J-S36044-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TERRANCE FOWLER : : Appellant : No. 170 WDA 2020
Appeal from the Order Entered January 14, 2020 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002536-2010
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 08, 2020
Terrance Fowler (Fowler) appeals from the order of the Court of
Common Pleas of Erie County (PCRA court) denying his third petition for relief
filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546, as untimely. We affirm.
I.
Fowler was tried by a jury for his role in a July 7, 2010 jewelry store
robbery. The store owner testified that two masked men with guns entered
the store and demanded that he open the safe. When he refused, one of the
men shot him. The two men then took several silver certificates and fled. The
store owner ultimately survived.
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* Retired Senior Judge assigned to the Superior Court. J-S36044-20
Because the store owner could not identify the masked robbers, the
Commonwealth’s case depended on a witness who lived near the jewelry
store. He testified that he saw Fowler and another man park a car near his
house then walk toward the store. They came back ten minutes later and
drove away but soon returned and walked back toward the store. Growing
suspicious, the witness wrote down the car’s license plate number. About 15
minutes later, Fowler and the other man ran back to the car and drove away.
The police traced the car to Fowler’s home and spoke to him. He told the
police that he had been in control of the car all day. The police later discovered
one of the stolen silver certificates where Fowler had parked his car near the
jewelry store.
The jury convicted Fowler of attempted murder, aggravated assault,
conspiracy to commit robbery and possessing instruments of crime. He was
sentenced to an aggregate term of 27½ to 55 years’ imprisonment and we
affirmed the judgment of sentence on direct appeal. Commonwealth v.
Fowler, 53 A.3d 923 (Pa. Super. 2012) (unpublished memorandum). In April
2013, Fowler filed his first PCRA petition. The PCRA court denied the petition
and we affirmed. Commonwealth v. Fowler, 100 A.3d 294 (Pa. Super.
2014) (unpublished memorandum). After an unsuccessful habeas petition in
federal court, Fowler filed a second PCRA petition in March 2018 that was
denied as untimely; we again affirmed on appeal. Commonwealth v.
Fowler, No. 1162 WDA 2018 (Pa. Super. 2019).
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On September 11, 2019, Fowler filed his third PCRA petition to assert
an after-discovered evidence claim under 42 Pa.C.S. § 9543(a)(2)(vi).
Fowler’s source for the alleged evidence was Todd Powers (Powers), an
insurance agent whose office was near the jewelry store and was interviewed
by the police after the robbery. According to a July 9, 2010 police report,
which Fowler attached to his petition, Powers spoke to one of the investigating
detectives and gave the following information:
[Powers] stated that he saw something unusual in that he was looking out of his office window. Shortly after 1100 hours he saw two dark skinned males walking at the rear of the property owned by the Rogers family at 4531 Harding. He believed that they were black males and that they were dressed in urban style clothing. He said that it was unusual because he had never seen anyone walking in that area. He said that one was wearing large baggy trousers and the other had on baggy shorts. He said that they were about 100 yards from him so he did not see any facial features. He watched them walk for about 40 yards. He believed that they had [bluish] tone colors on one shirt and it had a horizontal stripe on it. Also the one had a hoodie or some dark colored headgear covering his head which was unusual for the hot day that it was. Temperatures hit 90 degrees with high humidity. Powers put their ages at 25 to 35.
Fowler claimed that Powers was now recanting his prior statement that
he could not see any facial features of the individual but could affirmatively
state that Fowler was not one of the men that he saw on the day of the
robbery. In support, Fowler attached an August 13, 2019 affidavit from his
sister, Sharanda Fowler, which read, in relevant part:
On the behalf of my brother Terrance Fowler, I reached out to Mr. Todd Powers on several occasions to ask him about what he told the police on the day of the Alex Cher Jewelry Store robbery that happened on July 7, 2010, and finally Mr. Powers agreed to meet
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up with me. On September 27, 2018, Mr. Powers and myself met up at his place of employment located at Todd Powers Insurance at 4532 Peach Street, Erie, Pa. Mr. Powers was kind enough to look at a picture of my brother. Mr. Powers stated that my brother was not one of the guys that he had seen on July 7, 2010, in the of the [sic] jewelry store during the time of the robbery. I asked him would be willing to sign the back of the picture of my brother stating that he wasn’t one of the persons who he saw on the day of the robbery. Mr. Powers then signed it, then I asked Mr. Powers why [he] didn’t testify at the time of trial, he stated that he did not want to get involved. I thanked him for his time and I left his office.
