Com. v. Crew, S.

• Court: Superior Court of Pennsylvania
• Decided: December 12, 2025
• Docket: 299 EDA 2024
• Status: Unpublished

Opinion

J-S30033-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHYKIR CREW : : Appellant : No. 299 EDA 2024

Appeal from the PCRA Order Entered January 3, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002711-2012

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E. *

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 12, 2025

Appellant, Shykir Crew, appeals from the order, entered by the Court of

Common Pleas of Philadelphia County, denying his serial petition filed

pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. (“PCRA”),

collaterally challenging his 2014 jury convictions of robbery, aggravated

assault, carrying a firearm on public streets or public property in Philadelphia,

possession of a firearm by a minor, and possessing an instrument of crime. 1

The PCRA court dismissed the petition for lack of jurisdiction under the PCRA’s

time bar. See 42 Pa.C.S. § 9545. We affirm the PCRA court because Appellant

did not plead and prove that a statutory exception applied to permit

substantive review of his facially untimely PCRA petition. ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3701, 2702, 6108, 6110, and 907, respectively. J-S30033-25

In Appellant’s 2015 direct appeal, we briefly summarized the factual

basis for Appellant’s convictions, as follows:

During the evening of June 23, 2011, [Appellant] approached the victim, Eric Johnson (“Johnson”), who had just parked his vehicle on the 5300 block of Girard Avenue in Philadelphia. From a distance of about two and one-half feet, [Appellant] pointed a gun at Johnson’s head and stated, “Give it up, old head.” Johnson recognized [Appellant] as the son of his neighbor, Sakina Crew (“Ms. Crew”). Johnson tried to wrestle the gun from [Appellant]. Upon regaining control of the firearm, [Appellant] shot Johnson and then fled.

At the hospital, Johnson identified the perpetrator as the teenage son of Ms. Crew. Johnson described his assailant as a 5′4″ black male of about 130 pounds. Johnson told police that [Appellant] lives at 5312 Poplar Street in Philadelphia. Later that day, Johnson positively identified [Appellant] from photographs provided by police officers. Ultimately, [Appellant] was arrested.

Commonwealth. v. Crew, 2015 WL 7433423, at *1 (Pa. Super., filed Mar.

9, 2015) (unpublished memorandum decision) (1979 EDA 2014).

Of note to the instant appeal, the trial court explained that:

On several occasions Mr. Johnson identified the defendant, and only the defendant, as the man who shot him. …

[Appellant] introduced an alibi defense of being at a DHS facility, Devereux in Chester County, the night of the shooting. However, testimony revealed that Devereux is not a secure facility, the staff does not sufficiently supervise the residents over night, and [Appellant] had a history of going AWOL from the facility. Testimony further revealed that doors at Devereux are locked only from the outside, [Appellant’s] room is located on the ground floor, and there are no alarms on the windows. Byron Lee, a manager of operations and staff at Devereux, testified that there is nothing stopping a juvenile from going out a window and down to one of the roads to be picked up by a motor vehicle. Mr. Lee also testified that in May of 2013, [Appellant] was caught going AWOL from his room, presumably through his window undetected,

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and later that night he was caught climbing back through the same window. N.T. 2/10/14 pg. 167–210; N.T. 2/11/14 pg. 6–23.

Crew, 2015 WL 7433423, at *3-*4 (from the attached trial court opinion upon

which this Court relied to affirm the judgment of sentence).

The trial court subsequently imposed an aggregate imprisonment term

of 16 years and 10 months to 47 years. We affirmed the judgment of sentence

in Appellant’s direct appeal based on the trial court’s opinion. See Crew, 2015

WL 7433423, at *2. Appellant filed a petition for allowance of appeal, which

our Supreme Court denied on July 29, 2015. See Commonwealth v. Crew,

119 A.3d 349 (Pa. 2015) (table) (140 EAL 2015). Appellant sought no further

review.

On September 25, 2015, Appellant filed his first PCRA petition, which

was subsequently amended by counsel on April 6, 2017. On September 27,

2017, Appellant through counsel filed a supplemental amended PCRA petition

in which he alleged that Mr. Johnson’s civil lawsuit against Devereux

unearthed new evidence, including Mr. Johnson’s hospital records and

statements, and Devereux overnight logs, and that trial counsel was

ineffective for failing to investigate the evidence. See Appellant’s

Supplemental Amended PCRA Petition, 9/27/2017, ¶¶ 5-8. Appellant argued

that he was entitled to a new trial due to after-discovered evidence. See id.

