Com. v. Guyah, R.

• Court: Superior Court of Pennsylvania
• Decided: February 5, 2021
• Docket: 2979 EDA 2019
• Status: Unpublished

Opinion

J-S48017-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : REMIC GUYAH : : Appellant : No. 2979 EDA 2019

Appeal from the PCRA Order Entered April 26, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0200121-2006

BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.

MEMORANDUM BY KING, J.: FILED FEBRUARY 05, 2021

Appellant, Remic Guyah, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed as untimely his

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

The PCRA court has previously set forth the relevant facts of this case

as follows:

On May 25, 2005, Philadelphia Police Officer Vincent LaBrice responded to 2400 Ridge Avenue following reports of a robbery. Officer LaBrice met with [Victim], who informed police that he had just been robbed by two black males. [Victim] informed police that he had been using an ATM when he was approached by the two males, who robbed him at gunpoint of $100. Police then put out the description of the two suspects over police radio. Officer Ryan Ewald, who was on route to the scene of the robbery, saw [Appellant] on the 1700 block of Lambert Street and noticed that [Appellant] matched the description provided over the ____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546. J-S48017-20

police radio. Officer Ewald stopped [Appellant] for investigation and recovered two Ziploc bags containing crack-cocaine and $89. Officer LaBrice transported [Victim] to where [Appellant] was being held and [Victim] positively identified [Appellant] as one of the two individuals who robbed him. A witness, Estelle Roney, informed police that she had seen [Appellant] and another person throw two firearms into the bushes on the corner of 20th Street and Cecil B. Moore Avenue, where police recovered two firearms.

(PCRA Court Opinion, filed February 24, 2016, at 3) (internal citations

omitted).

Prior to the start of trial, the court instructed trial counsel to inform

Appellant of his trial date. Nevertheless, Appellant did not appear for trial.

The court found that Appellant willfully failed to appear. (See N.T. Trial,

7/6/09, at 11-12). A jury convicted Appellant, in absentia, on July 8, 2009 of

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

public streets in Philadelphia, possessing instruments of crime, and

conspiracy. On that same day, the court sentenced Appellant to an aggregate

term of thirteen (13) to twenty-six (26) years in prison. On July 13, 2009,

Appellant filed timely post-sentence motions, which the court denied on July

15, 2009. Appellant did not file a direct appeal.

On March 20, 2013, Appellant filed his first PCRA petition pro se. The

court appointed counsel, who subsequently filed a Turner/Finley2 no-merit

letter. On September 18, 2014, the court issued Pa.R.Crim.P. 907 notice of

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2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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its intent to dismiss the petition without a hearing. Following Appellant’s

response, the court dismissed Appellant’s first petition on December 12, 2014,

and granted counsel’s motion to withdraw.

Over the next several years, Appellant unsuccessfully litigated four

additional PCRA petitions, and numerous pro se motions seeking to modify or

vacate his judgment of sentence. On January 17, 2019, Appellant filed the

current pro se PCRA petition. Appellant filed an “addendum” to this petition

on February 19, 2018. On March 14, 2019, the court issued Rule 907 notice.

On March 25, 2019, Appellant filed an amended PCRA petition. The court

dismissed the current petition on April 26, 2019. On May 5, 2019, Appellant

timely filed a pro se notice of appeal. The court ordered Appellant to file a

Pa.R.A.P. 1925(b) concise statement of errors on October 24, 2019. Following

the grant of an extension, Appellant timely filed his concise statement on

November 26, 2019.

Appellant raises the following issues for our review:

Whether the PCRA court erred when it determined that Appellant’s petition did not satisfy the newly discovered fact exception?

Has Appellant satisfied the requirement for an exception to the PCRA time bar, 42 Pa.C.S.A. § 9545(b)(1)(ii), [because] the statement contained in the secure docket was unknown to Appellant under Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017)?

(Appellant’s Brief at 2).

Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

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and whether the court’s decision is free of legal error. Commonwealth v. H.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d

319 (2008). This Court grants great deference to the findings of the PCRA

court if the record contains any support for those findings. Commonwealth

v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932

A.2d 74 (2007). We give no such deference, however, to the court’s legal

conclusions. Commonwealth v. J. Ford, 44 A.3d 1190 (Pa.Super. 2012).

Further, a petitioner is not entitled to a PCRA hearing as a matter of right; the

PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact, the petitioner is not entitled to PCRA relief, and

no purpose would be served by any further proceedings. Commonwealth v.

Wah, 42 A.3d 335 (Pa.Super. 2012).

For purposes of disposition, we combine Appellant’s issues. Appellant

argues that his trial counsel abandoned him and failed to give him notice of

his trial date. Appellant asserts he received a secure docket sheet from the

court on November 20, 2018, indicating that the court had instructed counsel

in 2008 to inform Appellant of his trial date. Appellant claims counsel failed

to do so. Appellant insists he could not have discovered this “new fact” sooner

because he did not have access to the secure docket sheet.3 Appellant

3 Appellant also argues the PCRA court erroneously applied the “public record presumption” set forth in Burton, supra, because our Supreme Court recently overruled that presumption in Commonwealth v. Small, __Pa.___,

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contends he satisfied the “newly-discovered facts” exception to excuse his

facially untimely filing. Appellant concludes the court improperly dismissed

his current PCRA petition as untimely, and this Court must grant appropriate

relief. We disagree.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA petition

shall be filed within one year of the date the underlying judgment of sentence

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

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.A. §

9545(b)(3).

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

one year after the 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

238 A.3d 1267 (2020). As we do not rely on that presumption to dispose of this case, we give no further attention to Appellant’s analysis of Small.

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(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.A. § 9545(b)(1)(i)-(iii). A petitioner asserting a timeliness

exception must also file the petition within the required statutory window. 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). Due diligence demands that a PCRA

petitioner take reasonable steps to protect his own interests. Id.

Instantly, the court sentenced Appellant on July 8, 2009. The court

denied Appellant’s post-sentence motions on July 15, 2009. Appellant did not

file a notice of appeal, so his judgment of sentence became final thirty days

later, on August 14, 2009. See Pa.R.Crim.P. 720(A)(2)(a). Appellant did not

file his current PCRA petition until January 17, 2019, which is patently

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

Appellant now attempts to invoke the “newly-discovered fact” exception

to the PCRA time-bar, claiming he did not learn of the court’s instruction for

trial counsel to inform Appellant of his trial date until Appellant reviewed the

secure docket sheet in November 2018. Nevertheless, Appellant’s trial

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transcripts make clear the court had directed trial counsel to inform Appellant

of the date set for trial (see N.T. Trial at 12), and Appellant cited to this same

transcript in his memorandum of law in support of a prior PCRA petition (see

PCRA petition, filed 2/28/17). Thus, Appellant could have discovered his

proffered “newly-discovered fact” sooner, with the exercise of due diligence.

See Brown, supra. Further, Appellant does not explain why he was unable

to obtain the secure docket sheet earlier with the exercise of due diligence.

See id. See also Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa.Super.

2001) (holding that trial counsel’s failure to file direct appeal was discoverable

during appellant’s one-year window to file timely PCRA petition; “A phone call

to his attorney or the clerk of courts would have readily revealed that no

appeal had been filed”). Based upon the foregoing, Appellant’s current

petition remains time-barred. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/5/2021

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