Com. v. Brown, J.

J-A11042-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JERMEL THOMAS BROWN :

:

Appellant : No. 891 MDA 2019

Appeal from the PCRA Order Entered May 1, 2019

In the Court of Common Pleas of Dauphin County Criminal Division at

No(s): CP-22-CR-0000227-2007

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 15, 2020

Appellant, Jermel Thomas Brown, appeals from the order entered in the

Court of Common Pleas of Dauphin County dismissing his petition under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely.

Appellant contends his petition qualified for a timeliness exception under the

newly-discovered evidence exception at Section 9545(b)(1)(ii) and newly-

recognized constitutional right exception at Section 9545(b)(1)(iii). We

affirm.

The PCRA court sets forth the pertinent facts and procedural history of

the present matter, as follows:

Defendant [hereinafter “Appellant”] Jermel Brown was

charged with robbery, conspiracy, and aggravated assault.

Following a jury trial held on August 9th and 10th, 2007, Appellant

was convicted of all charges and sentenced to twenty (20) to forty

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* Former Justice specially assigned to the Superior Court.

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(40) years of imprisonment. Appellant filed a notice of appeal and

the Superior Court affirmed his judgment of sentence on June 30,

2008.

On March 8, 2015, Appellant filed a pro se PCRA petition.

An amended petition was filed by appointed counsel, Kaitlyn

Clarkson, Esq., asserting newly discovered evidence. An

additional amended petition was filed by Attorney Clarkson on

August 22, 2017. Upon consideration of such petitions, [the PCRA

court] held three hearings on the matter [on] November 20, 2017,

July 30, 2018, and most recently on January 10, 2019. The most

recent hearing on January 10th was scheduled after Appellant filed

an additional motion to amend his PCRA petition, which was

granted. Specifically, Appellant asserted a newly-recognized

constitutional right pursuant to McCoy v. Louisiana, 138 S.Ct.

1500 (2018) [(trial court’s ruling allowing counsel to proceed with

strategy conceding guilt in guilt phase of capital case, over

defendant’s objections, constituted a structural error entitling

defendant to a new trial)].

At [Appellant’s criminal trial of August, 2007,] the following

evidence was established:

On July 20, 2005, Linda Vargus went to the Harrisburg

bus station to pick up her sister-in-law. (NT. 61).

Vargus phoned her husband on the way home

because she needed him to park the minivan. (NT. 61-

62). Kevin Coleman (Vargus’s husband) came to the

car (while Vargus went into the house), and parked

the minivan less than a block away from their home

at 1601 Green Street. (NT. 115). On his way back to

the house, three men approached Coleman; the faces

of two of them were covered with bandanas and all

three men were holding guns. (N.T. 116). Coleman

emptied his pockets and started to run; he heard five

shots as he fled home. (N.T. 119-120). Coleman was

shot twice in the right leg and once in the left leg.

(N.T. 121). Vargus opened the door, saw Coleman

lying in a pool of blood, and called 911. (N.T. 64-66).

Coleman underwent extensive reconstructive surgery

and has limited use of his leg. (N.T. 124-126).

Less than one month after the shooting,

Detective Donald Heffner of the Harrisburg Police

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spoke to Appellant about the incident; he denied

involvement. (N.T. 144). Subsequently, in the

summer of 2006, Detective Heffner received

information that an Ayodi Harper was involved in

Coleman's robbery and shooting. Harper implicated

Appellant Brown and another person (known as "Boo-

Boo”) as the other perpetrators. (N.T. 140-143).

When Detective Heffner re-interviewed Appellant, he

claimed that Coleman approached him on the evening

in question and asked to purchase drugs, and that

Harper robbed and shot Coleman. (N.T. 146-147).

Contrary to Appellant's version, Harper attested that

the three men had been driving around that night

looking for someone to rob. When they saw Coleman,

they decided to surround him. Harper claimed that

Coleman threw his wallet and started to run. While

Harper went after the wallet, Appellant shot Coleman.

(N.T. 87-91).

Jury Trial, August 9-10, [2007], Notes of Testimony, Vol. I and

Vol. II].

In his first amended PCRA petition, Appellant concedes [his

present] petition is untimely; however, he alleges a timeliness

exception—the facts upon which this claim is predicated were

unknown to Appellant and could not have been ascertained by the

exercise of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii).

