J-S01014-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TERRANCE WILLIAMS : : Appellant : No. 2515 EDA 2018
Appeal from the PCRA Order Entered October 20, 1998 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0823621-1984
BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BOWES, J.: FILED JUNE 22, 2020
Terrence Williams appeals nunc pro tunc from the October 20, 1998
order denying Appellant’s first petition for relief under the Post-Conviction
Relief Act (“PCRA”). After careful review, we conclude that Appellant’s request
for the reinstatement of his appellate rights was untimely filed under the
PCRA.1 Thus, we vacate the PCRA court’s July 31, 2018 order reinstating
Appellant’s appellate rights nunc pro tunc and quash this appeal.
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* Retired Senior Judge assigned to the Superior Court.
1 This petition constitutes Appellant’s fifth filing under the PCRA. Rather than asserting new claims for relief under the PCRA, Appellant requested the reinstatement of his appellate rights with respect to his first PCRA petition that was previously appealed of right to our High Court in 2004, which affirmed the PCRA court’s denial of Appellant’s first petition. The Commonwealth did not oppose Appellant’s request for reinstatement, and the PCRA court granted it. As explained infra, our analysis focuses upon the timeliness of Appellant’s request for reinstatement of his appellate rights, which we raise sua sponte. J-S01014-20
For our purposes, the factual history of this case is straightforward.
Appellant’s underlying conviction relates to the June 11, 1984 murder of Amos
Norwood (the “victim”), which Appellant committed with his co-defendant,
Marc Draper. On that day, Appellant and Mr. Draper robbed, bound, and beat
the victim to death in a secluded area near Ivy Hill Cemetery in Philadelphia,
Pennsylvania. See Commonwealth v. Williams, 570 A.2d 75, 77-79 (Pa.
1990) (“Williams I”); PCRA Court Opinion, 1/13/99, at 1-2. Ostensibly, the
defendants were motivated in their crimes by recent gambling losses. They
used the victim’s cash and credit cards to continue their escapades in Atlantic
City, New Jersey. However, due to “incautious” usage of the victim’s credit
cards, the defendants were quickly implicated in the victim’s death. Appellant
fled the jurisdiction, but Mr. Draper “made a full confession, describing his
own role in the murder and [Appellant’s] role in the killing and aftermath.”
Eventually, Appellant also turned himself in and proceeded to trial.
During the trial, the then-district attorney of Philadelphia, Ronald
Castille, approved the trial prosecutor’s request to seek the death penalty
against Appellant. Ultimately, a jury found Appellant guilty of first-degree
murder, criminal conspiracy, and robbery. With respect to first-degree
murder, the jury returned a verdict of death. On the remaining charges,
Appellant was sentenced to an aggregate, concurrent term of fifteen to thirty
years of imprisonment. On direct appeal, our Supreme Court upheld
Appellant’s conviction. Thereafter, Appellant filed three unsuccessful petitions
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for PCRA relief that were reviewed by the Pennsylvania Supreme Court on
appeal. See Commonwealth v. Williams, 863 A.2d 505, 523 (Pa. 2004)
(“Williams II”), Commonwealth v. Williams, 909 A.2d 297 (Pa. 2006) (per
curiam order); Commonwealth v. Williams, 962 A.2d 609 (Pa. 2009)
(same). Appellant also sought habeas relief from the U.S. Court of Appeals
for the Third Circuit, which denied his request. See Williams v. Beard, 637
F.3d 195, 238 (3d Cir. 2011) (“Williams III”).
During this same period of time, then-DA Castille was elected to serve
as a justice of the Pennsylvania Supreme Court.2 He participated, inter alia,
in the adjudication of Williams II by voting with the majority to affirm the
dismissal of Appellant’s first PCRA petition. There is no indication in the
certified record before us that Appellant ever sought then-Justice Castille’s
recusal from, or raised any objection regarding his participation in, these
earlier proceedings. On March 9, 2012, Appellant filed his fourth PCRA
petition. Appellant’s petition asserted, inter alia, that the prosecutor had
procured “false testimony” from Mr. Draper. Appellant did not raise any claim
or argument related to then-Chief Justice Castille’s participation in the earlier
proceedings presented in Appellant’s fourth PCRA petition. The trial court
directed the Commonwealth to produce various “previously undisclosed files”
2 Specifically, then-Justice Castille was elected to the bench in 1993, and served as a justice of the Pennsylvania Supreme Court from January 1994 until he retired in December 2014. He served as the chief justice of the Pennsylvania Supreme Court from January 2008 until his retirement.
