Com. v. Bozeman, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

:

:

EZRA BOZEMAN :

:

Appellant : No. 240 WDA 2019

Appeal from the PCRA Order Entered, January 15, 2019,

in the Court of Common Pleas of Allegheny County,

Criminal Division at No(s): CP-02-CR-0003632-1975.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 20, 2019

Ezra Bozeman appeals pro se from the order that denied as untimely his

eighth petition filed pursuant to the Post Conviction Relief Act (PCRA). 42

Pa.C.S.A. §§ 9541-46. We affirm.

The PCRA court summarized the pertinent facts as follows:

[Bozeman] was convicted of second-degree murder in

the shooting death of Morris Weitz during an attempted

robbery at the Highland Cleaners in the Highland Park

neighborhood section of Pittsburgh on January 3, 1975. One

of the witnesses who testified against Bozeman at trial was

Thomas Durrett. Durrett testified that he was friends with

Bozeman for about three months prior to the shooting.

Durrett testified that in the early afternoon on the day of the

shooting, Bozeman came to Durrett’s apartment, which he

shared with Gregory Clark, and they discussed making some

money by selling some marijuana that Bozeman had at

Peabody High School. After smoking some marijuana,

Bozeman and Durrett drove to the Peabody High School

area and parked their car and were walking toward the

school when Bozeman stated that “We’re going to rob the

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cleaners.” Durrett told Bozeman he did not want to be

involved and Durrett walked into the next door pizza shop.

Durrett ordered some pizza and spoke to some friends and

as he walked out of the pizza shop Durrett could see into

the cleaner’s shop where he could see Bozeman in a

confrontation with a man behind the counter. He then saw

Bozeman step back and he then heard two gunshots and

saw Bozeman pointing a dark colored revolver at the man

behind the counter. He then saw Bozeman run out of the

cleaners. Frightened, Durrett ran back to his apartment.

Minutes later Bozeman also returned to the apartment.

Durrett confronted Bozeman and said, “Don’t you know you

killed a man?” Bozeman responded that, “He wouldn’t

cough up the money, so I took him out of here.” Bozeman

then threatened [Durrett] that he would be “taken care of”

if he talked about the shooting. [Durrett] was arrested and

charged with the robbery and murder in April of 1975 but

didn’t tell police about what he had witnessed until the day

of his inquest. The charges against him were then

dismissed.

At trial, Gregory Clark, who [] also knew Bozeman and

shared the apartment with Durrett, also testified that

Bozeman came to their apartment the morning of the

shooting and that there was discussion about selling

marijuana. He testified that they smoked some marijuana

together and then Bozeman and Durrett left the apartment.

While they were gone, another man, Gaylord Veney, arrived

at the apartment looking for Durrett. They talked until

Durrett returned to the apartment about 15 to 20 minutes

after Gaylord arrived. When he returned, Durrett looked

dazed. Bozeman returned minutes later and Durrett and

Bozeman went to Durrett’s bedroom. Shortly thereafter,

Clark went into Durrett’s bedroom with Durrett and

Bozeman at which point Bozeman stated that he “shot

someone.” Bozeman then stated that if there were any

repercussions from the conversation, “someone would get

hurt.”

Gaylord Veney, who also knew Bozeman, testified that

he was a guard on a cigarette truck and as part of his job

he wore a uniform and carried a gun. He testified that he

went to Durrett’s apartment on the day of the shooting but

Durrett was not there but Clark let him in and he was only

there for a few minutes when Durrett returned. He said that

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Durrett looked “depressed” but didn’t say what was wrong.

About five minutes later, Bozeman returned and Durrett and

Bozeman went to the kitchen, and Veney, while standing 10

to 15 feet away, heard Durrett say to Bozeman, “Do you

realize you killed a man?” Bozeman responded, “I asked

the guy for the money and he wouldn’t cough it up, so I took

him away from there.” Veney moved to another part of the

room but then turned and saw a dark blue steel revolver in

Bozeman’s hand. Bozeman then asked Veney if he had 2

extra bullets and Veney told him that he had to account for

all his bullets at work. Bozeman then opened the revolver

and dropped two empty shell casings into his hand. Veney

later heard Bozeman tell Durrett “that if anything about

what happened had got out, that he would be taken care

of.”

PCRA Court Opinion, 6/27/19, at 3-5 (citation omitted).

Based on the above facts, the jury convicted Bozeman of second-degree

murder on October 16, 1975. Three days later, the trial court sentenced him

to life in prison. Bozeman filed a direct appeal to our Supreme Court, which

was denied on January 28, 1977.

Thereafter, Bozeman began his quest for post-conviction relief. In

denying Bozeman’s seventh such attempt, we summarized the lengthy

procedural history, and discussed the claims he raised on appeal as follows:

By our count, Bozeman has filed a direct appeal, six prior

PCRA petitions, two prior federal habeas corpus petitions,

and one prior Mandamus action. None of these petitions has

provided Bozeman with any relief.

