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Commonwealth v. Davis

Superior Court of Pennsylvania

February 25, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CLARENCE R. DAVIS, Appellant

Submitted: January 6, 2014.

Page 884

Appeal from the PCRA Order of the Court of Common Pleas, Philadelphia County, Criminal Division, No(s): CP-51-CR-0512031-1971. Before TEMIN, J.

Clarence R. Davis, appellant, pro se.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BENDER, P.J., SHOGAN, J., and FITZGERALD, J.[*]

OPINION

Page 885

 BENDER, P.J.

Appellant, Clarence R. Davis, appeals pro se from the trial court's September 21, 2012 order denying as untimely his second petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § § 9541-9546. After careful review, we conclude that Appellant's petition satisfies an exception to the one-year time requirement of the PCRA. Therefore, we vacate the court's order denying Appellant's petition and remand for an evidentiary hearing.

On September 10, 1970, Appellant and three other individuals robbed the Polka Dot Bar in Philadelphia. Appellant was armed with a shotgun and, during the course of the robbery, he shot and killed the owner of the bar, Arthur Gilliard. Appellant was arrested and charged with first-degree murder and robbery.[1] Appellant proceeded to a jury trial on July 12 through 19, 1972. Pertinent to Appellant's assertions herein, at his trial, the Commonwealth presented the testimony of two witnesses, Jerome Watson and Michael Diggs.

Jerome Watson testified that he was walking his wife home on September 10, 197[0] shortly before the shooting when he observed [Appellant] with two other men across the street from the deceased's taproom, and that the men had what appeared to be a shotgun case. Mr. Watson further stated that in February of 1972 [Appellant] told him that he had shot the deceased. On cross-examination, Mr. Watson admitted that [Appellant's] February 1972 confession occurred while the two men were going to buy narcotics and that he volunteered the information to the police only after he was brought in for questioning about a different homicide for which he was never arrested. [Mr. Watson testified that he was not offered any leniency from the Commonwealth in exchange for his testimony against Appellant].
Michael Diggs testified that on September 10, 197[0] at approximately 9:30 p.m.[, Appellant] came to his home at 3130 Carlisle Street in Philadelphia and

Page 886

asked to borrow a jacket. Mr. Diggs stated that he got [Appellant] a jacket and then went with [Appellant] to the Old Gardens, a bar located four blocks from the deceased's taproom. At the bar, the two men ordered drinks and then heard that a man had been shot down the street. According to Mr. Diggs, he left the Old Gardens with [Appellant], Dora Connover, and Brenda Robinson and stopped at the deceased's taproom on their way back to his house. Mr. Diggs testified that upon arriving at his house, [Appellant] and the two women left and that when they returned a short time later, they had the twelve gauge shotgun which he had kept behind a clock in the dining room and which he had not known was missing. The shotgun case, however, was never returned. He further stated that [Appellant] knew where the shotgun was kept and had been in his house on several occasions between the time when he last saw the shotgun and when it was returned. Mr. Diggs also acknowledged that he had pled guilty to charges of being an accessory after the fact and was awaiting sentencing, but had not been promised anything for his testimony.

Davis v. Cuyler , 1986 WL 1526, *3 (E.D.Pa. 1986).[2]

At the close of Appellant's trial, the jury convicted him of robbery and first-degree murder. The court sentenced Appellant to an aggregate term of life imprisonment. Our Supreme Court affirmed Appellant's judgment of sentence on March 25, 1974. Commonwealth v. Davis , 455 Pa. 466, 317 A.2d 218 (Pa. 1974).

On April 16, 1974, Appellant filed a petition for relief under the Post Conviction Hearing Act (PCHA), the precursor to the PCRA. That petition was ultimately dismissed by the PCHA court, and our Supreme Court affirmed on January 28, 1977. Commonwealth v. Davis , 470 Pa. 156, 367 A.2d 1089 (Pa. 1977).

Appellant filed the instant pro se PCRA petition on May 9, 2008. Appellant contended, inter alia, that he discovered " new evidence" that Watson had lied in his testimony at Appellant's trial. The PCRA court appointed counsel, who was subsequently granted leave to withdraw after satisfying the dictates of Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (Pa. 1998), and Commonwealth v. Finley , 379 Pa.Super. 390, 550 A.2d 213 (Pa. Super. 1988). On April 15, 2011, Appellant retained private counsel, who filed an amended petition on his behalf. In the amended petition, counsel added a claim that the Commonwealth improperly withheld evidence of deals it made with both Watson and Diggs in exchange for their testimony.

On August 17, 2012, the court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition.[3] While Appellant submitted a pro se response to the Rule 907 notice, the PCRA court ultimately issued an order on September 21, 2012, dismissing his petition as untimely. Appellant filed a timely pro se notice of appeal.[4] He raises the following five questions for our review:

Page 887

I. Did the (PCRA) court err, and commit reversible error when it dismissed [] Appellant's petition without the benefit of a properly conducted evidentiary hearing to determine the credibility of the presented statement(s) that led to the filing of the said petition, and therefore being able to render a fully informed legal opinion?
II. Did the (PCRA) court err, and commit reversible error when it failed to recognize a timely presented motion to the court, that was pertinent to the due process of the law with regards to final disposition of a (PCRA) petition?
III. Did the Commonwealth's attorney perpetrate a knowing fraud upon the court when they failed to disclose discoverable material to the defense, that it presented to the court at trial, and knew was inherently false in nature?
IV. Did the Commonwealth's prosecuting attorney err, and commit reversible error, when he permitted known false testimony to remain on the records uncorrected, when it was presented at a criminal trial, therefore, impeding justice and perpetrating a knowing fraud upon the Judiciary?
V. Did the (PCRA) court err, and commit reversible error when it omitted facts of record upon which Appellants [ sic ] claims are predicated and completely failed to address claims of Appellant that are properly preserved and presented to the court for review?

Appellant's Brief at 15.

To begin, we note that this Court's standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan , 592 Pa. 217, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr , 2001 PA Super 54, 768 A.2d 1164, 1166 (Pa. Super. 2001).

Because the PCRA time limitations implicate our jurisdiction and may not be altered or disregarded in order to address the merits of a petition, we must start by examining the timeliness of Appellant's petition. Commonwealth v. Bennett , 593 Pa. 382, 930 A.2d 1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our jurisdiction and may not be altered or disregarded to address the merits of the petition); Commonwealth v. Johnson , 2002 PA Super 238, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding the Superior Court lacks jurisdiction to reach merits of an appeal from an untimely PCRA petition). Under the PCRA, any petition for post-conviction relief, including a second or subsequent one, ...


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