Commonwealth v. Parks

• Decision Date: 16 May 2023
• Docket Number: 2031 EDA 2021,J-S45022-22
• Parties: COMMONWEALTH OF PENNSYLVANIA v. THEODORE PARKS Appellant
• Court: Pennsylvania Superior Court

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COMMONWEALTH OF PENNSYLVANIA v. THEODORE PARKS Appellant

No. 2031 EDA 2021

No. J-S45022-22

Superior Court of Pennsylvania

May 16, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered September 27, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0132301-1994.

Joseph D. Seletyn, Esq.

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM

STABILE, J.

Appellant Theodore Parks, appeals from the September 27, 2021 order entered in the Court of Common Pleas of Philadelphia County denying his fourth petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Appellant contends the PCRA court erred by dismissing his petition without an evidentiary hearing in light of newly discovered evidence. Upon review, we vacate the court's order and remand for an evidentiary hearing.

Although the PCRA court provided the procedural history of the case, see PCRA Court Opinion, 6/14/22, at 1-3, including a summary of the factual background, the court does not provide any citation to the record or offer any indication of its source of the information provided. What we can discern from our review of the record is that the transcripts from Appellant's trial, which took place 24 years before the filing of the instant petition, are not part of the record certified to this Court. Only in various filings by the parties do we find excerpts from and citations to trial testimony, although even some of those citations are questionable as they cite to notes of testimony from October 16, 1994, which was a Sunday.^[1] Nevertheless, based on our review of the record, including previous memoranda opinions from this Court, we know that Appellant was convicted by a jury of first-degree murder and related charges, including conspiracy, on October 20, 1994. On October 25, 1994, the trial court sentenced Appellant to life in prison for the murder conviction and deferred sentencing on the remaining convictions until February 2, 1995. On that date, the court conducted a sentencing hearing and imposed additional sentences on the remaining convictions.

Appellant filed a timely notice of appeal and this Court affirmed his judgment of sentence on August 27, 1996. Commonwealth v. Parks, 685 A.2d 1946 (Pa. Super. 1996). Appellant did not seek review with our Supreme Court.

In his Rule 1925(a) opinion, the PCRA judge (the Honorable Scott DiClaudio), who was not the trial judge, offered a summary of testimony, seemingly without benefit of trial transcripts, indicating that two eyewitnesses to the underlying murder recanted their pre-trial identification of Appellant during their trial testimony. PCRA Court Opinion, 6/14/22, at 2. The court stated:

The testimony of William Shepard was also introduced. Shepard had given a statement to [detectives]. According to his statement, about twenty minutes prior to the shooting, Shepard [observed Appellant, whom he later identified from a photo array, as the driver of a station wagon that circled the block a few times near the site of the shooting]. Shepard then went to a friend's house and did not personally witness the shooting. According to Shepard, the shooting was in retaliation for the arson [of the backseat passenger's "drug spot" on the previous night].

At trial, Shepard recanted his statement to police. When confronted with his post-incident statement, Shepard testified that he was scared that the police were going to lock him up, so he said anything they wanted, and that he told police that he was not there the day of the shooting.

Id. at 2-3.

As noted above, Appellant's current PCRA petition is his fourth. However, it is the first that involves the testimony of William Shepard, who signed a notarized affidavit on June 18, 2018, recanting his trial testimony. See Appellant's pro se PCRA Petition, 7/3/18, and Counseled Amended PCRA Petition, 6/9/20. In his amended petition, Appellant asserted that the petition fell under the newly-discovered evidence exception to the PCRA's time restrictions and was filed within one year of the date the claim could be presented. Counseled Amended PCRA Petition, 6/9/20, at ¶¶ 17-18 (citing 42 Pa.C.S.A. § 9545(b)(1)(ii) and (b)(2)). He further claimed that in absence of Shepard's identification, he would have been acquitted. Id. at ¶ 35(d).

Appellant requested a new trial but also contended that, at a minimum, he was entitled to an evidentiary hearing. Id. at ¶¶ 37-38.

