Com. v. Thomas, M.

• Court: Superior Court of Pennsylvania
• Decided: May 16, 2024
• Docket: 2555 EDA 2022
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARQUIS THOMAS : : Appellant : No. 2555 EDA 2022

Appeal from the PCRA Order Entered September 28, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001721-2011

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.: FILED MAY 16, 2024

Appellant Marquis Thomas seeks review of the Order dismissing as

untimely his request for relief under the Post Conviction Relief Act (“PCRA”).1

Appellant contends the PCRA court erred in dismissing his Petition without a

hearing. After careful review, we affirm.

A.

In 2012, a jury convicted Appellant of Robbery and Conspiracy for

participating with Corey Johnson in the 2010 robbery of Keith Edmonds in

Edmonds’ residence. The court sentenced him on July 17, 2012, to 25 to 50

years’ imprisonment. This Court affirmed the Judgment of Sentence on July

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-46. J-S20035-23

15, 2013. Commonwealth v. Thomas, 2013 WL 11259082 (Pa. Super.

2013)(unpublished memorandum). Appellant did not seek further review.

Appellant filed his first PCRA petition in 2016, which the PCRA court

dismissed without a hearing as untimely, and this Court affirmed.

Commonwealth v. Thomas, 217 WL 3528789 (Pa. Super. 2017).

On September 7, 2021, Appellant filed the instant petition, his second,

claiming that he had newly discovered evidence that supported his claim of

innocence and demonstrated prosecutorial misconduct. Appellant annexed to

the petition a handwritten statement signed by Keisha Anderson, an

eyewitness to the crime who had testified at trial, which Appellant stated she

provided to a private investigator on May 5, 2021. In her statement, Ms.

Anderson stated, among other things, that she was “recanting the fabricated

statement I gave regarding [Appellant].” PCRA Petition, App’x at 1.2

Appellant cited the PCRA’s timeliness exception set forth in 42 Pa.C.S. §

9545(b)(1)(ii) but did not explain what efforts he took to obtain Ms.

Anderson’s statement in the eight years following his judgment of sentence. ____________________________________________

2 In her recanting statement, Ms. Anderson provided a narrative about the extent of Appellant’s involvement in the crime that differed from her trial testimony and stated that police investigators told her she “could get in trouble if [she] didn’t tell them everything [she] knew, and that that could keep me from getting custody of my daughter.” PCRA Petition, App’x at 3. She also stated that the DA’s office told her to defy a sequestration order to hear the other eyewitness’s testimony “so she would know what to say.” Id. Further, she stated that the ADA told her that “if [she] cooperated [she] could get full custody of [her] daughter, which did not happen.” Lastly, Ms. Anderson alleged that the ADA told her that she “had to say that [Appellant] had a gun and that he would not let [second eyewitness] or me leave the kitchen.” Id.

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The court filed a Pa.R.Crim. P. 907 notice concluding, inter alia, that it

did not have jurisdiction to address Appellant’s untimely petition. Rule 907

Notice, 7/12/11, at 2-4.3 Appellant responded by quoting 42 Pa.C.S. §

9545(b)(1)(ii), the newly discovered fact exception to the PCRA’s timeliness

requirements; however, Appellant included no explanation or other analysis

to explain how his Petition met this exception, before he concluded that the

“the fact that the recantation fell within the newly discovered evidence

exception, the [c]ourt would have jurisdiction to address it.” Response to Rule

907 Notice, dated 8/30/22, at 3-4 (unpaginated).

On September 28, 2022, the PCRA court dismissed the petition after it

acknowledged Appellant’s response to the Rule 907 Notice, again concluding,

inter alia, that the petition is untimely. PCRA Court Order, 9/28/22, at 1.

Appellant timely appealed and both Appellant and the PCRA court

complied with Pa.R.A.P. 1925. This Panel filed a Memorandum and Dissenting

Statement, which we withdrew after granting the Commonwealth’s application

for reconsideration. See Order, dated Feb. 28, 2023 (granting panel

reconsideration after concluding previously-granted en banc reargument had

been improvidently granted).

We now turn to the appeal anew.

3 Notwithstanding its conclusion that it did not have jurisdiction to address Appellant’s untimely petition, the PCRA court opined that Ms. Anderson’s recanting statement was not credible and could not meet the after-discovered evidence requirements. See Rule 907 Notice, dated 7/12/22, at 2-3.

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B.

In his appellate brief, Appellant presented the following issues in his

“Statement of the Question Presented.”

1. Did the lower Court err in not conducting a hearing to test the veracity of Defendant’s meritorious claims when Defendant had claims of actual innocence and severe prosecutorial misconduct and denying the PCRA?

2. Is the Defendant entitled to a PCRA relief on allegations of severe prosecutorial misconduct that led to the eventual recantation of witness testimony that was crucial for obtaining a conviction at trial?

Appellant’s Br. at 5 (verbatim).

“We review the denial of a PCRA petition to determine whether the

record supports the PCRA court’s findings and whether its order is free of legal

error.” Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa. Super. 2019).

However, before we review the issues raised on appeal, we must determine

whether Appellant’s petition satisfies our jurisdictional requirements.