In this PCRA petition, Bozeman has argued that he was

never formally charged and therefore the trial court was

without jurisdiction to try him. Additionally, he claims to

have recently discovered proof that the only eyewitness

against him testified because of favorable treatment he

received. Finally, he claims that recent United Supreme

Court’s decision in Miller v. Alabama, 132 S.Ct. 2455

(2012), mandates he be resentenced.

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The PCRA court determined Bozeman’s petition was

untimely and dismissed the petition without a hearing.

Commonwealth v. Bozeman, 96 A.3d 1085 (Pa. Super. 2014) (unpublished

memorandum) (footnote omitted).

Before addressing the substance of that appeal, this Court first

determined the timeliness of his seventh petition. After discussing the

applicable provisions of the PCRA, in conjunction with pertinent case law, we

determined that, because Bozeman failed to prove any exception to the

PCRA’s time bar, the PCRA court properly dismissed it as untimely. We first

determined that Bozeman’s jurisdiction claim did not invoke any of the

timeliness exceptions. See Bozeman, unpublished memorandum at 5. While

we recognized that in Bozeman’s second claim he attempted to raise a claim

of newly discovered evidence regarding Commonwealth witness, Thomas

Durrett, we found the claim to fail because Bozeman did not demonstrate due

diligence in discovering this evidence. Id. at 5-6. Finally, Bozeman’s Miller

v. Alabama argument failed because Bozeman admitted that he was not a

juvenile at the time he committed the murder. Id. at 7. On June 4, 2014,

our Supreme Court denied Bozeman’s petition for allowance of appeal.

Commonwealth v. Bozeman, 93 A.3d 461 (Pa. 2014).

On July 7, 2017, Bozeman filed the PCRA petition at issue, his eighth.

The PCRA court appointed counsel, and PCRA counsel filed a petition to

withdraw and a “no-merit” letter pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.

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Super. 1988) (en banc). On December 17, 2018, the PCRA court issued

Pa.R.Crim.P. 907 notice of its intention to dismiss Bozeman’s PCRA petition as

untimely and permitted PCRA counsel to withdraw. Bozeman filed a response.

By order entered January 15, 2019, the PCRA court dismissed Bozeman’s

PCRA petition. This appeal followed. Both Bozeman and the PCRA court have

complied with Pa.R.A.P. 1925.

Bozeman’s statement of questions presented consists of seven

numbered paragraphs, some of which did not raise any issue. See Bozeman’s

Brief at 9-11. In essence, Bozeman raises the following two issues: 1) a claim

that the trial court lacked jurisdiction to try him because he was never given

notice of the crimes for which he was being held for trial; and 2) a claim of

newly-discovered evidence in the form of a recantation by Thomas Durrett.

This Court’s standard of review regarding an order dismissing a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. Commonwealth v.

Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). “The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the certified

record.” Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).

Before addressing the merits of Bozeman’s issues, we again must first

determine whether Bozeman’s serial PCRA petition was untimely filed.

The timeliness of a post-conviction petition is jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

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Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.1 42 Pa.C.S.A. § 9545. A PCRA petition

invoking one of these statutory exceptions must “be filed within 60 days of

the date the claim could have been presented.” See Hernandez, 79 A.3d

651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).2 Finally,

exceptions to the PCRA’s time bar must be pled in the petition, and may not

____________________________________________

1 The exceptions to the timeliness requirement are:

(i) the failure to raise the claim previously was the result of

interference of 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), (ii), and (iii)

2 Our legislature recently amended this section of the PCRA to provide

petitioners one year to file a petition invoking a time-bar exception. See Act

of 2018, October 24, P.L. 894, No. 146. This amendment does not apply to

Bozeman’s serial petition.

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be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d

521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues

not raised before the lower court are waived and cannot be raised for the first

time on appeal).

Here, as this Court noted in denying Bozeman’s seventh PCRA petition,

Bozeman’s serial petition was patently untimely:

The Pennsylvania Supreme Court denied Bozeman’s direct

appeal, without comment, on January 28, 1977.

Commonwealth v. Bozeman, 367 A.2d 1089 (Pa. 1977).

Therefore, Bozeman’s judgment of sentence became final

90 days thereafter, when the time allowance to file an

appeal to the United States Supreme Court expired. See

42 Pa.C.S. § 9545(b)(3); former U.S.Sup.Ct.R. 22. See

also Commonwealth v. Williamson, 21 A.3d 236, 241

(Pa. Super. 2011) (judgment of sentence becomes final 90

days [from] Pennsylvania Supreme Court final order, after

period for filing writ of certiorari with United States Supreme

Court expired). Therefore, on or about April 28, 1977,

Bozeman’s judgment of sentence became final.