The Commonwealth filed a letter brief seeking dismissal of Appellant's PCRA petition, contending that Shepard's 2018 affidavit "did not contain anything that could be considered a new fact." Commonwealth Letter Brief, 1/5/21, at 6. Appellant filed a response to the Commonwealth's motion to dismiss, disputing the Commonwealth's suggestion that Shepard's trial testimony and affidavit are identical. Appellant's Response, 3/16/21, at 1. As such, he argued, the Commonwealth's motion to dismiss "is baseless, and an evidentiary hearing is required." Id. (citations omitted).

On July 24, 2021, the PCRA court issued a notice of its intent to dismiss Appellant's petition without a hearing, pursuant to Pa.R.Crim.P. 907. On September 27, 2021, the court entered its order dismissing the petition. This timely appeal followed. Appellant filed a Rule 1925(b) statement of matters complained of on appeal as ordered by the PCRA court,^[2] and the court filed its opinion in accordance with Rule 1925(a).

In this appeal, Appellants asks us to consider two issues:

I. Did the PCRA court err in finding that the newly discovered evidence from William Shepard was not timely filed?

II. Did the PCRA court err in finding, without benefit of a hearing, that the newly discovered evidence from William Shepard that he was coerced by detectives into identifying [Appellant] was the driver of the suspect vehicle lacked credibility and/or merit?

Appellant's Brief at 2 (some capitalization omitted).

As this Court has explained:

When reviewing the propriety of an order pertaining to PCRA relief, we consider the record in the light most favorable to the prevailing party at the PCRA level. This Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. We grant great deference to the PCRA court's findings that are supported in the record and will not disturb them unless they have no support in the certified record. However, we afford no such deference to the post-conviction court's legal conclusions. We thus apply a de novo standard of review to the PCRA [c]ourt's legal conclusions.

Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018). Moreover,

a PCRA petitioner is not automatically entitled to an evidentiary hearing. We review the PCRA court's decision dismissing a petition without a hearing for an abuse of discretion.

[T]he right to an evidentiary hearing on a post-conviction petition is not absolute. 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. It is the responsibility of the reviewing court on appeal to 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. Williams, 244 A.3d 1281, 1287 (Pa. Super. 2021) (quoting Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations omitted)).

We first consider whether Appellant's petition was timely filed. By statute, all PCRA petitions, "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final" unless an exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1).^[3] "The PCRA's time restrictions are jurisdictional in nature. Thus, if a PCRA petition is untimely, neither this Court nor the [PCRA] court has jurisdiction over the petition. Without jurisdiction, we simply do not have the legal authority to address the substantive claims." Commonwealth v. (Frank) Chester, 895 A.2d 520, 522 (Pa. 2006) (internal citations and quotation marks omitted) (overruled on other grounds by Commonwealth v. (Elwood) Small, 238 A.3d 1267 (Pa. 2020)). As timeliness is separate and distinct from the merits of Appellant's underlying claims, we first determine whether this PCRA petition is timely filed. Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).

As noted, Appellant was sentenced on October 25, 1994 (first-degree murder conviction) and February 2, 1995 (remaining convictions). On August 27, 1996, this Court affirmed his judgment of sentence. Commonwealth v. Parks, 685 A.2d 1046 (Pa. Super. 1996) (unpublished memorandum). Appellant did not file a petition for allocatur to our Supreme Court. Thus, Appellant's judgment of sentence became final on September 26, 1996, and he had until September 26, 1997, to file a timely PCRA petition. The instant PCRA petition, which was filed pro se on July 3, 2018, is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).

Although the instant PCRA petition is facially untimely, Appellant argues that in light of the Shepard affidavit, his petition satisfies the newly-discovered facts exception set forth in 42 Pa.C.S.A. § 9545(b)(1)(ii).^[4] In the notarized affidavit Shepard represented, inter alia, "I testified that I saw Mr. Parks driving the vehicle but that testimony was not true. I never seen Mr. Parks driving that car, nor have I seen him in my life." See Appellant's pro se PCRA Petition, 7/3...