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related to Appellant’s claims of prosecutorial misconduct, which happened to
include a memorandum signed by then-DA Castille approving the pursuit of
the death penalty in Appellant’s case.
Separate from this apparent revelation, the PCRA court granted
Appellant’s fourth PCRA petition on the grounds that the trial prosecutor had
suppressed material, exculpatory evidence in violation of Brady v. Maryland,
373 U.S. 83 (1963), and engaged in prosecutorial gamesmanship. The PCRA
court stayed Appellant’s execution and ordered new sentencing proceedings.
The Commonwealth appealed to the Pennsylvania Supreme Court, where
Appellant sought the recusal of Chief Justice Castille, who denied the request
without explanation. Thereafter, the Pennsylvania Supreme Court vacated
the stay of execution entered by the PCRA court and reinstated Appellant’s
death penalty. See Commonwealth v. Williams, 105 A.3d 1234, 1245 (Pa.
2014) (“Williams IV”).
Appellant filed a petition for a writ of certiorari with the U.S. Supreme
Court, which granted it. See Williams v. Pennsylvania, ___ U.S. ___, 136
S.Ct. 1899, 1904 (2016) (“Williams V”). It concluded that Appellant’s due
process rights were violated by Chief Justice Castille’s participation in the
adjudication of Appellant’s case in Williams IV.3 Accordingly, the U.S.
3 There was no indication that then-DA Castille had knowledge of, or participated in, the prosecutorial misconduct identified by the PCRA court in adjudicating Appellant’s fourth PCRA petition. See Williams V, supra at
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Supreme Court vacated Williams IV and remanded for “further proceedings
not inconsistent with this opinion.”
On remand, the Pennsylvania Supreme Court equally split over whether
Appellant was entitled to relief. See Commonwealth v. Williams, 168 A.3d
97 (Mem) (Pa. 2017) (per curiam order affirming based upon an equally
divided court). Thus, the PCRA court’s order entering a stay of execution and
ordering a new penalty phase was affirmed. On December 29, 2017, Appellant
was resentenced to life without parole as to his first-degree murder conviction.
The remainder of Appellant’s sentence was identical to the original order.
Contemporaneously with his resentencing, Appellant filed his fifth PCRA
petition seeking the reinstatement of his appellate rights with respect to his
first PCRA petition, which was adjudicated by our Supreme Court in Williams
II over sixteen years ago. Specifically, Appellant sought reinstatement upon
the basis that then-Justice Castille had also participated in that adjudication.
See Appellant’s Fifth PCRA Petition, 10/10/17, at ¶¶ 5, 7. The Commonwealth
did not oppose the petition. On July 31, 2018, the PCRA court granted
Appellant’s request and reinstated his appellate rights:
[Appellant’s PCRA] appellate rights are hereby reinstated nunc pro tunc for appellate review from the PCRA Court’s October 20, 1998 dismissal of the petition filed under the instant case number. ____________________________________________
1908 (“[T]here is no indication that Chief Justice Castille was aware of the alleged prosecutorial misconduct . . . .”). Indeed, the U.S. Supreme Court never concluded that Chief Justice Castille had committed actual misconduct, but only found that his participation in the consideration of Appellant’s appeal in Williams IV created an “unacceptable risk of actual bias.” Id.
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[Appellant’s] prior appeal of this matter, [Williams II], was resolved in a manner that implicates due process pursuant to [Williams V].
Order, 7/31/18, at unnumbered 1. This order was not appealed. Rather, all
parties proceeded with the instant nunc pro tunc appeal that was granted by
the PCRA court, and which arguably lies from the denial of Appellant’s first
PCRA petition in October 1998. Under that assumption, both Appellant and
the PCRA court have complied with the mandates of Pa.R.A.P. 1925.
