Commonwealth v. Howard

285 A.3d 652

COMMONWEALTH of Pennsylvania

v.Melvin HOWARD, Appellant

No. 2821 EDA 2019

Superior Court of Pennsylvania.

Submitted December 21, 2020

Filed November 9, 2022

Ayanna Williams, Federal Community Defender's Office, Philadelphia, for appellant.

Michael H. Gonzales, Federal Community Defender's Office, Philadelphia, for appellant.

Shawn D. Baldwin, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

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

Lawrence J. Goode, Assistant District Attorney, 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 September 11, 2019 order dismissing, as untimely, his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 - 9546. This Court originally affirmed that order by opinion filed on April 20, 2020, therein agreeing with PCRA court that Appellant had failed to demonstrate that the contents of a state government report on capital punishment constituted newly-discovered facts under Section 9545(b)(1)(ii) so as to excuse the untimeliness of his petition. However, our Supreme Court subsequently vacated our decision and remanded for this Court to apply its holding in Commonwealth v. Small , ––– Pa. ––––, 238 A.3d 1267 (2020) (disavowing the ‘public record presumption’ as violative of the plain text of Section 9545(b)(1)(ii)). See Commonwealth v. Howard , 249 A.3d 1229 (Pa. Super. 2021), vacated and remanded , 662 Pa. 309, 266 A.3d 1067 (2021) (per curiam order). After careful reconsideration of our prior decision and Small , and for the reasons set forth herein, we again affirm the order dismissing Appellant's PCRA petition as untimely.

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 (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 (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 (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 without a hearing] [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 previously presented 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 Pre-Remand Brief at 2.

In our prior Opinion, we did not reach Appellant's second question, having concluded that the JSGC Report did not meet the criteria for a newly-discovered fact under Section 9545(b)(1)(ii), because there was "no revelation in the JSGC Report of a specific error in Appellant's case, an admission of such an error by the prosecutor or the District Attorney's office, nor an admission of a systemic error that necessarily impacted Appellant's case." Howard , 249 A.3d at 1239. In its per curiam order vacating our decision, the Supreme Court did not explain its rationale for remanding in light of Small . Although this Court did not explicitly rely on the public record presumption in affirming the PCRA court's order denying relief, Justice Dougherty, in a concurring statement joined by Justice Mundy, explained that there were "stray statements" in our decision, including block-quoted portions of the PCRA court's Rule 1925(a) opinion, "that could arguably be interpreted as conflicting with the holding in Small [,]" and that this Court had expressed its agreement with those block quotes without qualification. Howard , 266 A.3d at 1069–70 (Dougherty, J., concurring).²

Upon remand, we granted Appellant's unopposed motion for supplemental briefing on January 28, 2022. Appellant now presents the following questions for our review:

I. Is remand to the [PCRA court] appropriate where the Pennsylvania Supreme Court has directed that this PCRA petition be analyzed under ... Small [ ], and where the [PCRA court] has not yet had an opportunity to do so?

II. Did the [PCRA court] err in concluding that the claims raised in [Appellant]’s ... [PCRA] petition were untimely under 42 Pa.C.S. § 9545(b), where the new facts included recent findings from the [JSGC] regarding racial discrimination in jury selection?

III. Did the [PCRA court] err in considering [Appellant]’s claims on the merits after determining that it lacked jurisdiction?

IV. Did the [PCRA court] err in denying the PCRA petition on the merits where [Appellant] showed that racial discrimination during jury selection violated his rights under Article I, Sections 6 and 13 of the Pennsylvania Constitution ?

Appellant's Post-Remand Brief at 2.

As noted above, the Supreme Court of Pennsylvania has directed this Court to reconsider, in light of Small , our decision affirming the denial of Appellant's PCRA petition as untimely. In general, we review "an order dismissing or denying a PCRA petition" as to "whether the findings of the PCRA court are supported by the record and are free from legal error." Commonwealth v. Reid , ––– Pa. ––––, 259 A.3d 395, 405–06 (2021). Appellant "has the burden to persuade this Court that the PCRA court erred and that such error requires relief." Commonwealth v. Wholaver , 644 Pa. 386, 177 A.3d 136, 144–45 ( 2018).

As to legal questions, "we apply a de novo standard of review to the PCRA court's legal conclusions[,]" Commonwealth v. Roney , 622 Pa. 1, 79 A.3d 595, 603 (2013), and this Court "may affirm a PCRA court's order on any legal basis." Commonwealth v. Parker , 249 A.3d 590, 595 (Pa. Super. 2021). As to factual questions, "our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party" in the lower court. Commonwealth v. Burkett , 5 A.3d 1260, 1267 (Pa. Super. 2010). "Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record." Commonwealth v. Daniels , 947 A.2d 795, 798 (Pa. Super. 2008).

Here, the PCRA court denied Appellant's petition as untimely, and the PCRA's 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

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