Com. v. Payne, J.

J-A01013-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JOHN PAYNE :

:

Appellant : No. 1545 EDA 2021

Appeal from the PCRA Order Entered July 15, 2021

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

No(s): CP-51-CR-0527541-1985

BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED JUNE 07, 2023

John Payne (Appellant) appeals from the order entered in the

Philadelphia County Court of Common Pleas, dismissing his serial petition filed

pursuant to the Post Conviction Relief Act (PCRA)1 as untimely. He seeks relief

from the 1986 judgment of sentence imposed following a jury conviction of

first-degree murder and possessing an instrument of crime2 (PIC) for the April

1980 shooting death of Darryl Womack. Appellant contends the PCRA court

erred in dismissing his petition as untimely because he properly invoked the

newly-discovered fact exception to the timeliness requirement. See 42

Pa.C.S. § 9545(b)(1)(ii). For the reasons below, we affirm.

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1 42 Pa.C.S. §§ 9541-9546.

2 See 18 Pa.C.S. §§ 2502(a) & 907, respectively.

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A detailed recitation of the underlying facts is not necessary for this

appeal.3 Briefly, on April 2, 1980, Appellant shot Womack while the victim

was walking down a Philadelphia street with his friend, Tanya Veasay.

Relevant to this appeal, when police questioned Veasay following the incident,

she was unable to identify the shooter. See Appellant’s Petition for Post

Conviction Collateral Relief (Appellant’s PCRA Petition), 1/29/18, at 3.

However, she made an out-of-court identification two days after the incident

from a police photo array, and at trial, she made an in-court identification —

both times, she indicated Appellant was the perpetrator. Id. at 3-4. Appellant

also testified, alleging that he did not know Veasay and that “he believed

some[one] told or threatened Ms. Veasay to falsely identify and accuse him of

this crime.” Id.

On April 22, 1986, a jury convicted Appellant of the above-mentioned

crimes. That same day, the court sentenced Appellant to a term of life

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3 At the outset, we note that on September 9, 2021, this Court was notified

by the Philadelphia Court of Common Pleas that the “case file is missing from

[its] file room” and therefore, “a reconstructed record was prepared from

available documents from the Court Document Management System and

notes of testimony, if available.” Notice to Superior Court Prothonotary’s

Office, 9/22/21. No official transcripts were included. Nevertheless, both the

record and the trial court docket — which is similarly truncated — include the

underlying PCRA petition, the PCRA court’s disposal of it, and the present

notice of appeal. After review of Appellant’s arguments on appeal, we

determine the record is sufficient for our limited review of the present order

denying his PCRA petition.

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imprisonment for the murder conviction, and a concurrent term of one to two

years’ incarceration for the PIC offense.

Appellant filed a direct appeal, and a panel of this Court affirmed the

judgment of sentence on April 16, 1987.4 See Commonwealth v. Payne,

1278 Philadelphia 1986 (Pa. Super. April 16, 1987) (unpub. memo.).

Appellant did not file a petition for allowance of appeal with the Pennsylvania

Supreme Court. However, he did file several petitions under the PCRA and its

predecessor, the Post Conviction Hearing Act (PCHA);5 none of these filings

were successful. See Commonwealth v. Payne, 782 Philadelphia 1988 (Pa.

Super. June 14, 1989) (unpub. memo.); Commonwealth v. Payne, 1339

EDA 2002 (Pa. Super. Dec. 11, 2002) (judgment order).

On January 29, 2018, Appellant filed the present, pro se PCRA petition,

in which he raised a timeliness exception to the PCRA time bar based on a

violation pursuant to Brady v. Maryland, 373 U.S. 83 (1962). Specifically,

he alleged that in 2017, he hired a private investigator, Dennis Crosson, to

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4 We note the PCRA court and the Commonwealth refer to April 14, 1987, as

the date Appellant’s judgment of sentence was affirmed. This two-day

discrepancy is inconsequential to our review.