Acknowledging that his petition was untimely, Fowler attempted to
invoke the newly-discovered facts exception to the PCRA’s one-year time bar.
Under that exception, a petitioner must prove that “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(a)(2)(ii).
Fowler contended that the new evidence was unknown to him and could not
have been learned through due diligence because of Powers’ reluctance “to
get involved.” The Commonwealth countered that Fowler did not act with due
diligence in learning of the new facts, pointing out that he was aware of Powers
being a potential witness before trial based on the July 7, 2010 report
containing his statement to the police.
On December 20, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice
of its intent to dismiss the petition without a hearing, stating that Fowler failed
to exercise due diligence in questioning Powers. The court noted that Fowler
had access to the 2010 police report, that Powers’ office has been at the same
location since that time, and that there was no evidence that Powers ever
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made himself unavailable to cooperate or even testify at trial. Fowler
responded that he acted with due diligence because he had no way of knowing
that Powers would attest that Fowler was not one of the men that he observed
on the day of the robbery. In the alternative, he moved for leave to amend
his petition to clarify that Powers’ proposed testimony would include that “he
did not make himself available at the time of trial because he did not want to
get involved.”
On January 14, 2020, the PCRA court issued an order denying both the
petition and the motion for leave to amend. Fowler timely appealed and now
raises two issues for our review:
I. Did the PCRA court’s dismissal of the PCRA petition contravene this Court’s decision in Commonwealth v. Derrickson, 923 A.2d 466 (Pa. 2007) where Appellant sought leave to amend his petition to establish the newly-discovered facts exceptions that the facts could not have been ascertained through the exercise of due diligence?
II. Did Appellant plead and prove the newly-discovered facts exception giving the PCRA court jurisdiction to address the merits of issue?
Fowler’s Brief at 5 (cleaned up).1
1 Our standard of review is well settled: “[w]hen reviewing the denial of a PCRA petition, we must determine whether the PCRA court’s order is supported by the record and free of legal error.” Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa. Super. 2018) (citation omitted). A PCRA court’s decision to deny a request for an evidentiary hearing will not be overturned absent an abuse of discretion. Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).
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II.
A.
We first address the timeliness of the petition. “Under the PCRA, any
petition for relief, including second and subsequent petitions, must be filed
within one year of the date on which the judgment of sentence becomes final.”
Commonwealth v. Greco, 203 A.3d 1120, 1123 (Pa. Super. 2019) (citation
omitted). The PCRA’s time limit is mandatory and jurisdictional in nature and
may not be ignored in order to reach the merits of the petition. Id. at 1124
(citation omitted). Courts may consider a PCRA petition filed more than one
year after a judgment of sentence becomes final only if the petitioner pleads
and proves one of the three statutory exceptions listed under 42 Pa.C.S.
§ 9545(b)(1)(i)-(iii). Any petitioner seeking to invoke one of these exceptions
must file their petition “within one year of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).2
Conceding that his petition was filed more than a year after his judgment
of sentence became final, Fowler nonetheless contends that his petition is
2 Under the former version of 42 Pa.C.S. § 9545(b)(2), any petition invoking a timeliness exception was required to be filed within 60 days of the date the claim could have been raised. However, effective December 24, 2018, Subsection 9545(b)(2) was amended to expand the time for invoking a timeliness exception from 60 days to one year. The amendment applies to claims arising on December 24, 2017, or thereafter. See Act of Oct. 24, 2018, P.L. 894, No. 146, § 3. Because both the claim arose and the petition was filed after December 24, 2017, Fowler is not precluded from attempting to invoke the newly-discovered facts exception under 42 Pa.C.S. § 9545(b)(2)(ii).
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timely under the newly-discovered facts exception under 42 Pa.C.S.
§ 9545(b)(1)(ii). The newly-discovered facts exception has two components,
both of which must be pled and proven as an initial jurisdictional threshold.
Specifically, the petitioner must demonstrate that: “(1) the facts upon which
the claim was predicated were unknown; and (2) they could not have been
ascertained by the exercise of due diligence.” Commonwealth v. Diggs,
220 A.3d 1112, 1117 (Pa. Super. 2019) (citation omitted). “Due diligence
demands that the petitioner take reasonable steps to protect his own interests
and explain why he could not have learned the new facts earlier with the
exercise of due diligence.” Id. (citation omitted).
