Opinion
J-S43016-19 No. 307 MDA 2019
10-01-2019
COMMONWEALTH OF PENNSYLVANIA v. EDWARD LUCKETT Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered January 15, 2019
In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001573-1995 BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY DUBOW, J.:
Former Justice specially assigned to the Superior Court.
Pro se Appellant Eddie Luckett seeks review of the Order denying as untimely his ninth Petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. We affirm.
On January 22, 1999, the court sentenced Appellant to life in prison after a jury convicted him of First-Degree Murder, Robbery, Burglary, and related conspiracy offenses in connection with, inter alia, the beating, stabbing, rape, asphyxiation, and death of Agnes DeLuca in 1990. This Court affirmed the Judgment of Sentence and the Pennsylvania Supreme Court denied allowance of appeal on December 5, 2001. Commonwealth v. Luckett , 768 A.2d 885 (Pa. Super. 2000), appeal denied, 792 A.2d 1255 (Pa. 2001). Appellant sought no further review. His Judgment of Sentence, thus, became final ninety days later on March 5, 2002. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. R. 13.
Appellant subsequently filed eight PCRA Petitions, none of which was successful in attacking his convictions or sentence. This Court affirmed the denial of his eighth petition on July 11, 2018.
Appellant filed a Notice of Appeal from the denial of his eighth PCRA Petition, titled a "Praecipe for Entry of Adverse Order," on November 27, 2017. This Court acknowledged this Petition was another serial PCRA Petition, and affirmed its denial. See Commonwealth v. Luckett , No. 1849 MDA 2017, unpublished memorandum at 2 n.1 (Pa. Super. filed July 11, 2018).
On August 6, 2018, Appellant filed the instant Petition, his ninth, asserting a claim of prejudice at trial based on after-discovered evidence, i.e., an April 18, 2015 Washington Post article, which a fellow inmate told him about on December 25, 2017, regarding deficiencies in FBI training in hair and blood analysis. He asserts that the expert who testified at his trial was trained by the FBI and, thus, his testimony was tainted.
Appellant conceded that his blood and hair were not found at the scene of the crime. Trial Ct. Op., at 11/8/18, at 6. In addition, the expert who testified at Appellant's trial stated that he could not identify to whom the hair found at the scene belonged and that Appellant's blood type O was not found at the scene of the crime. Id. at 6.
On November 8, 2018, the PCRA court issued a Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907. Appellant filed a response.
On January 15, 2019, the PCRA court dismissed Appellant's Petition as untimely. Appellant appealed.
Appellant raises the following issues for our review, verbatim:
A. PCRA court erred in failure to provide any § 9545(B)(1)(ii)(2) jurisdictional basis for dismissal of "7/26/2018" PCRA Petition based upon "7/2017 Mixed DNA Samples/Statistical Protocol."Appellant's Brief at 4.
B. PCRA court violated Pa.R.Crim. 907(1), 908(2) by failure to hold evidentiary hearing on ¶4 Surma training by FBI; ¶5 FSA Blake/Miholovich "Trianing by FBI" on "11/11/91" hair microscopic analysis, and claims of Surma's false hair comparisons with Victim's.
C. PCRA Court's Failure to reduce Petitioner's "9/21/2018" government interference §9545(B)(1)(l) claims against DOJ;s "8/3/2018" erroneous notification, to any judgment, violates Pa.R.Crim.P. 907(1); Pa.R.A.P. 301(C), 341(B), Thus, raises several jurisdictional questions.
We review the denial of a PCRA Petition to determine whether the record supports the PCRA court's findings and whether its order is otherwise free of legal error. Commonwealth v. Fears , 86 A.3d 795, 803 (Pa. 2014). There is no right to a PCRA hearing; a hearing is unnecessary where the PCRA court can determine from the record that there are no genuine issues of material fact. Commonwealth v. Jones , 942 A.2d 903, 906 (Pa. Super. 2008).
Before addressing the merits of Appellant's claims, we must first determine whether we have jurisdiction to entertain the underlying PCRA Petition. See Commonwealth v. Hackett , 956 A.2d 978, 983 (Pa. 2008) (explaining that the timeliness of a PCRA Petition is a jurisdictional requisite). Under the PCRA, any Petition "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final[.]" 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence 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." 42 Pa.C.S. § 9545(b)(3). The PCRA's timeliness requirements are jurisdictional in nature, and a court may not address the merits of the issues raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht , 994 A.2d 1091, 1093 (Pa. 2010).
