The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EARL CALVIN HANDFIELD II :
:
Appellant : No. 2360 EDA 2022
Appeal from the PCRA Order Entered August 19, 2022
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0004908-2007
BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 10, 2023
Earl Calvin Handfield, II, appeals from the order denying as untimely his
third petition filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§
9541-9546. We affirm.
This Court has previously summarized the pertinent facts as follows:
During the evening of October 19, 2005, in an alley in the
city of Coatesville, Pennsylvania, Charles Corey “Peen” Jennings
was shot and killed. During the investigation, on October 26,
2006, the Commonwealth subpoenaed [Handfield] to testify
before the thirteenth investigating grand jury. [Handfield]
appeared before the grand jury; however, he invoked his Fifth
Amendment privilege against compulsory self-incrimination.
On November 16, 2006, the Commonwealth obtained an
order compelling [Handfield] to appear before the grand jury
under the grant of immunity. Thus, on that same date,
[Handfield] again appeared before the thirteenth investigating
grand jury and, while testifying about the death of Mr. Jennings,
[Handfield] implicated himself in the murder.
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Commonwealth v. Handfield, 34 A.3d 187, 189 (Pa. Super. 2011).
Following an independent investigation,1 police arrested Handfield and
charged him with first-degree murder and related charges. Handfield
proceeded to a jury trial and was convicted. On June 16, 2009, the trial court
sentenced him to an aggregate term of life in prison. Handfield appealed. On
December 12, 2011, we affirmed his judgment of sentence. Handfield,
supra. On October 1, 2012, our Supreme Court denied Handfield’s petition
for allowance of appeal. Commonwealth v. Handfield, 54 A.3d 347 (Pa.
2012). Handfield did not seek further review.
On September 9, 2013, Handfield timely filed his first PCRA petition,
which the PCRA court denied. Handfield appealed. On July 20, 2016, we
affirmed the denial of PCRA relief, and on March 18, 2017, our Supreme Court
denied his petition for allowance of appeal. Commonwealth v. Handfield,
154 A.3d 862 (Pa. Super. 2016) (non-precedential decision), appeal denied,
169 A.3d 27 (Pa. 2017).
On July 25, 2018, Handfield filed a second PCRA petition, which he
subsequently amended. On August 7, 2018, the PCRA court issued a
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1 Among the issues Handfield raised in his direct appeal was a claim that the
trial court erred in denying his pre-trial motion to dismiss the prosecution
because the Commonwealth relied upon his immunized grand jury testimony
to bring the criminal charges against him. After a detailed review of the
pertinent trial testimony, we agreed with the trial court that “the
Commonwealth proved, by clear and convincing evidence, the prosecution of
[Handfield] arose wholly from independent sources.” Handfield, 34 A.3d at
204.
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Pa.R.Crim.P. 907 notice of its intent to dismiss Handfield’s second petition
without a hearing. Following Handfield’s response, the PCRA court dismissed
as untimely his second PCRA petition on August 28, 2018. Handfield appealed.
On June 25, 2019, we affirmed the order denying post-conviction relief,
because Handfield’s serial petition was untimely, and he did not plead and
prove a time-bar exception. Commonwealth v. Handfield, 219 A.3d 263
(Pa. Super. 2019)(non-precedential decision).
On April 17, 2020, Handfield filed the pro se PCRA petition at issue, his
third. Thereafter, Handfield retained counsel. On April 24, 2020, the PCRA
court directed PCRA counsel to file an amended petition within sixty days.
Subsequently, PCRA court sought, and was granted fourteen extensions of
time to file an amended petition. On December 14, 2021, the PCRA court filed
an order in which it acknowledged PCRA counsel’s letter informing the court
that Handfield did not want to amend his petition, but rather, wanted PCRA
counsel to present his pro se petition at an evidentiary hearing. On this same
date, the PCRA court ordered the Commonwealth to file an answer addressing
the need for an evidentiary hearing, the timeliness of the serial petition, and
whether any issue raised therein was previously litigated or waived. After
being granted a continuance, the Commonwealth filed its answer on April 8,
2022.
On July 8, 2022, the PCRA court issued a Rule 907 notice of its intent
to dismiss Handfield’s third PCRA petition without a hearing. Handfield did not
file a response. By order entered August 19, 2022, the PCRA court dismissed
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Handfield’s third petition. This timely appeal followed. Both Handfield and
the PCRA court have complied with Pa.R.A.P. 1925.2
Handfield raises the following issues on appeal:
Claim 1: Did the PCRA court err in failing to conduct an
evidentiary hearing to develop the record where D. Banks’ sworn
affidavit meets the newly discovered facts prongs in that the
evidence was unknown; due diligence was exercise[d]; [the
evidence] was not cumulative and satisfies the ‘admissibility’
requirements?