However, the exception does not require “perfect vigilance nor
punctilious care, but rather it requires reasonable efforts by a petitioner, based
on the particular circumstances to uncover facts that may support a claim for
collateral relief.” Commonwealth v. Brensinger, 218 A.3d 440, 449 (Pa.
Super. 2019) (citation omitted). This being the case, “the due diligence
inquiry is fact-sensitive and dependent upon the circumstances presented.”
Id. (citation omitted). “A petitioner must explain why he could not have
obtained the new fact(s) earlier with the exercise of due diligence.” Id.
(citation omitted).
Addressing the first component of the newly-discovered facts exception,
the PCRA court stated, “it can be concluded that [Powers] changed his earlier
statement and was now able to say that Fowler wasn’t one of the males he
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saw on July 7, 2010.” Rule 907 Notice, 12/20/19, at 3-4. Because this
information would have been unknown to Fowler, the PCRA court correctly
found that the first component was satisfied.
Turning to the second component, we agree with the PCRA court that
Fowler failed to exercise due diligence. First, Fowler would have been aware
of Powers being a potential eyewitness even before the trial. Powers was
interviewed soon after the robbery and his statement was included in the
police report, which was dated two days after the robbery (July 9, 2010).
Fowler does not allege that the Commonwealth failed to provide the report in
discovery before or at the time of his trial. Without any evidence to the
contrary, it can be inferred that, at the very least, Fowler knew that Powers
saw the two robbers and was an eyewitness with potentially exculpatory
information.
In such cases, we have been unwilling to grant relief where the alleged
newly-discovered facts come from a source that was previously known to the
petitioner at the time of trial but was simply left unexamined. See
Commonwealth v. Brown, 111 A.3d 171, 178 (Pa. Super. 2015) (finding
petitioner failed to prove that he acted with due diligence in learning a witness
omitted crucial details about shooting from his testimony, when petitioner
knew witness was at the scene and “would have had reason to believe” the
witness heard the victim curse at the defendant and reach toward his
waistband before defendant fired shots; “[n]otably, [petitioner] makes no
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claim that he attempted to contact [the witness] at any point since trial to
determine whether [he] had additional information regarding the day of the
shooting.”). In this case, Fowler knew that Powers saw the two robbers but
failed to follow up on his statement to the police to confirm whether he could
exclude Fowler as being one of the two men. The fact that Fowler’s prior
attorneys failed to investigate Powers’ statement is irrelevant; the burden
ultimately falls on the petitioner to exercise due diligence in ascertaining the
new facts.
Additionally, we fail to see how Powers’ general statement that he did
not want to get involved relieved Fowler of having to act with due diligence to
discover what Powers saw. The stated reluctance of a witness to get involved
is not tantamount to an absolute refusal to cooperate or even testify at a
subsequent proceeding. Indeed, the police report gives no indication that
Powers was unwilling to cooperate or testify, nor has Fowler alleged any facts
that Powers took any actions to make himself unavailable to be located and
called as a witness at trial. Further, as the PCRA court observed, Fowler’s
sister met with Powers in September 2018 at the very same office near the
jewelry store that is listed in the police report, indicating that he has likely not
moved in the ensuing years after the robbery. Accordingly, Powers’
disinclination to get involved does not explain why Fowler did not discover this
purported new evidence until over seven years had passed since the trial.
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Finally, we cannot agree that Fowler had no reason to follow up with
Powers and learn whether there had been any change in his 2010 statement.
Fowler cites four cases for this proposition. These cases bear some discussion,
particularly Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super. 2014) (en
banc), an oft-cited case by petitioners seeking to invoke the newly-discovered
facts exception.
