J-S26007-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAUN MYRICK : : Appellant : No. 1884 EDA 2022
Appeal from the PCRA Order Entered January 20, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0004215-2012
BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 28, 2023
Appellant, Shaun Myrick, appeals pro se from the January 20, 2022
order entered in the Court of Common Pleas of Philadelphia County denying
his second petition for collateral relief pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant contends that the PCRA
court incorrectly concluded that the appeal was untimely filed and committed
error by rejecting both his newly-discovered facts assertion and his Brady1
claim without an evidentiary hearing. Upon review, we affirm.
In its Rule 1925(a) opinion, the PCRA court provided the factual
background of this case, incorporating the summary set forth on pages 1-5 of
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1 Brady v. Maryland, 373 U.S. 83 (1963) (holding that a due process violation occurs when the state suppresses or fails to disclose material exculpatory evidence). J-S26007-23
the trial court’s opinion filed with this Court on direct appeal. PCRA Court
Opinion, 10/11/22, at 4-5.2 For our purposes, it is sufficient to note that on
March 19, 2013, Appellant was convicted by a jury of rape, involuntary deviate
sexual intercourse, endangering the welfare of children, and corruption of
minors,3 all stemming from the sexual abuse of his daughter, D.B., beginning
when she was ten years old and ending when she was thirteen. On August 7,
2013, the trial court sentenced Appellant to an aggregate term of twenty to
forty years’ imprisonment.
On direct appeal, we affirmed Appellant’s judgment of sentence.
Commonwealth v. Myrick, No. 2367 EDA 2013, unpublished memorandum
(Pa. Super. filed April 20, 2015). Appellant did not file a petition for allowance
of appeal with our Supreme Court. Therefore, Appellant’s judgment of
sentence became final on May 20, 2015, 30 days after expiration of the time
to file a petition for allowance of appeal.
On April 20, 2016, Appellant filed a timely first PCRA petition. The PCRA
court dismissed the petition on May 11, 2018. On appeal, we affirmed the
denial of PCRA relief but vacated Appellant’s SVP status and remanded solely
2The PCRA court quoted from the January 21, 2014 opinion issued by the Philadelphia Court of Common Pleas in the case docketed at CP-51-CR- 0004215-2012.
3 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 4303(a)(1), and 6301(a)(1), respectively.
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for issuing the appropriate notice of registration obligations. Commonwealth
v. Myrick, No. 1574 EDA 2018, unpublished memorandum (Pa. Super. filed
December 12, 2019).
On July 27, 2020, Appellant filed the instant petition, his second,
asserting “after-discovered evidence” relating to a Brady violation stemming
from the Commonwealth’s alleged failure to disclose exculpatory evidence. On
March 29, 2021, he filed an amended petition, adding a claim for newly-
discovered facts relating to an affidavit from his wife, D.B.’s mother. On
January 20, 2022, the court dismissed Appellant’s petition as untimely. This
appeal, filed nearly seven months later on July 18, 2022, followed.
As a preliminary matter, we consider whether this appeal should be
quashed as untimely filed.
Pennsylvania Rule of Appellate Procedure 903(a) requires that a notice
of appeal be filed within thirty days after entry of the order from which the
appeal is taken. Here, Appellant’s July 18, 2022 notice of appeal from the
order entered January 20, 2022, is facially untimely. Consequently, we issued
an order on August 25, 2022, directing Appellant to show cause why the
appeal should not be quashed.
On September 6, 2022, Appellant responded to the rule to show cause,
contending he did not receive a copy of the January 20, 2022 dismissal order.
He represented that he did not learn that his petition was dismissed until he
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received a copy of the docket on July 11, 2022 in response to his June 27,
2022 request for a copy of his docket sheet.
Pennsylvania Rule of Criminal Procedure 114(C)(2)(c) provides that trial
court docket entries “shall contain . . . the date of service of the order or court
notice.” Further, in accordance with Pa.R.A.P. 108(a)(1), “in computing any
period of time under these rules involving the date of entry of an order by a
court . . ., the day of entry shall be the day the clerk of the court . . . mails or
delivers copies of the order to the parties.”
