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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LARRY L. BELL :
:
Appellant : No. 1618 EDA 2021
Appeal from the PCRA Order Entered August 5, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0402971-1982
BEFORE: PANELLA, P.J., STABILE, J., and KING, J.
MEMORANDUM BY PANELLA, P.J.: FILED MARCH 24, 2023
Larry Bell appeals from the order entered in the Philadelphia County
Court of Common Pleas on August 5, 2021, dismissing his third petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-
9546. On appeal, Bell contends he is entitled to an evidentiary hearing that
had been granted by a prior common pleas court judge assigned to this
matter. As we find the prior judge had no jurisdiction to grant an evidentiary
hearing due to the untimeliness of Bell’s PCRA petition, we affirm.
We previously summarized the factual and procedural history of this
case on another appeal as follows:
Larry Bell and Elwood Small conspired to rob Patrick Blake, a drug
dealer from whom Bell had recently purchased marijuana. After
arming themselves, Bell with a shotgun and Small with a twelve-
inch kitchen knife, the two men went to Blake's apartment [] in
Philadelphia and demanded money from him. Bell ordered Small
to wake the victim, John McCrary, who was asleep. Blake was
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stabbed by Small, but still managed to escape through a ground
floor window. McCrary, attempting to wrest the gun from Bell,
struggled with Bell before Small intervened. Small fatally stabbed
McCrary. Meanwhile, residents outside the building came to
Blake's aid and notified the police. Bell and Small fled from the
apartment, carrying a small television set.
[On April 13, 1983,] Larry Bell and co-defendant Small were tried
before a jury and convicted of second-degree murder, robbery,
aggravated assault and criminal conspiracy. Bell was sentenced to
life imprisonment on the murder conviction and to concurrent
terms of imprisonment of two and one-half to five years for
aggravated assault and conspiracy. Bell appealed to this court,
which affirmed the judgment of sentence.[1] No petition for
allocatur was filed.
On March 1, 1990, Bell filed a PCRA petition. After two evidentiary
hearings, one on March 5, 1993 and one on July 12, 1993, the
PCRA court denied Bell's petition. Bell filed an appeal to [the
Superior Court], raising several claims of ineffectiveness of
counsel and one claim of after-discovered evidence. In one of his
ineffectiveness claims, Bell argued that counsel was ineffective for
failing to object to the jury charge on second-degree murder. In
its charge, the court stated as one of the elements of second-
degree murder that the jury must find that the killing was done
“in the course of a robbery.” Bell argued that the proper charge
states that the killing be “in furtherance of a robbery.” Bell [argued
for the first time] that his co-defendant killed the victim for
personal reasons; he asserted that co-defendant Small's wife had
had an adulterous affair with the victim, John McCrary. Bell
asserted, therefore, that the murder was not done in furtherance
of the underlying felony (robbery).
[The Superior Court] determined that Bell's claim did affect the
truth-determining process and, therefore, the claim was
cognizable under the PCRA. However, because Bell had waited six
years to file his PCRA petition, [the Superior Court] remanded,
pursuant to 42 Pa.C.S.A. 9543(b), for a determination of whether
the Commonwealth would be prejudiced in its ability to retry Bell.
[The Superior Court] ordered that if prejudice were found, the
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1See Commonwealth v. Bell, 494 A.2d 476 (Pa. Super. 1985) (unpublished
memorandum).
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order denying post-conviction relief should be reinstated; if
prejudice were not found, a new trial would be ordered.
…
Pursuant to this court's order, an evidentiary hearing was held on
August 5, 1996. At that hearing, Detective Peter Dailey testified
regarding his efforts to locate witnesses who had testified at trial.
He testified that Patrick Blake, the Commonwealth's main witness,
had left two forwarding addresses, both in New York City.
Detective Dailey sent certified mail to both addresses; both letters
were returned as undeliverable. Detective Dailey also attempted
to contact Blake through the Department of Motor Vehicles and
the welfare department, with no success.
Detective Dailey learned that the victim's father, Carl McCrary,
had passed away; the victim's mother had no information about
Blake's whereabouts. Additionally, Detective Dailey contacted the
funeral director who had buried the victim. The funeral director
indicated that he did not know the victim's friends. Detective
Dailey also attempted to contact two other witnesses without
success: Marcella McCullough and Willa Mae Lockhart. Another
witness, Walter Anderson, was on probation and, at the time of
the evidentiary hearing, had not reported to his probation officer
in five months.
