The opinion
J-A15029-19
2019 PA Super 245
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PIEATTRO SHAW :
:
Appellant : No. 605 EDA 2018
Appeal from the PCRA Order January 22, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CR-51-CR-0807931-2005
BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and COLINS*, J.
OPINION BY GANTMAN, P.J.E.: FILED AUGUST 16, 2019
Appellant, Pieattro Shaw, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed as untimely his
first petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.
This Court has previously set forth the relevant facts of this case as
follows:
On July 13, 2004, [Appellant] entered the home of Darlene
Peck [“Ms. Peck”] at 5121 Locust Street in Philadelphia
without permission. The record in the trial court established
that [Appellant] held Ms. Peck down and tried to kiss her
and then fled the scene. [Appellant] and Ms. Peck were
involved romantically two years prior to this altercation.
Several weeks leading up to this incident, [Appellant] saw
Ms. Peck in public. She was eight months pregnant at the
time, which upset him.
The next day, on July 14, 2004, [Appellant] again entered
Ms. Peck’s residence without permission. [Victim], Ms.
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1 42 Pa.C.S.A. §§ 9541-9546.
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* Retired Senior Judge assigned to the Superior Court.
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Peck’s live-in boyfriend and father of her then two-week old
child, told [Appellant] to leave. As [Victim] escorted
[Appellant] out of the house, [Appellant] withdrew a .380
caliber handgun and fired once striking [Victim] in the head.
[Victim] lost consciousness.
Police were summoned to the scene and Ms. Peck gave them
a description of [Appellant’s] car. A car matching Ms. Peck’s
description was located heading back toward the residence.
Police ordered [Appellant] to pull over and he was
apprehended. They recovered a .380 caliber handgun from
[Appellant’s] waistband. One spent cartridge casing and
two live rounds of .380 caliber ammunition were recovered
at the scene.
[Victim] never regained consciousness and died several
days later on July 17, 2004. The coroner determined the
cause of death was the gunshot wound to the right parietal
lobe from a .380 caliber bullet recovered during the autopsy.
Commonwealth v. Shaw, 2470 EDA 2006, at 2-3 (Pa.Super. filed April 7,
2008) (unpublished memorandum).
The Commonwealth charged Appellant with murder generally, burglary,
firearms not to be carried without a license, and related offenses. Appellant
proceeded to a bench trial on June 13, 2006. Appellant underwent a
psychiatric evaluation prior to trial and was deemed competent to stand trial.
At trial, Appellant presented expert testimony to support his claim that he
lacked the requisite intent to commit first-degree murder due to his history of
mental illness. The Commonwealth presented its own expert to rebut
Appellant’s claim. On June 15, 2006, the court convicted Appellant of third-
degree murder, burglary, firearms not to be carried without a license, and
possessing instruments of crime. The court sentenced Appellant that day to
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an aggregate term of 36 to 72 years’ imprisonment. This Court affirmed the
judgment of sentence on April 7, 2008, and our Supreme Court denied
allowance of appeal on July 30, 2008. Commonwealth v. Shaw, 953 A.2d
839 (Pa.Super. 2008), appeal denied, 598 Pa. 766, 956 A.2d 434 (2008).
On May 16, 2015, Appellant filed pro se a first PCRA petition. Appellant
subsequently filed pro se two supplemental PCRA petitions. The court
appointed counsel, who filed a petition to withdraw and a Turner/Finley2 “no-
merit” letter on December 22, 2016. On April 27, 2017, the court issued
notice of its intent to dismiss the petition without a hearing per Pa.R.Crim.P.
907. At a hearing before the court on June 1, 2017, when the court was
prepared to dismiss the petition formally, Appellant’s brother appeared on
Appellant’s behalf and asked the court for an extension of time for Appellant
to file a response to counsel’s Turner/Finley “no-merit letter.” Appellant’s
brother also asked the court to appoint new PCRA counsel for Appellant,
alleging that Appellant cannot read or write. Appellant’s brother suggested
that others had helped Appellant draft his earlier pro se filings. The court
granted the request, let original PCRA counsel withdraw, and appointed new
PCRA counsel to review all filings including original PCRA counsel’s
Turner/Finley letter.