Specifically, in his petition Appellant averred that he was made

aware of a letter written by Ayodi Harper stating that [Harper] lied

during trial.

At the first PCRA hearing, Mr. Harper was called as a

witness. He testified that he resides at Coal Township SCI, and

acknowledged that he testified against Appellant at trial regarding

the July 20, 2005 robbery. [PCRA Hearing, November 20, 2017,

Notes of Testimony at 14-21]. Mr. Harper confirmed at the PCRA

hearing that, at trial, he had initially testified that he did not

remember what happened. Following a recess, however, Mr.

Harper stated that the district attorney threatened to revoke his

negotiated plea deal if he did not testify against Appellant. Mr.

Harper went on to testify at trial that he, Appellant, and a third

person by the name of “Boo” (Cordero Urrutia) participated in the

robbery. [PCRA Hearing, N.T. at 22-29J.

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Mr. Harper was then asked to identify a copy of a letter,

which he claimed was written by him. He attested that he wrote

it in 2014 to another inmate by the name of Richard Wimbush.

[PCRA Hearing, N.T. at 31-34]. He was hoping that Mr. Wimbush

could help to get his sentence reduced or vacated, and that it

might help Appellant as well. [PCRA Hearing, N.T. at 37, 45-48].

In the letter, Mr. Harper claimed that he and Appellant were asleep

in a car on 14th Street at the time of the robbery. [PCRA Hearing,

N.T. at 48, 51, 54, 67]. Mr. Harper stated that he did not testify

truthfully at trial, and that Appellant did not commit the July 20,

2005 robbery. [PCRA Hearing, N.T. at 69].

Mr. Wimbush also testified at the hearing and confirmed that

he knew Mr. Harper from Coal Township SCI. Mr. Wimbush stated

that Mr. Harper sought him out for help with filing a grievance, as

he had the reputation as a jailhouse lawyer. He stated that he

and Mr. Harper were in a restricted housing unit together and

communicated much of the time by passing notes. [PCRA

Hearing, N.T. at 75-84]. He identified the letter in question as the

letter that was written to him by Mr. Harper and explained that it

was to aid in a post-conviction petition for Mr. Harper to receive

back-time, and to help Appellant. [PCRA Hearing, N .T. at 87-89].

Mr. Wimbush was transferred out of SCI Coal Township and was

transferred to SCI Forest in November of 2014, where he met

Appellant. Appellant expressed interest in pursuing a PCRA claim,

and Mr. Wimbush provided Appellant [information] about the

letter written by Mr. Harper. [PCRA Hearing, N.T. at 90-98].

Following Mr. Wimbush’s testimony, Appellant's attorney

requested a continuance to present testimony of Appellant.

On July 30, 2018, a second PCRA hearing was held.

Appellant testified and confirmed that his co-defendant, Mr.

Harper, originally took the stand at trial claiming not to recall

anything about the crimes, and after the trial recess, he implicated

Appellant in the burglary. [PCRA Hearing, July 30, 2018, N.T., pp.

16-19]. Appellant confirmed that he [and] Mr. Wimbush met in

prison in November of 2015. He discovered that Mr. Wimbush

knew about his case, and ultimately Mr. Wimbush gave Appellant

the letter written by Mr. Harper. Appellant stated that everything

in the letter was true. [PCRA Hearing, N. T. at 22-36, 56].

Mr. Harper was called back to testify at the second PCRA

hearing, and stated the opposite of what he had testified to at the

November 20, 2017 hearing. This time, Mr. Harper outright

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denied having written the letter in question and testified that he

had not ever seen it prior to the first PCRA hearing. He also denied

that he ever met Mr. Wimbush or spoke with him about filing

grievances. Finally, he stated that the testimony he gave at trial

was accurate, and that the robbery was actually committed by

Appellant in the presence of himself and Cordero Urrutia (“Boo”).

[PCRA Hearing, N.T. at 62-81].

Appellant also offered testimony at the third and final PCRA

hearing on January 10, 2019. Appellant was questioned about []

letters he wrote in 2007 to his trial attorney, Wendy Grella, Esq.