The only two witnesses available for retrial were Carl Day, who
saw Bell fleeing from the scene, and Richard Spraggins, who was
with Blake after the incident. We note, as did the trial court, that
the defense presented no rebuttal, and neither party offered any
information as to the whereabouts of these witnesses.
Following the hearing, the court determined that in light of the
lack of available witnesses, in particular the key eyewitness,
Patrick Blake, the Commonwealth would be prejudiced in its
efforts to retry Bell. The court, therefore, reinstated the order
denying collateral relief.
Commonwealth v. Bell, 706 A.2d 855 (Pa. Super. 1998) (citations omitted).
Bell appealed and this Court affirmed the order denying collateral relief on
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January 13, 1998, and our Supreme Court denied allowance of appeal. See
id., appeal denied, 732 A.2d 611 (Pa. 1998).
In 2011, Bell filed a second PCRA petition, in which he claimed to have
recently learned that the trial judge had coerced a juror into rendering a guilty
verdict. The PCRA court denied relief on January 6, 2012. We affirmed the
denial on appeal and our Supreme Court denied allowance of appeal. See
Commonwealth v. Bell, No. 363 EDA 2012 (Pa. Super. Filed August 10,
2012) (unpublished memorandum), appeal denied, 60 A.3d 566 (Pa. 2013).
On May 9, 2014, Bell filed the instant PCRA petition pro se. Bell
subsequently filed multiple supplemental and amended petitions. In an
amended petition filed on April 24, 2018, Bell asserted that while doing
research in the prison law library, he “stumbled across” an opinion from his
co-defendant’s case, which referenced testimony from an investigator who
stated he was able to locate all of the trial witnesses including the key
eyewitness, Blake. He asserted this “new fact” entitled him to an evidentiary
hearing. The Commonwealth filed a motion to dismiss, arguing the petition
was untimely and that Bell failed to plead an exception to the PCRA time-bar.
On June 18, 2019, the PCRA court ordered an evidentiary hearing be held.
The evidentiary hearing was rescheduled several times. In the
meantime, before an evidentiary hearing was held, the case was transferred
to a new Judge, the Honorable Scott DiClaudio. On March 11, 2020, present
counsel was appointed, and subsequently filed an amended petition, in which
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Bell again requested an evidentiary hearing based on newly discovered facts
related to Blake’s whereabouts. The Commonwealth responded to the
amended petition, arguing that based on the “law of the case doctrine”, the
necessity for an evidentiary hearing should be reconsidered in order to uphold
the Superior Court’s prior 1998 ruling in this matter. After issuing notice of its
intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907,
the PCRA court dismissed the petition. This timely appeal followed.
“Our standard of review for issues arising from the denial of PCRA relief
is well-settled. We must determine whether the PCRA court’s ruling is
supported by the record and free of legal error.” Commonwealth v. Presley,
193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted). Furthermore, “a PCRA
petitioner is not automatically entitled to an evidentiary hearing.”
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014). Rather,
It is within the PCRA court's discretion to decline to hold a hearing
if the petitioner's claim is patently frivolous and has no support
either in the record or other evidence. It is the responsibility of
the reviewing court on appeal to examine each issue raised in the
PCRA petition in light of the record certified before it in order to
determine if the PCRA court erred in its determination that there
were no genuine issues of material fact in controversy and in
denying relief without conducting an evidentiary hearing.
Id. (citation omitted).
Bell raises two issues for our review:
1. The PCRA Court erred when it denied an evidentiary hearing
that had been previously granted by Judge Genece Brinkley on
6/18/19.
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2. The PCRA Court erred when it denied [Bell]’s newly discovered
evidence claim.
Appellant’s Brief, at 14. We find resolution of the second issue is relevant to
resolution of Bell’s first issue, and therefore address these issues together.
In its brief, the Commonwealth agrees with Bell’s first claim, and in
doing so cites to the law of the case doctrine again, but now for the opposite
proposition that Bell is entitled to an evidentiary hearing. The issue, as distilled
from Bell’s and the Commonwealth’s briefs, is whether, under the coordinate
jurisdiction rule - a rule encompassed within the law of the case doctrine -
Judge DiClaudio was required to proceed with the evidentiary hearing that had
been granted by the previous PCRA Judge.
Generally, the coordinate jurisdiction rule commands that upon
transfer of a matter between trial judges of coordinate jurisdiction,
a transferee trial judge may not alter resolution of a legal question
previously decided by a transferor trial judge. More simply stated,
judges of coordinate jurisdiction should not overrule each other's
decisions.
Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003) (citations omitted).
“Consistent with the law of the case doctrine, the coordinate jurisdiction rule
serves to protect the expectations of the parties, to insure uniformity of
decisions, to maintain consistency in proceedings, to effectuate the
administration of justice, and to bring finality to the litigation.” Id.
The Court in Zane made clear, however, that the general prohibition
against revisiting the prior holding of a judge of coordinate jurisdiction is not
absolute. See id. Of relevance here, “an exception is permitted where the
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prior holding was clearly erroneous and would create a manifest injustice if
followed.” Id.
The purpose for this limited exception is largely self-evident. To
accede to a coordinate judge's order that is clearly erroneous
would be not only to permit an inequity to work on the party
subject to the order, but would allow an action to proceed in the
face of almost certain reversal on appellate review. Moreover, the
requirement that the prior holding also create a manifest injustice
serves as a significant curb on the exception so that it would apply
to only those situations in which adhering to the prior holding
would be, in essence, plainly intolerable.
In sum, while a judge must in most circumstances defer to the
prior decision of another judge of coordinate jurisdiction, he or she
is not required to do so in the limited and exceptional situation in
which, inter alia, the prior judge's order is clearly erroneous and
would result in a manifest injustice.
Id. at 29-30.
Here, we find the original PCRA Judge’s order granting an evidentiary
hearing on Bell’s petition was clearly erroneous as his PCRA petition was
untimely filed and Bell failed to meet his burden to plead and prove an
exception to the PCRA time-bar.
The statutory requirement that a PCRA petition be filed within one year
of the date the judgment of sentence becomes final is a “jurisdictional
deadline” and a PCRA court may not ignore the untimeliness of a petition to
address the merits of the issues raised therein. Commonwealth v.
Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019).
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence becomes final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
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judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration of
the time for seeking such review. The PCRA’s timeliness
requirements are jurisdictional; therefore, a court may not
address the merits of the issues raised if the petition was not
timely filed. The timeliness requirements apply to all PCRA
petitions, regardless of the nature of the individual claims raised
therein. The PCRA squarely places upon the petitioner the burden
of proving an untimely petition fits within one of the three
exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (internal citations
and footnote omitted).
Bell’s judgment of sentence became final in 1985, thirty days after this
Court affirmed his judgment of sentence. See 42 Pa. C.S.A. § 9545(b)(3)
(judgment of sentence becomes final “at the conclusion of direct review … or
at the expiration of time for seeking the review”). The instant petition – filed
approximately thirty years later – is patently untimely. Therefore, the PCRA
court lacked jurisdiction to review Bell’s petition unless Bell was able to
successfully plead and prove one of the statutory exceptions to the PCRA’s
time-bar. See 42 Pa. C.S.A. § 9545(b)(1)(i)-(iii).
The PCRA provides three exceptions to its time-bar:
(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 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
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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). Exceptions to the time-bar must be pled in
the petition, and may not be raised for the first time on appeal. See
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).
Bell claims he met the requirements of Section 9545(b)(1)(ii), i.e., the
newly discovered fact exception to the PCRA’s time-bar, based on his assertion
that the location of the key witness, Blake, has been discovered.
Section 9545(b)(1)(ii) “requires [a] petitioner to allege and prove that
there were ‘facts' that were ‘unknown’ to him” and that he could not have
ascertained those facts by the exercise of “due diligence.” See
Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). “The focus
of the exception is on the newly discovered facts, not on a newly discovered
or newly willing source for previously known facts.” Commonwealth v.
Marshall, 947 A.2d 714, 720 (Pa. 2008) (citation and brackets omitted). “Due
diligence demands that the petitioner take reasonable steps to protect his own
interests. A petitioner must explain why he could not have learned of the new
fact(s) earlier with the exercise of due diligence.” Commonwealth v.
Williams, 35 A.3d 44, 53 (Pa. Super. 2011) (citations omitted). Further, the
“fact” on which the petitioner predicates his claim to an exception to the time-
bar must bear some logical connection to a plausible claim for relief. See
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Commonwealth v. Robinson, 185 A.3d 1055, 1062 (Pa. Super. 2018) (en
banc).
