Com. v. Palmer

814 A.2d 700

COMMONWEALTH of Pennsylvania, Appellee v. Lawrence R. PALMER, Appellant.

Superior Court of Pennsylvania.

Submitted August 5, 2002.

Filed December 23, 2002.

Lawrence R. Palmer, appellant, pro se.

Michael W. Streily, Deputy Dist. Atty., and Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before: DEL SOLE, P.J., GRACI and MONTEMURO¹, JJ.

GRACI, J.:

¶ 1 Lawrence R. Palmer ("Palmer") appeals, pro se, the order entered December 14, 2001, disposing of his second petition brought pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Palmer's petition was denied without a hearing, following proper notice, on the basis that he failed to make a strong prima facie showing that a miscarriage of justice occurred and because the petition was untimely filed. For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

¶ 2 On March 29, 1995, Palmer was convicted by a jury at case XXXXXXXXX of three counts each of aggravated assault and recklessly endangering another person, and one count each of violation of the uniform firearms act, firearms not to be carried without a license, and criminal conspiracy. Palmer was acquitted at case XXXXXXXXX of first and third-degree murder. Palmer was sentenced on May 22, 1995, to an aggregate term of 21 to 42 years' imprisonment. This Court affirmed the judgment of sentence on September 4, 1996. Commonwealth v. Palmer, 455 Pa.Super. 658, 686 A.2d 1366 (1996) (unpublished memorandum). The Pennsylvania Supreme Court denied allowance of appeal on March 7, 1997. Commonwealth v. Palmer, 547 Pa. 753, 692 A.2d 564 (1997).

¶ 3 Palmer filed a PCRA petition on October 20, 1997. Counsel was appointed to represent Palmer, and an amended petition was filed on his behalf. The PCRA court issued notice of its intent to dismiss the petition without a hearing, and subsequently dismissed the petition on May 6, 1998. On June 7, 1999, this Court affirmed the order of the PCRA court as to the substantive issues raised in the petition; however, the case was remanded to permit Palmer to amend the petition. Commonwealth v. Palmer, 742 A.2d 208 (Pa.Super.1999) (unpublished memorandum). On remand, appointed counsel filed a "no-merit" letter² and request to withdraw. The PCRA court granted counsel's request on December 7, 1999, and issued notice of its intent to dismiss the petition without a hearing. The PCRA court dismissed the petition on December 30, 1999. This Court affirmed on December 20, 2000, and the Pennsylvania Supreme Court denied allowance of appeal on June 5, 2001. Commonwealth v. Palmer, 769 A.2d 1207 (Pa.Super.2000) (unpublished memorandum), appeal denied, 566 Pa. 640, 781 A.2d 142 (2001).

¶ 4 Palmer filed the present PCRA petition, his second, on October 21, 2001. He claimed eligibility for relief based on a violation of the state or federal Constitutions which undermined the truth-determining process, 42 Pa.C.S.A. § 9543(a)(2)(i), a violation of the Constitution, law or treaties of the United States requiring the granting of federal habeas corpus relief to a state prisoner, 42 Pa.C.S.A. § 9543(a)(2)(v),³ after-discovered evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced, 42 Pa.C.S.A. § 9543(a)(2)⁴, and, lastly, the imposition of a sentence greater than the lawful maximum, 42 Pa.C.S.A. § 9543(a)(2)(vii). Motion for Post Conviction Collateral Relief ("PCRA Petition"), at 2, ¶ 4. Recognizing the requirement of a strong prima facie showing demonstrating a miscarriage of justice before a second PCRA petition may be entertained, see Commonwealth v. Szuchon, 534 Pa. 483, 633 A.2d 1098, 1099 (1993), Palmer asserted that he believed that, after he was convicted, one Delmar Allen Taylor "had been arrested for the crime for which Palmer had already been convicted." PCRA Petition, at 5. This, he claimed "relates to [his] innocence." Id. He alleged that this constituted Brady⁵ material and sought an order directing the prosecutor's office to turn over such information to him. Id.

¶ 5 The PCRA court issued notice of its intent to dismiss the petition without a hearing on November 1, 2001. The PCRA court, which had presided over Palmer's jury trial and had adjudicated his first PCRA petition, including the remand from this Court after the appeal from the denial of that petition, explained that Palmer "failed to make a strong prima facie case that a miscarriage of justice has occurred and the petition is barred by the PCRA's statute of limitations." Notice of Intention to Dismiss PCRA Petition under Pa. R.Crim.P. 907.

