[J-76-2016] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT , JJ.

**COMMONWEALTH OF PENNSYLVANIA, Appellee** 

**v.**

**WAYNE CORDELL MITCHELL, Appellant**  **: :**  **: :**  **: :**  **: :**  **: :**  **: No. 714 CAP**  **Appeal from the Order dated August 13, 2015 and entered on the docket on**  **August 14, 2015, in the Court of Common Pleas, Allegheny County,** **Criminal Division at Nos. CP-02-CR 0011609-1997, CP-02-CR-0012047-**  **1997 and CP-02-CR-0013318-1997. SUBMITTED: April 26, 2016** 

OPINION

JUSTICE WECHT DECIDED: July 19, 2016 **In this capital case, Wayne Cordell Mitchell appeals the order of the Court of**  **Common Pleas of Allegheny County dismissing his second pet ition for relief under the**  **Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 954 1-46.**  **1 Mitchell was convicted of first-degree murder and sentenc**  **ed to death for the September 10, 1997 murder of his estranged wife, Robi**  **n Little. Mitchell and Little began dating in high school and had a turbulent relat**  **ionship marked by frequent arguments. In September of 1996, Mitchell threatened**  **to kill Little if she ever left him.**

**1 Our opinion affirming Mitchell’s judgment of sentence**  **on direct appeal discussed the facts underlying his convictions and death sentence. S**  **ee Commonwealth v. Mitchell, 902 A.2d 430, 436-44 (Pa. 2006),**  cert. denied **, 549 U.S. 1169 (2007) (“Mitchell I”). For the purpose of resolving the instant appeal**  **, the facts highlighted in this Court’s opinion affirming the dismissal of Mitchell’s first PCRA**  **petition also are relevant. See Commonwealth v. Mitchell, 105 A.3d 1257, 1262-65, 1**  **273-77 (Pa. 2014) (“Mitchell II”). [J-76-2016] - 2** 

**A son, Malik, was born to the couple in January of 1997 . Mitchell and Little married in**  **April of 1997, when Little was eighteen and Mitchell was nineteen. Mitchell lived with**  **Little and her mother for several months in the spr ing of 1997. Little ended the**  **relationship as arguments continued, and she asked Mitche ll to move out in July of** 

**1997. Little and Malik moved into her brother’s home in Lancaster, Pennsylvania for**  **approximately a month, but they returned to Little’ s mother’s home in Pittsburgh in**  **August of 1997. On September 1, 1997, Little asked Mitchell if she c**  **ould borrow his bus pass. He replied that she could do so if she picked it up fr**  **om him at his place of employment. Upon Little’s arrival, the two began arguing about a**  **man named Brian that Little had been seeing. When Little told Mitchell that she and B**  **rian had engaged in sexual relations, Mitchell became angry, dragged Little into**  **a supervisor’s office, and raped her. Little reported the rape to Pittsburgh police**  **officers and went to Magee Women’s Hospital, where hospital personnel prepared a rape kit.**  **While Little was in the hospital, the police located and arrested Mitchell. Mitchell** 

**waived his Miranda 2**  **rights and confessed to the rape. Mitchell was charged with rape,**  **terroristic threats, unlawful restraint, and simple assaul t. He remained in jail pending a**  **preliminary hearing, which was scheduled for September 9, 1997. While Mitchell was in**  **jail awaiting the preliminary hearing, Little filed a petition for Protection from Abuse**  **(“PFA”). 3**  **The court granted Little’s petition and entered a t en-day temporary order**  **directing that Mitchell have no contact with Little pen ding a final PFA hearing, which was**  **scheduled for September 10, 1997.**

**2 See Miranda v. Arizona, 384 U.S. 436 (1966).** 

**3 See 23 Pa.C.S. §§ 6101-22.** **[J-76-2016] - 3**

**On September 9, 1997, Mitchell waived his preliminar y hearing in exchange for a**  **nominal bond, with a condition that he seek immediate in-patient treatment for alcohol**  **abuse. For reasons that were contested at trial, Mitch ell was never admitted to the**  **designated treatment facility. Instead, he went home and began telephoning Little.**  **After several calls, Mitchell convinced Little to allow h im to come to her home. Mitchell**  **arrived at Little’s residence at approximately 4:15 p. m., and the two argued about Brian,**  **the man whom Little was seeing. Mitchell left shortly after 6:00 p.m., and spent a**  **portion of the evening drinking alcohol with friends. Upon returning home at 1:00 a.m.,**  **Mitchell called Little, apologized, and convinced her t o allow him to come to her** 

**residence to talk about their son. Sheila Britton was the former director of a college-**  **counseling program at the high**

**school that Mitchell and Little attended. She had re mained in contact with Mitchell after**  **he left the school. Ms. Britton reported that Mitchell called her at approximately 1:00**  **a.m. on September 10, 1997, and stated that he was go ing to Little’s house to kill her.**  **Mitchell told Ms. Britton that Little had “disrespected” him and that he planned to dress**  **in black clothing, go to Little’s home, and “do what h e had to do.” Notes of Testimony,**  **10/5/1999 (“N.T. Trial”), at 326-27.**

