NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No EDA 2012

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. MARVIN WOODS Appellant No EDA 2012 Appeal from the PCRA Order April 24, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR BEFORE: LAZARUS, J., OLSON, J., and FITZGERALD, J. * MEMORANDUM BY LAZARUS, J. Filed: April 16, 2013 Marvin Woods appeals from the order entered in the Court of Common Pleas of Philadelphia County, dismissing as untimely his second petition brought pursuant to the Post-Conviction Relief Act ( PCRA ). 1 We affirm. This Court previously summarized the facts of this case as follows: [Woods] was convicted of shooting John Preston on September 3, 1991, at the Barrett Junior High School playground in Philadelphia. [Woods] and the victim were teammates in an organized evening basketball game that was witnessed by a crowd of about 200 people. After the parties argued during the first half of the game, [Woods] got in his car and left the playground, returning approximately 20 minutes later. [Woods] approached the victim from behind and produced a large * Former Justice specially assigned to the Superior Court Pa.C.S

2 handgun from underneath his shirt. [Woods] then shot the victim three times in the back and buttocks from short range, killing him. Commonwealth v. Woods, No EDA 2005, unpublished memorandum at 2 (Pa. Super. filed 4/18/06). The trial court sentenced Woods to life imprisonment, and this Court affirmed the judgment of sentence on direct appeal. Commonwealth v. Woods, 633 A.2d 1226 (Pa. Super. 1993) (unpublished memorandum). The Pennsylvania Supreme Court denied allowance of appeal on April 7, Commonwealth v. Woods, 644 A.2d 735 (Pa. 1994). On June 8, 2004, almost ten years after his judgment of sentence became final, Woods filed his first PCRA petition, which the trial court dismissed on June 27, 2005 as untimely filed. This Court affirmed. Commonwealth v. Woods, 902 A.2d 984 (Pa. Super. 2006) (unpublished memorandum). On July 14, 2010, Woods filed a second PCRA petition, which he later withdrew, and on August 8, 2011, he filed the current PCRA petition alleging newly discovered facts. He asserts that during his interrogation by Detective Thomas Augustine, he was subjected to malicious misconducts of false/fabrication of evidence by this Detective Augustine. PCRA Petition, 11/8/11, at 1-2. The petition avers that in 2008, a fellow inmate advised Woods of newspaper articles from 2001 discussing allegations of misconduct by Detective Augustine in the highly publicized Center City jogger rape/murder case. One of the articles suggests that the defendants in that - 2 -

3 1997 trial, Herbert Haak and Richard Wise, were acquitted because the jury believed that Detective Augustine coerced their confessions. The article also states that the U.S. Department of Justice cleared Detective Augustine of abusing the defendants during their questioning. The second article states that Haak and Wise sued Detective Augustine and that they filed a civil rights complaint with the FBI related to their treatment by the Philadelphia Police Department. Wood also attaches as exhibits copies of the complaint filed by Haak and Wise in their federal district court suit against several entities and individuals, including Detective Augustine, and a memorandum opinion in that case from 2002 denying the defendants motion for summary judgment. On April 3, 2012, the trial court issued a notice of intent to dismiss the petition pursuant to Pa.R.Crim.P. 907(1). Woods filed a response to the notice on April 18, 2012, and on April 24, 2012 the court dismissed the petition as untimely. Woods, acting pro se, raises the following issue for our review, which we quote verbatim: Whether the lower court[ ]s denial of PCRA relief as untimely was and [sic] abuse of discretion, an error of law, by failing to hold an evidentiary hearing where PCRA application was filed timely within 60 days of discovery of the new evidence satisfying exception 9545(a)(1)(ii) to overcomes [sic] time bar. Brief of Appellant, at 4. Our standard of review regarding a PCRA court s order is whether the determination of the PCRA court is supported by the evidence of record and - 3 -

4 is free of legal error. The PCRA court s findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (citations omitted). Section 9545 of the PCRA provides in relevant part: (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 exercise of due diligence; or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively. (2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented. (3) For purposes of this subchapter, 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 - 4 -

5 Pennsylvania, or at the expiration of time for seeking review. 42 Pa.C.S. 9545(b). On April 7, 1994, the Pennsylvania Supreme Court denied Wood s petition for allowance of appeal from this Court s order affirming his judgment of sentence. Because Woods did not seek further review in the United States Supreme Court, his conviction became final on July 5, 1994, the date by which he could have filed a petition for writ of certiorari. 42 Pa.C.S. 9545(b)(3). Woods filed the instant petition on March 1, 2011, more than sixteen years beyond the date his conviction became final. Therefore, his petition is patently untimely. See Pa.C.S. 9545(b)(1). Relying on the newly discovered facts exception to the time bar set forth in Section 9545(b)(1)(ii) of the PCRA, Woods asserts that it was not until 2008, when a fellow inmate showed him newspaper articles from 2001, that he learned of allegations of misconduct against Detective Augustine. He does not explain why he could not have discovered this evidence in the nearly fourteen years that passed between the highly publicized acquittal of Haak and Wise on March 14, 1997 and the filing of the petition on March 1, Having failed to establish that he could not have discovered the evidence through due diligence, Woods petition was untimely. See Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001) (claim untimely because petitioner failed to explain why he could not have obtained documents in question earlier with exercise of due diligence)

6 Furthermore, the sole value of the evidence is to support a claim that Detective Augustine engaged in improper interrogation tactics. The alleged newly discovered facts simply support a previously known fact, and therefore do not satisfy the exception to the time bar. Commonwealth v. Marshall, 947 A.2d 714, 721 (Pa. 2009) ( the after-discovered facts exception focuses on fact, and not on a newly discovered or newly willing source for previously known facts, and accordingly [petitioner] fails to demonstrate that his claim falls under this exception. ) (citation omitted). 2 On August 15, 2012, Woods filed an application for post submission communication seeking permission to file a supplemental brief raising a claim based on Martinez v. Ryan, 132 S.Ct (2012). This Court denied the application without prejudice to present the arguments contained in the application in [Woods ] appellate brief. Order, 9/24/12, at 1. In Martinez, the United States Supreme Court held: [w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, 2 In his brief, Woods also asserts that this claim is reviewable under the exception for governmental interference because the Philadelphia Police Department refused to provide him with disciplinary records under the Right to Know Act. This claim is waived because Woods did not raise it in the PCRA court. Commonwealth v. Fulton, 830 A.2d 567, 570 n.2 (Pa. 2003) (claim not raised in PCRA petition is waived and cannot be raised on appeal). For the same reason, Woods argument that the trial court erred in admitting evidence that the Commonwealth failed to disclose, in violation of a discovery order, is also waived

7 a procedural default will not bar a federal habeas corpus court from hearing a substantial claim of ineffective assistance at trial if, in the initial review collateral proceeding there was no counsel or counsel in that proceeding was ineffective. Id. at In Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa. Super. 2013), this Court held that Martinez is of no moment with respect to the way Pennsylvania courts apply the plain language of the time bar set forth in section 9545(b)(1) of the PCRA. Accordingly, Martinez does not provide a basis for relief in this case. Because Woods PCRA petition was untimely, and he proffered no evidence to establish an exception to the time bar, he was not entitled to a hearing. Commonwealth v. Derrickson, 923 A.2d 466 (Pa. Super. 2007). Order affirmed