Here, the trial court docket entry for the January 20, 2022 order
dismissing Appellant’s PCRA petition does not conform to the requirements of
Rule 114. There is a note at the bottom of the entry that lists various parties,
including “Defense: pro se,” but there is no indication in the entry that the
order was properly served on Appellant. Further, there is only one date listed
at the top of the entry, indicating the date that the order was filed. See
Comment to Rule 114 (“Paragraph (C)(2) requires three dates to be entered
in the list of docket entries with regard to the court’s orders and notices: the
date of receipt of the order or notice; the date appearing on the order or
notice; and the date the order or notice is served”) (emphasis added); see
also Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000)
(because there was no indication on the trial court docket that the clerk
furnished a copy of the final order to appellant, this Court “assume[d] the
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period for taking an appeal was never triggered,” and the otherwise-untimely
appeal was considered timely).
Because the trial court docket entry in the instant case does not
appropriately reflect service on Appellant, we find that the appeal period did
not begin to run on January 20, 2022. Therefore, we shall allow the appeal
to proceed.4
On appeal,
[w]e review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010). This review is limited to the findings of the PCRA court and the evidence of record. Id. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. Id. This Court may affirm a PCRA court’s decision on any grounds if the record supports it. Id. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011). However, we afford no such deference to its legal conclusions. Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011); Commonwealth v. Reaves, 923 A.2d 1119, 1124 (Pa. 2007). Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010).
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
modified).
In his brief, Appellant asks this Court to consider three issues:
4This Court’s show-cause Order was discharged on September 21, 2022. Appellant was advised that the issue could be revisited by this panel.
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(I)- Whether the PCRA court committed error and abused [its] discretion when it dismissed Appellant’s claim of newly-discovered facts based on an affidavit from [D.B.’s mother], as meritless without holding an evidentiary hearing?
(II)- Whether the PCRA court committed error and abused [its] discretion when it dismissed Appellant’s claim that the Commonwealth’s failure to disclose material and impeaching evidence violated Appellant’s right to due process as set forth in Brady v. Maryland, 373 U.S. 83 (1963), as meritless without holding an evidentiary [hearing]?
(III)- Whether the instant case should be remanded back to the PCRA Court for an order and opinion, or can Appellant proceed with the opinion written in the Notice pursuant to Pa.R.Crim.P. 907?
Appellant’s Brief at 7 (some unnecessary capitalization omitted).
Although we determined that Appellant timely filed this appeal, we must
also determine whether he timely filed his second PCRA petition.5
All PCRA petitions, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final,” unless an
exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time
restrictions are jurisdictional in nature. Thus, if a PCRA petition is untimely,
neither this Court nor the [PCRA] court has jurisdiction over the
5 As the PCRA court observed, “a second or subsequent petition for post- conviction relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.” PCRA Court Rule 907 Notice, 12/6/21, at 2 (unnumbered) (quoting Commonwealth v. Szuchon, 633 A.2d 1098, 1099 (Pa. 1993) (internal quotations omitted)).
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petition. Without jurisdiction, we simply do not have the legal authority to
address the substantive claims.” Commonwealth v. (Frank) Chester, 895
A.2d 520, 522 (Pa. 2006) (internal citations and quotation marks omitted)
(overruled on other grounds by Commonwealth v. (Elwood) Small, 238
A.3d 1267 (Pa. 2020)). As timeliness is separate and distinct from the merits
of Appellant’s underlying claims, we must first determine whether this PCRA
petition was timely filed. Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa.
2008) (consideration of Brady claim separate from consideration of its
timeliness). If it is not timely, we cannot address the substantive claims raised
in the petition. Id.
As noted above, Appellant’s judgment of sentence became final on May
20, 2015, thirty days after expiration of the time to file a petition for allowance
of appeal. Therefore, his petition filed on July 27, 2020 is untimely on its face.
However, the one-year time limitation can be overcome if a petitioner (1)
alleges and proves one of the three exceptions set forth in Section
9545(b)(1)(i)-(iii) of the PCRA, and (2) files a petition raising this exception
within one year of the date the claim could have been presented. 42 Pa.C.S.A.