In such letters he relayed to Attorney Grella that he was not

present for the crimes in question. [PCRA Hearing, January 10,

2019, Notes of Testimony, pp. 11-13]. Appellant testified that he

was only able to meet with Attorney Grella a couple of times, so

he wrote her multiple letters and spoke with her on at least eight

occasions. Appellant recalled telling Attorney Grella that he was

not present at the scene of the crimes approximately six times

during prison visits and four times in writing. [PCRA Hearing, N.T.

at 13-15]. Appellant admitted that in his statement to Detective

Heffner, he said he was at the scene of the crime, and that

Detective Heffner informed him that Mr. Harper had put him at

the scene of the crime. [PCRA Hearing, N.T. at 16-17]. When

asked if Attorney Grella told the jury during trial that he was

present for the crimes charged, Appellant answered yes. He went

on to explain that he believed it occurred during closing

arguments, and that the case of McCoy is what made Appellant

question it. Appellant claims Attorney Grella lied to the jury in

making them believe that the statement he gave to Detective

Heffner was truthful. Appellant did not confront her with lying to

the jury because it “happened real fast.” [PCRA Hearing, N.T. at

20-22].

PCRA Court Opinion, 4/30/19, at 1-5.

The PCRA court rejected both of Appellant’s stated exceptions to the

PCRA time-bar. With respect to the newly-discovered facts claim, the court

concluded Appellant failed to prove the facts in question were previously

unknown to him, as Harper testified it was Appellant who had reminded him

prior to trial that they had no involvement in this robbery because they had

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been sleeping in a car at the time. Nor did the PCRA court accept Appellant’s

claim of a newly-recognized constitutional right exception founded on the

United States Supreme Court case McCoy without a proper argument that the

decision applied retroactively to PCRA matters. This timely appeal followed.

Appellant presents the following two questions for our consideration:

1. After-Discovered Evidence. Brown received a letter through

another inmate from his co-defendant. This letter explained

that “this case we really didn’t have anytning to do with.”

Brown knew of his co-defendant’s lie when he testified, but

could not prove the lie until he received his co-defendant’s

recantation. Did the trial court err in finding this was not after-

discovered evidence?

2. Structural Error. The Supreme Court decided McCoy v.

Louisiana, holding that an attorney cannot override the client’s

choice regarding the objective of his defense. Did the trial court

err in holding that McCoy only applies to death penalty cases?

Appellant’s brief, at 4.1

“In reviewing the denial of PCRA relief, we examine whether the PCRA

court's determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). Here, the PCRA court concluded

Appellant untimely filed his petition and failed to establish the applicability of

one of the time-for-filing exceptions. See PCRA Court Opinion, 4/30/2019, at

5-7.

____________________________________________

1In Appellant’s first issue, he mistakenly identifies his jurisdictional challenge

as an “After-Discovered Evidence” claim when it is apparent that he raises a

“Newly-Discovered Facts” claim. See infra.

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The PCRA timeliness requirement is mandatory and jurisdictional in

nature. Commonwealth v. Taylor, 933 A.2d 1035, 1038 (Pa. Super. 2007).

The court cannot ignore a petition's untimeliness and reach the merits of the

petition. Id.

A PCRA petition must be filed within one year of the date the underlying

judgment becomes final. See 42 Pa.C.S. § 9545(b)(1). Appellant’s judgment

of sentence became final on February 12, 2009, ninety days after the

Pennsylvania Supreme Court denied his petition for allowance of appeal, and

Appellant did not petition the United States Supreme Court for certiorari.

Therefore, Appellant had until February 12, 2010, to file a timely petition,

making the one before us, filed over five years after that date, patently

untimely.

Nevertheless, an untimely PCRA petition may still be considered if one

of the three time-for-filing exceptions applies. See 42 Pa.C.S. §

9545(b)(1)(i)–(iii). A PCRA petition alleging any of the exceptions under

Section 9545(b)(1) must be filed within 60 days of when the PCRA claim could

have first been brought. 42 Pa.C.S. § 9545(b)(2).

Here, Appellant asserts his petition meets the timeliness exceptions

applicable for claims of newly discovered facts, found at Section

9545(b)(1)(ii), and after-recognized constitutional rights, found at Section

9545(b)(1)(iii). See Appellant’s Brief, at 21–28. We address each claim in

turn.

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With respect to a claim of newly-discovered facts, this Court has

previously explained:

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 those

facts earlier by the exercise of due diligence. Commonwealth v.

Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 1271 (2007). 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).

The timeliness exception set forth at Section 9545(b)(1)(ii) has

often mistakenly been referred to as the “after-discovered

evidence” exception. Bennett, supra at 393, 930 A.2d at 1270.

