The opinion
J-S33036-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD CUNNINGHAM :
:
Appellant : No. 1334 WDA 2022
Appeal from the PCRA Order Entered October 12, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0015297-2006
BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: October 17, 2023
Richard Cunningham appeals from the October 12, 2022 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely. After careful review, we
affirm.
The relevant facts and lengthy procedural history of this case were
summarized by a prior panel of this Court as follows:
On the evening of February 19, 2005, Kevilin
Middleton hosted a birthday party for T.C. Lyerly.
Toward the end of the party, Mr. Middleton made
arrangements for exotic dancers to come to his
residence and perform in exchange for two hundred
dollars ($200). The exotic dancers, Angel Potter and
Helen McCorkle, arrived at Mr. Middleton’s residence
along with Geneva Burrell. At this time, Mr.
Middleton, Mr. Lyerly, and Chaoe Davis were the only
____________________________________________
* Former Justice specially assigned to the Superior Court.
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people still at the party. Before the dancers’
performance, however Mr. Middleton insulted Ms.
Potter’s appearance and refused to provide payment.
Mr. Middleton, Ms. Potter, and Ms. Burrell began to
argue. The argument escalated, and Ms. Potter
reached into Mr. Middleton’s pocket and removed
money. Ms. Burrell advised Ms. Potter to return the
money, and Ms. Potter eventually complied. Shortly
thereafter, Ms. Potter and Ms. Burrell telephoned
[Appellant] and his co-defendants to come to Mr.
Middleton’s home and help secure payment.
Approximately thirty (30) minutes later, a van arrived
at Mr. Middleton’s house. [Appellant], Alfon Brown,
Ramone Coto, and Eric Surratt exited the van and
approached the residence. The men carried guns, and
[Appellant] wore a hooded sweatshirt and ski mask.
Upon their arrival, at least three (3) of the men
entered Mr. Middleton’s house without permission and
demanded payment for the dancers. Before Mr.
Middleton had an opportunity to comply, the men
began firing at Mr. Middleton, Mr. Lyerly, and Mr.
Davis. Mr. Lyerly and Mr. Davis died instantly. Mr.
Middleton sustained critical injuries from the
gunshots.
....
On June 18, 2007, [Appellant] proceeded to a bench
trial. The court tried [Appellant] and his co-
defendants jointly.
....
Following numerous continuances, the court
scheduled closing arguments for February 8, 2008.
After the defense rested its case, however,
[Appellant’s] counsel became seriously ill and died.
Consequently, the court appointed replacement
counsel to represent [Appellant]. On February 8,
2008, replacement counsel appeared before the court
and explained that he was unprepared to proceed. As
a result, the court rescheduled [Appellant’s] closing
argument for July 7, 2008, giving replacement
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counsel five (5) months to consult with [Appellant],
review the file, and prepare to close for the defense.
On July 7, 2008, replacement counsel delivered
closing argument. Subsequently, the court found
[Appellant] guilty of two (2) counts of second degree
murder and one (1) count each of burglary and
criminal conspiracy.[fn] On September 22, 2008, the
court sentenced [Appellant] to concurrent terms of life
imprisonment for his second degree murder
convictions. The court also imposed concurrent terms
of thirty (30) to sixty (60) months’ imprisonment for
his burglary conviction and eighteen (18) to thirty-six
(36) months’ imprisonment for his conspiracy
conviction. On October 2, 2008, [Appellant] timely
filed a post-sentence motion, which the court denied
on December 9, 2008. [Appellant] did not pursue a
direct appeal with [this Court].
On April 6, 2009, [Appellant] timely filed a pro se
petition pursuant to [the PCRA]. Thereafter, the PCRA
court appointed counsel. On July 8, 2009, counsel
filed an amended PCRA petition, requesting
reinstatement of [Appellant’s]] appellate rights nunc
pro tunc. On August 20, 2009, the PCRA court
granted the requested relief.
On September 18, 2009 [Appellant] timely filed his
notice of appeal.
This Court affirmed Appellant’s judgment of sentence
in part, but vacated the thirty to sixty month sentence
for burglary. The panel held that the sentencing court
erred in imposing a separate sentence for burglary
because that conviction was the predicate felony for
the felony murder conviction. Appellant filed a
petition for allowance of appeal with the Pennsylvania
Supreme Court, but the petition was denied on March
30, 2011. [Commonwealth v. Cunningham, 6 A.3d
579 (Pa.Super. 2010), appeal denied, 20 A.3d 484
(Pa. 2011).]