§ 9545(b)(2).
Here, Appellant first argues that his amended second petition satisfied
the newly-discovered facts exception to the PCRA’s timeliness requirements.
He contends he filed the request to amend his pending second PCRA petition
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on March 26, 20216 after receiving an affidavit on March 6, 2021 from D.B.’s
mother, suggesting that D.B. had recanted her accusations against Appellant.
In Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017), our Supreme Court
explained that “[t]o qualify for an exception to the time limitations [for newly-
discovered facts], a petitioner need only 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.” Id. at 629 (citations omitted). The Court
in Burton clarified:
However, where a petition is otherwise timely, to prevail on an after-discovered evidence claim for relief under subsection 9543(a)(2)(vi), a petitioner must prove that (1) the exculpatory evidence has been discovered after trial and 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.
Id. at 629 (emphasis added).
As the Commonwealth recognizes, in its Rule 907 notice, the PCRA court
explained its specific reasons for dismissing the petition. With respect to the affidavit provided by [D.B.’s mother,] the court stated that it “contains only hearsay statements alleging D.B.’s recantation. Such evidence only operates to impeach D.B.’s credibility, and does not show a prima facie likelihood to compel a different verdict.”
Commonwealth Brief at 10 (quoting Rule 907 Notice, 12/6/21, at 2
(unnumbered)).
6 The motion to amend was docketed on March 29, 2021.
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Here, in the affidavit at issue, D.B.’s mother suggests that D.B. recanted
her accusation against Appellant. As such, the affidavit, if admissible, would
be used to impeach D.B.’s credibility. Therefore, it would not enable Appellant
to prevail on a claim for relief under subsection 9543(a)(2)(vi). Consequently,
even if the affidavit of D.B.’s mother were considered a “newly-discovered
fact” so as to satisfy an exception to the PCRA’s time bar, the affidavit itself
would nevertheless be inadmissible as hearsay.
As our Supreme Court reiterated in Commonwealth v. (Eric Eugene)
Small, 189 A.3d 961 (Pa. 2018):
“[t]here is no less reliable form of proof, especially where it involves an admission of perjury.” Commonwealth v. Mosteller, 446 Pa. 83, 284 A.2d 786, 788 (1971) (citations omitted). For that reason, we have emphasized that, when addressing an after- discovered evidence claim premised on recantation testimony, “the PCRA court must, in the first instance, assess the credibility and significance of the recantation in light of the evidence as a whole.” Commonwealth v. D'Amato, 579 Pa. 490, 856 A.2d 806, 825 (2004). “Unless the [PCRA] court is satisfied that the recantation is true, it should deny a new trial.” Commonwealth v. Henry, 550 Pa. 346, 706 A.2d 313, 321 (1997) (citations omitted).
Id. at 977.
It is important to note that there is no indication on the record that D.B.
in fact recanted. To the contrary, “the Commonwealth represented to the
PCRA court that a prosecutor contacted the victim, and the victim stated that
she never told [her mother] that she lied about this matter.” Commonwealth
Brief at 17 (citing Commonwealth’s letters to the PCRA court dated 6/3/21
and 7/28/21). “Thus, the record indicated that the victim would not support
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[D.B.’s mother’s] claim that [D.B.] recanted her testimony.” Id. at 18
(emphasis in original). Therefore, even if the affidavit provided a newly-
discovered fact such that Appellant’s petition could be considered timely filed,
Appellant would not be entitled to relief. See Burton, 158 A.3d at 629 (after-
discovered evidence cannot be used solely to impeach credibility); Small, 189
A.3d at 977 (PCRA court should deny new trial unless satisfied that proffered
recantation is true) (citing Henry, 706 A.2d at 321)). Appellant’s first issue
fails.
In his second issue, Appellant asserts that the PCRA court erred and
abused its discretion by rejecting his claim that the Commonwealth’s failure
to disclose “material and impeaching evidence” constitutes a Brady violation.