Pursuant to statute 42 Pa.C.S. § 9545(b)(1), Bozeman

had one year from the date his judgment of sentence

became final to file his PCRA petition. See

[Commonwealth v. Taylor, 933 A.2d 1035 (Pa. Super.

2007)]. The instant petition was not filed until August 21,

2012. Facially, this petition is approximately 34 years too

late.

Bozeman, unpublished memorandum at 3-4 (footnote omitted).

For these same reasons, Bozeman’s eighth petition if facially untimely

by almost forty years, unless Bozeman has satisfied his burden of pleading

and proving that one of the enumerated exceptions applies. See Hernandez,

supra.

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We previously rejected Bozeman’s claim regarding jurisdiction to try him

because it did not invoke any of the timeliness exceptions. See supra. The

same applies to Bozeman’s first issue—therefore it is both meritless and

previously litigated under the PCRA. See generally, 42 Pa.C.S.A. § 9544(a).

Bozeman’s second issue involves the latest reiteration of his claim of

newly discovered evidence involving Commonwealth witness, Thomas Durrett.

In his seventh PCRA petition, Bozeman claimed that he had recently

discovered that “Durrett testified as the result of a deal with the

Commonwealth, a fact that was denied throughout the trial.” Bozeman,

unpublished memorandum at 5. As noted above, we determined that

Bozeman’s attempt to meet the PCRA’s time-bar exception failed because he

did not establish that he exercised due diligence in discovering this

information. See id. at 6-7.

In his eighth PCRA petition, Bozeman now asserts he recently learned

that Durrett recanted some of his trial testimony. According to Bozeman, this

“newly-discovered fact” entitles him to post-conviction relief in the form of a

new trial.

With this claim, Bozeman attempts to establish the PCRA’s timeliness

exception found at section 9545(b)(1)(ii).

The timeliness exception set forth in Section

9545(b)(1)(ii) requires a petitioner to demonstrate he did

not know the facts upon which he based his petition and

could not have learned of those facts earlier by the exercise

of due diligence. 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

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

rule is strictly enforced. 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.

The timeliness exception set forth at Section

9545(b)(1)(ii) has often mistakenly been referred to as the

“after-discovered evidence” exception. This shorthand

reference was a misnomer, since the plain language of

subsection (b)(1)(ii) does not require the petitioner to allege

and prove a claim of “after-discovered evidence.” Rather,

an initial jurisdictional threshold, Section 9545(b)(1)(ii)

requires a petitioner to allege and prove that there were

facts unknown to him and that he exercised due diligence in

discovering those facts. Once jurisdiction is established, a

PCRA petitioner can present a substantive after-discovered

evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citations

omitted).

In support of his claim, Bozeman attached a May 9, 2017 letter from

Zach Stern, a staff investigator for the Pennsylvania Innocence Project at

Temple University Beasley School of Law. Stern’s letter to Bozeman relayed

the following information he allegedly received in an interview with Durrett:

On Monday, May 1, 2017, I interviewed Thomas Durrett

at his home located at 7500 Upland St in Pittsburgh, PA. Mr.

Durrett told me on the day of the murder, he saw you walk

into Highland Cleaners as he was in the pizza shop across

the street. He did not see you touch anyone or threaten

anyone. He also denies you told him you planned to rob

Highland Cleaners. Durrett then saw other people walk into

the Cleaners as well. Very soon after, he heard gunshots.

He then looked at the Cleaners and saw you along with

many other people running out of the Cleaners. He said he

thought you may have been holding something as you ran

out, but you may not have been, and he honestly didn’t

know if you had a gun.

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After the shooting, Mr. Durrett denies ever having a

conversation with you where you confessed to the murder,

or threatened to get rid of anyone who would snitch on you.

He denied the possibility of Clark or Vesey [sic] being able

to overhear any conversation of the sort.

Unfortunately, by the end of the interview, Mr. Durrett

expressed a lot of anger towards you and stated that he did

not want to talk about this anymore. He then stormed off

and slammed the door, concluding the interview.

On Wednesday, May 3, 2017, I interviewed Gregory Clark

by telephone. I had left a card at his address, and he called

me back. Mr. Clark refused to discuss his memory of the

case, other than he recalls there being a robbery and a man

killed. He continually said he could not help you, but would

not explain why. I tried to get more information as to what

this unhelpful information was, but Clark refused to share.

I then finally concluded the interview.

Finally, on May 1, 2017, I spoke with Gaylord Vesey’s

[sic] ex-wife, who informed me of Mr. Vesey’s [sic] death in

January 2017.

See PCRA Petition, 7/17/17 at Exhibit # 3.