On December 27, 2011, Appellant timely filed a pro
se PCRA petition. Counsel was appointed, and she
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filed an amended PCRA petition on June 11, 2012. On
August 21, 2012, [Appellant] filed a pro se motion
seeking to terminate PCRA counsel’s representation.
On August 29, 2012, Cunningham filed a pro se
motion to amend the PCRA petition to add new claims.
On September 24, 2012, PCRA counsel filed a motion
for a Grazier[fn] hearing to determine whether
[Appellant] knowingly and voluntarily wished to
proceed pro se. On October 12, 2012, PCRA counsel
filed a supplement to the amended PCRA petition,
raising three additional claims that [Appellant]
included in his motion to amend.
On April 25, 2013, the PCRA court held a hearing on
the PCRA petition. … Following the hearing, on May
20, 2013, the PCRA court granted [Appellant’s]
motion to appoint a fingerprint expert. . . .
....
On November 7, 2013, the PCRA court denied
[Appellant’s] petition. On November 15, 2013,
[Appellant filed a notice of appeal and concise
statement of errors complained of on appeal pursuant
to Pa.R.A.P.1925(b). On December 17, 2013, the trial
court filed its Pa.R.A.P.1925(a) opinion. On January
30, 2014, PCRA counsel filed a petition to withdraw as
counsel.
[fn] 18Pa.C.S.A. §§ 2502(b), 3502(a), and 903(a),
respectively.
Commonwealth v. Grazier, 713 A.2d 81 (Pa.
[fn]
1998).
Commonwealth v. Cunningham, 108 A.3d 102 (Pa.Super. 2014)
(unpublished memorandum at *1–3) (some internal citations omitted; some
bracketed content amended), appeal denied, 109 A.3d 678 (Pa. 2015).
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On October 3, 2014, a panel of this Court granted PCRA counsel’s
petition to withdraw and affirmed the PCRA court’s November 7, 2013 order.
Our Supreme Court denied Appellant’s petition for allowance of appeal on
February 11, 2015. See id. Appellant did not file a petition for writ of
certiorari with the United States Supreme Court.
On June 18, 2019, Appellant filed the instant pro se PCRA petition.
Therein, Appellant acknowledged that his petition was untimely but argued
that the following comments from co-defendant Eric Surratt at his December
6, 2017 resentencing hearing constituted newly-discovered facts:
THE COURT: I have one other question for you. These
events took place with three other people …. None of
which were under 18 …. Let’s assume that you do get
paroled. What do you say to these other three,
because they aren’t going anywhere?
ERIK SURRATT: Definitely because of my actions,
because they didn’t know – they didn’t really
know, because I didn’t know what I was going
to do once I got there.
Pro Se PCRA petition, 6/18/19 at 5, ¶ 15, citing notes of testimony, 12/6/17
at 99-100 (emphasis added); see also Amended PCRA petition, 7/25/22 at
unnumbered 5.
On August 26, 2021, Appellant retained his current PCRA counsel, Ryan
H. James, Esq. (Attorney James). Attorney James filed an amended petition
on Appellant’s behalf on July 25, 2022. On September 7, 2022, the PCRA
court provided Appellant with notice of its intention to dismiss his petition
without a hearing, pursuant to Pa.R.Crim.P. 907(1). Appellant did not file a
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response to the PCRA court’s Rule 907 notice. Thereafter, on October 12,
2022, the PCRA court dismissed Appellant’s petition as untimely. This timely
appeal followed on November 10, 2022.1
Appellant raises the following issue for our review:
I. Did the PCRA court err in determining that the
evidence presented at Erik Surrat’s
resentencing hearing on April 19, 2019, did not
constitute a newly-discovered fact that qualifies
for an exception from the general time bar of
the [PCRA] pursuant to 42 Pa.C.S.[A.]
§ 9543(a)(2)(ii)[?]
Appellant’s brief at 4.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). “This Court grants great deference to the findings of the
PCRA court, and we will not disturb those findings merely because the record
could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d
136, 140 (Pa.Super. 2002) (citation omitted).
