Com. v. Enlow, I.

J.S45032/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

:

IDRIS ENLOW, :

:

Appellant : No. 1969 EDA 2013

Appeal from the PCRA Order June 11, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division No(s).: CP-51-CR-0410711-2005

BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 22, 2014

Appellant, Idris Enlow, appeals from the order dismissing as untimely

his second pro se petition filed pursuant to the Post Conviction Relief Act1

(“PCRA”) as untimely. Appellant avers, inter alia, that the PCRA court erred

in dismissing his petition as untimely because after-discovered facts satisfied

an exception to the time-bar pursuant to 42 Pa.C.S. § 9545(b)(1)(ii). We

affirm.

This Court on direct appeal summarized the facts of this case as

follows:

*

Former Justice specially assigned to the Superior Court.

1

42 Pa.C.S. §§ 9541-9546.

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On January 12, 2004, a confidential informant, Rodney

Frye, contacted Officer James Cullen. As a result of the

conversation, Officer Cullen and Sergeant Robert Friel

began a surveillance investigation of [Appellant], which

involved several other officers in the Narcotics Field Unit

(“NFU”). On the morning of January 12, 2004[,] Mr. Frye

met [Appellant] at the Home Depot parking lot located at

4200 Roosevelt Boulevard where [Appellant] had a

conversation with Mr. Frye. Mr. Frye testified that this

conversation involved the purchase of cocaine. Following

the conversation, Mr. Frye and [Appellant] left the parking

lot.

Shortly thereafter, Mr. Frye received a phone call from

[Appellant]. As a result of the conversation[,] Mr. Frye

went to 1510 Widener Street to wait for [Appellant]. The

NFU officers followed Mr. Frye to 1510 Widener Street

where [Appellant’s] empty CLIP[2] van was observed

parked near the 1510 Widener Street address.

Approximately ten (10) minutes after the NFU officers and

Mr. Frye arrived, [Appellant] exited 1510 Widener Street

and Mr. Frye spoke with [Appellant] once more. Mr. Frye

testified that [Appellant] related that he did not have his

cocaine supply at the 1510 Widener Street residence at the

time so they would have to meet again at another location.

At approximately 4:00 p.m. on the same afternoon, Mr.

Frye contacted [Appellant] to order cocaine. As a result of

the conversation Mr. Frye went to 4231 North 9th Street.

Before he left however, the NFU officers searched Mr.

Frye’s person for narcotics and money with negative

results, and then provided him with four hundred and

twenty-five dollars ($425.00) in pre-recorded U.S.

currency. The NFU officers then followed Mr. Frye to 4231

North 9th Street where [Appellant] admitted Mr. Frye into

the residence. Mr. Frye testified that once he was inside

the residence, he saw [Appellant] go to the second floor

and come back downstairs with the cocaine. Mr. Frye gave

[Appellant] the pre-recorded money in exchange for the

2

“CLIP” is Philadelphia’s Community Life Improvement Program.

Commonwealth’s Brief at 2.

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cocaine. Mr. Frye left the residence and then the NFU

officers followed him to a predetermined location. At this

location, the NFU officers recovered approximately thirteen

(13) grams of cocaine from the person of Mr. Frye.

The surveillance continued and on January 13, 2004, in

the early evening, the NFU officers observed [Appellant]

and an unidentified male get into the CLIP van near CLIP

headquarters. The NFU officers followed [Appellant] and

the unidentified male to 5415 Howland Street. The men

exited the vehicle empty handed, rang the door bell,

waited for the door to open, and then remained at the

residence for approximately fifteen (15) to twenty (20)

minutes. [Appellant] exited the residence carrying a silver

metallic bag. [Appellant] and the unidentified male then

returned to CLIP headquarters.

The NFU officers observed [Appellant] and the

unidentified male exist the CLIP van and get into an F-150

Ford Truck, which was registered to [Appellant]. The NFU

officers observed [Appellant] carrying a metallic silver bag

and the unidentified male carrying a brown cardboard box.

The NFU officers followed [Appellant] and the unidentified

male to 4231 North 9th Street where both men exited the

vehicle and entered the residence with their respective

containers in hand.

On that same day, Mr. Frye met with the NFU officers at

a predetermined location where [he] placed a phone call to

[Appellant] to order cocaine. As a result of the

conversation, Mr. Frye went to the residence at 4231 North

9th Street once more. Before Mr. Frye left, the NFU

officers searched Mr. Frye’s person for narcotics and

money with negative results, and then provided him with

four-hundred dollars ($400.00) in pre-recorded U.S.

currency. Mr. Frye testified that upon arrival he entered

the residence and made an exchange of money for cocaine

with [Appellant]. . . . [T]he NFU officers recovered

approximately ten (10) grams of cocaine from the person

of Mr. Frye.