Preliminarily, we must address whether Bell’s underlying claim is
relevant to a claim warranting PCRA relief. We recognize that a merits-based
analysis is inappropriate at this stage. See Commonwealth v. Bennett, 930
A.2d 1264, 1271 (Pa. 2007); see also Commonwealth v. Cox, 146 A.3d
221, 227 (Pa. 2016). However, “[r]ecognizing the nature of the underlying
claim - as distinguished from assessing its merits - is necessary to determine
whether Appellant acted with due diligence in unearthing the newly-
discovered facts.” Robinson, at 1062.
[W]hile Bennett and its progeny instruct courts to avoid analyzing
the merits of the underlying claim, we believe that principle cannot
go so far as to altogether preclude the courts from considering the
claim the petitioner seeks to raise in determining whether an
evidentiary hearing is warranted. As an extreme example,
suppose an incarcerated PCRA petitioner asserted in an untimely
petition that he recently discovered that the Houston Astros won
the 2017 World Series. It would defy reason to suggest that a
PCRA court must hold an evidentiary hearing to carefully apply the
newly-discovered fact inquiry before considering how that fact
could possibly matter. Cox stated that “The function of a section
9545(b)(1)(ii) analysis is that of a gatekeeper.” A gatekeeping
function contemplates that there may be a reason to open the
gate.
Id. at 1061-62 (some citations omitted).
Similar to Robinson, the claim here is not as extraneous as the above
example. Nevertheless, we can find no relevant connection between finding
the current address of a trial witness thirty years after trial, and how that fact
ultimately matters in a third, untimely, PCRA petition. With this in mind, we
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proceed to review Bell’s claim to determine whether an evidentiary hearing
was warranted.
Here, Bell’s underlying claim is that he is now due a new trial because
the Commonwealth would no longer be prejudiced by a new trial. Bell seeks
to get a new trial thirty years after his judgment of sentence became final
based on the “fact” that an address has been found for the key witness at
trial, Blake. Notably, other than the bold assertion that an address linked to
Blake has been discovered, there is no indication of whether it has been
verified that Blake currently resides at that location, that he has been
contacted in any manner, or that he is willing or able to testify at this time.
On its own, this failure is sufficient to affirm the denial of PCRA relief. At
this point, it is pure conjecture that: the address linked to Blake in 2017 would
allow the Commonwealth to contact Blake; Blake is available to testify; and
Blake is still capable of credibly testifying to events that happened in 1982. In
light of these circumstances, we conclude Bell has failed to allege sufficient
facts to support his claim he is entitled to a new trial at this time.
Even if we were to overlook these deficiencies, we would conclude that
Bell has failed to establish the newly discovered alleged address of Blake is
sufficient to qualify as an exception to the PCRA’s time-bar. Bell’s claim is
based on our 1998 disposition which ended the proceedings on his first PCRA
petition. The only connection between the alleged current address of Blake,
the newly discovered “fact” Bell relies on to confer jurisdiction, and any
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substantive claim Blake would seek to raise, is Blake’s bold claim that the
Commonwealth would no longer be prejudiced to retry Bell.2
In 1996, pursuant to 42 Pa. C.S.A. 9543(b),3 this Court remanded this
case to the PCRA court for a determination of whether the Commonwealth
would be prejudiced in its ability to retry Bell due to Bell waiting six years after
his judgment of sentence became final to file his first PCRA petition. On
remand, the PCRA court determined that the Commonwealth would be
prejudiced by a retrial due to various reasons, including the unavailability of
Blake. Bell timely appealed that decision to this Court.
On appeal, Bell argued that the PCRA court’s finding that the
Commonwealth would be prejudiced even though he had established eligibility
for relief under the PCRA pursuant to Section 9543(b), thus precluding retrial,
resulted in a denial of due process. We highlighted that Bell disregarded the
context in which he raised his constitutional arguments. Specifically, that “[i]n
the context of a post-conviction petition, the issue of delay, and in this case
unexplained delay, which impacts upon the Commonwealth’s proofs, is a
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2 Bell conveniently disregards the fact that another two decades has passed
since we first found his claim was prejudicially delayed by seven years, and
that numerous other factors would likely affect a retrial at this time.
3 “Even if the petitioner meets the requirements of subsection (a), the
petitioner shall be dismissed if it appears that, because of a delay in filing the
petition, the Commonwealth had been prejudiced either in its ability to
respond to the petition or in its ability to re-try the petitioner.” 42 Pa. C.S.A.
9543(b).
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factor in assessing the merit of a claim raised in a post-conviction petition.”
