J-S06020-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : REGINALD LEWIS : : Appellant : No. 960 EDA 2023
Appeal from the PCRA Order Entered March 14, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1113611-1983
BEFORE: DUBOW, J., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 4, 2024
Reginald Lewis appeals from the order dismissing as untimely his
petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§
9541-46. He argues he satisfied the newly-discovered fact exception to the
PCRA’s time bar. We affirm.
In 1993, a jury found Lewis guilty of third-degree murder and
possessing an instrument of crime (“PIC”).1 18 Pa.C.S.A. §§ 2502(c) and
907(a). The trial court sentenced Lewis to life imprisonment for the third-
degree murder conviction and a consecutive term of one to two years’
____________________________________________
1 Lewis had been convicted of first-degree murder and PIC in 1986. He appealed and the Pennsylvania Supreme Court concluded the trial court erred when it did not include a “no-adverse-inference” charge in its jury instructions. Commonwealth v. Lewis, 598 A.2d 975, 978-80 (Pa. 1991). The court vacated and remanded for a new trial. J-S06020-24
imprisonment for the PIC conviction.2 This Court affirmed the judgment of
sentence in May 1995, and the Pennsylvania Supreme Court denied allowance
of appeal in September 1995. In 1997, Lewis filed a PCRA petition, which was
dismissed as meritless.
In 2012, Lewis filed the instant PCRA petition. He alleged, among other
claims, that trial counsel was ineffective for not investigating and calling
several eyewitnesses. He filed a supplemental petition in April 2013, and
attached five affidavits. In two of the affidavits, which were dated July 2007,
the affiants stated that Lewis had acted in self-defense. Affidavit of Alfred
Massey, dated July 5, 2007; Affidavit of James Dietrick, dated July 2007. In
the other three affidavits, dated March 2013, the affiants named another
prisoner as the person who stabbed the victim. Affidavit of Franklin Lee, dated
Mar. 25, 2013, at ¶ 7; Affidavit of Kevin Isaac, dated Mar. 25, 2013, at ¶ 6;
Affidavit of Norman Parker, dated Mar. 25, 2013, at ¶ 6. Two affiants stated
they were listed as defense witnesses and present at the trial, but Lewis’s
counsel did not interview either of them. Affidavit of Isaac at ¶ 12; Affidavit
of Parker at ¶ 9; see also PCRA petition at Exh. I, Letter from Trial Counsel
to Trial Court dated Nov. 2, 1993 (listing defense witnesses).
Lewis also included an affidavit from his trial counsel, dated July 2007,
stating that counsel received a handful of statements from his investigator in ____________________________________________
2 The certified record contains sentencing documents from 2012, where the
court removed the death penalty and sentenced Lewis to life imprisonment without parole. Although the sentencing documents contained the docket number for this case, they related to a conviction at a separate docket.
-2- J-S06020-24
the matter. Trial counsel also stated that, pursuant to a discovery request, he
received interview packets during a break in the trial, but the interviews
indicated the individuals had not seen the altercation. Affidavit of Joseph P.
Capone at ¶ 5. He further stated that he had interviewed prisoner-witnesses
whom he had been aware of through either discovery or Lewis, but advised
Lewis not to call them. Id. at ¶ 6.
In November 2014, Lewis filed another supplement to the PCRA petition
that included another affidavit. The affiant alleged another individual had
stabbed the victim and that the affiant had been listed as a defense witness
for the trial but the attorney did not interview him. Affidavit of Cornell Green,
dated Oct. 16, 2014, at ¶¶ 5, 9.
The court issued notice of its intent to dismiss the petition without a
hearing and, in April 2023, it dismissed the petition as untimely. Lewis filed a
timely appeal.
Lewis raises the following issue:
A. The PCRA Court Erred And Abused Its Discretion When It Dismissed This Unrepresented Pro Se Petitioner’s Second PCRA Petition As Untimely And For Failing To Plead And Prove An Exception To The PCRA’s Time-Bar Under 42 PA. C.S.A. §§ 9545 ( b)(1)(i-iii), After Blatantly Ignoring And Disregarding The Sworn Affidavits Of Kevin Isaac, Norman Parker, Franklin Lee, And Cornell Green, Eyewitnesses Whose Testimony Could Have Exonerated This Petitioner, As The Newly-Discovered Facts In The Affidavits Were Submitted Well Before The Prior Statutory Sixty Day Deadline In Effect At The Time And Well Before The Act Of 2018-146, Or The Amendment to 42 Pa. C.S. §§ 9545(b)(2).