Appellant presents the following questions for our consideration:
1. Did the Commonwealth use its peremptory strikes in a racially discriminatory manner, thus depriving Appellant of his rights under the Sixth, Eighth, and Fourteenth Amendment to the [U.S.] Constitution and Article I, §§ 1, 9, 13, and 26 of the Pennsylvania Constitution? Was Appellant denied a full and fair opportunity to litigate this claim?
2. Did the [PCRA] court err in failing to grant a post-conviction hearing on Appellant’s claims and did the court err in its limitation of counsel’s examination of particular witnesses, including its refusal to allow counsel an opportunity to review witnesses’ notes?
3. Did the prosecution fail to disclose portions of its plea agreement with key witness Marc Draper and instead elicit false testimony in its place?
Appellant’s brief at 2-3. With respect to our standard of review, we examine
whether the PCRA court’s determinations are supported by the record and are
free of legal error. Commonwealth v. Watkins, 108 A.3d 692, 701 (Pa.
2014). We apply a de novo standard of review with respect to the PCRA
court’s legal determinations. Id.
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Before we can address the merits of Appellant’s issues, we must
determine if the PCRA court had the necessary jurisdiction to restore
Appellant’s appellate rights such that this nunc pro tunc appeal is properly
before us for review. See Commonwealth v. Ballance, 203 A.3d 1027,
1030-31 (Pa.Super. 2019). With specific reference to this case, the timeliness
of a PCRA petition is a jurisdictional requisite that “may not be altered or
disregarded in order to address the merits of the petition.” Commonwealth
v. Laird, 201 A.3d 160, 161-62 (Pa.Super. 2018). “In other words,
Pennsylvania law makes clear no court has jurisdiction to hear an untimely
PCRA petition.” Ballance, supra at 1031 (emphasis in original) (citing
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)). Finally,
“[a]lthough neither party nor the [PCRA court] has addressed this matter, it
is well-settled that we may raise it sua sponte since a question of timeliness
implicates the jurisdiction of our Court.” Commonwealth v. Hutchins, 760
A.2d 50, 53 (Pa.Super. 2000).
The PCRA requires 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 . . . .” 42 Pa.C.S. § 9545(b)(1). Under the PCRA, a
judgment of sentence 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
review.” 42 Pa.C.S. § 9545(b)(3).
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On February 8, 1990, the Pennsylvania Supreme Court affirmed
Appellant’s judgment of sentence on direct appeal. See Williams I, supra
at 84. Appellant did not appeal to the U.S. Supreme Court, and his time to
do so expired on May 9, 1990. See U.S. Sup. Ct. Rule 13(1). Consequently,
Appellant had until May 9, 1991 to file a timely PCRA petition. Thus,
Appellant’s PCRA petition seeking the reinstatement of his appellate rights was
untimely filed by more than 25 years, which Appellant acknowledges in the
petition. See Appellant’s Fifth PCRA Petition, 10/10/17, at ¶ 23.
This jurisdictional time bar is subject to three statutory exceptions,
which requires the petitioner to allege and prove at least one of the following:
(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
(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. § 9545(b)(1). “Where the petition alleges, and the petitioner
proves, that an exception to the time for filing the petition is met, the petition
will be considered timely.” Commonwealth v. Sanchez, 204 A.3d 524, 526
(Pa.Super. 2019) (emphasis added).
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In pertinent part, Appellant’s PCRA petition seeking the reinstatement
of his appellate rights nunc pro tunc alleged that all three of these exceptions
should apply to his circumstances. See Appellant’s Fifth PCRA Petition,
10/10/17, at ¶¶ 22-27. We will address his arguments seriatim.
Appellant has discussed the “government interference” and “newly
discovered facts” exceptions collectively in his petition, as follows:
This Petition meets the requirements of 42 Pa.C.S. § 9545(b)(1)(i) & (ii) because the facts upon which the claim is predicated – District Attorney Castille’s significant, personal involvement in this very case – were suppressed by the Philadelphia District Attorney’s Office and by [Chief Justice] Castille from the outset of this case. Both the District Attorney’s Office and [Chief Justice] Castille for years made misleading statements minimizing and misrepresenting his role in capital prosecutions. The Supreme Court’s opinion in [Williams V] illuminates the factual basis, not previously known to [Appellant], to establish that, through their mischaracterizations of District Attorney Castille’s role in capital prosecutions and through their failure to disclose documents and information reflecting his actual role, the Philadelphia District Attorney’s Office and [Chief] Justice Castille interfered with [Appellant’s] ability to present this claim earlier. Similarly, because of those non-disclosures and mischaracterizations, the facts upon which this claim is predicated could not have been ascertained earlier by the exercise of due diligence.