5 See Commonwealth v. Brimage, 580 A.2d 877, 878 n.1 (Pa. Super. 1990)

(“Effective April 13, 1988, the Pennsylvania Legislature repealed in part and

substantially modified in part the Post Conviction Hearing Act, renaming it the

Post Conviction Relief Act.”).

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review his case. Appellant stated that in December 2017, he received a letter

from Crosson, informing him

that a man by the name of John Briggs[, the alleged informant,]

initiated some type of false information to . . . Detective Robert

Snyder which led the detective to then insert [Appellant]’s

photograph in an array of photos to be shown to Ms. Veasey for

the purpose of making an identification, and to which photo array

that did not constitute any part of Ms. Veasey’s statement

previously given to Detective [Lamont] Anderson.

Appellant’s PCRA Petition at 5. Appellant alleged the letter further stated that

Briggs “made prior attempts to speak with Ms. Veasey[, and] such attempts

were achievable because of the fact that John Briggs’ home is approximately

[100] yards from” Ms. Veasey’s home, and she testified that “some people

from the neighborhood came to speak with her about the incident before she

was shown [the] photographs.” Id. at 6.

Appellant also noted that at trial, Detective Snyder was questioned

about his reasons for showing the photographs to Veasey, and the detective

stated he did so based on information he received “from somebody else” and

that he “had some hearsay information.” Id. (record citation omitted).

Appellant then pointed to a question raised by the jury, asking when Veasey

realized she recognized Appellant from the incident and was it before she was

shown the photo array. Id. at 7. Appellant claimed:

If the prosecution would have disclosed such critical information

and reports of John Briggs’ contacts, and attempted contacts that

were made with Ms. Veasey and Detective Snyder prior to the

suggestive photographic display, not only would it have revealed

the fact that Briggs was the cause of Ms. Veasey’s

misidentification and false testimony against [Appellant], but it

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would have also revealed the fact that, in 1982, John Briggs had

once before falsely implicated [Appellant]’s name to police in a[n]

armed robbery crime for which [Appellant] was charged and later

acquitted of.

Id. Moreover, he claimed the Commonwealth committed the Brady violation

by failing to disclose police reports of contacts and attempted contacts made

by Briggs to Veasey and Detective Snyder that “resulted [in Appellant’s] false

arrest, false and suggestive out-of-court identification, and his false conviction

for crimes and offenses evidently know[ing] he did not commit.” Id.

Appellant attached a copy of Crosson’s December 1, 2017, letter to his

PCRA petition. It states, in relevant part:

An important factor in this case is John Briggs. I have been

asking for months who this is and how he figures into the case

and you could not answer that question. His name keeps popping

up. We believe we must speak with him to get to the bottom of

this. John Briggs . . . was living at 59th and Addison. He is now

in a drug rehab, when we last checked. In [Detective] Snyder[’s]

testimony, he reveals that the police received information from an

outside source (John Briggs). Milanda Fields received information

from [someone] named Vincent from 60th St. (John Briggs). Also

before the trial[,] John Briggs was trying to speak with TV.

Appellant’s PCRA Petition at Exhibit 1.

On December 27, 2018, Jacqueline Patricia Gruhler, Esquire, entered

her appearance as privately retained counsel for Appellant. On January 25,

2019, she filed a motion to withdraw as counsel and a praecipe for withdrawal

of appearance without leave of court.

On February 6, 2020, the PCRA court issued notice of its intent to

dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907. In this notice, the

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court stated Appellant’s petition is untimely filed and he did not invoke an

exception to the timeliness provision of the PCRA. See 42 Pa.C.S. §

9545(b)(1)(i)-(iii). The matter went dormant for over a year when the PCRA

court issued another Rule 907 notice on May 4, 2021, which was substantially

similar to the prior notice. On May 18, 2021, Appellant filed a pro se response

to the court’s Rule 907 notice, claiming the court “distort[ed the] facts” and

he did file a timely petition within 60 days of discovering that there was an

undisclosed confidential informant, “who is responsible for [Appellant]’s

perjured in-court identification and false conviction.” See Appellant’s

Response to Judge DiClaudio’s May 4th 2021 Rule 907 Prejudicial Notice to

Dismiss PCRA Petition, 5/18/21, at 1.