-3- J-S06020-24
Lewis’s Br. at 1.3
Lewis claims the PCRA court “distorts, misrepresents and
mischaracterizes the significance of the after-discovered facts by merely
targeting and pointing out to the Court only two of the affiants by names to
the seemingly purposeful exclusion of several other eyewitnesses to the
offense in question.” Lewis’s Br. at 2-3 (emphasis omitted). He states the
court relied on the two affidavits dated in 2007. He states that the 2007
affidavits were the only ones included in a prior petition for writ of habeas
corpus filed in the federal court. He claims he did not attach these as
supporting the newly-discovered fact exception to the PCRA time bar. He
maintains the other affidavits naming another individual as the murderer were
filed within 60 days of his learning of the evidence.
Our standard of review for the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by evidence
of record and whether it is free of legal error.” Commonwealth v. Jordan,
182 A.3d 1046, 1049 (Pa.Super. 2018).
A petitioner has one year from the date his judgment of sentence
becomes final, to file a first or subsequent PCRA petition. See 42 Pa.C.S.A. §
9545(b)(1). “[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 ____________________________________________
3 Lewis did not include a statement of issues presented, but listed this issue
as the heading of his argument section of the brief.
-4- J-S06020-24
the review.” 42 Pa.C.S.A. § 9545(b)(3); Commonwealth v. Staton, 184
A.3d 949, 954 (Pa. 2018).
After the one-year deadline, the petitioner must plead and prove one of
the time-bar exceptions. These exceptions include: (1) the failure to raise the
claim previously was due to governmental interference; (2) the facts of the
claim were unknown to the petitioner and could not have been ascertained by
due diligence; or (3) a newly recognized constitutional right that the United
States Supreme Court or Pennsylvania Supreme Court has held to apply
retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). For claims arising before
December 24, 2017, a petitioner must raise a time-bar exception within 60
days from the time the claim could first have been raised.
Free access — add to your briefcase to read the full text and ask questions with AI
J-S06020-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : REGINALD LEWIS : : Appellant : No. 960 EDA 2023
Appeal from the PCRA Order Entered March 14, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1113611-1983
BEFORE: DUBOW, J., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 4, 2024
Reginald Lewis appeals from the order dismissing as untimely his
petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§
9541-46. He argues he satisfied the newly-discovered fact exception to the
PCRA’s time bar. We affirm.
In 1993, a jury found Lewis guilty of third-degree murder and
possessing an instrument of crime (“PIC”).1 18 Pa.C.S.A. §§ 2502(c) and
907(a). The trial court sentenced Lewis to life imprisonment for the third-
degree murder conviction and a consecutive term of one to two years’
____________________________________________
1 Lewis had been convicted of first-degree murder and PIC in 1986. He appealed and the Pennsylvania Supreme Court concluded the trial court erred when it did not include a “no-adverse-inference” charge in its jury instructions. Commonwealth v. Lewis, 598 A.2d 975, 978-80 (Pa. 1991). The court vacated and remanded for a new trial. J-S06020-24
imprisonment for the PIC conviction.2 This Court affirmed the judgment of
sentence in May 1995, and the Pennsylvania Supreme Court denied allowance
of appeal in September 1995. In 1997, Lewis filed a PCRA petition, which was
dismissed as meritless.
In 2012, Lewis filed the instant PCRA petition. He alleged, among other
claims, that trial counsel was ineffective for not investigating and calling
several eyewitnesses. He filed a supplemental petition in April 2013, and
attached five affidavits. In two of the affidavits, which were dated July 2007,
the affiants stated that Lewis had acted in self-defense. Affidavit of Alfred
Massey, dated July 5, 2007; Affidavit of James Dietrick, dated July 2007. In
the other three affidavits, dated March 2013, the affiants named another
prisoner as the person who stabbed the victim. Affidavit of Franklin Lee, dated
Mar. 25, 2013, at ¶ 7; Affidavit of Kevin Isaac, dated Mar. 25, 2013, at ¶ 6;
Affidavit of Norman Parker, dated Mar. 25, 2013, at ¶ 6. Two affiants stated
they were listed as defense witnesses and present at the trial, but Lewis’s
counsel did not interview either of them. Affidavit of Isaac at ¶ 12; Affidavit
of Parker at ¶ 9; see also PCRA petition at Exh. I, Letter from Trial Counsel
to Trial Court dated Nov. 2, 1993 (listing defense witnesses).
Lewis also included an affidavit from his trial counsel, dated July 2007,
stating that counsel received a handful of statements from his investigator in ____________________________________________
2 The certified record contains sentencing documents from 2012, where the
court removed the death penalty and sentenced Lewis to life imprisonment without parole. Although the sentencing documents contained the docket number for this case, they related to a conviction at a separate docket.
-2- J-S06020-24
the matter. Trial counsel also stated that, pursuant to a discovery request, he
received interview packets during a break in the trial, but the interviews
indicated the individuals had not seen the altercation. Affidavit of Joseph P.
Capone at ¶ 5. He further stated that he had interviewed prisoner-witnesses
whom he had been aware of through either discovery or Lewis, but advised
Lewis not to call them. Id. at ¶ 6.
