Commonwealth v. Reese

• Decision Date: 05 June 2015
• Docket Number: No. 1429 EDA 2014,J-S23027-15,1429 EDA 2014
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. DARRELL REESE, Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA, Appellee v. DARRELL REESE, Appellant

J-S23027-15

No. 1429 EDA 2014

SUPERIOR COURT OF PENNSYLVANIA

JUNE 5, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered April 1, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0100571-1998

BEFORE: DONOHUE, SHOGAN, and STRASSBURGER,^* JJ.

MEMORANDUM BY SHOGAN, J.:

Darrell Reese ("Appellant") appeals from the order denying his fourth petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We affirm.

A prior panel of this Court summarized the factual and procedural history of this case as follows:

This case has its genesis in the November 22, 1997 shootings of Rasheed Davis (victim) and Lennell Billington. On that day, the victim and Billington went to the home of an individual known as "Box" in order to purchase guns and drugs. The victim was familiar with this individual since he had dealt drugs for him previously. Also present were Appellant, an individual named Bo and another unidentified individual. The victim, Billington and Bo were all sent upstairs while Box, Appellant and the unidentified individual remained downstairs having a discussion. Upon their return downstairs, the victim and Billington were told that the unidentified male would drive them to a different location, purportedly to buy the guns. Appellant accompanied the threesome.

During the drive, the unidentified individual received several messages on his pager. He pulled the vehicle over several times at a pay phone but was purportedly unable to use the phones because they were out of order. Ultimately, the unidentified individual parked the vehicle at Abottsford and Pulaski Avenues, approached a house, knocked on the door and returned to the vehicle when no one answered. The three other men remained in the vehicle. Billington testified that when the unidentified individual returned to the vehicle, he observed him reach into his jacket pocket and retrieve a gun while Appellant exited the backseat and also produced a gun. Billington, who was in the rear passenger seat initially ducked below the seat but attempted to escape the vehicle when the gun fire paused.¹ Meanwhile, the unidentified individual moved around the front of the vehicle and encountered the victim, shooting him in the head at close range. Billington managed to escape the vehicle but was shot in the shoulder and the arm as he fled down the street. Ultimately the police were summoned and Billington received medi[c]al treatment at the hospital.

¹ The victim was in the front passenger seat.

Homicide detectives interviewed Billington at the hospital and were advised that Appellant was one of the two shooters. Billington provided an address where Appellant could be found and a search warrant was executed at that address. Police recovered two empty boxes of hollow point design ammunition, one for a .38 caliber gun and the other for a nine millimeter gun, five spent .38 caliber shell casings, two spent nine-millimeter casings by a trash can, and four spent projectiles fired into the cellar walls. N.T. 9/24/99, at 21-29. Several hours after the shootings, two officers observed Appellant on a street corner with a gun in his hand. He was arrested and charged with possessing a gun without a license. The weapon was a .38 caliber Smith and Wesson with six live rounds. N.T. 9/23/99, at 83-87.

On November 5, 1998, Appellant proceeded to a jury trial. The jury found Appellant guilty of aggravated assault, possessing instruments of crime, and criminal conspiracy. However, on the charge of criminal homicide the jury was hung.

On September 23, 1999, Appellant was tried again on the unresolved murder charge. At that trial, Billington again testified against Appellant, identifying him as one of the shooters. Appellant was convicted of murder in the first degree. Following a penalty hearing on September 28, 1999, the jury found that Appellant should receive a life sentence. Post-sentence motions were filed and supplemented following the appointment of new counsel. They were denied on February 4, 2000. A third attorney was appointed to represent Appellant and filed [a] timely appeal.

Commonwealth v. Reese, 859 EDA 2000, 782 A.2d 1058 (Pa. Super. filed July 10, 2001) (unpublished memorandum) (footnotes 2-4 omitted). That panel affirmed Appellant's judgment of sentence. Id. at 20. The Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Reese, 793 A.2d 907 (Pa. 2001).

