Com. v. Dooley, C.

• Court: Superior Court of Pennsylvania
• Decided: October 2, 2020
• Docket: 3574 EDA 2019
• Status: Unpublished

Opinion

J-S40020-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : CASEY DOOLEY : : Appellant : No. 3574 EDA 2019

Appeal from the PCRA Order Entered November 25, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0312431-2001

BEFORE: SHOGAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED OCTOBER 02, 2020

Appellant, Casey Dooley, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed his serial

petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.

This Court has previously set forth the relevant facts of this case as

follows:

On the morning of August 29, 2000[, Appellant] parked his car alongside the car of Josephine Leary, walked up five (5) steps and entered into the home of Nicole Gaskins, where she was…with Josephine Leary. [Appellant] approached the then 21 year old Ms. Gaskins, not saying a word, and shot her three times in the neck, shoulder, and chin. [Appellant] pursued Ms. Leary as she ran to her car, and fired several shots, shattering her [drivers’] side window and left several bullet holes in the side of her car and the trunk. Unknown ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546. J-S40020-20

to these victims, not more than one half (1/2) hour before, [Appellant] had entered into a distribution warehouse, inquired about a job, and upon exiting the office, stopped and fired a bullet into the chest of Joseph Connell. [Appellant] then continued shooting at the employees at the warehouse, approached Randy Salvati and fired several shots, the first into Randy’s face, another shot hitting him in the stomach. After leaving the warehouse, [Appellant] was spotted entering a laundromat. There [Appellant] encountered Dean Lockhart who was there washing his clothes. As testified [to] at trial, [Appellant] approached Mr. Lockhart where he made a comment of “what’s up old head.” [Appellant] then pointed a gun at Mr. Lockhart and began firing hitting him eight (8) times.

Shortly after the shooting of Ms. Gaskins, and the shootings at the warehouse, Officer Morace, a Philadelphia police officer on patrol, spotted a black Ford Probe matching the description of [Appellant’s] vehicle. The Officer pulled up behind the vehicle, and signaled him to stop. [Appellant] pulled his vehicle to the curb, but once the Officer opened his door to get out of his vehicle, [Appellant] fled at a high rate of speed. [Appellant’s] vehicle was eventually brought to a halt when it was involved with a collision with another police vehicle. The Officer reached in the then shattered [drivers’] side window and grabbed [Appellant’s] arm that was then holding a 9 millimeter handgun. The vehicle was in neutral and was rolling backwards, the officer however, was able to lunge into the passenger side door and stop the vehicle by putting it into gear. [Appellant] was placed in a holding cell, where he sat naked, after apparently removing his clothes.

Commonwealth v. Dooley, No. 3323 EDA 2002, at 2 (Pa.Super. filed April

7, 2004) (unpublished memorandum).

A jury convicted Appellant guilty but mentally ill of numerous counts of

aggravated assault, attempted murder, recklessly endangering another

person, firearms not to be carried without a license, carrying firearms on

public streets in Philadelphia, and possessing instruments of crime. The court

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sentenced Appellant on August 15, 2002, to an aggregate term of 102½ to

205 years’ imprisonment. On April 7, 2004, this Court affirmed the convictions

but vacated Appellant’s aggravated assault sentences, concluding that those

sentences should have merged with Appellant’s attempted murder sentences.2

See id. Our Supreme Court denied allowance of appeal on December 29,

2004.

Between 2005 and 2013, Appellant unsuccessfully litigated two PCRA

petitions. On January 4, 2018, Appellant filed pro se the current PCRA

petition. Appellant claimed he received an e-mail on November 20, 2017,

from Donald Gaines stating that at some point prior to Appellant’s arrest, Mr.

Gaines had witnessed a woman named Mary drop “an e-pill” (or Ecstasy

tablet) into Appellant’s soda. Mr. Gaines said he had observed Mary do this

on two occasions, not long before Appellant was arrested. Mr. Gaines

admitted that he probably should have said something sooner, and was unsure

whether what Mr. Gaines observed had anything to do with Appellant’s actions

on the day of the shooting spree.