“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.’” Id.

Rather, as 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. See 42 Pa.C.S.A. § 9545(b)(1)(ii); Bennett, supra.

Once jurisdiction is established, a PCRA petitioner can present a

substantive after-discovered-evidence claim. See 42 Pa.C.S.A. §

9543(a)(2)(vi) (explaining that to be eligible for relief under PCRA,

petitioner must plead and prove by preponderance of evidence

that conviction or sentence resulted from, inter alia, unavailability

at time of trial of exculpatory evidence that has subsequently

become available and would have changed outcome of trial if it

had been introduced). In other words, the “new facts” exception

at:

[S]ubsection (b)(1)(ii) has two components, which

must be alleged and proved. Namely, the petitioner

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must establish that: 1) the facts upon which the claim

was predicated were unknown and 2) could not have

been ascertained by the exercise of due diligence. If

the petitioner alleges and proves these two

components, then the PCRA court has jurisdiction over

the claim under this subsection.

Bennett, supra at 395, 930 A.2d at 1272 (internal citations

omitted) (emphasis in original). Thus, the “new facts” exception

at Section 9545(b)(1)(ii) does not require any merits analysis of

an underlying after-discovered-evidence claim. Id. at 395, 930

A.2d at 1271.

Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015)

(emphasis in original), appeal denied, 125 A.3d 1197 (Pa. 2015). Accordingly,

we must determine whether Appellant has established “there were facts

unknown to him and that he exercised due diligence in discovering those

facts.” Id. at 176.

In the PCRA court’s Pa.R.A.P. 1925(a) opinion, it reviews the pertinent

record of Mr. Harper’s trial testimony, his PCRA letter/affidavit, and his

testimony at both PCRA hearings, and observes, “It is highly questionable that

Mr. Harper’s letter could constitute [newly]-discovered evidence where

Appellant himself was the source of such evidence and therefore knew of such

prior to trial. See [Marshall, supra]; Commonwealth v. Medina, 92 A.3d

1210, 1216 (Pa.Super. 2014).” PCRA Court Opinion, at 6. Even if Mr. Harper’s

letter did satisfy the timeliness exception, the court continues, Appellant

would not be entitled to relief on substantive grounds under the after-

discovered evidence doctrine because Mr. Harper disavowed his recantation

at the second PCRA hearing, denying he authored the letter and reasserting

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his trial testimony that Appellant shot Mr. Coleman during the robbery.

Therefore, the court concluded, Appellant did not carry his burden of proving

that such evidence would likely compel a different result. See

Commonwealth v. Cox, 146 A.3d 221, 228 (Pa. 2016) (explaining after-

discovered evidence claim requires petitioner to prove that the evidence has

been discovered after trial and it could not have been obtained at or prior to

trial through reasonable diligence, the evidence is not cumulative, it is not

being used solely to impeach credibility, and it would likely compel a different

result).

After careful review of the record, we agree with the PCRA court that

the present matter is distinguishable from Medina. In Medina, the defendant

was convicted of murder based in part on the testimony of Hector Toro.

Medina, 92 A.3d at 1213 (citation omitted). Fourteen years after Medina was

convicted, and five years after his judgment of sentence became final, Hector

Toro recanted his trial testimony. Id. at 1213–1214. Within 60 days of the

recantations, Medina filed a PCRA petition and alleged that the recantation

satisfied the newly-discovered facts exception to the PCRA's timeliness

requirement. Id. at 1217 (citation omitted).

This Court held that that the PCRA court's conclusion that Medina had

satisfied the newly-discovered facts exception was supported by the record,

as Hector Toro had unequivocally implicated Medina throughout all

proceedings leading up to and including the criminal trial, and there was no

indication that his identification was in any way subject to coercion. We

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concluded, therefore, “that [Medina] could not have discovered the source of

Hector Toro's recantation, or the recantation itself, through the exercise of

due diligence, and his second petition was filed timely under the [newly]-

discovered evidence exception.” Id. at 1217–18.

Here, in contrast, Appellant does not dispute that he was the source of

the facts asserted in Harper’s recantation. Indeed, he admits that he told

Harper on the day of trial that they were not involved in this particular robbery,

and that Harper thereafter equivocated at trial by first claiming not to

remember his involvement in Mr. Coleman’s robbery. Only after the court

granted the Commonwealth’s request for an immediate recess did Harper

return and testify against Appellant.