On July 15, 2021, the PCRA court entered an order, dismissing

Appellant’s petition as untimely pursuant to 42 Pa.C.S. § 9545(b). This timely,

pro se appeal follows.6, 7

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6 The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement

of errors complained of on appeal. On September 16, 2021, the PCRA court

issued a Pa.R.A.P. 1925(a) opinion.

7 At the time Appellant filed the pro se notice of appeal, there was no indication

in the record that Attorney Gruhler was granted leave to withdraw by the PCRA

court. Therefore, on October 18, 2021, this Court directed the PCRA court to

dispose of Attorney Gruhler’s motion to withdraw within 30 days. The PCRA

court failed to comply. On April 28, 2022, this Court again directed the PCRA

court to decide the motion within ten days. The PCRA court again failed to

notify this Court of any ruling within the appropriate time. However, a review

of the trial court docket revealed that on May 16, 2022, there was a docket

entry by the PCRA court titled “Order Granting Motion to Withdraw Counsel.”

(Footnote Continued Next Page)

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Appellant raises the following issues on appeal:

1. Did the PCRA court err when it dismissed Appellant’s [PCRA]

petition without a hearing when a newly-discovered fact revealed

the existence of an undisclosed police informant that, if disclosed,

would have [a]ffected the credibility of the Commonwealth’s

witness and resulted [in] the reasonable probability of a different

trial outcome and, where the requirements of 42 Pa.C.S.A. §

9545(b)(1)(ii) seeking relief, were satisfied?

2. Did the Commonwealth violate the “Brady Rule” and Appellant’s

due process right to a fair trial by failing to disclose the existence

of an informant that was material and, if disclosed, would have

[a]ffected the credibility of its witness resulting [in] the

reasonable probability of Appellant’s acquittal?

Appellant’s Brief at iv (some capitalization omitted). Based on the nature of

Appellant’s claims, we will address them together.

Appellant first claims the PCRA court erred in dismissing his PCRA

petition “without a hearing when [he] clearly demonstrated a newly-

discovered fact that was unknown to” him. Appellant’s Brief at 9. He

maintains:

This newly-discovered fact, discovered during an investigation by

retained private investigator Dennis Crosson, has revealed for the

first time, the existence and identity of a police informant (John

Briggs) who is now perceived to be the prime perpetrator who

initiated Appellant’s warrantless arrest and interrogation,

Appellant’s 42-days of incommunicado detention, Appellant’s

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This Court then directed the PCRA court to certify and transmit a supplemental

record to this Court, containing the May 16th order. On July 11, 2022, this

Court received a letter from the PCRA court, stating that the May 16th order

was entered and granted counsel permission to withdraw. The order was

attached along with a signed “Short Certificate” permitting counsel to

withdraw. Accordingly, the matter is now properly before us.

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perjured and directed in-court identification, and Appellant’s

wrongful conviction for a murder he did not commit.

Id. He contends that as result of not knowing this information, he was

“deprived . . . of the opportunity to effectively challenge the credibility of the

prosecution’s only alleged eyewitness, Tanya Veasey, as well as her true

reason(s) for coming in[to] court and pointing a finger at Appellant and falsely

accusing him of Darryl Womack’s murder.” Id. Furthermore, he asserts:

[I]f the existence of informant Briggs would have been made

known and disclosed, not only would the jury’s question [have]

been answered, it would have also allowed Appellant’s trial

defense to correctly shift away from trial counsel[’s] feeble

defense of a mistaken identification of Appellant, to that of a

directed and perjured in-court identification of Appellant that was

initiated and orchestrated upon the evil intents of informant John

Briggs and Detective Robert Snyder[.]