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1 Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
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This court has continually recognized that there is no absolute right to
an evidentiary hearing. Commonwealth v. Hart, 911 A.2d 939, 941
(Pa.Super. 2006) (citation omitted). When the PCRA court denies a petition
without an evidentiary hearing, as is the case here, we “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.” Commonwealth v. Khalifah, 852 A.2d
1238, 1240 (Pa.Super. 2004). “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.” Commonwealth v. Wah,
42 A.3d 335, 338 (Pa.Super. 2012) (citations omitted).
We must first consider the timeliness of Appellant’s PCRA petition
because it implicates the authority of this Court to grant any relief.
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation
omitted). All PCRA petitions, including second and subsequent petitions, must
be filed within one year of when an Appellant’s judgment of sentence becomes
final. See 42 Pa.C.S.A. § 9545(b)(1). “[A] judgment becomes 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 the review.” 42 Pa.C.S.A. § 9545(b)(3).
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Here, the record reveals that Appellant’s judgment of sentence became
final on June 28, 2011, 90 days after our Supreme Court denied Appellant’s
petition for allowance of appeal, and the time for filing a petition for writ of
certiorari with the United States Supreme Court expired. See id.
Accordingly, Appellant had until June 28, 2012 to file a timely PCRA petition.
See id. at § 9545(b)(1). Appellant’s instant petition was filed on June 18,
2019, nearly 7 years late, and is patently untimely, unless he can plead and
prove that one of the three statutory exceptions to the one-year jurisdictional
time-bar applies.
The three statutory exceptions to the PCRA time-bar are as follows:
(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.
42 Pa.C.S.A. § 9545(b)(1)(i-iii).
Instantly, Appellant invokes the “newly-discovered facts” exception to
the PCRA time-bar and argues that he is entitled to a new trial based upon
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the fact that his co-defendant Eric Surratt testified at his December 6, 2017
resentencing hearing that Appellant and fellow co-defendant Ramone Coto
“didn’t know – they didn’t really know, because [he] didn’t know what [he]
was going to do once [he] got [to the crime scene].” Appellant’s brief at 13-
16; see also Pro se PCRA petition, 6/18/19 at 5, ¶ 15. Appellant avers that
he only learned of these “facts” on April 19, 2019, approximately two months
before he filed his instant PCRA petition. Appellant’s brief at 7.
The newly-discovered fact exception requires a petitioner to plead and
prove two components: (1) the facts upon which the claim was predicated
were unknown, and (2) these unknown facts could not have been ascertained
by the exercise of due diligence. Commonwealth v. Burton, 158 A.3d 618,
638 (Pa. 2017). “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 and quotation marks omitted), appeal denied,
125 A.3d 1197 (Pa. 2015). The focus of the newly discovered fact exception
is on “newly discovered facts, not on a newly discovered or newly willing
source for previously known facts.” Commonwealth v. Reid, 235 A.3d 1124,
1153 (Pa. 2020) (citation omitted).
Here, we find no error in the PCRA court’s conclusion that Appellant has
failed to satisfy the newly-discovered fact exception to the PCRA’s time bar.
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As recognized by the PCRA court, “[c]ontrary to Appellant’s assertion that
Surratt produced new facts that would have changed the outcome of the trial,
[co-defendants Ramone] Coto, [Surratt] and Appellant herein were all in their
own ways participants in the crime, with firsthand knowledge of their
involvement and intentions.” Trial court opinion, 2/16/23 at 6. The extent of
Appellant’s involvement or participation in the crime “is something that he
alone has the unique knowledge.” Id.
The record herein reflects that Surratt’s testimony amounts only to
Surratt being a ‘new source’ of facts that were previously known to Appellant.
Surratt’s nebulous comments, even if they are construed as him taking sole
reasonability for the shooting, simply do not qualify as newly-discovered
evidence because Appellant would have known well before trial that Surratt
was the alleged, sole participant. Moreover, Surratt’s comments do not in any
way exonerate Appellant from being present at the house at the time of the
shooting. Ballistic evidence introduced at trial established that the victims
were struck by bullets from more than one firearm. Notes of testimony, 6/21,
6/25-26, 7/10-11/07 at 479-491, 498-499, 504. Additionally, Appellant’s
presence at the crime scene was further established by forensic testing that
showed that his fingerprint and palm print were found on interior door of the
house in question. Notes of testimony, 8/16-17/07 at 14-19.
Based on the foregoing, Appellant has clearly failed to demonstrate that
his untimely petition satisfies the newly-discovered fact exception to the
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statutory one year time-bar. Accordingly, we discern no error on the part of
the PCRA court in dismissing Appellant’s PCRA petition as untimely.
Order affirmed.
10/17/2023
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