Com. v. Breeden, W.

• Court: Superior Court of Pennsylvania
• Decided: April 27, 2021
• Docket: 715 EDA 2020
• Status: Unpublished

Opinion

J-S50019-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WILLIAM BREEDEN : : Appellant : No. 715 EDA 2020

Appeal from the PCRA Order Entered February 5, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009137-2007

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.: FILED APRIL 27, 2021

Appellant, William Breeden, appeals from the order denying his serial

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

On December 12, 2006, Appellant and his co-conspirator, Brian “Dutch”

Burns, robbed Azeem Jordan and Anthony DeShields. During the incident,

Dutch shot and killed Mr. Jordan. On May 15, 2008, at the conclusion of a

nonjury trial, Appellant was convicted of second-degree murder, robbery,

conspiracy, and possession of an instrument of crime (“PIC”).1 The trial court

sentenced Appellant to serve a term of life imprisonment for the second-

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2502(b), 3701(a)(1)(ii), 903(a)(1), and 907(a), respectively. J-S50019-20

degree murder conviction, concurrent terms of incarceration of ten to twenty

years for the robbery and conspiracy convictions, and a concurrent term of

incarceration of two and one-half to five years for the conviction of PIC. On

June 25, 2010, this Court affirmed Appellant’s judgment of sentence, and our

Supreme Court denied Appellant’s petition for allowance of appeal on

December 1, 2010. Commonwealth v. Breeden, 4 A.3d 699, 1592 EDA

2008 (Pa. Super. filed June 25, 2010) (unpublished memorandum), appeal

denied, 13 A.3d 474 (Pa. 2010).

Appellant filed a timely PCRA petition on August 22, 2011. The PCRA

court dismissed the petition on March 1, 2013. On January 23, 2014, this

Court affirmed the PCRA court order, and our Supreme Court denied

Appellant’s petition for allowance of appeal on June 20, 2014.

Commonwealth v. Breeden, 96 A.3d 1090, 694 EDA 2013 (Pa. Super. filed

January 23, 2014) (unpublished memorandum), appeal denied, 94 A.3d 1007

(Pa. 2010).

Appellant filed his second PCRA petition on January 5, 2016. On April

5, 2017, the PCRA court dismissed the petition. On April 12, 2017, Appellant

received an affidavit from Mr. DeShields, in which the affiant recanted his

identification of Appellant. On April 20, 2017, Appellant filed a timely notice

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of appeal from the PCRA court’s order disposing of his second PCRA petition.2

This Court affirmed the PCRA court’s decision on October 23, 2018.

Commonwealth v. Breeden, 200 A.3d 598, 555 EDA 2018 (Pa. Super. filed

October 23, 2018) (unpublished memorandum).

On April 3, 2019, Appellant filed the instant PCRA petition. The PCRA

court filed a Pa.R.Crim.P. 907 notice of intent to dismiss on December 5, 2019.

Appellant filed a response in opposition to the PCRA court’s notice. On

February 5, 2020, the PCRA court dismissed Appellant’s petition. This timely

appeal followed. The PCRA court did not order Appellant to file a Pa.R.A.P.

1925(b) statement. On February 26, 2020, the PCRA court filed an opinion

pursuant to Pa.R.A.P. 1925(a).

Appellant presents the following issues for our review:

1. Did the PCRA court abuse its discretion in dismissing [Appellant’s] claim without [an] evidentiary hearing where he properly pled and proved he was entitled to relief based on newly and after discovered evidence of [Mr.] DeShields’s recantation and statement?

2. Did the PCRA court abuse its discretion in dismissing [Appellant’s] claim as time-barred where he raised prior appellate counsel’s ineffectiveness for failing to raise and preserve his meritorious claim?

Appellant’s Brief at 2.

2 During the pendency of the appeal, Appellant filed, pro se, a third PCRA petition, and counsel filed an amended petition. Due to the pending appeal, the PCRA court dismissed that petition for lack of jurisdiction.

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When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)). This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016). The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).

A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment

of sentence “becomes final at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.” 42 Pa.C.S. § 9545(b)(3). This time requirement is mandatory and

jurisdictional in nature, and the court may not ignore it in order to reach the

merits of the petition. Commonwealth v. Hernandez, 79 A.3d 649, 651

(Pa. Super. 2013).