In November 2014, Lewis filed another supplement to the PCRA petition
that included another affidavit. The affiant alleged another individual had
stabbed the victim and that the affiant had been listed as a defense witness
for the trial but the attorney did not interview him. Affidavit of Cornell Green,
dated Oct. 16, 2014, at ¶¶ 5, 9.
The court issued notice of its intent to dismiss the petition without a
hearing and, in April 2023, it dismissed the petition as untimely. Lewis filed a
timely appeal.
Lewis raises the following issue:
A. The PCRA Court Erred And Abused Its Discretion When It Dismissed This Unrepresented Pro Se Petitioner’s Second PCRA Petition As Untimely And For Failing To Plead And Prove An Exception To The PCRA’s Time-Bar Under 42 PA. C.S.A. §§ 9545 ( b)(1)(i-iii), After Blatantly Ignoring And Disregarding The Sworn Affidavits Of Kevin Isaac, Norman Parker, Franklin Lee, And Cornell Green, Eyewitnesses Whose Testimony Could Have Exonerated This Petitioner, As The Newly-Discovered Facts In The Affidavits Were Submitted Well Before The Prior Statutory Sixty Day Deadline In Effect At The Time And Well Before The Act Of 2018-146, Or The Amendment to 42 Pa. C.S. §§ 9545(b)(2).
-3- J-S06020-24
Lewis’s Br. at 1.3
Lewis claims the PCRA court “distorts, misrepresents and
mischaracterizes the significance of the after-discovered facts by merely
targeting and pointing out to the Court only two of the affiants by names to
the seemingly purposeful exclusion of several other eyewitnesses to the
offense in question.” Lewis’s Br. at 2-3 (emphasis omitted). He states the
court relied on the two affidavits dated in 2007. He states that the 2007
affidavits were the only ones included in a prior petition for writ of habeas
corpus filed in the federal court. He claims he did not attach these as
supporting the newly-discovered fact exception to the PCRA time bar. He
maintains the other affidavits naming another individual as the murderer were
filed within 60 days of his learning of the evidence.
Our standard of review for the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by evidence
of record and whether it is free of legal error.” Commonwealth v. Jordan,
182 A.3d 1046, 1049 (Pa.Super. 2018).
A petitioner has one year from the date his judgment of sentence
becomes final, to file a first or subsequent PCRA petition. See 42 Pa.C.S.A. §
9545(b)(1). “[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 ____________________________________________
3 Lewis did not include a statement of issues presented, but listed this issue
as the heading of his argument section of the brief.
-4- J-S06020-24
the review.” 42 Pa.C.S.A. § 9545(b)(3); Commonwealth v. Staton, 184
A.3d 949, 954 (Pa. 2018).
After the one-year deadline, the petitioner must plead and prove one of
the time-bar exceptions. These exceptions include: (1) the failure to raise the
claim previously was due to governmental interference; (2) the facts of the
claim were unknown to the petitioner and could not have been ascertained by
due diligence; or (3) a newly recognized constitutional right that the United
States Supreme Court or Pennsylvania Supreme Court has held to apply
retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). For claims arising before
December 24, 2017, a petitioner must raise a time-bar exception within 60
days from the time the claim could first have been raised. See
Commonwealth v. Kretchmar, 189 A.3d 459, 462 (Pa.Super. 2018) (citing
42 Pa.C.S.A. § 9545(b)(2)). In 2018, the general assembly amended the
statute to provide that a person had to file the petition within one year of
learning of the basis of the time bar exception for claims arising on or after
December 24, 2017. 42 Pa.C.S.A. § 9545(b)(2); Act of Oct. 24, 2018, P.L.
894, No. 146, sec. 3.
Here, Lewis’s judgment of sentence became final in 1995, 90 days after
the Pennsylvania Supreme Court denied his petition for allowance of appeal.
U.S. S. Ct. Rule 13(1). Therefore, his PCRA petition, filed in 2012, is untimely.
Lewis alleges that he satisfied the newly-discovered fact exception to the PCRA
time bar.
-5- J-S06020-24
To qualify for the newly-discovered fact exception to the PCRA’s time
bar, a petitioner must 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).
Lewis failed to plead and prove the newly-discovered fact time bar
exception, as he failed to prove he acted diligently. Lewis relies on the 2013
affidavits asserting another individual stabbed the victim to support the time
bar exception. However, three of the affiants in the 2013 and 2014 affidavits
state that the affiants were present at Lewis’s trial. Lewis claims trial counsel
was ineffective in failing to interview or call the witnesses. However, he fails
to explain why he did not learn until 2013 or 2014 what their testimony would
have been. He thus fails to establish the facts could not have been ascertained
by the exercise of due diligence. Further, to the extent he relies on the
affidavits dated in 2007, which purported to support a claim of self-defense,
he did not file the PCRA petition within one year – let alone 60 days – of their
discovery.
Order affirmed.
Date: 6/4/2024
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