Id. at ¶ 24. We must disagree with Appellant’s assertions and claims.
Overall, Appellant’s analysis takes significant factual liberties and argues for
an unsustainable enlargement of the holding in Williams V. While the U.S.
Supreme Court addressed the narrow issue of whether Chief Justice Castille
should have granted a timely recusal request from Appellant in Williams IV,
the Court never opined as to whether these allegations were sufficient to
satisfy the timeliness requirements of the PCRA in a subsequent petition.
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With respect to governmental interference, Appellant has offered
nothing but bald assertions that the Commonwealth or Chief Justice Castille
suppressed or mischaracterized then-DA Castille’s involvement in Appellant’s
case. In the passage above, Appellant has made no offer of proof, nor even
pleaded sufficient facts to establish the applicability of this exception.
There is simply no evidence suggesting that this information was ever
concealed by the Commonwealth at any point in the underlying proceedings.4
Tellingly, Appellant provides no citations to the factual record in support of
these allegations concerning alleged governmental interference. As such,
Appellant has not established the applicability of this exception. See
Commonwealth v. Marshall, 947 A.2d 714, 720-21 (Pa. 2008) (rejecting
invocation of exception at § 9545(b)(1)(i) where the petitioner could not
substantiate “general, unsupported allegations”).
Along similar lines, we are unpersuaded by Appellant’s arguments
concerning “newly discovered facts.” We do not dispute that Appellant first
learned of the signed memorandum authorizing the pursuit of the death
penalty in his case during the pendency of Appellant’s successful PCRA appeal
in Williams V, supra at 1904. However, the pertinent question under
4 On this point, we discern that Appellant is conflating the merits of his nunc pro tunc claims alleging prosecutorial misfeasance, with his burden of proof concerning the timeliness exceptions to the PCRA. No matter how compelling the merits of an argument may be, we may not ignore jurisdictional requirements in order to reach them.
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§ 9545(b)(1)(ii) is not when Appellant discovered this information, but
whether he could not have discovered it sooner through statutorily mandated
“due diligence.” See Sanchez, supra at 526 (“Due diligence demands that
the petitioner take reasonable steps to protect his own interests; a petitioner
must explain why he could not have learned the new facts earlier with
the exercise of due diligence.” (emphasis added)).
Appellant’s argument concerning due diligence is threadbare and merely
parrots the same empty allegations of governmental interference discussed
above. Critically, Appellant has failed to demonstrate why he could not have
learned of then-Justice Castille’s involvement in his case sooner. Id. In the
absence of any competent evidence suggesting obstruction of this information
by the Commonwealth, Appellant has no explanation for waiting nearly two
decades to pursue claims concerning then-Justice Castille’s participation.
While a petitioner is not required to exercise “perfect vigilance,” he is
bound to undertake “reasonable efforts . . . to uncover facts that may support
a claim for collateral relief.” Commonwealth v. Hart, 199 A.3d 475, 481
(Pa.Super. 2018). Instantly, there is no indication that Appellant ever sought
any information concerning then-Justice Castille’s involvement, or pursued
any investigation until he was made aware of the signed memorandum by the
happenstance of discovery. See Williams V, supra at 1904.
This paucity of diligence is especially troubling given that, both as
district attorney and on our Supreme Court, Chief Justice Castille’s association
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with the death penalty was public and well-documented according to
Appellant.5 In fact, claims related to Chief Justice Castille’s requested recusal
in other capital cases related to his service as Philadelphia’s DA were
addressed by the Pennsylvania Supreme Court in published opinions
significantly predating Appellant’s “discovery” of the signed memorandum.
See Commonwealth v. Williams (Roy), 732 A.2d 1167, 1174 (Pa. 1999)
(addressing a request for recusal of then-Justice Castille in a death penalty
case), Commonwealth v. Jones, 663 A.2d 142, 144 (Pa. 1995) (same).