Sheila Reid, a resident of 1510 Widener Street, testified

that [Appellant] visited 1510 Widener Street on the same

evening. [Appellant] brought in a brown bag and left it on

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the table for Anthony Gillard to pick up later. . . . Later

that evening[,] Ms. Reid looked inside the bag and

discovered large amounts of cocaine. She immediately put

the drugs into her purse and stated that she intended to

report their existence to the police the next morning.

On January 14, 2004, . . . the NFU officers observed

[Appellant] meet Lakisha Gethers a resident of 5415

Howland Street . . . . The two hugged, had a

conversation, and then left the area, Ms. Gethers in her

vehicle and [Appellant] in the CLIP van. The NFU officers

followed [Appellant] and . . . pulled over his vehicle . . . .

[Sergeant Friel] arrested [Appellant] and recovered four

hundred and twenty-three dollars ($423.00) in U.S.

currency, a set of keys, a cell phone, and two (2)

identification cards from [Appellant]. One of the keys

confiscated from [Appellant] opened the front door to 4231

North 9th Street and another key opened the door to the

second floor front bedroom of the same residence. Mr.

Frye had previously supplied the NFU officers with the cell

phone number he had called to arrange the drug

transactions. At the scene, Sergeant Friel dialed this

phone number and the cell phone which had been

confiscated from [Appellant] began ringing as a result.

The NFU officers also recovered two (2) packages of

cocaine from the van[,] which had a total weight of

approximately nine (9) grams.

Simultaneously, other NFU officers executed warrants

for the residences at 1510 Widener Street, 4231 North 9th

Street, 5415 Howard Street, and the Ford F-150 truck. At

1510 Widener Street, NFU officers entered the residence

by using a ram to break down the door. Once inside they

encountered Ms. Reid. Ms. Reid stated “the stuff you’re

looking for is in my purse.” Officers found approximately

one-hundred and thirteen (113) grams of cocaine in Ms.

Reid’s purse. Ms. Reid stated that [Appellant] had been

there earlier and dropped off these drugs. . . .

At the 4231 North 9th Street residence . . . the officers

confiscated scales, a respirator mask, three (3) pots and

cocaine powder and residue. . . . In the front bedroom,

officers found Bernard Brown, a twelve (12) gauge semi-

automatic shotgun with five (5) live rounds, and a pair of

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pants belonging to Bernard Brown[,] which contained keys

to [the] rear bedroom. In the middle bedroom, officers

found Edmund Brown, Joy Bailey, and Jenette Williams;

and clear plastic bags, green-tinted Ziploc packets, pink-

tinted Ziploc packets, and red plastic packets. In the rear

bedroom, the officers found several bags of cocaine base

and cocaine powder, fifteen (15) pink Ziploc packets of

cocaine base, and seven (7) green Ziploc packets of

cocaine base. Officers found additional bulk marijuana

total[ing] one-hundred and seventy-six (176) grams and

cocaine base/powder total[ing] one-hundred and twenty-

two (122) grams.

At the 5145 Howland Street residence, officers searched

the bedroom of Lakisha Gethers. . . . Inside her dresser

they found two (2) shoe boxes; one contained a .40 caliber

handgun and the other contained two (2) large bags of

cocaine. The total weight of the drugs at this location was

two-hundred and fourteen (214) grams.

Appellant proceeded to a jury trial commencing on

March 2, 2006, and ending on March 6, 2006, when the

jury returned a verdict of guilty on one count of

PWID/Delivery of a controlled substance and one count of

criminal conspiracy. . . . Appellant was sentenced to a

mandatory minimum sentence of 7 to 14 years’

imprisonment on April 18, 2006.

Commonwealth v. Enlow, 1375 EDA 2006 (unpublished memorandum at

2-5) (Pa. Super. Aug. 8, 2007) (citation omitted).

We add that during trial, Mr. Frye testified about his prior criminal

record, including his violation of probation in Georgia and an open warrant

for his arrest in Chester County. N.T. Trial, 3/1/06, at 138-39, 150-51. The

jury was not asked to determine the weight of the drugs. Appellant

appealed to this Court, which affirmed on August 8, 2007. Appellant did not

file a petition for allowance of appeal with our Supreme Court.