Here, Appellant's Judgment of Sentence became final on March 5, 2002, upon expiration of the time to file a Petition for Writ of Certiorari with the United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. R. 13. In order to be timely, Appellant needed to submit his PCRA Petition by March 5, 2003. 42 Pa.C.S. § 9545(b)(1). Appellant filed this PCRA Petition on August 8, 2018, more than fifteen years after the one-year deadline. Thus, Appellant's Petition is facially untimely.
Pennsylvania courts may consider an untimely PCRA petition, however, if the petitioner pleads and proves one of the three exceptions set forth in 42 Pa.C.S. § 9545(b)(1). Any petition invoking a timeliness exception must be filed within one year of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).
Here, in his first two issues, Appellant invokes the timeliness exception for newly-discovered facts, 42 Pa.C.S. § 9545(b)(1)(ii), which requires Appellant to plead and prove "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[.]" 42 Pa.C.S. § 9545(b)(1)(ii). Our Supreme Court has held that the exception set forth in Section 9545(b)(1)(ii) "does not require any merits analysis of the underlying claim." Commonwealth v. Bennett , 930 A.2d 1264, 1271 (Pa. 2007). Rather the exception merely requires the petitioner to plead and prove two elements: "1) the facts upon which the claim was predicated were unknown and 2) could not have been ascertained by the exercise of due diligence." Id. at 1272 (internal quotation marks omitted; emphasis in original), citing 42 Pa.C.S. § 9545(b)(1)(ii). "If the petitioner alleges and proves these two components, then the PCRA court has jurisdiction over the claim under this subsection." Id.
Importantly, "to constitute facts which were unknown to a petitioner and could not have been ascertained by the exercise of due diligence, the information must not be of public record and must not be facts that were previously known but are now presented through a newly[-]discovered source." Commonwealth v. Edmiston , 65 A.3d 339, 352 (Pa. 2013).
Our Supreme Court has explained, "[t]he question for timeliness purposes is whether the newly-discovered facts form a predicate for the underlying claim." Commonwealth v. Blakeney , 193 A.3d 350, 362 (Pa. 2018). For example, in Commonwealth v. Chmiel , 173 A.3d 617 (Pa. 2017), our Supreme Court held that the appellant satisfied the PCRA time-bar for a newly-discovered fact when the appellant made a claim that his conviction rested upon unreliable hair comparison evidence. Chmiel , 173 A.3d at 625-26. The Supreme Court concluded that the claim was predicated upon newly-discovered facts contained within an FBI press release, which conceded that some FBI examiners gave scientifically flawed testimony regarding hair comparison evidence. Id. In order to satisfy Section 9545(b)(1)(ii), the appellant was not required to plead and prove that the testimony offered in his case constituted the exact type of testimony that that the FBI repudiated in its press release, i.e., a "nexus" between the claim and the fact. Id. at 626 n.7. Rather, our Supreme Court determined that "those considerations go to the merits of the underlying issue rather than to the timeliness of the PCRA petition." Id.
Likewise, in Blakeney , supra , our Supreme Court held that the appellant satisfied the PCRA time-bar for a newly-discovered fact. Blakeney , 193 A.3d at 362. The appellant asserted judicial bias after the publication of newspaper reports alleging a judge who participated in his direct and PCRA appeal exchanged offensive emails with the prosecution, and the Court concluded that the facts in the newspaper reports served as a predicate for the appellant's underlying claim of judicial bias. Id. The appellant was not required to demonstrate a "'nexus' between the newly-discovered facts and the conviction or sentence for purposes of satisfying the timeliness exception[.]" Id.
Finally, our Supreme Court has explained, "due process requires that the post conviction process be fundamentally fair. . . . Thus, petitioners must be given the opportunity for the presentation of claims at a meaningful time and in a meaningful manner." Bennett , 930 A.2d at 1273.