Appellant contends that this claim saves his petition from dismissal as
untimely and warrants relief. Although he “checked the box” on his July 27,
2020 petition indicating that he was claiming governmental interference as
the basis for an exception to the PCRA’s time bar, he simply indicated that he
would prove his claim was late due to governmental inference by showing the
“the Commonwealth withheld this evidence from me; Brady violation.”
Second PCRA Petition, 7/27/20, at 3 ¶ 5. He then asserted that he was
pleading “after-discovered evidence surrounding a Brady violation,” that “Trial
Counsel was ineffective for failing to investigate,” and that “Trial Counsel was
ineffective for stipulating to insufficient/inadmissible evidence.” Id. at 4 ¶ 6.
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As noted above, to qualify for an exception to timeliness based on
newly-discovered facts, the petitioner must establish that facts upon which
the claim is based were unknown to him and could not have been ascertained
by the exercise of due diligence. Burton, 158 A.3d at 629. Appellant asserts
after-discovered evidence of an alleged Brady violation but does not contend
that the evidence, in the form of documents from the Department of Human
Services (“DHS”), were unknown to him or what efforts he made to ascertain
their existence. See Stokes, 959 A.2d at 310 (consideration of Brady claim
separate from consideration of its timeliness). Again, unless the petitioner
has satisfied an exception to the PCRA’s timeliness requirements, neither this
Court nor the PCRA court has authority to consider the merits, if any, of his
claim. Chester, 895 A.2d at 522.
Even if Appellant satisfied a timeliness exception, his second issue would
nevertheless fail for two reasons.
For a petitioner to succeed on an allegation of ineffectiveness of counsel,
the PCRA requires “that the allegation of error has not been previously
litigated or waived.” 42 Pa.C.S.A. § 9543. “Previously litigated” includes an
issue that “has been raised and decided in a proceeding collaterally attacking
the conviction or sentence.” 42 Pa.C.S.A. § 9544(a)(3). Here, Appellant
contends a Brady violation occurred as a result of the Commonwealth’s
“failure to disclose material and impeaching evidence” included in DHS records
admitted at trial. However, as the PCRA court recognized, Appellant presented
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a challenge with respect to the DHS records in his first PCRA petition when he
challenged trial counsel’s decision to stipulate to the DHS records, all of which
were included in Exhibit C-9 admitted at trial, with one “exception” relating to
a progress note. PCRA Court Rule 907 Notice, 12/6/21, at 2 (unnumbered)
(citing Commonwealth v. Myrick, 1574 EDA 2018, unpublished
memorandum (Pa. Super. filed December 12, 2019) (denying Appellant’s first
PCRA petition)). Therefore, the court concluded, Appellant’s challenge to the
stipulated DHS records was previously litigated and could not be relitigated in
a second PCRA petition.
Appellant’s Brady claim would fail for another reason. The progress
note “exception” addressed by the PCRA court was Appendix C—“the
Structured Progress Note dated November 15, 2011 containing notes of DHS’s
interview with maternal grandmother and [Appellant’s] other children.” PCRA
Court Rule 907 Notice, 12/6/21, at 2 (unnumbered). To the extent Appellant
claimed Appendix C constituted “newly-discovered” or exculpatory evidence,
the PCRA court observed that the progress note “contain[ed] only hearsay
statements regarding [Appellant’s] character. Such evidence does not create
a prima facie likelihood to compel a different result.” Id. (citing D’Amato,
supra, 856 A.2d at 823-24). Moreover, Appellant has not demonstrated that
the information within Appendix C is exculpatory or would impeach testimony
or evidence presented at trial. Again, the note contained “only hearsay
statements regarding [Appellant’s] character.” Id.
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As our Supreme Court has explained:
To establish a Brady violation, an appellant must prove three elements: (1) the evidence at issue is favorable to the accused, either because it is exculpatory or because it impeaches; (2) the evidence was suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice ensued. Commonwealth v. [James] Lambert, 584 Pa. 461, 884 A.2d 848, 854 (2005). We stress that the burden rests with the appellant to “prove, by reference to the record, that evidence was withheld or suppressed by the prosecution.” Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890, 898 (Pa. 1999). The evidence at issue must have been “material evidence that deprived the defendant of a fair trial.” Commonwealth v. Johnson, 572 Pa. 283, 815 A.2d 563, 573 (2002).