Here, the PCRA court did not hold an evidentiary hearing and did not

first conduct a timeliness analysis as Bozeman’s newly discovered evidence

claim. Rather, the PCRA court directly addressed Bozeman’s claim as an after-

discovered evidence claim and found it to be meritless. See Brown, supra.

We need not remand for this initial determination at this time because there

is no record evidence that Bozeman knew of Durrett’s alleged recantation

before he received the Zach Stern letter. In addition, Bozeman filed his eighth

PCRA petition within sixty days of receiving the letter. Thus, we review the

PCRA court’s determination that Bozeman cannot establish his claim of after

discovered evidence.

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To address this issue, we first note the test applied to after-discovered

evidence. When discussing the test in the context of a PCRA appeal, our

Supreme Court recently summarized:

[W]e have viewed this analysis in criminal cases as

comprising four distinct requirements, each of which, if

unproven by the petitioner, is fatal to the request for a new

trial. As stated, the four-part test requires the petitioner to

demonstrate the new evidence: (1) could not have been

obtained prior to the conclusion of trial by the exercise of

reasonable diligence; (2) is not merely corroborative or

cumulative; (3) will not be used solely to impeach the

credibility of a witness; and (4) would likely result in a

different verdict if a new trial were granted. The test applies

with full force to claims arising under Section 9543(a)(2)(vi)

of the PCRA. In addition, we have held the proposed new

evidence must be producible and admissible.

Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (citations omitted).

Here, the PCRA court first noted that the proffered evidence “must be

assessed in the context of all the evidence in the case. PCRA Court Opinion,

6/27/19, at 8 (citing Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009)).

The PCRA court than compared the statements Durrett allegedly made to

Bozeman’s staff investigator, Zach Stern, with Durrett’s testimony at trial.

The court then noted that, because the contents of the letter constituted, at

most, only a “partial recantation,” Bozeman could not establish the fourth

prong of the Small test—that the new evidence “would likely result in a

different verdict if a new trial were granted.” Small, supra. The PCRA court

explained:

Durrett’s statement, however, does not contradict other

important testimony from the trial and, in fact, confirms

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certain key facts that implicate Bozeman in the shooting.

There is no contradiction of the testimony that Bozeman and

Durrett wanted to get some money that morning and

planned on going to the high school to sell marijuana. On

the way to the high school, Durrett confirms that he went

into the pizza shop and Bozeman went to the cleaners. He

confirms Bozeman’s presence in the [cleaners] at the time

of the shooting and that [Bozeman] ran from the shop after

the shooting. The statement also confirms that [Bozeman]

was seen holding something as he ran from the [cleaners]

even if Durrett could not confirm that it was a gun. In

addition, portions of Durrett’s statement are directly

contradicted by other witnesses who testified at trial.

Gregory Clark and Gaylord Veney, both of whom testified at

trial, confirmed Bozeman’s statements admitting that he

shot the victim because he would not hand over money and

threatening them if anyone talked. In addition, Veney’s trial

testimony was that he saw Bozeman with a gun after the

shooting and that Bozeman removed two empty shell

casing[s] from the gun, which is consistent with the number

of times the victim was shot, remains uncontradicted.

***

Taking into consideration that record as a whole, the

statement of [Durrett] does not qualify as after discovered

evidence. Assuming that Durrett would have testified or

that his statements were otherwise admissible, the

variations in his testimony do not undermine the confidence

in the trial verdict. The verdict against [Bozeman] did not

rest solely on the testimony of Durrett and those portions of

his statement that varied from his trial testimony were

either not critical to the conviction or that testimony was

provided by other witnesses.

PCRA Court Opinion, 6/27/19, at 10-12.

Our review of the record supports the PCRA court’s conclusion that the

contents of the letter failed to meet the Small criteria, and, therefore, did not

warrant a new trial. In addition, we note that Bozeman’s claim also fails

because his proffered after-discovered evidence was not “producible and

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admissible.” Small, supra. Initially, we note that Stern’s summary of what

Durrett allegedly told him is clearly inadmissible hearsay. See

Commonwealth v. Yarris, 731 A.2d 581, 592 (Pa. 1999) (explaining and

after-discovered evidence claim “which rests exclusively upon inadmissible

hearsay is not of a type” that would warrant a new trial). 3 In addition, given

Stern’s description of how his interview with Durrett ended, there is every

indication that Durrett’s alleged recantation testimony would not be

“producible.” Small, supra.4

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/20/2019

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3 In a footnote, the PCRA court acknowledged that, in his Turner/Finley

letter, PCRA counsel analyzed the admissibility of Durrett’s statement under

the hearsay rules. PCRA Court Opinion, at 11 n.2.

4Indeed, the PCRA court acknowledged PCRA counsel’s averment that Durrett

died on May 21, 2018.

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