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Appellant filed a timely first PCRA petition on February 11, 2008. The

PCRA court appointed David Rudenstein, Esq., as counsel, who filed an

amended PCRA petition. Appellant alleged trial counsel was ineffective for

failing to (1) consult with him about whether to move for a mistrial, (2)

move for a mistrial, and (3) impeach Mr. Frye. The PCRA court denied relief,

and this Court affirmed. Commonwealth v. Enlow, 2302 EDA 2009 (Pa.

Super. Nov. 29, 2010).

Appellant, pro se, filed the underlying, second PCRA petition on August

24, 2012, and filed an amended petition on March 21, 2013. He alleged

prosecutorial misconduct by suppressing the criminal record of Mr. Frye, trial

counsel was ineffective by not impeaching Mr. Frye, and a newspaper article

reported that NFU officers, including Officer Jeffrey Cujdik, planted evidence

in an unrelated case. On May 15, 2013, the PCRA court issued a

Pa.R.Crim.P. 907 notice of intent to dismiss. On June 1, 2013, Appellant

filed a response in opposition. On June 11, 2013, the PCRA court dismissed

Appellant’s second PCRA petition.

Appellant timely appealed and timely filed a court-ordered Pa.R.A.P.

1925(b) statement. Appellant’s Rule 1925(b) statement did not challenge

the imposition of a mandatory minimum sentence. Appellant also moved for

leave to file a supplemental brief addressing Commonwealth v. Castro, 93

A.3d 818 (Pa. 2014), which this Court granted. Appellant filed a

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supplemental brief discussing Castro, supra, and also replying to the

arguments raised in the Commonwealth’s brief.

Appellant raises the following issues in his initial brief:

Whether the PCRA court erred in finding that Appellant’s

claims of previously undisclosed or otherwise unavailable

evidence concerning the criminal status of a key

Commonwealth witness, who had open criminal charges

and a warrant for his arrest at the time he alleged to have

purchased cocaine form [sic] Appellant failed to meet the

“after-discovered facts” exception of 42 Pa.C.S. §

95445(b)(1)(ii)?

Whether the PCRA court applied the incorrect legal

standard in evaluating whether subsequent allegations of

theft, physical abuse and planting/fabricating evidence

made against members of the Philadelphia NFU were

sufficient to meet the “after-discovered facts” exception of

42 Pa.C.S. § 9545(b)(1)(ii)?

Whether Appellant’s substantive claims of prosecutorial

misconduct and/or previously unavailable exculpatory

evidence, (respectively asserted pursuant to 42 Pa.C.S. §

9543(a)(2)(i) and 9543(a)(2)(vi)) are sufficient to warrant

an evidentiary hearing?

Whether the trial court’s imposition if [sic] the mandatory

minimum sentence of 7 to 14 years’ incarceration on the

charges of delivery/possession with intent to deliver a

controlled substance pursuant to 18 Pa.C.S. § 7508 was

illegal for the reason that the facts necessary for

imposition of the mandatory minimum were not found by

the jury beyond a reasonable doubt as required by the rule

announced in Apprendi v. New Jersey, 530 U.S. 466

(2000) and interpretatively applied in Alleyne v. United

States, 133 S. Ct. 2151 (2013)?

Appellant’s Brief at 4. Appellant, in his supplemental brief, raises the

following issues:

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Contrary to the Commonwealth’s contentions, the present

case is distinguishable from that recently addressed by the

Pennsylvania Supreme Court in Commonwealth v.

Castro, 19 EAP 2013 (June 16, 2014).

Whether or not the allegations of police misconduct

contained in the January 24, 2013 newspaper article of

issue may or may not have been publicly known as early

as March 30, 2009 is of no moment in the present case.

The Commonwealth’s contentions concerning Appellant’s

purported knowledge of Commonwealth witness Rodney

Frye’s criminal status at the time he alleged to have

purchased cocaine from Appellant finds no support in the

record.

Appellant’s Supplemental Brief at i.

We summarize Appellant’s arguments for the first three issues of his

initial brief and the issues in his supplemental brief together. Appellant

suggests that within sixty days of filing his second PCRA petition, he learned

that Mr. Frye, at the time of Appellant’s trial, had criminal charges pending

against him in Chester County, Pennsylvania and Georgia. Appellant asserts

the Commonwealth failed to disclose such information to him, or if the

Commonwealth was unaware, that such information exculpates him.

Appellant also claims that on January 25, 2013—after he filed his second

PCRA petition—he learned about a newspaper article alleging members of

the NFU, including Officer Cujdik, were corrupt. He argues the

Commonwealth failed to disclose that information to him prior to his 2006

trial or prior to the publication of the newspaper article. See Appellant’s

Brief at 24. Appellant maintains that he was deprived of the opportunity for

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a fair trial based upon the allegations raised in the newspaper article. For

these issues, we hold Appellant is due no relief.

