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[U] Commonwealth v. Shoulders

Superior Court of Pennsylvania

March 7, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee,
v.
WILLIAM SHOULDERS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order January 17, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000573-2000, CP-02-CR-0012457-1999.

Joseph D. Seletyn, Esq.

BEFORE: PANELLA, J., OLSON, J., and WECHT, J.

MEMORANDUM

PANELLA, J.

Appellant, William Shoulders, appeals pro se from the PCRA Order entered January 17, 2013, by the Honorable Randal B. Todd, Court of Common Pleas of Allegheny County. We affirm.

Following a jury trial, Appellant was convicted of one (1) count of first-degree murder, [1] two (2) counts of recklessly endangering another person, [2]and one (1) count of firearms not to be carried without a license[3] arising from a shooting that occurred on September 4, 1999. On August 6, 2001, Appellant was sentenced to life imprisonment.

Appellant filed a timely notice of appeal; however, based on appointed counsel's failure to file a brief, his appeal was denied without prejudice to his rights under the Post-Conviction Relief Act ("PCRA"). Appellant filed his first PCRA petition on May 12, 2003, which resulted in reinstatement of his appellate rights. Eventually, Appellant's conviction was affirmed by our Court on February 6, 2006.

Appellant filed a second PCRA petition on November 3, 2006. Appointed counsel filed a petition to withdraw and a no-merit letter. The PCRA court dismissed the second PCRA petition, and the dismissal was affirmed by our Court on June 14, 2010.

On April 25, 2011, Appellant filed a third PCRA petition, which is the subject of the instant appeal. He alleges trial counsel filed a pretrial motion for discovery requesting, inter alia, the clothing of the victim. See Appellant's PCRA Petition, 4/25/11 at 3. Appellant contends that a Brady[4]violation occurred since the Commonwealth did not produce the victim's clothing.[5] On January 17, 2013, the PCRA court dismissed Appellant's petition as untimely. This timely appeal followed.

Appellant raises the following issues for our review:

1. Whether the prosecution withheld evidence that was specifically request [sic] in [Appellant]'s motion before trial?
2. Whether the prosecution denied [Appellant] access to evidence for chemical testing?
3. Whether counsel gave ineffective assistance in allowing the prosecution to withhold the evidence sought in a written motion for discovery prior to trial?
4. Whether counsel gave ineffective assistance in allowing the prosecution to deny [Appellant] access to evidence for chemical testing?
5. Whether Appellant's PCRA motion is timely filed?

Appellant's Brief at 2.

We begin with a discussion of the timeliness of Appellant's petition. As mentioned, the PCRA court found that Appellant's petition was untimely since it was not filed within one year of the date his judgment became final, and further, because his claim did not fall within one of the recognized exceptions to the timeliness requirement. We agree.

Generally, a PCRA petition, including a second or subsequent petition, must be filed within one year of the date a judgment becomes final. See 42 Pa.Cons.Stat.Ann. § 9545(b)(1). "[A] judgment becomes final at the conclusion of direct review, including the time to seek discretionary review in the Pennsylvania Supreme Court and the United States Supreme Court, or at the expiration of time for seeking review." 42 PA.CONS.STAT.ANN. § 9545(b)(3). This time limit is jurisdictional in nature and, therefore, the period for filing is not subject to the doctrine of equitable tolling, except to the extent that the doctrine is reflected in the statutory exceptions to the filing period. See Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999).

One exception set forth in the PCRA statute that tolls the one year period occurs when "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.CONS.STAT.ANN. § 9545(b)(1)(ii). Our Supreme Court has described this exception as after-discovered evidence.[6]See Commonwealth v. Yarris, 731 A.2d 581, 587 (Pa. 1999). A petition claiming this exception must be filed "within 60 days of the time the claim could have been presented." 42 PA.CONS.STAT.ANN. § 9545(b)(2).

In order for the court to determine whether the exception has been timely invoked, the defendant must include the precise date in his petition of when he learned of the after-discovered evidence. See Commonwealth v. Beasley, 741 A.2d 1258, 1261-62 (Pa. 1999). Furthermore, the defendant must show that the new facts constitute "exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced." 42 Pa.Cons.Stat.Ann. § 9543(a)(2)(vi).

Here, Appellant's petition is plainly untimely. The PCRA court, in a well-reasoned opinion, described Appellant's failure to satisfy the after- discovered evidence exception.

[Appellant] has not met his burden of alleging or proving that he did not know the facts upon which he bases his claim of a Brady violation nor does he offer any evidence as to why he could not have ascertained the facts earlier with the exercise of due diligence as required by §9545(b)(1)(ii). [Appellant]'s claim of a Brady violation is premised on three facts: 1) that trial counsel requested that the Commonwealth produce the victim's clothing pursuant to the Motion for Discovery filed approximately one year prior to trial; 2) that the Commonwealth failed to produce the clothing pursuant to the request; and, 3) that the evidence was material, that is, that there was a reasonable probability that had the evidence been produced the result of the trial would have been different.
The record establishes, however, that [Appellant] knew prior to and at the time of trial that the victim's clothing was not analyzed for gun powder produced for analysis by experts retained by the defense. [Appellant]'s expert, Dr. Karl Williams, stated in his report dated May 1, 2001[, ] that the clothes of the victim were not tested by the Commonwealth and were not produced or made available to the defense for examination. Trial counsel also elicited testimony from Dr. Williams at the time of trial concerning the significance of any findings that may result from testing the victim's clothes.
[Appellant] alleges that he only learned in October 2008 that the Motion for Discovery had been filed by his counsel prior to trial which specifically requested the clothing. However, as noted in Commonwealth v. Lambert, 884 A.2d 848, 853, 54 ([Pa.] 2005) the duty to disclose evidence pursuant to Brady is applicable even if there has been no request by the defendant. More importantly, [Appellant] offers no evidence or explanation as to why he did not know or could not have ascertained by the exercise of due diligence that his counsel had specifically requested the production of the victim's clothes. The Motion for Discovery was filed on May 10, 2000, over a year prior to trial in May 2001. The issue of the lack of testing of the victim's clothes by the Commonwealth was raised repeatedly during the trial and it is inconceivable that [Appellant] did not discuss with trial counsel the steps that were taken to obtain the clothes for possible testing by defense experts. If [Appellant]'s present claim is based on the fact that the Commonwealth failed to respond to a discovery motion, [Appellant] offers no explanation as to why he did not nor could not, in the exercise of due diligence, have ascertained that a motion had been made to produce the clothing. In fact, given the defense that the fatal bullet came from a gun other than [Appellant]'s, it would have been incumbent, in the exercise of due diligence, for [Appellant] to know whether or not an attempt had been made to obtain the clothes for testing. [Appellant] has failed to meet his burden, pursuant to 42 Pa.C.S.A. §9455(b)(1)(ii), of establishing that he facts upon which his claim for relief were unknown to him and could not have been ascertained by the exercise of due diligence and, therefore, the instant petition is untimely.

Trial Court 1925(a) Opinion, 5/23/13 at 6-7 (footnote omitted).

Accordingly, we determine the PCRA court properly dismissed Appellant's petition as untimely since he has failed to satisfy the jurisdictional time limits imposed by the PCRA, or established exceptions thereto. Since our determination is jurisdictional in nature, it precludes a review of the merits. See Fahy, 737 A.2d at 222.

Order affirmed. Jurisdiction relinquished.


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