In Medina, the petitioner was convicted of first-degree murder in 1992
based on the testimony of a 12-year-old eyewitness who claimed that he saw
the petitioner stab the victim. The eyewitness’s younger brother also testified
at the trial, claiming that he saw petitioner with a knife and say that he
intended to kill someone that night. Id. at 1213. In 2016, the younger
brother, now an adult, was transferred to the same prison as the petitioner
and revealed that a police detective coerced both him and his brother to
commit perjury. Id. at 1216. After learning this, the petitioner filed a petition
with affidavits from the two brothers recanting their testimony. Because the
petition was facially untimely, the petitioner relied on the newly-discovered
facts exception to the PCRA time bar. The PCRA court agreed and ordered a
new trial. In so doing, the court found that the petitioner could not have
learned about the coerced testimony any earlier because there was no
evidence that the younger brother had ever previously disclosed the
information or that the Commonwealth knew about the detective’s coercion of
the two brothers. Id. at 1217.
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On appeal, an en banc majority of this Court agreed that the petitioner
could not have learned about the coerced testimony any earlier. Importantly,
we noted that the younger brother testified “consistently and unequivocally”
at the trial. Id. at 1217. As a result, it was unlikely that defense counsel,
without any supporting basis, would have been able to compel the younger
brother to change his testimony during cross-examination without any
supporting factual basis to show why he was lying. Id.
This situation differs from that in Medina where the two witnesses gave
unequivocal inculpatory testimony at a trial, but then later recanted their trial
testimony and revealed that they were coerced to lie. Here, Powers did not
inculpate Fowler in his 2010 statement to the police; instead, he merely said
that he could not see the two men’s facial features. We cannot know whether
Powers would have excluded Fowler in 2010 or the ensuring years because no
one ever followed up on his statement. If Powers at the time had said that he
could not exclude Fowler as being one of the two men he saw but then later
recanted and said he could exclude him, then Fowler would have a colorable
argument that he could not have learned about the new evidence through due
diligence. However, that is not what occurred here.
Moreover, in Medina, the petitioner did not learn about the coerced
testimony until the younger brother volunteered the information. In contrast,
Fowler learned of the new evidence through his own efforts by having his
sister finally follow up with Powers to see if he could exclude Fowler. As we
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discussed above, Fowler gives no explanation as to why he did not discover
this information until 2018, and Powers’ statement that he did not want to get
involved is insufficient to prove that he could not have.
The same holds true for the other cases Fowler relies on, all of which
are cited in Medina. See Commonwealth v. McCracken, 659 A.2d 541,
545 (Pa. 1995) (petitioner granted new trial after key eyewitness contacted
trial counsel to recant his trial testimony); Commonwealth v. Cobbs, 759
A.2d 932, 934 (Pa. Super. 2000) (new trial granted after two police officers
identified the petitioner at trial but testified at later civil depositions that they
could not identify the petitioner); Commonwealth v. Loner, 836 A.2d 125,
137, n.5 (Pa. Super. 2003) (en banc) (rejecting Commonwealth argument that
the victim’s recantation was not after-discovered evidence because the
petitioner would have known before trial that she was not telling the truth).
In each instance, the recanting witness unequivocally inculpated the petitioner
at the trial, but later came forward to recant testimony. Here, Fowler waited
over seven years to follow up and investigate a potential eyewitness that he
had known about since before trial.
Accordingly, the PCRA court correctly found that Fowler did not
sufficiently plead and prove that he exercised due diligence and, thus, his
petition was not timely under the newly-discovered facts exception to the
PCRA jurisdictional time bar.
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B.
We turn next to whether Fowler should have been granted leave to
amend his petition after the PCRA court issued its Rule 907 notice on
December 20, 2019. Rule of Criminal Procedure 905 governs the amendment
of petitions for collateral relief. In relevant part, the Rule provides that the
PCRA court “may grant leave to amend ... a petition for post-conviction
collateral relief at any time” and that “amendment shall be freely allowed to
achieve substantial justice.” Pa.R.Crim.P. 905(A).
While the standard for amendment is a liberal one, we find that the trial
court did not err in denying Fowler leave to amend. Fowler’s proposed
amendment was substantively identical to his original pleading. Specifically,
Fowler sought leave to amend his petition to clarify that Powers “did not make
himself available at the time of trial because he did not want to get involved.”
(emphasis added). Regardless of whether the phrase “at the time of trial”
were added, Fowler was still merely alleging that Powers simply did not want
to get involved. As explained above, a witness’s desire to not get involved is
not the same as making oneself unavailable at the time of trial. Because the
proposed amendment did not allege any new facts showing that Powers was
not willing to cooperate as a witness or testify, there was no need for the PCRA
court to grant Fowler leave to amend his petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/8/2020
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