The PCRA court issued a notice of its intent to dismiss on the basis that the

claims in the petition were meritless on August 22, 2018, and formally

dismissed the petition on November 6, 2018. See Rule 907 Notice,

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8/22/2018; PCRA Court Order, 11/6/2018. Appellant did not file a notice of

appeal.

On March 31, 2022, defendant untimely filed a second PCRA petition.

The PCRA court dismissed that petition on July 20, 2022. Appellant did not file

a notice of appeal.

On August 2, 2023, Appellant filed the instant PCRA petition, his third.

In the petition, he alleged, as he had in his 2017 supplemental amended

petition, that Mr. Johnson’s civil lawsuit against Devereux unearthed new

evidence including Mr. Johnson’s hospital records and statements, and

Devereux overnight logs.

This motion is based on the fact that attorneys for the Devereux Foundation have recently come forward and provided [Appellant] with information about the case that they discovered during their ongoing civil litigation related to this criminal case. Specifically, it has been learned that (1) the Commonwealth withheld medical records that demonstrate that … the victim in this case, was extremely intoxicated at the time of the shooting; (2) the Commonwealth withheld the first statement that [Mr.] Johnson made; and (3) there are [relevant Devereux documents] that were not provided to the police when they raided Devereux in July 2011.

Appellant’s PCRA Petition, 8/2/2023, 13. In addition, Appellant stated that the

“existence of this evidence was first made known to [him] by … attorneys from

the Tucker Law Group, when they were representing Devereux in the civil

case[, after they had] deposed [Appellant] in 2016 or 2017, [and said they]

would send [Appellant] copies of their file once their civil case was finished.”

Id. Appellant further alleged that he did not obtain the files until “April of

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2023.” Id., 13-14. Appellant requested the appointment of counsel. See

Appellant’s Motion for Appointment of Post-Conviction Counsel, 10/16/23. The

PCRA court denied the request on November 11, 2023. See PCRA Court Order,

11/1/23.

The PCRA court informed Appellant in its notice of intent to dismiss the

petition, that he had not demonstrated due diligence with respect to the

medical records, which were available at the time of trial, and had not

established that the Commonwealth suppressed the proffered evidence “either

willfully or inadvertently.” Rule 907 Notice, 10/30/23, 1-2. Appellant filed a

response repeating the allegations in his petition as to how he had come into

possession of the alleged new evidence, requesting a hearing, and again

requesting counsel be appointed to represent him. See Appellant’s Response,

11/21/23, 1-3. On January 3, 2024, the PCRA court dismissed defendant’s

petition. See PCRA Court Order, 1/3/24.

Appellant filed a timely notice of appeal. See Appellant’s Notice of

Appeal, 1/10/24. He also complied with the PCRA court’s order that he file “a

concise Statement of Errors Complained of on Appeal.” See Pa.R.A.P.1925(b);

PCRA Court Order, 1/29/24; Appellant’s Rule 1925(b) Statement, 2/14/24.

On appeal, Appellant raises a single question for our review:

Did the PCRA [c]ourt abuse its discretion where it dismissed Appellant’s after-discovered evidence claim without a hearing?

Appellant’s Brief, 6.

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Appellant contends that he presented enough evidence to show a

material issue of a fact warranting a hearing to establish a meritorious claim

under Brady v. Maryland, 373 U.S. 83 (1962), or for a new trial based on

after-discovered evidence. See Appellant’s Brief, 11-24. He also argues that

the PCRA court “improperly denied” a hearing on his substantive claims and

erroneously dismissed his petition without a hearing where the claims were

not patently frivolous. Appellant’s Brief, 24-25; see Pa.R.Crim.P. 907, 908

(A)(2). He specifies that:

In light of the discovery of Eric Johnson’s medical records, Eric Johnson’s prior inconsistent statement, the Devereux Supervisory Tool Reports and Night Monitoring Flow Charts, and the testimony of Devereux employees who did not give evidence at Appellant’s criminal trial, Appellant should have had (1) counsel appointed to represent him during the litigation of this PCRA; and (2) an evidentiary hearing at which facts concerning the discovery and usefulness of the new evidence could have been developed.

Appellant’s Brief, 25-26.

Appellant only tangentially addresses whether the PCRA court had

jurisdiction to entertain either of his claims. In discussing his after-discovered

evidence claim, Appellant avers the same allegations from the petition as to

his discovery and obtaining of the documents from the attorneys representing

Devereux in the civil action brought by Mr. Johnson: he learned of the

evidence “in 2016 or 2017” and obtained copies “in April of 2023.” Appellant’s

Brief, 21-22. He “avers that he could not have been more diligent in his

attempts to bring this evidence to light sooner,” because he made “multiple

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attempts” to acquire the documents from the law firm, but they only agreed

to turn it over once “the civil case was finished.” Id., 23.