On June 25, 2017, second PCRA counsel filed a petition to withdraw and
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2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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a Turner/Finley “no-merit” letter. Appellant responded pro se on August 15,
2017. The court issued Rule 907 notice for a second time on December 4,
2017, and formally dismissed the petition as untimely on January 22, 2018,
and let second PCRA counsel withdraw. Appellant timely filed a pro se notice
of appeal on February 20, 2018. On March 8, 2018, the court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant’s brother subsequently filed a Rule
1925(b) statement on Appellant’s behalf, which the court rejected. On June
8, 2018, the court appointed appellate counsel3 and issued a new Rule 1925(b)
order. Following the grant of an extension of time, Appellant timely filed a
counseled Rule 1925(b) statement on July 30, 2018.
Appellant raises the following issue for our review:
DID THE PCRA COURT ERR AND/OR ABUSE ITS
DISCRETION WHEN IT DENIED [APPELLANT’S] PETITION
UNDER THE PCRA WITHOUT A HEARING WITH RESPECT TO
WHETHER [APPELLANT’S] ALLEGED MENTAL
INCOMPETENCE DURING WHICH THE STATUTORY PERIOD
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3 Generally, once the court permits PCRA counsel to withdraw after filing a
Turner/Finely “no-merit” letter, an appellant is no longer entitled to the
appointment of counsel on appeal. See Commonwealth v. Rykard, 55 A.3d
1177 (Pa.Super. 2012), appeal denied, 619 Pa. 714, 64 A.3d 631 (2013)
(explaining that when counsel has been appointed to represent PCRA
petitioner and that right has been fully vindicated following grant of counsel’s
petition to withdraw under Turner/Finley, court shall not appoint new counsel
and appellant must look to his own resources for future proceedings). Here,
the PCRA court appointed appellate counsel based on Appellant’s allegations
of mental illness and illiteracy. We see no error with the court’s appointment
of appellate counsel under these circumstances. See Pa.R.Crim.P. 904(E)
(stating court shall appoint counsel to represent defendant whenever interests
of justice require it).
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FOR FILING A PCRA PETITION EXPIRED MAY TRIGGER THE
“NEWLY DISCOVERED FACT” EXCEPTION TO THE PCRA
TIME-BAR WHERE THE TURNER/FINLEY LETTERS FILED
IN THE PCRA COURT BY PRIOR COUNSEL DID NOT PRESENT
SUFFICIENT ANALYSIS WITH RESPECT TO THIS CLAIM OF
AN EXCEPTION TO THE PCRA’S TIME BAR?
(Appellant’s Brief at 5) (internal footnotes omitted).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d
319 (2008). This Court grants great deference to the findings of the PCRA
court if the record contains any support for those findings. Commonwealth
v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932
A.2d 74 (2007). Further, a petitioner is not entitled to a PCRA hearing as a
matter of right; the PCRA court can decline to hold a hearing if there is no
genuine issue concerning any material fact, the petitioner is not entitled to
PCRA relief, and no purpose would be served by any further proceedings.
Commonwealth v. Wah, 42 A.3d 335 (Pa.Super. 2012).
Appellant argues he was mentally incapacitated throughout the period
when he could have filed a timely PCRA petition. Appellant asserts he
presented expert testimony at trial demonstrating his well-documented
mental defect. Appellant highlights his expert’s trial testimony that Appellant
could not have formed specific intent to kill due to Appellant’s various mental
deficiencies. Appellant claims he has an I.Q. of 64 and operates at an
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elementary school level. Appellant maintains his mental disorders affected
his capacity to initiate and participate in collateral proceedings. Appellant
contends he suffers from a diagnosed psychotic disorder and paranoia.
Appellant emphasizes he was involuntarily committed to Norristown State
Hospital prior to trial in this case. Appellant submits his documented mental
disorders, coupled with his inability to read, write, or preform basic math,
show he was incompetent during the mandatory time limits for filing a PCRA
petition. Appellant concludes his substantial mental health issues constitute
more than mere mental illness or a psychological condition, and this Court
must vacate and remand for an evidentiary hearing so Appellant can establish
that he remained incompetent throughout the time when he should have filed
a timely PCRA petition and filed his petition as soon as he became sufficiently
competent to proceed. We disagree.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Robinson, 12 A.3d 477 (Pa.Super. 2011). A PCRA
petition, including a second or subsequent petition, must be filed within one
year of the date the underlying judgment becomes final. 42 Pa.C.S.A. §
9545(b)(1). A judgment is deemed 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.A. § 9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
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allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition
must allege and the petitioner must prove:
(i) the failure to raise a 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.A. § 9545(b)(1)(i)-(iii). In addition, a petitioner asserting a
timeliness exception must file a petition within 60 days of when the claim
could first have been presented.4 42 Pa.C.S.A. § 9545(b)(1-2). The PCRA’s
“time limitations are mandatory and interpreted literally; thus, a court has no
authority to extend filing periods except as the statute permits.”
