The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MALIK HOOD :
:
Appellant : No. 3428 EDA 2016
Appeal from the PCRA Order September 30, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0303561-2000
BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 27, 2017
Malik Hood appeals from the September 30, 2016 order denying him
PCRA relief. We affirm.
After a jury convicted him of first-degree murder and two violations of
the Uniform Firearms Act, Appellant was sentenced on November 4, 2002, to
life imprisonment. The convictions arose from the November 24, 1997
shooting death of Anthony Taylor, whose murder was generated by the fact
that Appellant, as the head of a drug operation centered on North Creighton
Street, Philadelphia, began to conduct his enterprise from 229 N. Creighton
Street, which was owned by the boyfriend of Mr. Taylor’s mother. In
November 1997, Mr. Taylor moved to 229 N. Creighton Street, and, after
viewing the criminal operation, informed Appellant and his accomplices to
leave and cease selling cocaine from the residence.
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When they refused to vacate 229 N. Creighton Street, Mr. Taylor went
to a neighbor’s house to telephone the police, but one of Appellant’s cohorts
followed him and told Appellant that the victim had called the police.
Appellant confronted Mr. Taylor as he was leaving the neighbor’s home; the
victim again told Appellant that he could no longer use the premises in
question to sell drugs. In response, Appellant shot Mr. Taylor to death and
fled, avoiding capture until January 6, 2000.
While there were numerous witnesses to these events, they refused to
come forward as they feared retaliation from Appellant and the members of
his drug gang. Eventually, two people agreed to testify against Appellant; in
order to protect them, the Commonwealth was able to keep their identities
secret. Not only did both witnesses state at trial that they saw Appellant
shoot Mr. Taylor, the Commonwealth played recordings of two telephone
calls made to 911 immediately after the incident. Appellant was clearly
identified as Mr. Taylor’s murderer during those calls.
After Appellant was found guilty and sentenced, he filed a direct
appeal, wherein he claimed that the 911 calls were improperly admitted at
trial, that the judge erred in issuing an order to protect the identity of the
two eyewitnesses, and that the prosecutor committed misconduct. After we
rejected those contentions and affirmed, our Supreme Court denied
allowance of appeal on October 27, 2005. Commonwealth v. Hood, 872
A.2d 175 (Pa.Super. 2005), appeal denied, 889 A.2d 88 (Pa. 2005).
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After Appellant filed a timely pro se petition, counsel was appointed
and presented an amended petition. PCRA counsel averred that trial counsel
was ineffective for not seeking a continuance after the identities of the two
witnesses were revealed and for failing to present Kerper Yenglee as a
witness. In the counseled PCRA petition, Appellant averred that Yenglee
would have identified a man named Sharif as the shooter. The court denied
PCRA relief, and, on appeal, we affirmed, Commonwealth v. Hood, 984
A.2d 1014 (Pa.Super. 2009) (unpublished memorandum), appeal denied,
997 A.2d 1175 (Pa. 2010). This Court ruled that trial counsel was not
ineffective for failing to present Yenglee as a witness because Appellant
failed to establish either that trial counsel knew or should have known of
Yenglee or that Yenglee was willing and able to testify at trial.
On August 24, 2012, Appellant, who was not a juvenile when he
murdered Mr. Taylor, filed a second PCRA petition, claiming that he was
entitled to application of Miller v. Alabama, 132 S.Ct. 2455 (2012),
wherein the United States Supreme Court held that it was unconstitutional
for juvenile homicide offenders to be sentenced automatically to life
imprisonment without parole. Counsel was appointed and filed an amended
petition averring the existence of newly-discovered facts in the form of two
witnesses, Diane Matthews and Ramses Lee. In statements attached to the
amended petition, Matthews and Lee identified Sharif as Mr. Taylor’s
murderer. The PCRA court ruled that the August 24, 2012 petition was
untimely since Appellant did not exercise due diligence in ascertaining the
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existence of Matthews and Lee. This appeal followed, and Appellant
presents this claim:
1. The PCRA court erred when it refused to hold a hearing
because the statements of Diane Matthews and Ramses
Lee created material issue of disputed Fact regarding the
guilt-innocence issue and whether the Commonwealth
violated Brady and if so whether the suppressed evidence
undermines confidence in the jury’s verdicts.
Appellant’s brief at 4 (citation omitted).