Our review of the record reflects that Appellant’s judgment of sentence

was affirmed by this Court on June 25, 2010, and our Supreme Court denied

Appellant’s petition for allowance of appeal on December 1, 2010. Breeden,

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1592 EDA 2008, 4 A.3d 699 (Pa. Super. filed June 25, 2010) (unpublished

memorandum), appeal denied, 13 A.3d 474 (Pa. 2010). Appellant did not file

a petition for writ of certiorari with the United States Supreme Court.

Accordingly, Appellant’s judgment of sentence became final on March 1, 2011,

ninety days after the Pennsylvania Supreme Court denied Appellant’s petition

for allowance of appeal and the time for filing a petition for review with the

United States Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3)

(providing that “a judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review”); U.S.Sup.Ct.R. 13. Thus, the instant PCRA petition, filed on April

3, 2019, is patently untimely.

However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and

(iii), is met.3 If a petitioner asserts one of these exceptions, he must file his

3 The exceptions to the timeliness requirement are:

(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;

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petition within one year of the date that the exception could be asserted.4 42

Pa.C.S. § 9545(b)(2).

The exception to the one-year time bar claimed in Appellant’s PCRA

petition is that the facts upon which the claim were based were unknown to

Appellant, pursuant to 42 Pa.C.S. § 9545(b)(1)(ii). In his PCRA petition,

Appellant makes the following averments:

36. In the instant matter, [Appellant] avers that he meets an exception to the timeliness requirement based on newly discovered evidence.

37. When [Appellant] received Mr. DeShields’ statement on April 12, 2017, his second PCRA was pending appeal. The Superior Court affirmed dismissal of [Appellant’s] second PCRA [on] October 23, 2018. …

PCRA Petition, 1/31/19, at 5-6.

(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; or

(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii). 4 On October 24, 2018, the General Assembly amended section 9545(b)(2), extending the time for filing a petition from sixty days to one year from the date the claim could have been presented. 2018 Pa. Legis. Serv. Act 2018- 146 (S.B. 915), effective December 24, 2018. The amendment applies to claims arising one year before the effective date of this section, which is December 24, 2017, or thereafter. Here, as discussed infra, because Appellant had a pending appeal of a prior PCRA petition, we apply the one- year requirement under the amendment.

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As previously noted, Appellant must file a PCRA petition raising a newly

discovered evidence within one year of the date that the claim could have

been presented, i.e., within one year from the date of this Court’s disposition

of Appellant’s pending appeal. In Commonwealth v. Lark, 746 A.2d 585,

588 (Pa. 2000), our Supreme Court established the following procedural rule

governing serial PCRA petitions:

When an appellant’s PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution 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 review. If the subsequent petition is not filed within one year of the date when the judgment became final, then the petition must plead and prove that one of the three exceptions to the time bar under 42 Pa.C.S.A 9545(b)(1) applies. The subsequent petition must also be filed within [one year] of the date of the order which finally resolves the previous petition, because this is the first “date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

Lark, 746 A.2d at 588 (emphasis added).

The Court in Lark explained that the appellant could not have filed his

second PCRA petition in the court of common pleas while the appeal from the

dismissal of his first PCRA petition remained pending before the Supreme

Court. Lark, 746 A.2d at 588. Instantly, Appellant had one year after the

appeal of his second PCRA petition’s dismissal.

Our review reflects that this Court affirmed the PCRA court’s dismissal

of Appellant’s second PCRA petition on October 23, 2018. Accordingly,

Appellant had until October 23, 2019, to file a PCRA petition invoking an

exception to the timeliness requirements. Appellant filed the instant PCRA

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petition on April 3, 2019. Thus, Appellant met the one-year time limit with

regard to an exception raising newly discovered evidence. However, we

conclude that no relief is due.

To qualify for an exception to the PCRA’s time limitations under

Subsection 9545(b)(1)(ii), a petitioner need only establish that the facts upon

which the claim is based were unknown to him and could not have been

ascertained by the exercise of due diligence. Commonwealth v. Burton,

158 A.3d 618, 629 (Pa. 2017). “Due diligence demands that the petitioner

take reasonable steps to protect his own interests. A petitioner must explain

why he could not have obtained the new fact(s) earlier with the exercise of

due diligence.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.

Super. 2010) (citations omitted). Our Supreme Court has articulated that due

diligence “does not require perfect vigilance and punctilious care, but merely

a showing the party has put forth reasonable effort to obtain the information

upon which a claim is based.” Commonwealth v. Cox, 146 A.3d 221, 230

(Pa. 2016) (citation and quotation marks omitted).