Id. at 11. He continues:

[T]he jury would have also been made aware of the fact that this

was not informant Briggs’ first time falsely implicating Appellant’s

name in a crime. When Appellant was a teenager, informant

Briggs had falsely implicated to police that Appellant was involved

in a robbery for which Appellant was thereafter arrested from his

home and charged. Appellant was later acquitted of all charges in

relation[ ] to that said robbery.

Id. at 12.

Additionally, Appellant states the PCRA court erred in finding that he

“had prior awareness of the informant’s existence but did not exercise due

diligence when he retained an investigator and later obtained the informant’s

identify.” Appellant’s Brief at 12. He maintains that he did not know about

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the existence of this informant until he received Crosson’s 2017 letter. See

id.

In his second argument, Appellant argues the Commonwealth

committed a Brady violation where it “has not denied or refuted the fact that

it withheld and failed to disclose the existence of informant Briggs, and it does

not refute the fact that informant Briggs[ ], and his actions which initiated the

cause of Appellant’s wrongful arrest and imprisonment is, in fact, material

under Brady.” Appellant’s Brief at 14. Moreover, he states the

Commonwealth did not deny or refute “the fact that, if Briggs[’] existence had

been disclosed it would have had a wholly effect on Ms. Veasey’s credibility

and undermined the perjured and inconsistent testimonies she gave at the

[p]reliminary [h]earing and [t]rial, and would have thereby resulted in the

reasonable probability of [his] acquittal.” Id. He reiterates his contention

that he was unaware of Briggs’ existence until it was disclosed to him in

December of 2017, and concludes that the Pennsylvania Supreme Court “has

never recognized an affirmative due diligence duty on the defense as part of

Brady[,]” which would require him to “scavenge” the record for “hints of

undisclosed Brady materials[.]” Id. at 15 (citation omitted).

In reviewing an order denying a PCRA petition, our standard of review

“is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and whether it is free of legal error.”

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Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019)

(citation & internal quotation marks omitted).

Pursuant to Rule 907, a PCRA court has discretion to dismiss a

PCRA petition without a hearing if the court is satisfied that there

are no genuine issues concerning any material fact; that the

defendant is not entitled to post-conviction collateral relief; and

that no legitimate purpose would be served by further

proceedings.

Commonwealth v. Brown, 161 A.3d 960, 964 (Pa. Super. 2017) (citations

omitted).

Here, the PCRA court determined Appellant’s petition was untimely filed.

Therefore, before reaching the merits of Appellant’s claim, we must determine

whether this appeal is properly before us.

The timeliness of a PCRA petition is a jurisdictional requisite.

[T]he PCRA time limitations implicate our jurisdiction and may not

be altered or disregarded in order to address the merits of the

petition. In other words, Pennsylvania law makes clear no court

has jurisdiction to hear an untimely PCRA petition. The PCRA

requires a petition, including a second or subsequent petition, to

be filed within one year of the date the underlying judgment

becomes final. A judgment of sentence is 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 review.

Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa. Super. 2019)

(citations, quotation marks, & emphasis omitted); see also 42 Pa.C.S. §

9545(b)(1), (3).

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Here, Appellant’s judgment of sentence became final on Monday, May

18, 1987, after the 30-day period for filing a direct appeal expired.8 See 42

Pa.C.S. § 9545(b)(3) (judgment is final at conclusion of direct review, or at

the expiration of time for seeking review); Pa.R.A.P. 903(a) (appeal must be

filed within 30 days of entry of order on appeal). Appellant had one year from

that date — or until May 18, 1988 — to file a timely PCRA petition. See 42

Pa.C.S. § 9545(b)(1) (PCRA petition must be filed within one year of date

judgment of sentence is final). He filed the present petition on January 29,

2018 — approximately 29 years later — and as such, it is facially untimely.