As with all appeals stemming from the denial of PCRA relief, our

standard of review is limited to “whether the record supports the PCRA court’s

determination, and whether the PCRA court’s determination is free of legal

error.” Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011).

“The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record.” Id.

“Before we may address the merits of Appellant’s arguments, we must

first consider the timeliness of Appellant’s PCRA petition because it implicates

the jurisdiction of this Court and the PCRA court.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa. Super. 2014). “Our law is clear that the PCRA’s time

restrictions are jurisdictional in nature, and ‘[i]f a PCRA petition is untimely,

neither this Court nor the trial court has jurisdiction over the petition. Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims.’” Commonwealth v. Anderson, 234 A.3d 735, 737 (Pa.

Super. 2020) (brackets in original) (quoting Commonwealth v. Albrecht,

994 A.2d 1091, 1093 (Pa. 2010) (citation omitted)).

A PCRA petition, including a second or subsequent petition, must be filed

within one year of the date that judgment of sentence becomes final. See 42

Pa.C.S. § 9545(b)(1). A judgment becomes final for purposes of the PCRA “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

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expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). The

“period for filing a PCRA petition is not subject to the doctrine of equitable

tolling; instead, the time for filing a PCRA petition can be extended only if the

PCRA permits it to be extended[.]” Commonwealth v. Ali, 86 A.3d 173, 177

(Pa. 2014) (internal quotation marks and citation omitted). Additionally, for a

second or subsequent PCRA petition, the petitioner must make “a strong prima

facie showing that a miscarriage of justice may have occurred.”

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267 (Pa. 2008). See also

Commonwealth v. Lawson, 549 A.2d 107, 112 (Pa. 1988).

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

became final on October 27, 2015, when the time to seek review in the

Supreme Court of the United States expired.2 Appellant had a year from that

date to file a timely PCRA petition. Thus, the instant PCRA petition, filed on

August 2, 2023, was facially untimely.

“[A]n 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.A. § 9545(b)(1)(i), (ii), and (iii), are

met.” Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation

and footnote omitted). Moreover, Appellant had to plead and prove that he

filed his petition within one year of the date any claims for application of the ____________________________________________

2 See 42 Pa.C.S. § 9545(b)(3) (“a judgment becomes final . . . at the expiration of time for seeking [direct] review”); U.S. Sup. Ct. R. 13(1) (permitting 90 days to petition for certiorari in the United States Supreme Court).

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statutory time-bar exceptions “could have been presented.” 42 Pa.C.S. §

9545(b)(2). “We emphasize that it is the petitioner who bears the burden to

allege and prove that one of the timeliness exceptions

applies.” Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008).

In his petition, Appellant failed to directly address the timeliness of his

petition or any of the statutory exceptions to the time bar. On that basis alone,

we may affirm the dismissal of his petition. See Commonwealth v. Burton,

936 A.2d 521, 525 (Pa. Super. 2007) (“As the PCRA petition before this Court

fails to set forth any of the enumerated exceptions to the time bar

requirement, we lack jurisdiction to review any of the claims Burton raises for

the first time on appeal”). Nevertheless, we are aware that Appellant alleged

factual circumstances that might set out the exception for newly-discovered

facts under 42 Pa.C.S. § 9545(b)(1)(ii) and that he generally alleged a Brady

claim, which in some circumstances could set out the exception for

governmental interference under id. at § 9545(b)(1). We will review his

allegations in light of each exception.

Under the newly-discovered facts exception to the PCRA time bar, a

PCRA court would have jurisdiction to entertain a claim in an otherwise

untimely petition where “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.C.S. § 9545(b)(ii); see Commonwealth v. Howard,

285 A.3d 652, 659–660 (Pa. Super. 2022) (newly-discovered fact exception

“requires a petitioner to demonstrate he did not know the facts upon which he

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based his petition and could not have learned those facts earlier by the

exercise of due diligence”). This exception “does not require any merits

analysis of the underlying claim,” nor does it “necessitate proof of the

elements of a claim of after-discovered evidence.” Commonwealth v. Small,

238 A.3d 1267, 1286 (Pa. 2020) (citation omitted). “For purposes of the

newly-discovered facts exception, a determination that the facts were

unknown to the petitioner is circumstance-dependent and requires an analysis

of the petitioner’s knowledge.” Commonwealth v. Branthafer, 315 A.3d

113, 128 (Pa. Super. 2024), appeal denied, 333 A.3d 1266 (Pa. 2025).