We observe that Appellant failed to establish that he exercised due

diligence by putting forth effort to obtain this information in the form of an

affidavit from Mr. DeShields. The PCRA court offered the following apt

discussion regarding Appellant’s lack of due diligence:

Instantly, the record indicates that [A]ppellant knew of Mr. DeShields after he was charged and when he was tried because DeShields’ name was mentioned in discovery materials and during the trial. In fact, his proposed testimony was introduced by way

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of a stipulation. (N.T. 5/15/18). Therefore, [A]ppellant could have sought out Mr. DeShields at any time during the many years between his conviction and the date on which Mr. DeShields provided the affidavit and obtained the information contained in his affidavit. For this reason, this [c]ourt determined that [A]ppellant’s petition was not timely filed. It is submitted that no error occurred in so finding.

PCRA Court Opinion, 2/26/20, at 7-8. In addition to the relevant point made

by the PCRA court, we further note that Mr. DeShields attested to the following

in his affidavit:

At no time was I ever contacted by an Attorney, an Investigator or anyone advising that they were working for the defense for a man by the name of [Appellant] until recently.

DeShields’ Affidavit, 4/12/17, at 1 ¶4. Accordingly, because Appellant knew

of the existence of Mr. DeShields from the time of his trial, and because

Appellant took no steps in the intervening years prior to Mr. DeShields

submitting his affidavit, Appellant cannot establish that he exercised due

diligence. Hence, the attempt to invoke the second exception fails.

In his second issue, Appellant argues that the PCRA court abused its

discretion in dismissing the petition as time-barred. Appellant’s Brief at 21-

27. He contends that he presented a meritorious claim that prior PCRA

counsel was ineffective for failing to raise an allegation of trial counsel’s

alleged ineffective assistance. However, Appellant concedes that this claim

has been untimely raised. Specifically, Appellant states the following:

[Appellant] avers that he is entitled to relief … because his prior [PCRA] counsel, Ms. Smarro, failed to raise in his first timely PCRA that [trial counsel,] Mr. Laver[,] was ineffective for failing to

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argue [Appellant’s] confession was involuntary at trial, causing [Appellant’s] meritorious ineffectiveness claim to be waived.

[Appellant’s] claim of Ms. Smarro’s ineffectiveness is untimely. See RR067-68. Ms. Smarro represented [Appellant] during his first PCRA, where his claim of Mr. Laver’s ineffectiveness would have been properly raised. [Appellant’s] first PCRA was denied, [Appellant] appealed, and the Superior Court affirmed [Appellant’s] judgement of sentence on January 23, 2014. [Appellant’s] judgement of sentence became final after 30-days, on February 24, 2014. [Appellant] had 1–year from that date to timely raise his claim of Ms. Smarro’s ineffectiveness. [Appellant] did not do so. [Appellant’s] claim does not meet any exceptions to the PCRA’s time-bar. Thus, [Appellant’s] claim of ineffectiveness is untimely, however, but for the procedural bar, [Appellant] would be entitled to relief

Appellant’s Brief at 21 (footnote omitted). We agree that this claim was not

timely raised.

Moreover, to the extent Appellant contends that the untimeliness of the

instant PCRA petition should be excused due to the ineffective assistance of

his prior PCRA counsel, we observe that such relief is impermissible. As our

Supreme Court has explained:

It is well settled that allegations of ineffective assistance of counsel will not overcome the jurisdictional timeliness requirements of the PCRA. See Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 915-16 (2000) (holding a petitioner’s claim in a second PCRA petition, that all prior counsel rendered ineffective assistance, did not invoke timeliness exception, as “government officials” did not include defense counsel); see also Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780, 785-86 (2000) (finding that the “fact” that current counsel discovered prior PCRA counsel failed to develop issue of trial counsel’s ineffectiveness was not after-discovered evidence exception to time-bar); Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 589 (2000) (holding that allegation of ineffectiveness is not sufficient justification to overcome otherwise untimely PCRA claims).

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Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005). Accordingly,

Appellant’s claim of prior PCRA counsel’s ineffective assistance does not

provide him relief of his untimely filing of the instant PCRA petition. Therefore,

the instant PCRA petition remains time-barred.

In conclusion, because Appellant’s PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the issues

presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396,

398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear

untimely petition).

Order affirmed.

Judge Strassburger did not participate in the consideration or decision

of this case.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/27/2021

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