**Mitchell arrived at Little’s residence at 1:30 a.m. He found Little sitting with a**  **man on her porch. The man quickly left when Mitchell a nd Little began arguing.**  **Mitchell punched Little in the face and stomach, then d ragged her toward an empty lot**  **near her home, repeatedly striking her when she resisted . Little screamed for help,**  **yelling, “He’s going to kill me.” Id. at 383. Mitche ll placed his hand over her mouth and**  **continued to drag her. As they passed a house, Mitchell saw a knife lying on a porch.**  **He punched Little several more times, disabling her, wh ile he retrieved the knife. When**  **Little attempted to stand, Mitchell pushed her down a nd stabbed her in the stomach.** **[J-76-2016] - 4**

**Mitchell then removed Little’s clothes, wrapped his hand s around her neck, and raped**  **her, first vaginally and then anally. After the rap e, Mitchell stabbed Little multiple times** 

**in the neck. Ms. Britton stated that Mitchell called her again at 4**  **:00 a.m. and told her that**

**“Robin Little is no more.” Id. at 330. He also tol d her that he was going to his uncle’s**  **house to establish an alibi, and that he planned to a ttend the PFA hearing later that**  **morning, knowing that Little would not appear. Mitch ell attended the PFA hearing, and,**  **when Little did not appear, the court dismissed Little ’s petition and vacated the**  **temporary PFA order. When Mitchell returned home, h is mother informed him of Little’s**  **death. Mitchell denied any involvement, but his moth er was concerned and insisted that**  **he be evaluated at a hospital. Mitchell agreed, and went to St. Francis Hospital at**  **approximately noon on September 10, 1997. Homicide detectives quickly identified**  **Mitchell as a suspect and approached him in the hospital ’s waiting area when he was**  **released. Mitchell agreed to accompany the detectives t o their office, where he**  **provided a statement in which he confessed to raping Lit tle on September 1, 1997, and**  **to raping and murdering her on September 10, 1997. In addition to the charges relating**  **to the September 1, 1997 rape, Mitchell then was charg ed with criminal homicide, rape,**  **involuntary deviate sexual intercourse (“IDSI”), and u nlawful restraint. The**  **Commonwealth timely filed and served a notice of its intention to seek imposition of the**  **death penalty. On October 1, 1999, Mitchell pleaded guilty to the r**  **ape, IDSI, and unlawful restraint charges arising from the September 10, 1997 se**  **xual assault and homicide. The trial court deferred sentencing upon those convicti**  **ons until after the trial on the remaining charges, which commenced before a jury on Oct**  **ober 4, 1999. During the guilt phase of the trial, the Commonwealth introduced**  **Ms. Britton’s testimony about the [J-76-2016] - 5** 

**two telephone calls from Mitchell, which occurred shortly before and shortly after the**  **murder. Mitchell pursued a diminished capacity defens e based upon a psychological**  **condition and long-term alcohol abuse. The jury reject ed Mitchell’s defense and found**  **him guilty of first-degree murder for the September 10, 1997 killing of Little, as well as**  **the remaining charges arising from the September 1, 19 97 sexual assault. Because the**  **Commonwealth sought imposition of the death penalty, the jury remained empaneled**  **for a separate penalty phase hearing. The jury found two aggravating circumstances**  **and no mitigating circumstances, and accordingly sentenced Mitchell to death.**  **On direct appeal, this Court affirmed Mitchell’s judg ment of sentence. See**  **Mitchell I,** supra **n.1. Mitchell filed a petition for writ of** certiorari **, which the Supreme Court of the United States denied on January 16, 2007**  **. Thus, Mitchell’s judgment of sentence became final on that date. See 42 Pa.C.S. §**  **9545(b)(3). On February 21, 2007, Mitchell timely filed a**  pro se **PCRA petition. Lawyers with the Federal Community Defender Office for the Eastern District of Pennsylvania**  **subsequently entered an appearance on Mitchell’s behalf. Following several ex**  **tensions of time, Mitchell filed an amended PCRA petition on April 28, 2009. Among the**  **thirteen claims that Mitchell raised in his amended petition was an allegation of tr**  **ial counsel ineffectiveness for failure to investigate and develop evidence that wou**  **ld have undermined Ms. Britton’s credibility as a witness. As noted,**  supra **, at Mitchell’s trial in 1999, Ms. Britton testified regarding two telephone calls that she received from Mi**  **tchell on the night of the murder. The first occurred at 1:00 a.m., when Mitchell told h**  **er that he planned to kill Little because she had “disrespected” him. N.T. Trial at 326.**  **The second call occurred at 4:00 a.m., when Mitchell told Ms. Britton that “Robin**  **Little is no more.” Id. at 330. In March 2008, then-assistant federal defender Carol W**  **right interviewed Ms. Britton while preparing Mitchell’s federal**  habeas corpus **petition. At the PCRA hearing, [J-76-2016] - 6** 

