently, while the sources of the information may be new, the underlying facts are not. In addition, the Commonwealth contends that Appellant "made no effort, as required, to explain his efforts toward finding these men in the decades since he was convicted." Id. at 9 n.2.
The newly-discovered fact exception does not mandate a merits review of the underlying claim. Rather, the exception requires that the facts on which the claim is based be unknown to the petitioner, and that those facts could not have been ascertained earlier by due diligence. See Lambert, supra at 852. With respect to the King claim, Appellant is entitled to no relief. First, Appellant knew the alleged fact that he and King were not together at the time of the shooting before trial. Hence, this fact is not newly-discovered. Rather, the alleged new fact is that King is now willing to testify that Appellant was not with him. Appellant, however, has not demonstrated diligence, as he does not proffer any argument as to how he attempted to garner this information before or during the litigation of his prior two PCRA proceedings.
Appellant's Nixon claim fares no better. According to the affidavit, Nixon was interviewed prior to trial by Appellant's attorney and he relayed the information he now includes in his affidavit to that person. If counsel did interview Nixon, then the facts are not new-and Appellant's claim would be based on ineffective assistance, which is not grounds for a timeliness exception. However, to escape this hurdle, Appellant asserts that he personally was unaware that counsel interviewed Nixon and therefore the facts are new to him. It appears that Appellant is suggesting that Nixon was interviewed by a person misrepresenting himself as Appellant's attorney. Assuming Appellant's attorney was not the person who interviewed Nixon, Appellant has not forwarded any argument below or on appeal as to how he exercised diligence. It is apparent that Appellant knew of Nixon at the time of trial, since Nixon was a victim. Appellant does not explain why he never attempted to contact Nixon prior to or during the litigation of his first PCRA petition or his second petition. Accordingly, Appellant's Nixon claim is untimely.
In relation to the Baker affidavit, Appellant's timeliness position is meritless. If Appellant and Baker were together at the time of the shooting, giving Appellant an alibi, the material facts in Baker's affidavit cannot be new. The fact that could be construed as new is that Baker, an uncalled witness, is now willing to testify as to Appellant's alibi. This, nonetheless, would render any substantive claim meritless. Further, as with the Nixon affidavit, Appellant does not attempt to demonstrate how he exercised diligence in procuring a known alibi witness at the time of trial. For these reasons, Appellant's Baker affidavit claim entitles him to no relief. Having concluded that Appellant is not entitled to relief as a matter of law and no genuine issues of material fact exist, the PCRA court did not err in declining to conduct an evidentiary hearing.
Appellant's final issue is that because he alleged that he is actually innocent, it would be unconstitutional to procedurally bar him from review of his claims. Appellant cites no Pennsylvania case holding that an assertion of actual innocence alone overcomes the PCRA time-bar. Indeed, no such case exists. Of course, the PCRA statute does not foreclose merits review of actual innocence claims for purposes of a serial petition so long as the petitioner can meet a timeliness exception. As Appellant cannot establish a timeliness exception as a matter of law, and this Court is precluded from creating timeliness exceptions, Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003), Appellant's last issue does not entitle him to relief.