Commonwealth v. Fahy, 558 Pa. 313, 329, 737 A.2d 214, 222 (1999)
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4 As of December 24, 2018, Section 9545(b)(2) now allows that any PCRA
petition invoking a timeliness exception must be filed within one year of the
date the claim first could have been presented. See Act 2018, Oct. 24, P.L.
894, No. 146, § 2, effective in 60 days [Dec. 24, 2018]. This amendment
applies to claims arising on or after December 24, 2017. Because Appellant
filed the current PCRA petition on May 16, 2015, the amendment does not
apply here.
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(holding period for filing PCRA is not subject to doctrine of equitable tolling,
except to extent doctrine is embraced by statutory exceptions to time-bar).
The timeliness exception set forth in Section 9545(b)(1)(ii), also known
as the “newly-discovered fact” exception, requires a petitioner to plead and
prove: (1) he did not know the fact(s) upon which he based his petition; and
(2) he could not have learned those fact(s) earlier by the exercise of due
diligence. Commonwealth v. Bennett, 593 Pa. 382, 393, 930 A.2d 1264,
1270 (2007). Due diligence demands the petitioner to take reasonable steps
to protect his own interests. Commonwealth v. Carr, 768 A.2d 1164
(Pa.Super. 2001). A petitioner must explain why he could not have learned
the new fact earlier with the exercise of due diligence. Commonwealth v.
Breakiron, 566 Pa. 323, 781 A.2d 94 (2001). This rule is strictly enforced.
Commonwealth v. Monaco, 996 A.2d 1076 (Pa.Super. 2010), appeal
denied, 610 Pa. 607, 20 A.3d 1210 (2011).
Broad claims of mental illness do not satisfy a statutory exception to the
PCRA time-bar. Commonwealth v. Hoffman, 780 A.2d 700, 701 (Pa.Super.
2001). In Commonwealth v. Cruz, 578 Pa. 325, 852 A.2d 287 (2004), our
Supreme Court carved out a narrow exception to the general rule where a
PCRA petitioner’s mental incompetence prevented him from filing a timely
PCRA petition. The appellant in Cruz shot and killed a number of victims
before turning his handgun on himself and attempting to commit suicide. The
appellant survived, but he sustained a severe brain injury that left him
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essentially lobotomized. The appellant entered a plea of nolo contendere to
three counts of second-degree murder, and the court sentenced him to
consecutive terms of life imprisonment for each offense. At the time of the
plea, the parties informed the court that the appellant was pleading nolo
contendere because he was unable to express emotions or discuss the facts
of the case in any sensible way due to his brain injury. Almost six years later,
the appellant filed a PCRA petition alleging his brain injury had rendered him
incompetent and prevented him from participating in his own defense. The
appellant further alleged that his brain injury had been slowly resolving in the
months just before he filed his PCRA petition. The Cruz Court recognized that
the PCRA does not include an exception for mental incapacity but held “in
some circumstances, claims that were defaulted due to the PCRA petitioner’s
mental incompetence may qualify under the statutory [newly-discovered fact]
exception.” Id. at 336, 852 A.2d at 293 (emphasis added).
“Thus, the general rule remains that mental illness or psychological
condition, absent more, will not serve as an exception to the PCRA’s
jurisdictional time requirements.” Monaco, supra at 1081. Consequently,
Pennsylvania courts have continued to construe narrowly the limited holding
in Cruz. See, e.g., Commonwealth v. Ali, 624 Pa. 309, 86 A.3d 173 (2014),
cert. denied, ___ U.S. ___, 135 S.Ct. 707, 190 L.Ed.2d 439 (2014) (holding
petitioner did not meet newly-discovered fact exception concerning second
PCRA petition because he failed to prove he was mentally incompetent during
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statutory period allowed; appellant showed temporal awareness in filing timely
first PCRA petition and subsequent amendments after his judgment of
sentence became final; that appellant was plainly able to ascertain factual
predicates to claims raised in first PCRA petition but unable to ascertain facts
necessary for issues raised in second PCRA petition is simply incongruous);
Monaco, supra (holding appellant did not satisfy newly-discovered fact
exception where he failed to exercise due diligence in ascertaining diagnosis
of post-traumatic stress disorder (“PTSD”); additionally, appellant did not
allege his PTSD impaired his ability to raise claim in timely manner; thus,
appellant’s PTSD diagnosis did not fall within narrow Cruz holding);
Commonwealth v. Liebensperger, 904 A.2d 40 (Pa.Super. 2006) (holding
appellant’s assertion of chronic mental illness did not satisfy newly-discovered
fact exception; appellant’s inability to offer evidence pointing to moment when
he passed from incompetence to competence distinguished his case from
Cruz; further, appellant made no assertions, and nothing in record indicates,
that appellant’s condition was one that improved or changed and restored him
to degree of competence required to file PCRA petition); Commonwealth v.