Defense counsel thereafter provided vigorous cross-examination to the

extent it prompted Harper to confirm that the plea deal he struck with the

District Attorney’s office depended upon his testifying consistently with his

earlier statement identifying Appellant as the sole gunman in this robbery.

The defense, however, despite Appellant’s conversation with Harper that

morning, never extended that line of questioning by asking Harper whether

he initially balked at recollecting the robbery because, in fact, Appellant and

he had been elsewhere sleeping at the time.

For these reasons, we discern no error with the PCRA court’s rejection

of Appellant’s newly discovered facts claim, as he had failed to make the

requisite demonstration that the facts upon which the claim was predicated

were unknown to him at the time of trial. The above record shows that

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Appellant knew at trial both the underlying facts of the alleged alibi that Harper

shared in his PCRA letter/affidavit of recantation and that Harper’s favorable

guilty plea deal depended on his following through with incriminating

testimony at Appellant’s trial. See Commonwealth v. Padillas, 997 A.2d

356, 363–64 (Pa. Super. 2010) (holding a petitioner who fails to question an

obvious, available source of information, cannot later claim evidence from that

source constitutes newly discovered evidence).

Finally, and also unlike in Medina, the recantation at issue here was

withdrawn by the witness. In this respect, we find it significant that Harper

expressly disavowed his recantation during the course of the PCRA

proceedings, and the PCRA court, which had the benefit of observing Harper

on the witness stand for two hearings, did not conclude that Harper’s initial

recantation was, nonetheless, credible. Accordingly, Appellant’s newly

discovered facts claim affords him no relief.

In Appellant’s remaining claim, he attempts to invoke the newly-

created-constitutional-right exception to the PCRA’s timeliness requirements,

Section 9545(b)(1)(iii), by citing McCoy. In McCoy, the High Court held that

a defendant has the Sixth Amendment right to require that his counsel refrain

from conceding guilt during the guilt phase of a capital trial, even when

counsel reasonably believes the concession is crucial to the defense strategy

of avoiding the death penalty. See McCoy, 138 S.Ct. at 1509. McCoy

further observed that the trial court’s ruling allowing counsel to proceed with

that strategy over defendant’s objections constituted a structural error

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entitling defendant to a new trial without first establishing prejudice. Id. at

1511.

Here, the PCRA court determined that Section 9545(b)(1)(iii) does not

apply to Appellant’s petition because the McCoy decision has not been held

by the United States Supreme Court to apply retroactively. We agree.

Assuming arguendo that the “structural error” holding in McCoy, a

capital case, is applicable to the case at hand, the newly-recognized

constitutional right exception in Section 9545(b)(1)(iii) would still be

inapplicable. Our Supreme Court has held that:

Subsection (iii) of Section 9545 has two requirements. First, it

provides that the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States or this court

after the time provided in this section. Second, it provides that

the right “has been held” by “that court” to apply retroactively.

Thus, a petitioner must prove that there is a “new” constitutional

right and that the right “has been held” by that court to apply

retroactively. The language “has been held” is in the past tense.

These words mean that the action has already occurred, i.e., “that

court” has already held the new constitutional right to be

retroactive to cases on collateral review.

Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002).

Here, Appellant fails to establish that McCoy “has been held” by the

United States Supreme Court to apply retroactively on collateral review. The

McCoy decision itself neither expresses nor implies the Court’s intent to have

the decision apply retroactively on collateral review, and Appellant cites no

decision applying it retroactively or otherwise recognizing in it a retroactive

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effect. Therefore, Appellant cannot successfully claim the timeliness exception

set forth in Section 9545(b)(1)(iii).2

For the preceding reasons, Appellant’s untimely petition did not satisfy

either timeliness exception raised. Accordingly, we conclude the PCRA court

did not err in dismissing it.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/15/2020

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2 We also find persuasive this Court’s recent memoranda decisions in

Commonwealth v. Parker, 2020 WL 755044, at *3 (Pa.Super. February 14,

2020) and Commonwealth v. Hoffman, 2020 WL 200838, at *2 (Pa.Super.

January 13, 2020), in which this Court determined that McCoy does not create

or otherwise recognize a new constitutional right for purposes of Section

9545(b)(1)(iii).

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