¶ 6 Palmer, in response to this notice, sought leave to amend his petition on November 1, 2001. In his motion, he attempted to demonstrate, prima facie, the miscarriage of justice required before his second PCRA petition could be entertained. [First] Motion to Grant Leave to Amend Post-Conviction Relief Act Petition Pursuant to Title 42, C.S.A. Pa.R.Crim.P. 905 ("First Motion"), at 2-3. He alleged that one of his co-defendants, Paul Peterson, gave a statement upon his arrest implicating both Palmer and "Delmar Taylor" in these crimes. As he had in his original petition, Palmer alleged that, after he was convicted in 1995, Taylor was arrested for these offenses and, after a coroner's inquest, released. Palmer asserted that this was inconsistent with the Commonwealth's theory at trial in which, it asserted three, not four, people were involved in the incident. Id. at 3-4. He argued that this new information would have impacted on his "misidentification defense" and "would have cast doubt on the prosecutor's case." Id. at 4. He contended that, in charging a fourth person, the Commonwealth was misleading Palmer's jury if it knew of Taylor before Palmer's trial or that, in charging four persons with a crime committed by only three, one of the four charged persons was innocent. Id. He claimed to be the innocent one. Id. Palmer described his alleged after-discovered evidence and argued, inter alia, that "it would `effect the outcome of the trial.'" First Motion, at 6-8. Palmer asserted that he satisfied the pleading requirements of the PCRA. 42 Pa.C.S.A. § 9543. Id. at 5. The amended petition alleged facts in an attempt to meet the requirements for relief based on newly-discovered evidence, 42 Pa.C.S.A. § 9543(a)(2)(vi), and to satisfy the so-called "after-discovered evidence" exception to the timeliness/jurisdictional requirements of the PCRA. 42 Pa.C.S.A. § 9545(b)(1)(ii) and (2). Id. at 3-8.

¶ 7 By order dated December 14, 2001, the PCRA court granted Palmer's motion to amend his second PCRA petition. Order Dismissing Second PCRA Petition and Trial Court's Statement Under Pa.R.A.P. 1925. In the same order, the PCRA court dismissed Palmer's second petition, as amended "without the appointment of counsel because a prior dismissal of a PCRA petition was affirmed on appeal, [Palmer] has failed to make a strong prima facie case that a miscarriage of justice has occurred and the petition is barred by the PCRA's statute of limitations." Id.

¶ 8 On December 17, 2001, Palmer filed a second motion seeking leave to amend his PCRA petition.⁶ [Second] Motion to Grant Leave to Amend Post-Conviction Relief Act Petition Pursuant to Title 42 C.S.A. Pa.R.Crim.P. 905. Attached to that motion was a copy of a letter on the stationery of the Allegheny County Coroner's Office dated December 12, 2001. The letter was addressed to "Mr. Lawrence" and stated, in its entirety: "Charges were withdrawn on Taylor by the D.A.'s office. Enclosed is a copy of the withdraw [sic]." The letter bears the name and what purports to be the signature of "Rose Shenkel" who is not otherwise identified. Also attached to the motion is a District Justice Transcript indicating that "Delmar Allen Taylor" was charged with "Criminal Homicide" by warrant issued on November 18, 1994, and that a complaint was filed against him on November 19, 1994. The date of the offense is listed on the transcript as July 6, 1994. This document lists Taylor's co-defendants as "Paul Peterson," "Lawrence Rafeal Palmer, a/k/a Turk," and "Tyrone Solemon Bey." The transcript reflects Taylor was arrested on this charge on June 12, 1995. The case against Taylor was listed for preliminary hearing at the coroner's office on July 26, 1995. The transcript shows "W/D" as the disposition of the criminal homicide charge against Taylor.⁷

¶ 9 No action was taken on this second motion to amend before Palmer filed his notice of appeal to this Court on December 31, 2001,⁸ from the order of December 14, 2001, dismissing his second PCRA petition.⁹ Palmer's timely appeal is now before us for disposition.

II. SCOPE AND STANDARD OF REVIEW

¶ 10 In reviewing the propriety of the PCRA court's dismissal of the petition, we are limited to determining whether the court's findings are supported by the record, and whether the order is free of legal error. Commonwealth v. Kutnyak, 781 A.2d 1259 (Pa.Super.2001). Here, we conclude, upon review of the record, that the PCRA court properly determined that Palmer "has failed to make a strong prima facie case that a miscarriage of justice has occurred and the petition is barred by the PCRA's statute of limitations" precluding the PCRA court from entertaining Palmer's second petition. Finding no error in that determination, we affirm the order of the PCRA court.

III. DISCUSSION

A. Timeliness

¶ 11 We begin our analysis by noting that the timeliness requirements of 42 Pa.C.S.A. § 9545(b) are jurisdictional in nature, and the courts lack jurisdiction to grant PCRA relief unless the petitioner can plead and prove that one of the exceptions to the time bar applies. Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 913-14 (2000). "[W]e must, as a threshold matter, determine whether the petition should be dismissed as untimely." Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 217 (1999).

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