Although the exact contours of Chief Justice Castille’s involvement in
Appellant’s case may not have been precisely known, that information appears
to us to have been discoverable through the exercise of due diligence. This is
particularly so in light of Chief Justice Castille’s decades of service as a highly
visible public servant, in roles whose potential connection to Appellant’s case
were obvious. In sum, Appellant has failed to offer any evidence establishing
his due diligence. Accordingly, we conclude that the timeliness exception at
§ 9545(b)(1)(ii) is inapplicable to Appellant’s petition. See Commonwealth
v. Stokes, 959 A.2d 306, 311 (Pa. 2008) (“[B]ecause Appellant failed to
5 Appellant’s petition contains a two-page long parenthetical footnote meticulously documenting Chief Justice Castille’s public association with the death penalty in Pennsylvania periodicals around the time of his election to the Pennsylvania Supreme Court in 1993. See Appellant’s Fifth PCRA Petition, 10/10/17, at ¶ 41 n.1. Prior to his election to our High Court, then-DA Castille was elected to his post as Philadelphia’s district attorney in 1985. He served in that role from January 1986 until March 1991.
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explain why he did not request these files earlier, he did not establish the due
diligence required to excuse him from over a decade of inaction.”).
With respect to the retroactive-constitutional-right exception codified at
§ 9545(b)(1)(iii), Appellant asserts that Williams V recognized a new
constitutional right and held that it applies retroactively. See Appellant’s Fifth
PCRA Petition, 10/10/17, at ¶ 25. We disagree.
In order to gain the benefit of this exception, Appellant must prove that:
(1) a “new” constitutional right has been recognized by either the U.S.
Supreme Court or the Pennsylvania Supreme Court; and (2) that the right
“has been held” to apply retroactively. Commonwealth v. Copenhefer, 941
A.2d 646, 649 (Pa. 2007). Appellant cannot satisfy either requirement.
Williams V did not recognize a “new” constitutional right but merely
applied existing precedent concerning due process. See Williams V, supra
at 1905-07 (noting the “unconstitutional potential for bias” that exists “when
the same person serves as both accuser and adjudicator in a case”) (citing In
re Murchison, 349 U.S. 133, 136-37 (1955)).6 Contrary to Appellant’s
conclusory arguments, the U.S. Supreme Court’s holding in Williams V did
not announce a new rule of law, but merely granted Appellant relief under
existing precedent. See Commonwealth v. Wojtaszek, 951 A.2d 1169,
6 See also Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 881 (2009), Puckett v. U.S., 556 U.S. 129, 141 (2009), Withrow v. Larkin, 421 U.S. 35, 57 (1975).
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1172-73 (Pa.Super. 2008) (holding precedent not announcing new,
retroactive constitutional right fails to satisfy § 9545(b)(1)(iii) requirements).7
Along similar analytical lines, Appellant has presented no support for his
contention that the U.S. Supreme Court’s holding in Williams V announced a
constitutional right that is retroactive in nature. Id.
Overall, Appellant has not satisfied either of the requirements necessary
to invoke the timeliness exception at § 9545(b)(1)(iii). See Wojtaszek,
supra at 1172-73. Thus, it does not apply in this case.
Based on the foregoing discussion, we conclude that Appellant’s fifth
PCRA petition seeking reinstatement of his appellate rights nunc pro tunc
failed to assert and prove a valid timeliness exception. See 42 Pa.C.S. §
9545(b)(1)(i)-(iii). Therefore, the PCRA court had no jurisdiction to restore
Appellant’s appellate rights. Accordingly, we vacate the PCRA court’s July 31,
2018 order granting Appellant leave to appeal nunc pro tunc and quash this
appeal for lack of jurisdiction. Accord Ballance, supra at 1033.
Order vacated. Appeal quashed for lack of jurisdiction.
7 This conclusion is in parity with recent persuasive holdings from this Court explicitly refusing to hold that Williams V announced a new, retroactive constitutional right. See Commonwealth v. Ivey, 2020 WL 1515893 at *4 (Pa.Super. March 30, 2020) (non-precedential decision), Commonwealth v. Lee, 2019 WL 4131429 at *8 (Pa.Super. August 30, 2019) (same).
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/22/20
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