The PCRA, however, allows for an appellant to file a petition after this

period when they plead and prove one of the following timeliness exceptions:

(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 of Pennsylvania after the time period provided in

this section and has been held by that court to apply retroactively.

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8 The 30th day, May 16, 1987, fell on a Saturday; therefore, Appellant had

until Monday, May 18th to file a timely notice of appeal. See 1 Pa.C.S. § 1908

(for purposes of computing time, when last day of period falls on a weekend

or legal holiday, such day is omitted from computation).

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42 Pa.C.S. § 9545(b)(1)(i)-(iii). Furthermore, the PCRA requires that any

petition invoking one of the timeliness exceptions must be filed “within 60

days of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2) (subsequently amended eff. Dec. 24, 2018).9

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

strictly enforced.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super.

2015) (citations omitted). Additionally, the Pennsylvania Supreme Court

previously explained that “[t]he focus of the [Section 9545(b)(1)(ii)]

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, quotation marks, &

emphasis omitted).

Here, the PCRA court found the following:

To establish timeliness, [Appellant] attempted to invoke the

newly[-]discovered fact exception by claiming that [the]

Commonwealth withheld the name of an informant, which was

subsequently discovered by an investigator he employed. In his

2018 PCRA petition, [Appellant] cited to the Notes of Testimony

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9 This subsection was amended, effective December 24, 2018, to provide

petitioners with one year to invoke a timeliness exception regarding “claims

arising on Dec. 24, 2017 or thereafter.” 42 Pa.C.S. § 9545(b)(2), Comment;

Section 3 of Act 2018, Oct. 24, P.L. 894, No. 146, § 3, effective in 60 days.

Because the petition at issue was filed on January 29, 2018, before the

effective date of the amendment, the amendment is not applicable here.

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where Detective Robert Snyder[ ] acknowledged that he had

received information from a source regarding [Appellant]’s

involvement in the homicide. Despite not knowing the identity of

the alleged informant at trial, [Appellant] cannot claim that the

informant’s existence was unknown to him. The discovery of the

informant’s name in and of itself is not [a] newly[-]discovered

fact. Furthermore, even if the facts were unknown to [Appellant],

he failed to demonstrate how the identity of the informant could

not have been ascertained by exercising due diligence. Absent an

exception to timeliness, [the c]ourt was without jurisdiction to

address the merits of [Appellant]’s untimely claims.

PCRA Ct. Op., 9/16/21, at 3-4 (record citation omitted).

We agree with the PCRA court’s finding that Appellant failed to properly

invoke the newly-discovered fact exception to the PCRA’s timeliness

requirement. During Appellant’s 1986 trial, Detective Snyder testified that he

presented Veasey with a photo array on the basis of information he received

from a third party. See Appellant’s PCRA Petition at 6. Accordingly, Appellant

was put on notice of this “informant” information at that time, and could have

notified his counsel at the time that he wanted the identity of the informant.

Although he may have received additional details in Crosson’s December 2017

letter, the fact that police utilized third-party information to aid their

investigation does not qualify as a “newly-discovered fact.” More importantly,

Appellant fails to explain how he exercised due diligence and could not have

discovered this information earlier. See Brown, 111 A.3d at 176. While we

agree with him that he does not have go on a “scavenger hunt” for evidence,

he is required to “take reasonable steps to protect his own interests” and

“explain why he could not have learned the new fact(s) earlier with the

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exercise of due diligence.” Id. Indeed, Appellant has failed to show any action

on his part that demonstrates due diligence during that 29-year period with

respect to this informant information. Accordingly, in concluding that

Appellant failed to plead and prove any “new fact” to invoke the timeliness

exception provided by Section 9545(b)(1)(ii), the PCRA court lacked

jurisdiction to consider the issues raised in his 2018 petition. Therefore, we

affirm the PCRA court’s order dismissing the petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/7/2023

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