Commonwealth v. Spotz, 47 A.3d 63, 84 (Pa. 2012). Further:
As to Brady claims advanced under the PCRA, a defendant must demonstrate that the alleged Brady violation “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” See Commonwealth v. Copenhefer, 553 Pa. 285, 719 A.2d 242, 259 (1998). . . . [T]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109–110, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).
Commonwealth v. Ly, 980 A.2d 61, 76 (Pa. 2009)).
In Commonwealth v. (Lisa Michelle) Lambert, 765 A.2d 306 (Pa.
Super. 2000), this Court reiterated that materiality of suppressed evidence is
one of the necessary prongs to establish a Brady claim and indicated that
“[e]vidence is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would
have been different.” Id. at 326.
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Here, the PCRA court noted that all DHS records appendices “were
indeed available at trial. While Appendix C is not clearly referenced at trial, it
does not create a prima facie showing that there is a reasonable probability
the verdict would have been different[.]” PCRA Court Rule 907 Notice,
12/6/21, at 2 (unnumbered).
Appellant has not satisfied the requirements necessary to establish a
Brady claim as outlined in Spotz ad Ly, supra, nor has he established
materiality of the evidence as explained in Lambert. Appellant is not entitled
to any relief based on a Brady claim. Appellant’s second issue fails.
In addition to the substantive matters raised in Appellant’s first and
second issues, he also argues that the PCRA court erred when it dismissed
Appellant’s petition without holding an evidentiary hearing. “Pursuant to
[Pa.R.Crim.P. 908(A)(2)], a PCRA court must hold a hearing when a PCRA
petition raises any issues of material fact.” Commonwealth v. Marshall,
947 A.2d 714, 723 (Pa. 2008) (citing Commonwealth v. Santiago, 855 A.2d
682, 691 (Pa. 2004)). Here, Appellant has failed to present any issues of
material fact. Further, “[a] PCRA court may deny a petition without a hearing
if, following a review of the petition, it determines a hearing would serve no
purpose.” Commonwealth v. Bryant, 855 A.2d 726, 751 (Pa. 2004).
Because we have concluded that neither of Appellant’s first two issues—to the
extent not time-barred—raises any issue of material fact and, further, because
a hearing would serve no purpose, we also conclude that the PCRA court did
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not err when it dismissed Appellant’s petition without an evidentiary hearing.
See Marshall, 947 A.2d at 723.
In its October 11, 2022 memorandum opinion, the PCRA court concluded
that Appellant filed an untimely appeal and, therefore, the appeal should be
quashed. PCRA Court Opinion, 10/11/22/, at 6-8. In light of its disposition,
the court did not separately address in that opinion Appellant’s newly-
discovered facts or Brady assertions addressed above, other than to state
that his claims were “untimely and without merit.” Id. at 8. Appellant
questions whether the case should be remanded for an order and opinion
addressing those issues. We find a remand unnecessary. Although the court
did not discuss the merits of Appellant’s claims in is October 11, 2022 opinion,
it did address them in the December 7, 2021 Rule 907 Notice quoted and
referenced above. We find the court’s discussion and disposition of the issues
in the Rule 907 notice sufficient for purposes of our review. Therefore, a
remand is not necessary.
While the PCRA court found Appellant’s appeal untimely and asserted
we should affirm on that basis, we decline to do so, having found that the
order appealed from was not properly served on Appellant. Nevertheless, for
the reasons set forth in the PCRA court’s December 7, 2021 Rule 907 and for
the reasons stated above, we do affirm the dismissal of Appellant’s PCRA
petition, cognizant that we may affirm on any basis. See, e.g.,
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Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018);
Commonwealth v. Doty, 48 A.3d 451, 456 (Pa. Super. 2017).
Order affirmed.
Date: 12/28/2023
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