Bell, 706 A.2d at 861 (citations omitted). While delay cannot be considered
alone, it is a relevant factor to be considered among others in determining
whether or not a petition is frivolous:
The long delay is a relevant consideration in this review, and
where there is no justification for the delay, the court may take a
more stringent approach to the allegations raised in the petition,
especially when the delay has resulted in problems of proof for the
Commonwealth. Particularly, when the opportunity to have raised
the issues earlier would have provided a more meaningful review
with a greater capacity to reconstruct the record through
testimony and other evidence, delay will play a much heavier role
than otherwise.
See Commonwealth v. McAndrews, 520 A.2d 870, 872 (Pa. Super. 1987).
We therefore found that Bell’s claim, which we determined was essentially a
sufficiency of the evidence claim, was not cognizable in the context of a PCRA
petition after an unexplained extensive delay.
Accordingly, the denial of collateral relief at that time was based on Bell’s
unexplained delay of over six years in filing his first PCRA petition, which
ultimately rendered his claim meritless. That decision was final and cannot be
reopened decades later simply because an address was found for a witness.
While Blake’s unavailability was noted to be important in making that panel’s
decision, this fact was ultimately just one factor, albeit a very influential one,
in concluding that Bell’s claims became meritless due to the unexplained
delay:
At the [hearing on remand], Detective Parker Dailey
testified regarding his efforts to locate witnesses who had testified
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at trial. He testified that Patrick Blake, the Commonwealth’s main
witness, had left two forwarding addresses, both in New York City.
Detective Dailey sent certified mail to both addresses; both letters
were returned as undeliverable. Detective Dailey also attempted
to contact Blake through the Department of Motor Vehicles and
the welfare department, with no success.
Detective Dailey learned that the victim’s father, Carl
McCrary, had passed away; the victim’s mother had no
information about Blake’s whereabouts. Additionally, Detective
Dailey contacted the funeral director who had buried the victim.
The funeral director indicated that he did not know the victim’s
friends. Detective Dailey also attempted to contact two other
witnesses without success: Marcella McCullough and Willa Mae
Lockhart. Another witness, Walter Anderson, was on probation
and, at the time of the evidentiary hearing, had not reported to
his probation officer in five months.
The only two witnesses available for retrial were Carl Day,
who saw Bell fleeing from the scene, and Richard Spraggins, who
was with Blake after the incident. We note, as did the [PCRA]
court, that the defense presented no rebuttal, and neither party
offered any information as to the whereabouts of these witnesses.
Following the hearing, the court determined that in light of
the lack of available witnesses, in particular the key eyewitness,
Patrick Blake, the Commonwealth would be prejudiced in its
efforts to retry Bell. The court, therefore, reinstated the order
denying collateral relief.
Bell, 706 A.2d at 858.
Even if the connection between Bell’s newly discovered fact and his
underlying claim were relevant for PCRA relief, we would nevertheless find he
failed to exercise due diligence because he failed to plead or prove why he
was not able to learn this information at an earlier time. Bell knew that he was
not granted a new trial, at least in part, to the unavailability of Blake in 1998.
Bell did not plead what efforts he undertook to find Blake in the intervening
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years. Arguably, even if he had, it would not have been enough to satisfy due
diligence. Bell was put on notice as early as 1996 that his retrial was
contingent on locating key witnesses from the first trial, such as Blake, when
this Court remanded for an evidentiary hearing on whether retrial would
prejudice the Commonwealth. His duty to exercise due diligence began before
the August 5, 1996 hearing on remand, where Bell had an opportunity to rebut
the Commonwealth’s claim that it was prejudiced in its ability to retry him. He
presented no evidence then, and pleaded nothing in the current petition or its
amendments that would establish he made any efforts, let alone reasonable
efforts, to locate Blake.
Because Bell’s petition was untimely filed, and Bell did not plead and
prove an exception to the time-bar, the PCRA court had no jurisdiction to
conduct an evidentiary hearing on Bell’s claims. See Whiteman, 204 A.3d at
450. Accordingly, the initial Judge’s order granting an evidentiary hearing on
Bell’s current petition was clearly erroneous. Further, we find that holding an
evidentiary hearing without jurisdiction would create a manifest injustice.
Accordingly, Judge DiClaudio’s order dismissing the PCRA petition without a
hearing was not in violation of the coordinate jurisdiction rule. We therefore
affirm the order dismissing Bell’s PCRA petition without a hearing.
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2023
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