It is well-established that the timeliness of a PCRA petition is

jurisdictional; if a PCRA petition is untimely, courts lack jurisdiction over the

claims and cannot grant relief. Commonwealth v. Wharton, 886 A.2d 1120,

1124 (Pa. 2005). A PCRA court’s finding “with regard to the timeliness of a

PCRA petition will not be disturbed unless there is no support for those findings

in the certified record.” Commonwealth v. Williamson, 21 A.3d 236, 240

(Pa. Super. 2011).

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To be timely, a PCRA petition, including a second or subsequent petition,

must be filed within one year of the date that a petitioner’s judgment of

sentence becomes final. 42 Pa.C.S. § 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 the review.” 42 Pa.C.S. § 9545(b)(3).

The PCRA’s jurisdictional time bar “is constitutionally valid.” Commonwealth

v. Cruz, 852 A.2d 287, 292 (Pa. 2004). Here, Appellant’s PCRA petition, filed

nearly 8 years after his judgment of sentence became final, is patently

untimely.

The PCRA also provides, in relevant part, that “[a]ny petition under this

subchapter, including a second or subsequent petition, shall be filed within

one year of the date the judgment becomes final, unless the petition alleges

and the petitioner proves that . . . (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[.]” 42 Pa.C.S. § 9545(b)(1)(ii)

(emphasis added). Any petition invoking a timeliness exception “shall be filed

within one year of the date the claim could have been presented.” Id. at §

9545(b)(2).

The mere assertion that a petitioner only recently learned of the

existence of newly discovered evidence does not satisfy the Section

9545(b)(1)(ii) timeliness exception. See generally Commonwealth v.

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Burton, 158 A.3d 618, 629 (Pa. 2017) (comparing Section 9545(b)(1)(ii)’s

newly discovered fact exception to Section 9543(a)(2)(vi) which pertains to

claims of newly discovered exculpatory evidence raised in a timely PCRA

petition).4 Rather, the timeliness exception requires a petitioner “to

demonstrate [that] 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)

(emphasis added). Thus, a petitioner “must explain why he could not have

learned the new fact(s) earlier with the exercise of due diligence. This rule is

strictly enforced.” Id. (internal citation omitted; emphasis added).

“Without jurisdiction, we simply do not have the legal authority to

address the substantive claims.” Commonwealth v. Albrecht, 994 A.2d

1091, 1093 (Pa. 2010) (citation omitted). See also Commonwealth v.

Jackson, 30 A.3d 516, 519 (Pa. Super. 2011) (reiterating that “[i]f the

petition is determined to be untimely, and no exception has been pled and

proven, the petition must be dismissed without a hearing because

4 The Burton court reiterated that an after-discovered evidence claim can be

addressed only if raised in a PCRA petition that meets the jurisdictional timeliness requirements. See Burton, 158 A.3d at 629 (“[o]nce jurisdiction has been properly invoked (by establishing either that the petition was filed within one year of the date judgment became final or by establishing one of the three exceptions to the PCRA’s time-bar) the relevant inquiry becomes whether the claim is cognizable under Section 9543 of the PCRA.”) (citation and internal brackets omitted).

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Pennsylvania courts are without jurisdiction to consider the merits of the

petition.”) (citation omitted).

Finally, it is an appellant’s burden to persuade the Superior Court that

the PCRA court erred, and that relief is due. Commonwealth v. Feliciano,

69 A.3d 1270, 1275 (Pa. Super. 2013).

In his brief to this Court, Appellant argues that Ms. Anderson’s May 2021

statement and the information contained within demonstrates prosecutorial

misconduct that supports his claims of actual innocence so the PCRA court

should have held a hearing. Appellant’s Br. at 9-11. Appellant makes no

attempt to acknowledge the PCRA court’s finding that it lacked jurisdiction or

otherwise explain to this Court how he has met the PCRA’s timeliness

exception.

Moreover, we agree with the PCRA court that Appellant did not satisfy

the Section 9545(b)(1)(ii) timeliness exception. In his PCRA Petition,

Appellant submitted the following statement:

[S]uch evidence could not have been ascertained at the time of trial by the exercise of due diligence because the witness’s new statement comes forward after revealing the prosecution required the witness to violate the judge’s sequestration order [imposed during the preliminary hearing] in order to get custody of her daughter.

PCRA Petition, filed 9/7/21/ at ¶ 16 (emphasis added).

The PCRA’s timeliness exception requires a petitioner to plead why he

could not have obtained that statement prior to the passage of the eight years

following his conviction. Appellant did not do that. Without an explanation as

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to how the recantation statement could not have been ascertained sooner by

the exercise of due diligence, Appellant’s PCRA petition contains only a bald

statement that Appellant learned of the existence of the statement. This does

not satisfy the requirements necessary to establish the applicability of the

Section 9545(b)(ii) exception. Commonwealth v. Sanchez, 204 A.3d 524,

526-27 (Pa. Super. 2019).

Because Appellant failed to plead and prove the applicability of one of

the PCRA’s timeliness exceptions, the PCRA court did not have the authority

to address the substantive merits of Appellant’s claims, and neither does this

Court.

Order affirmed.

Judge Kunselman joins the memorandum.

Judge Colins files a dissenting memorandum.

Date: 5/16/2024

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