Pagan, 864 A.2d 1231 (Pa.Super. 2004), cert. denied, 546 U.S. 909, 126
S.Ct. 264, 163 L.Ed.2d 237 (2005) (holding appellant was ineligible for PCRA
relief where he was no longer serving sentence; in any event, appellant could
not meet newly-discovered fact exception, where expert decided appellant
was competent four years before appellant filed current PCRA petition).
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Instantly, Appellant’s judgment of sentence became final on October 28,
2008, upon expiration of the time for filing a petition for writ of certiorari with
the United States Supreme Court. See U.S.Sup.Ct.R.13 (providing ninety
days to timely file petition for writ of certiorari). Appellant filed the current
PCRA petition on May 16, 2015, which was patently untimely. See 42
Pa.C.S.A. § 9545(b)(1). Appellant attempted to invoke the “newly-discovered
fact” exception at Section 9545(b)(1)(ii), alleging his history of mental illness
paired with his learning difficulties rendered him incompetent to participate in
collateral proceedings during the statutory period prescribed in the PCRA.
The PCRA court addressed Appellant’s claim as follows:
The instant claim is clearly distinguishable from Cruz. In
Cruz, the appellant presented evidence that he was
“lobotomized.” Here, [Appellant] claims that because he
had a history of mental illness and a learning disability, he
was unable to file a timely PCRA petition. Having a history
of mental illness or a learning disability does not rise to the
same level of unique circumstances found in Cruz.
Further, [Appellant] fails to demonstrate that he exercised
due diligence in learning the purported “newly-discovered
fact” and could not have discovered the information
regarding his alleged mental incompetence sooner.
[Appellant] also fails to plead or prove when he allegedly
became competent and how his alleged mental
incompetence prevented him from filing a timely PCRA
petition.
Finally, [Appellant’s] mental health issue is not newly-
discovered, but was well known. At trial, there was
extensive expert testimony on [Appellant’s] mental health,
medications, diagnosis, and rehabilitative needs. There was
additional testimony about his mental health at
[Appellant’s] sentencing, where the trial court found he had
“some type of substantive mental defect” which was “well-
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documented.”
Because [Appellant’s] alleged mental health issue does not
rise to a level of unique circumstances—as in
Commonwealth v. Cruz—and because [Appellant] cannot
demonstrate that he could not have learned of this issue
sooner, [Appellant] does not meet the “newly-discovered
facts” exception to the PCRA time bar. As such, his PCRA
petition was properly dismissed as untimely without a
hearing.
(PCRA Court Opinion, filed September 5, 2018, at 6-7) (internal citations
omitted). The record supports the court’s analysis. See Wah, supra; Ford,
supra; Boyd, supra. The record in this case confirms Appellant’s mental
issues and difficulties were fully explored and considered at trial and at
sentencing; and Appellant was deemed competent for trial in 2006, as well as
sentencing and direct review. Thus, the very existence of Appellant’s mental
challenges did not qualify as a “new fact” for purposes of satisfying that time-
bar exception. See Bennett, supra; Pagan, supra. Appellant knew then
what he now claims is a “new fact.” See id.; Monaco, supra; Carr, supra.
Further, Appellant did not explain how his mental limitations later
increased or if he regressed or when he recovered. In other words, Appellant
simply failed to assert, and nothing in this record indicates, how his mental
condition changed over the years, for worse or for better since his trial,
sentencing, and direct appeal, in a manner that would excuse the delay in
filing his current petition for collateral relief. See Liebensperger, supra.
Compare Cruz, supra. Therefore, Appellant could not satisfy the “newly-
discovered fact” exception described in Cruz, and the PCRA court properly
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dismissed Appellant’s petition as time-barred. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/19
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