In his petition, however, Appellant unequivocally admitted that he first

learned of the facts underlying all of the newly-discovered evidence no later

than “2016 or 2017.” Appellant’s PCRA Petition, 8/2/2023, 13. Moreover, the

instant petition, was based on the same facts raised in the supplemental

petition to his first PCRA petition, which was denied as meritless in 2018.

Appellant’s admission to knowing the facts in “2016 or 2017” defeated any

claim to jurisdiction under the newly-discovered facts exception to the time

bar, because that exception does not encompass a previously known fact. See

Branthafer, 315 A.3d at 130 (holding that subsequent testimony establishing

petitioner’s location at the time of the criminal incident is not a newly-

discovered fact because his “own whereabouts on the evening of the incident

were always known to him”). Appellant admitted that the instant petition was

filed because he had finally obtained in April 2023, the documents establishing

the same facts he alleged in 2018, from the law firm in possession of those

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documents. But the documents are only a new source for previously known

facts, known since “2016 or 2017,” and therefore do not establish the

requirements for the exception. See Commonwealth v. Lopez, 249 A.3d

993, 999 (Pa. 2021) (stating that “the focus of this exception ‘is on the newly

discovered facts, not on a newly discovered or newly willing source for

previously known facts’”); Commonwealth v. Myers, 303 A.3d 118, 121 (Pa.

Super. 2023) (same).

To avail himself of the governmental interference exception, a petitioner

must show that: “(1) the failure to previously raise the claim was the result

of interference by government officials[;] and (2) the petitioner could not have

obtained the information earlier with the exercise of due diligence.”

Commonwealth v. Kennedy, 266 A.3d 1128, 1135 (Pa. Super. 2021).

Where government officials interfere with the petitioner’s ability to bring a due

process claim by suppressing evidence, the governmental interference

exception is implicated. See Commonwealth v. Reid, 235 A.3d 1124, 1149

(Pa. 2020).

Here, Appellant did not allege any facts to establish that government

officials interfered with his ability to bring the claim in a timely fashion. The

only allegation was that a law firm would not turn over the documents it had

until the civil case was fully over, which did not occur until April 2023. See

Appellant’s PCRA Petition, 8/2/2023, 13-14. A private law firm is not a

government official. Moreover, neither the law firm nor any government

official interfered with Appellant’s ability to raise a claim based on the newly

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provided documents, because Appellant did, in fact, timely raise such claims

in 2018 in the supplement to his timely-filed first PCRA petition. Appellant’s

allegations, therefore, could not establish the governmental interference

exception. “Although a Brady violation may fall within the governmental

interference exception, the petitioner must plead and prove that the failure to

previously raise these claims was the result of interference by government

officials, and that the information could not have been obtained earlier with

the exercise of due diligence.” Commonwealth v. Hawkins, 953 A.2d 1248,

1253 (Pa. 2006).

In addition, both the governmental interference and newly-discovered

fact exceptions require Appellant to demonstrate due diligence; a petitioner

must take reasonable steps to protect his interests and uncover facts that may

support a claim for collateral relief. See Commonwealth v. Brown, 111 A.3d

171, 176 (Pa. 2015); Commonwealth v. Smith, 194 A.3d 126, 134 (Pa.

Super. 2018). He “must explain why he could not have learned the new facts

earlier with the exercise of due diligence.” Commonwealth v. Sanchez, 204

A.3d 524, 526 (Pa. Super. 2019). “This rule is strictly enforced.”

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010).

Appellant knew the facts on which the instant petition was based no later than

2018, when he first raised claims based on the alleged facts. His failure to

raise the claims in a timely fashion was not due to not knowing the facts

contained within the proffered documents, but to his alleged inability to obtain

them. That the law firm allegedly would not turn over the documents it had in

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its possession, does not end the due diligence inquiry. Appellant could have,

and under the due diligence standard, should have, made some effort to

acquire the same documents from the sources that provided them to the law

firm. He made no such demonstration or alleged any claim of having done so.

We conclude that Appellant failed to demonstrate that any exception to

the time bar applied to permit review of the substantive claims in his facially

untimely, serial petition. Accordingly, we affirm the PCRA court’s dismissal of

Appellant’s time-barred petition.

Order affirmed.

Date: 12/12/2025

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