In the instant case, the PCRA court summarized Appellant's argument as follows:
[Appellant] states that his petition is timely because it was filed within 60 days of . . . when he learned of the after-discovered evidence. He asserts that on December 25, 2017, he learned from another inmate about an April 18, 2015 Washington Post article concerning faulty FBI microscopic hair analysis, and discovered that some of the witnesses in his case were trained by the FBI on microscopic hair analysis. He also asserts that on May 26, 2018, he learned from another inmate about a July 2017 edition of Prison Legal News about the Texas Forensic Science Commission's findings on problems with DNA testing protocols. He also seems to assert that he filed the current petition as soon as he could following the January 30, 2017 Pennsylvania Supreme Court decision in Commonwealth v. Chmiel which addressed similar issues. He asserts that he could not have ascertained this new evidence between April 18, 2015 and December 25, 2017 because he was incarcerated and the prison does not have a subscription to the Washington Post. He asserts that the DOJ, FBI, and Lackawanna County District Attorney's Office had a duty to notify him of the information in the April 18, 2015 Washington Post article or the Chmiel proceedings. He asserts that he was not able to obtain the April 18, 2015 Washington Post article until May 17, 2018 and filed within 60 days of [receiving it].PCRA Ct. Memorandum and Notice of Intent to Dismiss, dated Nov. 8, 2018, at 5.
The PCRA court concluded that because Appellant alleged that he learned of the "new facts" on December 25, 2017, he should have filed his petition within 60 days, i.e., by February 24, 2018. However, as Appellant correctly notes, his prior PCRA Petition was pending on appeal until July 11, 2018, so he could not have filed until the resolution of that appeal. See Commonwealth v. Lark , 746 A.2d 585, 588 (Pa. 2000) (holding that "when an appellant's PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review.").
Moreover, the legislature amended 42 Pa.C.S. § 9545(b)(2) on December 24, 2018, to expand the 60 day period to one year for claims arising on or after December 24, 2017.
We nonetheless agree that Appellant's after-discovered evidence claim does not satisfy the requirements of the timeliness exception. See In re Jacobs , 15 A.3d 509 n.1 (Pa. Super. 2011) ("[This Court is] not bound by the rationale of the trial court, and may affirm on any basis."). As noted above, "[t]he question for timeliness purposes is whether the newly-discovered facts form a predicate for the underlying claim." Blakeney , 193 at 362. Here, unlike in Chmiel and Blakeney , supra , Appellant has not asserted in the instant Petition that his conviction relied upon faulty DNA analysis.
Even though Appellant did not satisfy the requirements of the timeliness exception, the trial court nonetheless observed the following with respect to the merits of the claim:
Moreover, as [Appellant] concedes, his hair and blood were not found at the scene of the crime, and the testimony of the Pennsylvania State Police forensic scientist, George Surma, actually established this. Mr. Surma testified that [Appellant's] blood type was group O blood, but that none of the items he tested had group O blood. [ ] He also testified that he could not determine who the donors of the hair were that were found at the scene. [ ] Thus, [Appellant] cannot claim to have been prejudiced by the blood and hair analysis since none of it implicated him.Trial Ct. Memorandum, filed Nov. 8, 2018, at 6.
Because the newly-discovered facts do not form a predicate for the underlying claim as defined in Chmiel and Blakeney , Appellant has not met the timeliness exception, and we are, thus, without jurisdiction to review the merits of his claim. See Chmiel , 173 A.3d at 625-26; Blakeney , 193 A.3d at 362. Appellant's first two claims, thus, warrant no relief.
In his third issue, Appellant asserts that the trial court erred in failing to address in the Rule 907 Notice relevant to this ninth PCRA Petition, a claim he raised in a PCRA Petition date-stamped September 21, 2018. That Petition, titled "Subsequent Petition for Post Conviction Relief Act Inter Alia Government Interference . . .," is technically Appellant's tenth PCRA Petition. Because Appellant raised this governmental interference claim in an entirely different Petition from that which was the subject of the court's Rule 907 Notice, the trial court did not err in failing to address the claim in its review of the instant ninth Petition. Accordingly, no relief is due. Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/01/2019
We note that, the record contains a photocopy of the date-stamped tenth Petition, but does not contain the original. Additionally, the copy in the record has "TIME-STAMP RETURN" handwritten in bold letters along the side of the top page. Most significantly, the docket itself does not contain a notation that the court clerk accepted this tenth Petition for filing. Since Appellant's only issue relative to this claim that he raised in his Response to the Rule 907 Notice was that the trial court erred in failing to consider this claim, he did not raise the governmental interference claim itself in the instant proceeding. --------