Commonwealth v. Howard

• Decision Date: 20 April 2021
• Docket Number: No. 2821 EDA 2019,2821 EDA 2019
• Citation: 249 A.3d 1229
• Parties: COMMONWEALTH of Pennsylvania v. Melvin HOWARD, Appellant
• Court: Pennsylvania Superior Court

249 A.3d 1229

COMMONWEALTH of Pennsylvania

v.Melvin HOWARD, Appellant

No. 2821 EDA 2019

Superior Court of Pennsylvania.

Submitted December 21, 2020

Filed April 20, 2021

Ayanna Williams, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Emily P. Daly, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Shawn D. Baldwin, Philadelphia City Counsel, Philadelphia, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.^*

OPINION BY BENDER, P.J.E.:

Appellant, Melvin Howard, appeals from the order dismissing his untimely petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 - 9546. After careful review, we affirm.

The facts underlying Appellant's conviction are not germane to this appeal. The PCRA court described the relevant procedural history of this case as follows:

On September 14, 1989, a jury found [Appellant] guilty of first[-]degree murder and related charges in connection with the stabbing death of Clarence Woodlock. During the penalty phase, the jury returned a verdict of death for the murder. [Appellant] appealed this judgment of sentence; his sentence was affirmed by the Pennsylvania Supreme Court on August 8, 1994. Commonwealth v. Howard , 645 A.2d 1300 (Pa. 1994).

On May 11, 1995, [Appellant] filed his first PCRA petition, raising several claims of ineffective assistance of counsel. This petition was dismissed by the PCRA court and subsequently affirmed by the Sup[reme] Court on October 1, 1998. Commonwealth v. Howard , 719 A.2d 233 (Pa. 1998). On July 17, 1999, he filed his second PCRA petition, claiming that the prosecutor's use of peremptory strikes during jury selection was racially discriminatory in violation of Batson v. Kentucky , 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] (1986). This petition was dismissed as untimely on February 24, 2000. The Supreme Court affirmed the dismissal on January 22, 2002. Commonwealth v. Howard , 788 A.2d 351 (Pa. 2002).

On September 16, 2011, by agreement between the parties, the Honorable Carolyn Temin vacated [Appellant]’s death sentence and resentenced him to life imprisonment without the possibility of parole.^[1] On August 23, 2018, [Appellant] filed his third PCRA petition, the matter before this [c]ourt. [Appellant] is represented by Ayanna Williams, Esquire[,] of the Federal Community Defender Office for the Eastern District of Pennsylvania. In his petition, [Appellant] alleges a Batson violation based upon the findings of the [2018 Joint State Government Commission Report on Capital Punishment ("JSGC Report")]. He claims that the commission's findings on jury selection in capital cases is a newly-discovered fact that allows him to overcome the time bar. On May 3, 2019, the Commonwealth filed its Motion to Dismiss. On May 21, 2019, [Appellant] replied to the Commonwealth's Motion to Dismiss. On August 6, 2019, this [c]ourt sent [Appellant] a Notice of Intent [to Dismiss the Petition] [p]ursuant to [Pa.R.Crim.P.] 907. On August 26, 2019, [Appellant] replied to the [Rule] 907 Notice. On September 11, 2019, this [c]ourt dismissed [Appellant]’s petition as untimely and without merit. On October 2, 2019, [Appellant] appealed this dismissal to the Superior Court.

PCRA Court Opinion ("PCO"), 6/30/20, at 2-3. The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement, and Appellant did not file one. The court issued its Rule 1925(a) opinion on June 30, 2020.

Appellant now presents the following questions for our review:

I. Did the court below err in concluding that the claims raised in [Appellant]’s successor PCRA petition were untimely under 42 Pa.C.S. § 9545(b), where the newly[-]discovered evidence included admissions from the [JSGC Report] regarding racial disparities in jury selection?

II. Did the court below err in denying a new trial where [Appellant] pled and proved that racial discrimination during jury selection violated his rights to a jury of his peers and to be free from cruel punishments under Article I, Sections 6 and 13 of the Pennsylvania Constitution ?

Appellant's Brief at 2.

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.

Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal citations omitted).

We must begin by addressing the timeliness of Appellant's petition, because the PCRA time limitations implicate our jurisdiction and may not be altered or disregarded in order to address the merits of a petition. See Commonwealth v. Bennett , 593 Pa. 382, 930 A.2d 1264, 1267 (2007). Under the PCRA, any petition for post-conviction relief, including a second or subsequent one, must be filed within one year of the date the judgment of sentence becomes final, unless one of the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless 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. § 9545(b)(1)(i)-(iii). Additionally, Section 9545(b)(2) requires that any petition attempting to invoke one of these exceptions "be filed within one year of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).

Appellant concedes that his petition is untimely. In his first issue, he asserts that his petition meets the timeliness exception set forth in Section 9545(b)(1)(ii), which concerns newly-discovered facts. Appellant describes the new facts as follows:

Prompted by troubling reports from the American Bar Association ... and the Pennsylvania Supreme Court's Committee on Racial and Gender Bias in the Justice System..., the Pennsylvania Senate directed the JSGC "to conduct a study on capital punishment in this Commonwealth," covering eighteen specific topics and problems. Pa. Sen. Res. 6 at 2-6 (Dec. 6, 2011). On June 25, 2018, the JSGC issued its report entitled "Capital Punishment in Pennsylvania: The Report of the Task Force and Advisory Committee."^[2]

The JSGC Report revealed that racial disparities in jury selection pervasively and persistently infected the Commonwealth's capital prosecution system and that Pennsylvania should adopt structural and procedural reforms to address such defects. [Appellant]’s petition for PCRA and habeas relief, which raised constitutional violations arising from discriminatory jury selection practices in capital prosecutions, was filed within sixty days of the publication of the JSGC Report.

Appellant's Brief at 4 (footnote omitted). He further argues that:

The discriminatory exercise of peremptory challenges against black prospective jurors in [Appellant]’s case was consistent with the systematic racial discrimination in jury selection identified in the JSGC Report. The prosecutor in [Appellant]’s case struck 1.5 times as many black prospective jurors as white, which is statistically significant. The intentional and pervasive practice of race discrimination infringed on [Appellant]’s rights to be tried by a jury that was representative of the community and subjected him to a cruel punishment, in violation of Pennsylvania's Constitution.

Id. at 42.

Thus, the crux of Appellant's argument is that the JSGC Report provides newly-discovered evidence of racial discrimination that occurred during his jury selection process, providing a factual basis to support several constitutional claims that would potentially entitle him to a new trial. The PCRA court determined that the JSGC Report did not satisfy the requirements of Section 9545(b)(1)(ii), concluding generally that:

[A] review of the JSGC [R]eport shows that the underlying data used to perform the statistical analysis was not new and was part of the public domain before the report's release. Since the underlying data was known and available to the public for years prior to the report's release, and [Appellant] has been represented by counsel so the pro se defendant exception does not apply, this report cannot be considered a newly-discovered fact for purposes of overcoming the time bar.

PCO at 8.

As this Court has previously stated:

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 those facts earlier by the exercise of due diligence. Commonwealth v. Bennett , 593 Pa. 382, 930 A.2d 1264, 1271 (2007). Due diligence demands that the petitioner take reasonable steps to protect his own interests. Commonwealth v. Carr , 768 A.2d 1164, 1168 (Pa. Super.

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