Claim 2: Did the PCRA court err in failing to conduct an
evidentiary hearing to develop the record where [Handfield]
presented a newly discovered facts/Brady claim showing the trial
court’s partiality in giving a Christmas furlough to the
prosecution’s chief witness as a reward for preliminary hearing
testimony against [Handfield]?
Handfield’s Brief at 2 (emphasis in original; excess capitalization omitted).
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
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2 PCRA counsel filed a notice of appeal on Handfield’s behalf and, later, a Rule
1925(b) statement. Thereafter, PCRA counsel filed an application to withdraw
which this Court granted. We then remanded for a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). Following the Grazier
hearing, the PCRA court determined that Handfield wished to proceed pro se.
The PCRA court also permitted Handfield to file a pro se Rule 1925(b)
statement.
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The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no
genuine issues concerning any material fact, the defendant
is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings.
To obtain a reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he
raised a genuine issue of material fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
We first consider whether the PCRA court correctly concluded that
Handfield’s third petition was untimely filed. The timeliness of a post-
conviction petition is jurisdictional. Commonwealth v. Hernandez, 79 A.3d
649, 651 (Pa. Super. 2013). 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 is met.
The three narrow statutory exceptions to the one-year time bar are as
follows: “(1) interference by government officials in the presentation of the
claim; (2) newly discovered facts; and (3) an after-recognized constitutional
right.” Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)
(citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). A PCRA petition invoking one of these
statutory exceptions must be filed within one year of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
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Here, Handfield’s judgment of sentence became final on December 31,
2012, ninety-one days after our Supreme Court denied his petition for
allowance of appeal and the time for filing a writ of certiorari to the United
States Supreme Court expired.3 See 42 Pa.C.S.A. § 9545(b)(3);
U.S.Sup.Ct.R. 13. Therefore, Handfield had until December 31, 2013, to file
a timely petition. Because Handfield filed his third petition in 2020, it is
patently untimely unless he has satisfied his burden of pleading and proving
that one of the enumerated exceptions applies. See Hernandez, supra.
In his first issue, Handfield argues that he had established the newly-
discovered-fact exception to the PCRA’s time bar based upon an affidavit from
Derek Banks. 42 Pa.C.S.A. § 9545(b)(1)(ii). This Court has explained this
exception as follows:
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
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
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3 Because the ninetieth day fell on a Sunday, Handfield had until the next
day to file a writ of certiorari. See U.S.Sup.Ct.R. 30(1).
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“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,
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. 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).
The PCRA court found that Handfield could not establish this exception
based on an affidavit from Mr. Banks. The court explained:
[Handfield] asserts that the Commonwealth withheld from
[him] evidence that one Marvin Jackson lied when he testified at
[Handfield’s] trial that he saw [Handfield] on the night of the crime
a few blocks away from where the victim was shot. [Handfield]
claims that he did not learn about this alleged deceit until
September 3, 2019, when one Derek Banks told him in an Affidavit
that Marvin Jackson told him that he lied. [Handfield] claims that
this is a newly discovered fact that would entitle him to the
protection of subsection (ii) against the jurisdictional time-bar of
the PCRA.
[Handfield’s] claim is without merit for the following
reasons. First, the newly discovered fact exception applies to
newly discovered facts, not a newly discovered or newly willing
source of previously known facts. Commonwealth v. Johnson,
863 A.2d 423, 427-28 (Pa. 2004), reargument denied (February
8, 2005), abrogated on other grounds as recognized by
Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007).
[Jackson’s] testimony placed [Handfield] at the scene of the crime
on the night in question. [Handfield] was present at trial when
[Jackson] testified. Assuming for purposes of argument that
[Jackson] did in fact lie when he testified, [Handfield] was present
at trial when [Jackson] testified and would have known that
[Jackson] was lying at that time. Thus, the assertion that
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[Jackson] lied during [Handfield’s] trial is not a newly discovered
fact.