Before addressing the merits of Appellant’s claims, we examine

whether we have jurisdiction to entertain the underlying PCRA petition. See

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). “Our standard of

review of a PCRA court’s dismissal of a PCRA petition is limited to examining

whether the PCRA court’s determination is supported by the evidence of

record and free of legal error.” Commonwealth v. Wilson, 824 A.2d 331,

333 (Pa. Super. 2003) (en banc) (citation omitted). A PCRA petition “must

normally be filed within one year of the date the judgment becomes final . . .

unless one of the exceptions in § 9545(b)(1)(i)-(iii) applies and the petition

is filed within 60 days of the date the claim could have been presented.”

Commonwealth v. Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (citations

and footnote omitted).

The PCRA’s timeliness requirements are jurisdictional in

nature and must be strictly construed; courts may not

address the merits of the issues raised in a petition if it is

not timely filed. It is the petitioner’s burden to allege and

prove that one of the [three] timeliness exceptions applies.

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267-68 (Pa. 2008)

(citations omitted).

The three timeliness exceptions are:

(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

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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)(i)-(iii) (emphases added); accord Commonwealth

v. Bennett, 930 A.2d 1264, 1271 (Pa. 2007). To preserve a claim for an

illegal sentence, the PCRA petition must be timely filed. See Fahy, 737

A.2d at 223 (holding, “Although legality of sentence is always subject to

review within the PCRA, claims must still first satisfy the PCRA’s time limits

or one of the exceptions thereto.”).

With respect to after-discovered evidence, in Commonwealth v.

Castro, 93 A.3d 818 (Pa. 2014), our Supreme Court addressed “whether a

newspaper article submitted as the sole support for a motion for new trial on

the basis of after-discovered evidence warrants the grant of a hearing.” Id.

at 819. According to the Castro Court:

On March 30, 2009, four days after [the Castro

defendant’s] trial, the Philadelphia Daily News published an

article alleging police misconduct by Officer Cujdik, his

brother (also a narcotics officer), and other officers during

a raid of a convenience store in 2007. . . .

* * *

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[The Castro defendant] filed a post-sentence motion

for a new trial on the basis of after-discovered evidence

based solely on the newspaper article that stated Officer

Cujdik was under investigation for corruption and

falsification of evidence in another case involving the same

confidential informant.

Id. at 820. The trial court denied the defendant’s motion but the en banc

Superior Court reversed. Id. at 821.

The Castro Court reversed the en banc Superior Court and held that

because the newspaper article is not evidence, it cannot qualify as “after-

discovered” evidence:

We need not belabor the question of whether a newspaper

article is evidence—the parties agree the article itself is not

evidence.11 The Superior Court erred in treating the article

as containing evidence; the article contains allegations that

suggest such evidence may exist, but allegations in the

media, whether true or false, are no more evidence than

allegations in any other out-of-court situation. Nothing in

these allegations, even read in the broadest sense, can be

described as “evidence,” and references to the officer

being under investigation for misconduct contains no

information regarding what evidence existed to

substantiate this averment. One cannot glean from these

bald allegations what evidence of misconduct appellee

intended to produce at the hearing.

11

This Court and the Commonwealth and Superior Courts

have held newspaper articles generally do not constitute

evidence, as they contain inadmissible hearsay. See

Commonwealth v. Ngow, 539 Pa. 294, 652 A.2d 305,

306 (1995) (holding newspaper article was insufficient

proof that baseball bat was instrument of crime; “proof

may not consist of what one hears on the news”),

superseded by statute on other grounds, Commonwealth

v. Robertson, 874 A.2d 1200 (Pa. Super. 2005);

Presbyterian SeniorCare [v. Unemployment Comp.

Bd. of Review, 900 A.2d 967, 978 (Pa. Cmwlth. 2006)]

(referring to newspaper article as “[u]ncorroborated

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double hearsay”); Steinhouse v. Workers’

Compensation Appeal Board (A.P. Green Services),

783 A.2d 352, 356–57 (Pa. Cmwlth. 2001) (holding

newspaper article regarding indictment of health care

provider was inadmissible hearsay, as it was not

corroborated by any witness testimony; furthermore,

indictment was inadmissible to impeach provider's

credibility, as it was prior bad act not resulting in

conviction; arrest or indictment do not establish guilt, and

are hearsay assertions of guilt); [Commonwealth v.