Appellant alleged that Mr. Gaines’ e-mail presented “newly-discovered

facts” to render his current PCRA petition timely. Appellant further claimed

the new facts would explain why Appellant acted in the manner he did on the

day of the shooting spree, which Appellant said was inconsistent with

____________________________________________

2 Because the trial court had imposed the aggravated assault sentences concurrently, this Court did not need to remand for resentencing.

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Appellant’s character. Appellant insisted he has always exercised due

diligence to discover a reason for why Appellant acted as he did on that day,

because Appellant has almost no recollection of the events that transpired.

Appellant also indicated that he would be filing a supplemental PCRA petition

with an affidavit from Mr. Gaines.

Appellant submitted Mr. Gaines’ sworn affidavit on February 9, 2018. In

his affidavit, signed January 19, 2018, Mr. Gaines reiterated that he observed

Mary put an Ecstasy pill into Appellant’s soda on two separate occasions. Mr.

Gaines knew the drug was Ecstasy because Mary told him so. Mr. Gaines

explained that he is one of Appellant’s closest friends and hung out with

Appellant a great deal before Appellant’s arrest. Mr. Gaines stated that he did

not see Appellant again after Appellant’s arrest and Mr. Gaines did not know

the circumstances of what transpired on the day of the shooting spree. Mr.

Gaines claimed he did not realize sooner that he had any information that

could have been helpful to Appellant’s case, and if he would have known the

information was important, he would have said something sooner.

The PCRA court subsequently appointed counsel, who filed an amended

PCRA petition on April 12, 2019. On September 23, 2019, the court issued

notice of its intent to dismiss the petition without a hearing per Pa.R.Crim.P.

907. Appellant responded on October 1, 2019. On November 25, 2019, the

court denied PCRA relief. Appellant timely filed a notice of appeal on

December 12, 2019. The court did not order, and Appellant did not file, a

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concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).

Appellant raises one issue for our review:

Could the [PCRA] court determine whether the issues raised in the PCRA petition qualify as an exception to the PCRA time limitations or whether the evidence itself could have led to a different result at trial?

(Appellant’s Brief at 8).

Appellant argues Mr. Gaines’ e-mail constitutes a newly-discovered fact

that establishes Appellant’s soda was laced with a mind-altering drug shortly

before Appellant committed his crimes. Appellant asserts this new information

explains why Appellant acted so out of character on the day in question. 3

Appellant insists this information was not available at the time of trial because

Mr. Gaines did not disclose his observations until the November 2017 e-mail.

Appellant contends he could not have discovered this information sooner with

the exercise of due diligence. Appellant suggests the newly-discovered fact

could have changed the outcome of trial. Appellant concludes he satisfied the

newly-discovered fact PCRA time-bar exception, and this Court should vacate

the order denying PCRA relief and remand for an evidentiary hearing to assess

3 We reiterate that Appellant was convicted as “guilty but mentally ill.” Although the certified record does not contain Appellant’s mental health records or the trial transcripts, the record makes clear Appellant suffered from severe mental illness. In his PCRA petitions and on appeal, Appellant attempts to explain his actions as a result of the Ecstasy pill in his drink. Appellant seems to ignore that his mental illness played any part in his shooting spree.

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Mr. Gaines’ credibility. We disagree.

As a prefatory matter, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008),

cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009).

Pennsylvania law makes clear that no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837

A.2d 1157 (2003). The PCRA requires a petition, including a second or

subsequent petition, to be filed within one year of the date the underlying

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

is 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 review.” 42 Pa.C.S.A. §

9545(b)(3).

Generally, to obtain merits review of a PCRA petition filed more than

one year after the judgment of sentence became final, the petitioner must

allege and prove at least one of the three timeliness exceptions:

(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;

(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

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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.A. § 9545(b)(1)(i)-(iii). Additionally, a PCRA petitioner must file his

petition within the relevant statutory window. See 42 Pa.C.S.A. § 9545(b)(2).