Further, [Jackson] testified that [Handfield] knew he was
incarcerated at S.C.I.-Dallas at the time of [Handfield’s] trial
because [Jackson] so testified. [Handfield] could have contacted
[Jackson] well before 2019 and inquired as to why [Jackson] had
lied during [Handfield’s] trial. Thus, with a modicum of diligence,
[Handfield] could have raised his claim on direct appeal or in his
first PCRA petition.
Finally, the document from which [Handfield] claims that he
received this allegedly newly discovered fact, and Affidavit signed
by [Banks] , is rank hearsay for which no exception applies. As
such neither the document nor [Banks’] testimony would be
admissible in any court proceeding, such as a PCRA hearing. “A
claim which rests exclusively upon inadmissible hearsay is not a
type that would implicate the [newly]-discovered evidence
exception to the timeliness requirement, nor would such a claim,
even if timely, entitle [a petitioner] to relief under the PCRA.”
Commonwealth v. Yarris, 731 A.2d 581, 592 (Pa. 1999),
reargument denied (September 21, 1999). For all of these
reasons, [Handfield’s] claim to entitlement to relief [from] the
PCRA’s time-bar under subsection (ii) on the basis of [Banks’]
Affidavit fails.
PCRA Court Opinion, 10/6/22 at 9-10 (paragraph breaks added).
Our review of the record supports the PCRA court’s conclusions. The
focus of the newly discovered evidence exception to the PCRA’s time bar is on
the newly discovered facts, not on a newly discovered or newly willing source
of previously known facts. Commonwealth v. Marshall, 947 A.2d 714 (Pa.
2008). Moreover, our review of the record supports the PCRA court’s
conclusion that Handfield could not establish due diligence. Finally,
Handfield’s arguments that Mr. Banks’ affidavit does not constitute hearsay,
or that it qualifies as a hearsay exception, see Handfield’s Brief 15-19, are
meritless. Yarris, supra. Thus, Handfield’s first issue warrants no relief.
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In his second issue, Handfield claims the fact that the Commonwealth
requested a holiday furlough for David Johnson, a Commonwealth witness, in
return for Johnson’s preliminary hearing testimony against him, qualifies
under the governmental interference exception at subsection 9545(b)(1)(i).
Handfield further claims that he did not know the reason the trial court granted
the furlough until the PCRA court filed its Rule 1925(a) opinion in support of
the denial of his second PCRA petition. He therefore claims the trial court’s
judicial bias against him is a “newly-discovered” fact under the newly-
discovered fact exception at subsection 9545(b)(1)(ii). The PCRA court
concluded that Handfield established neither exception.
Initially, we note that, any evidence favorable to the defense is material
under Brady v. Maryland, 373 U.S. 83 (1963). Constitutional error results
when the government suppresses this evidence if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different; a reasonable probability is a
probability sufficient to undermine confidence in the outcome.
Commonwealth v. Ovalles, 144 A.3d 957 (Pa. Super. 2016). To establish
a Brady violation, defendant must demonstrate: 1) the prosecution
concealed evidence; 2) the evidence was either exculpatory or impeachment
evidence favorable to him; and 3) he was prejudiced. Commonwealth v.
Packer, 146 A.3d 1282 (Pa. Super. 2016).
In the context of the PCRA, although a Brady violation might fall within
the governmental interference exception to the PCRA’s time bar, the statute
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nevertheless requires a petitioner to plead and prove: (1) the failure to
previously raise the claim was the result of interference by government
officials, and (2) the information on which he relies could not have been
obtained earlier with the exercise of due diligence. Commonwealth v.
Williams, 105 A.3d 1234 (Pa. Super. 2014).
The PCRA court found no merit to Handfield’s governmental interference
claim:
[Handfield’s] contention is without basis in fact. [Handfield]
raised in his second PCRA Petition [filed in July 2018], long before
December 7, 2018, the precise issue he claims he did not know
about [until the PCRA] court filed its December 7, 2018 Rule
1925(a) Opinion[.] The [PCRA] court addressed the validity of
[Handfield’s] claims at length in its December 7, 2018 Rule
1925(a) opinion, noting that the plea agreement with [Johnson]
was the product of an agreement between the Commonwealth and
[Johnson], not the [c]ourt, and occurred two (2) months prior to
any case being filed against [Handfield]. The [PCRA] court also
noted with respect to the furlough issue that trial counsel knew by
the time of trial that [Johnson] had been given a furlough and
why-namely, that he was cooperating with the Commonwealth;
indeed, trial counsel cross-examined [Johnson] on the leniency he
had received and been promised in exchange for his testimony
against [Handfield], including the furlough. Accordingly, not only
is the claim without any substantive merit, as [Handfield] knew
[the] basis for his claim and therefore could have raised this claim
either pre-trial, during trial, post-trial, on direct appeal, or in his
first PCRA petition, but chose not to do so, [Handfield’s] claim is
waived. 42 Pa.C.S.A. § 9544(b).