This Court reviews the “denial of PCRA relief to determine whether the
findings of the PCRA court are supported by the record and free of legal
error.” Commonwealth v. Roane, 142 A.3d 79, 86 (Pa.Super. 2016)
(quoting Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)). It is
now settled law that all PCRA petitions must be filed within one year of the
date a defendant’s judgment of sentence becomes final unless an exception
to the one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1). If a PCRA
petition is untimely, “neither this Court nor the trial court has jurisdiction
over the petition.” Commonwealth v. Miller, 102 A.3d 988, 992
(Pa.Super. 2014) (citation omitted); see also Commonwealth v. Spotz,
___ A.3d ___ (Pa. CAP 731 and 734 filed October 18, 2017);
Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006). The PCRA’s
time constraints are not subject to tolling or other equitable considerations.
Spotz, supra. There are three exceptions to this one-year time
requirement: (1) interference by government officials in the presentation of
the claim; (2) newly-discovered facts; and (3) an after-recognized
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constitutional right. 42 Pa.C.S. § 9545(b)(1)(i-iii). The PCRA petitioner has
the burden of pleading and proving the existence of the exception invoked.
Spotz, supra.
In the present case, our Supreme Court denied allowance of appeal on
October 27, 2005, and Appellant’s judgment of sentence became final ninety
days later, or on January 25, 2006, when the time for seeking review in the
United States Supreme Court expired. 42 Pa.C.S. § 9545(b)(3) (a
defendant’s 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 the
time for seeking the review”). Appellant had until January 25, 2007, to file a
timely petition; on it’s face, his present 2012 petition does not meet that
constraint. Herein, Appellant invokes the newly-discovered facts exception
outlined in § 9545(b)(1)(ii). “To qualify for an exception to the PCRA's time
limitations under subsection 9545(b)(1)(ii), 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.”
Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017). Due diligence
“does not require perfect vigilance and punctilious care, but merely a
showing the party has put forth reasonable effort to obtain the information
upon which a claim is based.” Commonwealth v. Cox, 146 A.3d 221, 230
(Pa. 2016) (citation and quotation marks omitted).
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Appellant first raises the specter of a Brady v. Maryland, 373 U.S. 83
(1963), claim with respect to Matthews. “Under Brady, the prosecution's
failure to divulge exculpatory evidence is a violation of a defendant's
Fourteenth Amendment due process rights. To establish a Brady violation, a
defendant is required to demonstrate that exculpatory or impeaching
evidence, favorable to the defense, was suppressed by the prosecution, to
the prejudice of the defendant.” Commonwealth v. Cam Ly, 980 A.2d 61,
75 (Pa. 2009) (citation omitted). On August 13, 1999, Matthews gave
police a statement, wherein he indicated that Appellant was the shooter.
Commonwealth’s Motion to Dismiss, 3/9/16, at Exhibit A. Since the 1999
statement did not provide evidence that tended to exonerate Appellant and
since it failed to impeach or contradict any Commonwealth witnesses, there
was no Brady violation in connection with Matthews.
Appellant next insists that he exercised due diligence in finding the
recent representations of Matthews and Lee that Appellant was not the
shooter. He maintains that he had no way of knowing that Matthews and
Lee observed the crime. However, Appellant knew or should have known
about Matthews since Matthews gave a statement to police in 1999. As to
Lee, Lee indicated that he was with Yenglee when Yenglee saw the shooting.
Thus, Appellant could have discovered Lee’s existence simply by asking
Yenglee whether there was anyone who could corroborate Yenglee’s
identification of Sharif as Mr. Taylor’s murderer.
As we have articulated:
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Due diligence demands that the petitioner take reasonable steps
to protect his own interests. Commonwealth v. Carr, 768 A.2d
1164, 1168 (Pa.Super.2001). A petitioner must explain why he
could not have learned the new fact(s) earlier with the exercise
of due diligence. Commonwealth v. Breakiron, 566 Pa. 323,
330–31, 781 A.2d 94, 98 (2001); Commonwealth v. Monaco,
996 A.2d 1076, 1080 (Pa.Super.2010), appeal denied, 610 Pa.
607, 20 A.3d 1210 (2011). This rule is strictly enforced. Id.
Additionally, the focus of this exception “is on the newly
discovered facts, not on a newly discovered or newly willing
source for previously known facts.” Commonwealth v.
Marshall, 596 Pa. 587, 596, 947 A.2d 714, 720 (2008)
(emphasis in original).
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015).
The record herein establishes that Appellant did not plead sufficient
facts to establish that he could not have learned about the exonerating
evidence of Matthews and Lee earlier by simple investigation. Hence, the
PCRA court did not abuse its discretion in concluding that Appellant could not
invoke the newly-discovered facts exception to the one-year time bar.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/27/2017
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