The record reflects that Appellant then filed multiple PCRA petitions, all of which were denied.¹ Appellant also sought federal habeas review, but didnot prevail.² Appellant then filed the underlying pro se PCRA petition, his fourth, on January 23, 2013, and an amended petition on March 13, 2013. After "conducting an exhaustive review of the record and applicable case law," the PCRA court sent Appellant notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss the petition without a hearing. PCRA Court Opinion, 4/1/14, at 2; Rule 907 Notice, 2/6/14. Counsel entered an appearance on March 5, 2014, and filed a response to the Rule 907 notice the next day. The PCRA court dismissed Appellant's petition as time barred on April 1, 2014. This timely appeal followed. Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

Appellant presents the following questions for our consideration:

I. Whether the PCRA court erred when it dismissed the PCRA petition as "time barred" without first holding a hearing to determine the facts?

II. Whether the PCRA is unconstitutional as applied to the facts and circumstances of thiscase [sic]?

Appellant's Brief at 1-2.³

Our standard of review of a trial court order granting or denying relief under the PCRA requires us to determine whether the decision of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Id. (quoting Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014)).

Preliminarily, we must determine if we have jurisdiction to entertain this appeal. Effective January 16, 1996, the PCRA was amended to require a petitioner to file any PCRA petition within one year of the date the judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time requirement is mandatory and jurisdictional in nature, and the court may not ignore it in order to reach the merits of the petition. Commonwealth v. Hernandez, 79 A.3d 649, 651-652 (Pa. Super. 2013) (citation omitted).

In the case sub judice, Appellant was sentenced on September 28, 1999. This Court affirmed the judgment of sentence on July 10, 2001, andour Supreme Court denied allowance of appeal on December 14, 2001. Appellant did not seek a writ of certiorari in the United States Supreme Court. Therefore, Appellant's judgment of sentence became final on March 14, 2002, when the period for Appellant to file a petition for a writ of certiorari expired. See 42 Pa.C.S. § 9545(b)(3) ("[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."); U.S. Sup.Ct.R. 13.1 (instructing that petition for writ of certiorari must be filed within 90 days of date that state court of last resort denies discretionary review). Appellant had until March 14, 2003, to file a PCRA petition. Accordingly, the instant petition, originally filed on January 23, 2013, is patently untimely.

However, an untimely petition may be received when the petition alleges, and the petitioner proves, that any of the three limited exceptions to the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii), is met.⁴ A petition invoking one of these exceptions must be filedwithin sixty days of the date the claim first could have been presented. 42 Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the PCRA's one-year filing deadline, "the petitioner must plead and prove specific facts that demonstrate his claim was raised within the sixty-day time frame" under section 9545(b)(2)." Hernandez, 79 A.3d at 651-652.

In the instant petition, Appellant purports to raise the first and third exceptions to the PCRA timeliness requirements. In support of his petition, Appellant asserts:

The PCRA petition was not untimely because it alleged a violation of Brady v. Maryland, 373 U.S. 83 . . . (1963) ("Brady claim"). Application of the time bar to a Brady claim violates clearly established federal law, and is unconstitutional.

The PCRA petition is not untimely because application of the time bar to a claim that a constitutional violation led to the conviction of an innocent person is never time barred.

The PCRA petition was not untimely because it was alleged a violation of Lafler v. Cooper, 132 S.Ct. 1376, 1387 . . . [(2012)]. . . . This case is automatically retroactive under Yatesv. Aiken, 484 U.S. 211 . . . (1988) (decisions dictated by prior Supreme Court precedent are automatically retroactive).

The PCRA petition is not untimely because it alleged attorney abandonment in violation of Maples v. Thomas, . . . 132 S.Ct. 912 . . . [(2012)] which is a retroactive decision of the United States Supreme Court.

Appellant's Brief at 8-9. In response, the Commonwealth asserts that Appellant's "confused and disorganized arguments, once disentangled, are clearly meritless. His petition was untimely and he may not be excused from the time-bar." Commonwealth's Brief at 6. We agree.

Appellant first claims interference by government officials. 42 Pa.C.S. § 9545(b)(1)(i). Underlying Appellant's argument is an alleged Brady violation. Brady held that ...