PCRA Court Opinion, 10/6/22, at 4-5.
The PCRA court also rejected Handfield’s contention that the
Commonwealth committed a Brady violation regarding Johnson’s furlough:
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[Handfield] claims that the failure to “timely” inform him of
what he characterizes as the sole reason for [Johnson’s] furlough
constituted a Brady violation, which he asserts is a form of
governmental interference and one that also demonstrates judicial
bias creating a structural error in the proceedings warranting relief
under subsection (i) of the PCRA[.] [Handfield’s] claims have no
merit. [He] knew the furlough was given for [Johnson’s]
cooperation with the Commonwealth and his trial counsel was able
to cross-examine [Johnson] about the furlough at trial and did in
fact do so. Trial counsel and [Handfield] knew [Johnson] testified
at the preliminary hearing. A reasonable person would have
understood that testifying for the Commonwealth at the
preliminary hearing was part and parcel of [Johnson’s]
cooperation. There was no withholding of information within the
meaning of Brady. Not only is [Handfield’s] contention
unsupported by the facts of this case and the record, but his
allegations of judicial bias are completely without merit, as
discussed in the [PCRA] court’s December 7, 2018 Rule 1925(a)
Opinion. [As stated above because Handfield could have raised
the claim earlier it is waived.] For all of these reasons, [Handfield]
cannot rely on either his claim of judicial bias or his Brady claim
based thereon to excuse his untimely filing of his third PCRA
Petition under subsection (i) of the PCRA[.]
PCRA Court Opinion, 10/6/22, at 5-6.
The PCRA court further found that the record refuted Handfield’s claim
that the trial court’s alleged bias constituted a newly-discovered fact:
With respect to the second of the PCRA’s timeliness
exceptions, insofar as it relates to [Handfield’s] allegations
concerning [the trial court’s] purported judicial bias . . .
[Handfield] did not first learn of the reasons why [Johnson’s]
furlough agreement with the Commonwealth was approved on
December 7, 2018; he himself raised that argument in his second
PCRA Petition, which was the predicate for and well pre-dated the
[PCRA] December 7, 2018 Rule 1925(a) Opinion. [This claim is
also waived because Handfield could have raised it earlier.] As
[Handfield’s] claim of judicial bias with respect to the leniency for
which [Johnson] and the Commonwealth, not the court, bargained
was available to [Handfield] well before the [PCRA] court’s
December 7, 2018 Rule 1925(a) Opinion, and has no basis in fact
or law, it does not satisfy the PCRA’s timeliness exception in
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subsection (ii) so as to excuse the untimely filing of [Handfield’s]
third PCRA Petition.
PCRA Court Opinion, 10/6/22, at 7-8. Once again, our review of the record
supports the PCRA court’s conclusions.
Handfield’s claims to the contrary are unavailing. He asserts that his
current claim is based on “new and separate evidence of judicial bias that he
discovered in December 2018, four months after the second PCRA was
dismissed.” Handfield’s Brief at 22. Handfield avers that, “[t]his discovery
was in the [PCRA] court’s December 2018 1925(a) Opinion . . . where [the
court] explained the reason for the [f[urlough.” Id. According to Handfield,
“it took [him] eleven (11) years to discover the true reason why the judge
gave Johnson the reward: and that his “defense team was unaware that the
trial court specifically granted the [f]urlough based on Johnson’s Preliminary
Hearing testimony against him.” Id. at 23-24.
As explained by the PCRA court, at trial, defense counsel cross-
examined Johnson about leniency and/or promises made by the
Commonwealth, including the furlough. See N.T., 6/9/23, at 372. Thus,
Handfield’s second issue warrants no relief.
In sum, the PCRA court correctly concluded that Handfield’s 2022
petition was patently untimely, that he did not plead and prove a time-bar
exception, and that an evidentiary hearing was not required. Thus, this Court,
like the PCRA court, lacks jurisdiction to consider Handfield’s 2022 petition
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further. Derrickson, supra. We therefore affirm the PCRA court’s order
denying Handfield post-conviction relief.
Order affirmed.
Date: 10/10/2023
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