To meet the “newly-discovered facts” timeliness exception set forth in

Section 9545(b)(1)(ii), a petitioner must demonstrate “he did not know the

facts upon which he based his petition and could not have learned those facts

earlier by the exercise of due diligence.” Commonwealth v. Brown, 111

A.3d 171, 176 (Pa.Super. 2015). “The focus of the exception is on [the] newly

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

previously known facts.” Commonwealth v. Burton, 638 Pa. 687, 704, 158

A.3d 618, 629 (2017) (internal citation and quotation marks omitted). As

well, a claim based on inadmissible hearsay does not satisfy the “newly-

discovered facts” exception.4 Commonwealth v. Abu-Jamal, 596 Pa. 219,

4 The substantive claim of after-discovered evidence and the newly-discovered facts exception to the PCRA timeliness requirements are often conflated and referred to as the same theory of relief. These concepts, however, are not interchangeable and require different proofs. Under the newly-discovered facts exception to an untimely PCRA petition, a petitioner must establish “the facts upon which the claim was predicated were unknown and…could not have been ascertained by the exercise of due diligence. If the petitioner alleges and proves these two components, then the PCRA court has jurisdiction over the claim under this subsection.” Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 1272 (2007) (emphasis in original). Only if a petitioner meets the statutory jurisdictional requirements by satisfying this exception to the PCRA time-bar, can he then argue for relief on a substantive after-discovered-evidence claim, which requires the

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230, 941 A.2d 1263, 1269 (2008), cert. denied, 555 U.S. 916, 129 S.Ct. 271,

172 L.Ed.2d 201 (2008).

Instantly, Appellant’s judgment of sentence became final in March 2005,

upon expiration of the time to file a petition for writ of certiorari in the U.S.

Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13 (allowing

90 days to file petition for writ of certiorari with United States Supreme Court).

Appellant filed the current PCRA petition on January 4, 2018, which is patently

untimely. See 42 Pa.C.S.A. § 9545(b)(1).

Appellant now attempts to invoke the “newly-discovered facts”

exception to the PCRA time-bar, relying on Mr. Gaines’ e-mail and affidavit.

Nevertheless, Appellant cannot demonstrate any new facts that were unknown

and could not have been ascertained through the exercise of due diligence.

Significantly, Mr. Gaines stated that he and Appellant were very close

friends and had hung out frequently prior to Appellant’s arrest. Appellant also

claimed in his PCRA petition that he had been searching diligently for reasons

to explain his actions on the day in question. Had Appellant spent time with

Mr. Gaines shortly before the shooting spree, Appellant could have inquired of

Mr. Gaines if he had observed anything to explain Appellant’s actions,

petitioner to demonstrate: (1) the evidence has been discovered after trial and it could not have been obtained at or prior to trial through reasonable diligence; (2) the evidence is not cumulative; (3) it is not being used solely to impeach credibility; and (4) it would likely compel a different verdict. See, e.g., Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586 (2007); Commonwealth v. D’Amato, 579 Pa. 490, 856 A.2d 806 (2004).

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particularly where Appellant claims he has no recollection of the events in

question. See Brown, supra at 176 (explaining due diligence demands that

petitioner take reasonable steps to protect his own interests). See also PCRA

Court Opinion, filed February 4, 2020, at 3 (concluding: “Appellant makes no

attempt to explain why, through due diligence, he could not have discovered

this information at any time in the preceding fifteen years”).

Additionally, neither the e-mail from Mr. Gaines nor his affidavit specify

the date(s) on which Mr. Gaines allegedly observed Mary place Ecstasy in

Appellant’s drink. Further, Appellant’s claim is based on Mary’s statement to

Mr. Gaines that the pill was Ecstasy, which constitutes inadmissible hearsay

that cannot satisfy the “newly-discovered facts” exception in any event. See

Abu-Jamal, supra. Accordingly, we affirm the order dismissing Appellant’s

current PCRA petition as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/2/20

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