Com. v. Sekou, M. (memorandum)

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J-S33025-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. MWANGI SEKOU, Appellant No. 2717 EDA 2013 Appeal from the PCRA Order of August 27, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1103481-2002 BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STABILE, JJ. MEMORANDUM BY OLSON, J.: FILED JUNE 25, 2014 Appellant, Mwangi Sekou, appeals pro se from the order entered on December 2, 2013, dismissing his second petition filed under the PostConviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm. On February 4, 2004, Appellant was convicted of third-degree murder, first-degree felony aggravated assault, second-degree felony aggravated assault, a violation of the Uniform Firearms Act (VUFA), possessing instruments of crime, and recklessly endangering another person.1 On April 8, 2004, the trial court sentenced Appellant to serve an aggregate term of 35 to 77 years in prison. Appellant filed a direct appeal. This Court affirmed ____________________________________________ 1 18 Pa.C.S.A. §§ 2502(c), 2702(a)(1), 2702(a)(4), 6108, 907, and 2705, respectively. J-S33025-14 the judgment of sentence on August 31, 2005, and no further review was sought by Appellant. On January 23, 2006, Appellant filed his first petition for PCRA relief. After multiple hearings, the PCRA court denied relief on June 12, 2007. This Supreme Court denied allocatur on May 18, 2010. Appellant filed his second PCRA petition, at issue herein, on July 26, 2012. The PCRA court dismissed his second PCRA petition because it was untimely filed and not subject to exception. This appeal followed. Appellant now raises the following four claims: 1. Did the PCRA court abuse its discretion when it used the incorrect standard in determining whether it had subject matter jurisdiction over the PCRA petition? ed by the PCRA court insufficient to meet the requirements of Pa.R.Crim.P. 907? 3. Did the PCRA court abuse its discretion in failing to adhere to the mandatory requirements of Pa.R.Crim.P. 905(B)? 4. Is [A]ppellant entitled to a remand and an evidentiary hearing based on the newly discovered evidence of Zakiyah Williams? 2 ____________________________________________ 2 We have changed the order of the issues presented by Appellant for ease of disposition. -2- J-S33025-14 whether its decision Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003). The PCRA contains a jurisdictional time-bar, which is subject to limited statutory exceptions. This time- including a second or subsequent petition, [] be filed within one year of the petitioner pleads [and] proves that one of the [three] exceptions to the Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further, since the time-bar implicates the subject matter jurisdiction of our courts, we are required to first determine the timeliness of a petition before we are able to consider any of the underlying claims. Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999). Our Supreme Court has explained: the PCRA timeliness requirements are jurisdictional in nature and, accordingly, a PCRA court is precluded from considering untimely PCRA petitions. See, e.g., Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000) requirements are mandatory and jurisdictional in nature, no court may properly disregard or alter them in order to reach the merits of the claims raised in a PCRA petition that is filed in an untime Commonwealth v. Fahy, 737 A.2d 214, 220 (Pa. 1999) (holding that where a petitioner fails to satisfy the PCRA time requirements, [a court] has no jurisdiction to entertain the petition). [The Pennsylvania Supreme Court has] also held that even where -3- J-S33025-14 the PCRA court does not address the applicability of the PCRA timing mandate, [an appellate court should] consider the issue sua sponte, as it is a threshold question implicating our subject matter jurisdiction and [the] ability to grant the requested relief. Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003). December 1, 2005. As Appellant did not file his current petition until July 26, 2012, the current petition is manifestly untimely and the burden thus fell upon Appellant to plead and prove that one of the enumerated exceptions to the one-year time-bar applied to his case. