Commonwealth v. Coto, 1309 WDA 2020

CourtSuperior Court of Pennsylvania
Writing for the CourtMURRAY, J.
Decision Date06 January 2022
Docket Number1309 WDA 2020,J-S32025-21,1310 WDA 2020





Nos. 1309 WDA 2020, 1310 WDA 2020

No. J-S32025-21

Superior Court of Pennsylvania

January 6, 2022


Appeal from the PCRA Order Entered November 6, 2020 In the Court of Common Pleas of Allegheny County Criminal Division at CP-02-CR-0005494-2005, CP-02-CR-0005352-2005




Ramone Stephan Coto (Appellant) appeals from the order dismissing his second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful consideration, we affirm.

On "various dates from June of 2007 to February of 2008," Appellant and three co-defendants (Erik Surratt, Alfon Brown, and Richard Cunningham) were tried, non-jury, for "a myriad of offenses arising out of the shooting


deaths of [two individuals], and the wounding of [a third victim]." Commonwealth v. Coto, 1379 WDA 2008, at *1 (Pa. Super. Apr. 14, 2010) (unpublished memorandum), appeal denied, 20 A.3d 483 (Pa. 2011).

On February 8, 2008, the trial court found Appellant guilty of two counts of second-degree murder[1] and one count of burglary. On April 18, 2008, the court sentenced Appellant to two concurrent terms of life imprisonment without parole for murder, and a consecutive 3 - 6 years for burglary. This Court affirmed the judgment of sentence and the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. Id.

On February 14, 2012, Appellant filed a timely PCRA petition.[2] The PCRA court denied relief, and Appellant appealed. This Court affirmed Appellant's convictions, but found his 3 - 6 year sentence for burglary merged with second-degree murder because "burglary was the underlying felony on which [Appellant's] conviction for second degree felony murder was predicated." Commonwealth v. Coto, 24 WDA 2013, at *3 (Pa. Super. Feb. 28, 2014) (unpublished memorandum), appeal denied, 97 A.3d 818 (Pa.


2014). We vacated Appellant's burglary sentence, but affirmed his life sentences for murder.

On February 9, 2018, Appellant pro se filed his second PCRA petition. Privately-retained counsel entered her appearance and filed an amended petition on March 27, 2020. The Commonwealth filed a response on May 12, 2020. On August 7, 2020, the PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss the petition without a hearing. The court concluded the petition "was untimely filed" and "there are no meritorious issues." See Notice of Intention to Dismiss, 8/7/20, at 2, 8. Appellant filed a response on August 26, 2020. The PCRA court dismissed the petition without a hearing on November 6, 2020. Appellant timely appealed. Although the PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b) concise statement, the court issued an opinion on February 18, 2021, incorporating the reasons for dismissal set forth in its Rule 907 notice.

Appellant presents four questions in this appeal:

1.Whether the post-conviction relief act petition - filed within 60 days of the date on which codefendant Surratt first waived his fifth amendment rights and took full responsibility for the crime - was timely filed under the after-discovered fact exception
2. Whether the PCRA court committed clear error by dismissing the petition without a hearing where codefendant Surratt's recent confession and exoneration of [Appellant] would likely compel a different result if presented to a neutral finder of fact
3. Whether the case should be remanded for PCRA discovery of the evidence bearing on [the victim]'s identification where the PCRA court, in its notice of intention to dismiss, placed in issue the reliability of the identification but failed to rule on [Appellant]'s
consequent request for disclosure of the documents relevant to the identification.
4. Whether a mandatory sentence of life without parole is unconstitutional and disproportionate when applied to [Appellant] who was barely 20 years old and the least culpable of the four defendants, and where the trial judge expressly recognized the gross injustice of the mandatory life sentence in this case.

Appellant's Brief at 3.

In reviewing the PCRA court's denial of relief, "we examine 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). "The scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level." Id.

It is well-settled that,

the PCRA court has the 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 any further proceedings." Pa.R.Crim.P. 909(B)(2). "[T]o obtain 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 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. D'Amato, 856 A.2d 806, 820 (Pa. 2004).

Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).

Instantly, the PCRA court concluded that Appellant's petition was untimely. See Notice of Intention to Dismiss, 8/7/20, at 2; see also id. at 3 (explaining Appellant's judgment of sentence became final on July 4, 2011,


and Appellant had until July 4, 2012 to file a timely petition). When a PCRA petition is untimely, "neither this Court nor the trial court has jurisdiction over the petition. Without jurisdiction, we simply do not have the legal authority to address the substantive claims." Commonwealth v. Reid, 235 A.3d 1124, 1143 (Pa. 2020) (citations omitted).

Appellant concedes his petition is untimely, but argues he satisfied an exception to the time-bar. See Appellant's Brief at 19. Appellant has the burden of pleading and proving a statutory exception. He must allege:

(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). A petition invoking an exception "shall be filed within one year of the date the claim could have been presented." 42 Pa.C.S.A. § 9545(b)(2).

Appellant claims he met the "unknown facts" exception to the time-bar set forth in 42 Pa.C.S.A. § 9545(b)(1)(ii). He asserts:

The relevant facts became known no earlier than December 6, 2017, when codefendant Surratt testified that he was responsible for the crimes. During a January 25, 2018 interview, Surratt first provided the specific facts exculpating [Appellant], which Surratt
memorialized in an affidavit signed February 1, 2018. [Appellant] mailed his pro se petition on February 2, 2018; within the then-60-day filing deadline. Therefore, it was timely filed under Section 9545(b)(2).

Appellant's Brief at 19.[3]

He further states,

[Appellant] is serving a sentence of life without possibility of parole for second degree felony murder. The predicate felony was a burglary, during which two men were fatally shot and another seriously wounded. Newly discovered evidence establishes that while codefendants Surratt and Brown were plotting the crime by phone with their girlfriends, [Appellant] was passed out from drugs and alcohol, unaware of the codefendants' plan and incapable of assisting. Additional new evidence rebuts the trial evidence that [Appellant] was armed. Together the new evidence raises doubts about [Appellant]'s knowledge and criminal intent, satisfying all requirements for relief under the Post Conviction Relief Act. 42 Pa.C.S. § 9543(a)(2). The PCRA court's dismissal of the petition without an evidentiary hearing was clear error.

Id. at 19-20.

Appellant's argument is unconvincing. To meet the newly-discovered facts exception, a petitioner must establish (1) he did not know the facts upon which he based his petition, and (2) he could not have learned those facts earlier with the exercise of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Both components "must be alleged and proven as an initial jurisdictional


threshold." Commonwealth v. Diggs, 220 A.3d 1112, 1117 (Pa. Super. 2019) (citation omitted).

Appellant claims as new facts the testimony of his co-defendant, Erik Surratt, when Mr. Surratt was resentenced on December 6, 2017, and Mr. Surratt's affidavit, executed on February 1, 2018. Appellant asserts "newly discovered evidence establishes that while codefendants . . . were plotting the crime . . . [he] was passed out from drugs and alcohol, unaware of the codefendants' plan and...

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