Com. v. Davis

• Decision Date: 01 February 2007
• Citation: 916 A.2d 1206
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Johnnie Lee DAVIS, Appellant.
• Court: Pennsylvania Superior Court

916 A.2d 1206

COMMONWEALTH of Pennsylvania, Appellee v. Johnnie Lee DAVIS, Appellant.

Superior Court of Pennsylvania.

Submitted October 30, 2006.

Filed February 1, 2007.

Johnnie Davis, Appellant, Pro Se.

Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellee.

BEFORE: STEVENS, TODD, JJ., and McEWEN, PJE.

OPINION BY TODD, J.:

¶ 1 Johnnie Lee Davis appeals pro se the March 7, 2006 order of the Philadelphia County Court of Common Pleas denying his fourth petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§ 9541-9546. We affirm.

¶ 2 On December 13, 1983, Appellant was convicted by a jury of first-degree murder, aggravated assault, and possession of an instrument of crime and eventually was sentenced to life in prison. This Court affirmed Appellant's judgment of sentence on January 28, 1986, and Appellant's petition for allowance of appeal was denied by the Pennsylvania Supreme Court on August 7, 1987.

¶ 3 On November 17, 1987, Appellant filed his first petition for relief under the Post Conviction Hearing Act ("PCHA"), the predecessor to the PCRA. The PCHA court denied the petition on December 31, 1992, the order was affirmed by this Court on May 11, 1994, and Appellant's petition for allowance of appeal was denied by our Supreme Court on October 7, 1994.

¶ 4 On January 6, 1997, Appellant filed a petition for relief under the PCRA, alleging that he was denied his constitutional right to a fair and impartial trial because African Americans had been removed from the jury pool. The petition was dismissed as untimely on July 11, 1997, this Court affirmed the order on December 29, 1998, and Appellant's petition for allowance of appeal was denied on January 24, 1999.

¶ 5 On February 11, 2000, Appellant filed a third PCRA petition, which was dismissed as untimely on August 24, 2000. This Court affirmed the dismissal on August 17, 2001. On August 1, 2005, Appellant filed the instant PCRA petition, wherein he invoked the newly-discovered evidence exception to the time requirements of the PCRA. The PCRA court found that Appellant failed to prove that he qualified for any exception and dismissed the petition as untimely on March 7, 2006. On appeal, Appellant presents the following issues for review:

A. Did the lower court error [sic] and abuse its discretion when it failed to issue a [Rule] 907 notice and by holding an ex parte hearing without [Appellant] or his counsel?

B. Did the lower court error [sic] and abuse its discretion when it dismissed [Appellant's] original and amended P.C.R.A. petitioner [sic] claiming new evidence and ineffective assistance of counsel?

C. Whether the Commonwealth's attorney has committed government interference and fraud by claiming that the Appellant is not entitled to relief under a "Batson"¹ claim because the Appellant is not African-American?

(Appellant's Brief at 4 (footnote added).)

¶ 6 Appellant first claims that the PCRA court failed to issue a notice of its intent to dismiss Appellant's PCRA petition as required by Rule 907 of the Pennsylvania Rules of Criminal Procedure. Although it appears that the PCRA court did initially dismiss Appellant's petition on December 8, 2005 without providing Rule 907 notice, on December 14, 2005, the PCRA court vacated the dismissal order and continued the matter until January 18, 2006. On December 30, 2005, Appellant filed a response to the Commonwealth's motion to dismiss Appellant's PCRA petition without a hearing. The matter was again continued, whereafter Appellant filed an amended PCRA petition. Thus, regardless of any technical violation of Rule 907 by the PCRA court in formally issuing Rule 907 notice, Appellant had actual notice of the PCRA court's intent to dismiss his PCRA petition. Moreover, our Supreme Court has held that where the PCRA petition is untimely, the failure to provide such notice is not reversible error. Commonwealth v. Pursell, 561 Pa. 214, 225 n. 7, 749 A.2d 911, 917 n. 7 (2000). As discussed infra, Appellant's PCRA petition was untimely, and for this additional reason the PCRA court's failure to provide Rule 907 notice does not entitle him to relief.

¶ 7 Appellant also alleges that the PCRA court abused its discretion in holding an ex parte hearing on March 7, 2006, at which Appellant was not present and at which the PCRA court dismissed Appellant's PCRA petition. Appellant notes that the docket entry indicates that a hearing was held in Room 508 and that the only person present was the assistant district attorney. Although the docket entry does reference the PCRA judge's courtroom and a "PCRA Hearing", there is no indication that any party was present, and the docket simply states "PCRA Petition Dismissed-No Merit." Moreover, in its opinion, the PCRA Court noted that it dismissed Appellant's petition without a hearing. (Trial Court Opinion, 5/11/06, at 2.) Thus, we hold that Appellant is entitled to no relief in this regard.

¶ 8 We next turn to Appellant's argument that the trial court erred in dismissing Appellant's original and amended PCRA petitions. As this Court has explained previously, the timeliness requirements of the PCRA are "mandatory and jurisdictional in nature" and, therefore, "no court may properly disregard or alter them in order to reach the merits of the claims raised in a PCRA petition that is filed in an untimely manner." Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa.Super.2001).

¶ 9 Pursuant to Section 9545 of the PCRA, "[a]ny petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final." 42 Pa. C.S.A. § 9545(b)(1). An exception to this one-year time limit exists where the petition alleges and the petitioner proves that:

(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). However, "[a]ny petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented." 42 Pa.C.S.A. § 9545(b)(2).

¶ 10 Appellant's judgment of sentence became final in November 1987. The 1995 amendments to the Act provide that if a judgment of sentence became final before the January 16, 1996 effective date of the amendments, a PCRA petition will be considered timely if filed within one year of the effective date of the amendments, or by January 16, 1997. However, this grace period applies only to first PCRA petitions. See Commonwealth v. Thomas, 718 A.2d 326 (Pa.Super.1998) (en banc). Thus, Appellant's instant petition, filed August 1, 2005, is manifestly untimely.

¶ 11 Notwithstanding the above, Appellant argues that he qualifies for the newly-discovered evidence exception to the timeliness requirement of the PCRA. According to Appellant, the newly-discovered evidence consists of handwritten notes of Assistant District Attorney Gavin Lentz taken while Lentz attended a lecture given by Assistant...