Saksek, 522 A.2d 70, 71-72 (Pa. Super. 1987)]

(upholding exclusion of newspaper article as inadmissible

hearsay).

Castro, 93 A.3d at 825-26 & 825 n.11. In sum, because newspaper articles

contain inadmissible hearsay, they cannot justify granting a post-sentence

motion for a new trial. Id.

Instantly, we review whether the PCRA court erred by holding

Appellant’s second PCRA petition was untimely. See 42 Pa.C.S. §

9545(b)(1), (2); Abu-Jamal, 941 A.2d at 1267-68. Appellant’s judgment of

sentence became final on September 7, 2007, as he did not file a petition for

allowance of appeal to our Supreme Court. Appellant filed the instant

petition on August 24, 2012, almost five years later. Thus, this Court must

discern whether the PCRA court erred in concluding Appellant did not plead

and prove one of the three timeliness exceptions. See 42 Pa.C.S. §

9545(b)(1)(i)-(iii); Copenhefer, 941 A.2d at 648.

With respect to Appellant’s claims regarding Mr. Frye, Appellant failed

to plead and prove why he could not have discovered such information by

acting with due diligence. See 42 Pa.C.S. § 9545(b)(1)(ii); Bennett, 930

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A.2d at 1271. Regardless, his claims do not constitute newly discovered

facts, as Mr. Frye testified about his prior criminal record in Chester County

and Georgia. See N.T. Trial, 3/1/06, at 138-39, 150-51. Thus, Appellant

cannot establish that Mr. Frye’s criminal record was unknown to him at the

time of his trial. See 42 Pa.C.S. § 9545(b)(1)(ii).

As for Appellant’s claims regarding Officer Cujdik and the NFU,

Appellant references a January 25, 2013 article. Such information, however,

was published on March 30, 2009, almost four years prior to 2013. See

Castro, 93 A.3d at 820. Appellant did not plead and prove why he could not

have discovered such information with the exercise of due diligence prior to

January 25, 2013. See 42 Pa.C.S. § 9545(b)(1)(ii). Regardless, our

Supreme Court held that newspaper articles do not generally qualify as

“after-discovered” evidence in the context of a post-sentence motion for a

new trial because they include inadmissible hearsay. See Castro, 93 A.3d

at 825-26 & 825 n.11. It follows that newspaper articles generally would

not qualify as facts for the purposes of 42 Pa.C.S. § 9545(b)(1)(ii), and thus

Appellant has not established entitlement to relief. See id.

Appellant lastly opines that the court imposed an illegal sentence

pursuant to Alleyne, which was issued on June 17, 2013, after the PCRA

court dismissed his second PCRA petition but before he filed an appeal.

Appellant claims that because the jury was not asked to determine the

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weight of the drugs he possessed, the court impermissibly imposed an illegal

sentence. We hold Appellant is due no relief.

In Commonwealth v. Miller, ___ A.3d ___, 2014 WL 4783558 (Pa.

Super. Sept. 26, 2014), the Superior Court held the following:

Even assuming that Alleyne did announce a new

constitutional right, neither our Supreme Court, nor the

United States Supreme Court has held that Alleyne is to

be applied retroactively to cases in which the judgment of

sentence had become final. This is fatal to [the

defendant’s] argument regarding the PCRA time-bar. This

Court has recognized that a new rule of constitutional law

is applied retroactively to cases on collateral review only if

the United States Supreme Court or our Supreme Court

specifically holds it to be retroactively applicable to those

cases. Therefore, [the defendant] has failed to satisfy the

new constitutional right exception to the time-bar.

We are aware that an issue pertaining to Alleyne goes to

the legality of the sentence. It is generally true that this

Court is endowed with the ability to consider an issue of

illegality of sentence sua sponte. However, in order for

this Court to review a legality of sentence claim, there

must be a basis for our jurisdiction to engage in such

review. As this Court recently noted, though not

technically waivable, a legality of sentence claim may

nevertheless be lost should it be raised in an untimely

PCRA petition for which no time-bar exception applies,

thus depriving the court of jurisdiction over the claim.

Id. at ___, *5 (citations and punctuation omitted). Instantly, Appellant

invokes Alleyne in his second PCRA petition. As set forth above, Appellant’s

claim does not satisfy any one of the PCRA’s timeliness exceptions. See id.

Having discerned no abuse of discretion or error of law, we affirm the order

below. See Abu-Jamal, 941 A.2d at 1267-68; Wilson, 824 A.2d at 333.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/22/2014

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