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the one-year time-bar, the PCRA demands that the petitioner properly plead all required elements of the relied-upon exception). to the time-bar requirement. This statutory exception provides: (1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that: ... (ii) 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[;] ... -4- J-S33025-14 (2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b). Appellant attempts to invoke the after-discovered facts exception to the time-bar by providing four affidavits from people with whom he had been associated during the time of the shooting. To properly invoke an exception, the petitioner is statutorily req Id. As our (Pa. 2008); - could no Commonwealth v. Stokes, 959 A.2d 306, 310-311 Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001). - Moreover, tatutory Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010). Here, the PCRA court aware of the information all four of [the] individuals would later provide in the form of an affidavit, making it impossible to determine whether the Opinion, 12/2/2013, at 3. Upon review, we agree. -5- J-S33025-14 Moreover, to be entitled to relief under the PCRA on the basis of the after-discovered facts exception, the petitioner must plead and prove by a exculpatory evidence that has subsequently become available and would Pa.C.S.A. § 9543(a)(2)(vi). As our Supreme Court has summarized: To obtain relief based on after-discovered evidence, [an] appellant must demonstrate that the evidence: (1) could not have been obtained prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new trial were granted. Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008) (citations preponderance of the evidence that each of these factors has been met in order Commonwealth v. Foreman, 55 reviewing the decision to grant or deny a new trial on the basis of afterdiscovered evidence, an appellate court is to determine whether the PCRA court committed an abuse of discretion or error of law that controlled the Id. Appellant fails the test on all grounds. The afternewly discovered facts, not on a newly discovered or a newly willing source Commonwealth v. Johnson, 863 A.2d 423, -6- J-S33025-14 427 (Pa. 2004) (emphasis in original). admission of evidence previously available to a petitioner cannot resurrect an untimely PCRA claim as such a result would clearly run contrary to the plain language Id. In support of his claim that his second PCRA petition was timely on the basis of after-discovered evidence, Appellant submits the affidavits of four individuals, Jahaan Mitchell, Denard Hawkins, Karif Holloway, and Jerome Bogerty.3 Appellant claims that the affidavits establish that Appellant was not the shooter. Specifically, Appellant argues that the affidavits are from persons who witnessed the shooting and now state that someone other than Appellant shot the victim. However, after careful review of the affidavits presented, we find that they present no new facts and that the information contained within the four affidavits would have been known to Appellant at the time of his initial trial. All four affiants purport that they were present at the shooting and Appellant admits to knowing them. Appellant also admitted his presence at the shooting, and, therefore, he would have known of this information since the day the crime was committed. Moreover, Appellant has not shown that he could not have discovered the alleged ____________________________________________ 3 that he made to police at the time of the shooting. PCRA Petition, Exhibit A. of after-discovered evide Foreman, 55 A.3d at 537, Commonwealth v. McNeil, 487 A.2d 802, 807 n.4 (Pa. 1985). -7- citing J-S33025-14 evidence sooner through due diligence. The burden was on Appellant at his initial trial to use reasonable diligence to make these facts known. Since Appellant has failed to do so, he subsequently fails to properly satisfy the requirements for newly discovered evidence. Furthermore, Appellant cannot show that the facts he sought to introduce would not be used solely to impeach the eyewitness testimony presented at trial. Because Appellant has -year time-bar, the petition and supplemental filings and the PCRA petition was properly d their intent to dismiss his petition was insufficient to meet the requirements of Pa.R.Crim.P. 907.4 More specifically, Appellant claims that the PCRA ____________________________________________ 4 Rule 907 provides, in pertinent part: Rule 907. Disposition Without Hearing Except as provided in Rule 909 for death penalty cases, (1) the judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant's claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the (Footnote Continued Next Page) -8- J-S33025-14 subject to an exception under the PCRA and, therefore, would be dismissed t Id. Upon review of the record, we disagree. The PCRA court dismissed the petition because it was untimely and not subject to exception for the reasons cited above. Moreover, the PCRA court followed the proper procedure and timeline outlined under Pa.R.Crim.P. 907. On March 6, 2013, the Appellant was notified by the PCRA court that his petition would be dismissed in 20 days because it was untimely. It clearly informed the Appellant that he had failed to invoke the after-discovered facts exception to the time-bar requirement in his PCRA petition and supplemental petition. The notice of intent to dismiss also informed him that he could respond to the petition within 20 days. Appellant exercised his right to respond, and filed a response on March 18, 2013 and further a second supplemental amended PCRA petition on July 29, 2013, in which Appellant again attempted to (Footnote Continued) _______________________ dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue. Pa.R.Crim.P. 907. -9- J-S33025-14 invoke the after-discovered facts exception. We determine that the PCRA court followed the proper procedure under Rule 907 and since the PCRA proper without further proceedings. Accordingly, lacks merit. In his third issue, Appellant alleges that Pa.R.Crim.P. 905(B)5 mandates that the PCRA court, sua sponte, grant him the opportunity to supplement his time-barred petitions for PCRA relief ad infinitum. nterpretation of Rule 905(B) is incorrect and inconsistent with the plain language of the rule. This Court has held that Rule 905(B) applies only to a first-time submitted PCRA petition, not second or subsequent petitions such as the one at issue here. Commonwealth v. Austin, 721 A.2d 375, 379 (Pa. Super. 1998). (Pa.R.Crim.P. 1505(B), identical predecessor of current Rule 905(B), requiring the PCRA judge to order an amendment of a PCRA petition to eliminate defects is designed to apply to first PCRA petitions.) After filing his second PCRA petition, Appellant filed two amended, supplemental PCRA petitions, which the PCRA court accepted. Rule 905 does not require the PCRA court to infinitely accept amendments to ____________________________________________ 5 Rule 905(B) of the Rules of Criminal Procedure provides in pertinent part: -conviction collateral relief is defective as originally filed, the judge shall order amendment of the petition, indicate the nature of the defects, and specify the time within which an amended petition shall be - 10 - J-S33025-14 a second PCRA petition. Accordingly, Appe merit. Finally, Appellant argues that his case should be remanded to the PCRA court for further consideration as he learned of additional witnesses at notice of appeal was filed on September 19, 2013. On November 13, 2013, Superior Court, Based Upon After-Discovered Evidence, and Request to n his application, Appellant asserts that he learned of three witnesses with new evidence relevant to his case. 6 of Zakiyyah Williams, Bernadine Branch and Shana Ryles-Sekou. The certification with respect to Ms. Williams indicates that Ms. Williams approached Ms. Branch service on October 15, 2013 at which time she advised them that her brother, Jonathan Williams, confessed to her years ago that he was the person responsible for killing the victim. The certification goes on to state that Ms. Williams told the other women that her brother told her in 2004 that Appellant was in prison for a crime that he did not commit and that her ____________________________________________ 6 witnesses and a summary of their proposed testimony. Application to Stay Proceedings, Exhibits A, B and C. - 11 - J-S33025-14 brother promised to turn himself in once he got his affairs in order. Unfortunately, Jonathan Williams was killed in 2004 before he could turn himself into the police. The certifications for Ms. Branch and Ms. Ryles- Sekou merely reiterate that Ms. Williams made these statements to them on October 15, 2013 and that Ms. Ryles-Sekou relayed this information to Appellant on October 26, 2013. On December 6, 2013, this Court entered t to reapply for a remand in his brief. In his appellate brief, Appellant again asks that we remand his case to the PCRA court for an evidentiary hearing on the 11-13. The purported newly discovered evidence comes from three potential witnesses, who were not at the scene of the crime, who claim another party confessed to shooting the victim. This claim is wholly dissimilar from the claims asserted in the PCRA petition currently on appeal to this Court. The proffered new evidence would not support the original claims presented and, hence, should be presented to the PCRA court, via a separate PCRA petition, nt's PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such rev Commonwealth v. Lark, 746 A.2d 585 (Pa. - 12 - J-S33025-14 2000). The subsequent PCRA petition must be filed within 60 days of the date of the order which finally resolves the previous PCRA petition. Id. In e current petition stay the appellate proceedings and remand to the PCRA court based upon afterOrder affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/25/2014 - 13 -

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