**Mitchell presented an affidavit from Attorney Wright, which indicated that she met with**  **Ms. Britton on August 1, 2007, and subsequently spoke wit h Ms. Britton on the**  **telephone on March 20, 2008. Attorney Wright stated that Ms. Britton did not reveal the**  **information relevant to this appeal during the August 1, 2007 meeting, but that, during**  **the March 20, 2008 telephone conversation, Ms. Britton offered the following**  **information for the first time in the course of these p roceedings:** 

**[T]he morning Robin died, Robin’s mother called and [ Ms. Britton] went**  **over to her house. The police were there and they q uestioned her, but**  **she went totally blank and could not remember anything about her**  **conversations with [Mitchell] the previous night. She d id not tell the police**  **officers anything about her conversations at that time. That evening when**  **she went to bed all she started to remember [was] her i nteractions with**  **[Mitchell] the previous night. She told me the follo wing morning she called**  **a mental health facility and made an appointment with a psychiatric social**  **worker. She discussed what she remembered with the socia l worker.**  **[Ms. Britton] told me that a different set of police o fficers questioned her at**  **a later time and she told them all that she remembere d about the phone**  **calls with [Mitchell]. Ms. Britton told us that she would have talked with [**  **trial counsel] before trial and was surprised that they did not contact her.** 

**Mitchell II, 105 A.3d at 1274-75 (quoting Mitchell’s P CRA Evidentiary Hearing Exhibit**  **16). After learning of Ms. Britton’s statements to Attorney**  **Wright, Mitchell included in his first PCRA petition an allegation that his trial**  **counsel was ineffective for failing to interview Ms. Britton prior to his trial. Mitchell ar**  **gued that, had trial counsel done so, he**

**would have discovered that Ms. Britton “remembered” th e content of the telephone calls**  **only after going to bed on the day following the mu rder, and, further, that Ms. Britton**  **briefly spoke to police officers on the morning after th e murder but did not mention the**  **incriminating telephone calls at that time. Because th is information could have cast** **[J-76-2016] - 7**

**doubt upon Ms. Britton’s trial testimony, Mitchell all eged that he was prejudiced by his**  **trial counsel’s failure to discover the potential impea chment evidence.**  **Ms. Britton’s trial testimony about the phone calls w as consistent with a**  **statement that she provided to police on July 23, 1998, approximately ten months after**  **the murder. Although Ms. Britton did not disclose in either her July 23, 1998 statement**  **or during Mitchell’s trial that she had spoken to police officers on the morning after the**  **murder or that she only remembered the telephone call s after going to bed on the**  **following day, she testified at the PCRA hearing that she informed the trial prosecutor of** 

**these facts before Mitchell’s trial when she met with the prosecutor to review her**  **statement. Ms. Britton also testified that, had Mitchel l’s trial counsel interviewed her**  **prior to trial, she would have disclosed the manner in which she remembered the**  **telephone conversations. Notes of Testimony, 10/15/2012 , at 82. Ms. Britton affirmed**  **that her trial testimony was accurate and that, at the time of trial, she remembered the**  **telephone calls “vividly.” Id. at 86. The Commonwea lth called the trial prosecutor to**  **rebut portions of Ms. Britton’s testimony, and he state d that, before trial, he was**  **unaware that Ms. Britton had spoken to police officers immediately after the murder,** 

**and that Ms. Britton never informed him of the manne r in which she remembered the**  **telephone calls. The PCRA court rejected Mitchell’s ineffectiveness claim**  **, reasoning that the claim presumed that Ms. Britton would have informed Mi**  **tchell’s counsel of the salient facts had he interviewed her prior to trial, but that**  **no credible evidence established that**

**she would have done so. To the extent that Ms. Britto n’s testimony at the PCRA**  **hearing conflicted with the trial prosecutor’s testimony , the court credited the prosecutor**  **over Ms. Britton. The PCRA court specifically declined t o credit Ms. Britton’s testimony** 

**that she would have disclosed the manner of her recollect ion if trial counsel had** **[J-76-2016] - 8**

**interviewed her, noting that Ms. Britton did not rev eal the relevant information for more**  **than eight years after Mitchell’s trial, despite havin g numerous prior opportunities to do**  **so in statements to the police, in meetings with the pro secutor, at Mitchell’s trial, or in**  **her first interview with Attorney Wright on August 1, 2007. Because Mitchell failed to**  **establish that an interview with Ms. Britton prior to trial would have yielded the**  **information that Attorney Wright discovered in 2008, the PCRA court concluded that**  **Mitchell failed to prove that he was prejudiced by tri al counsel’s failure to conduct such**  **an interview. Thus, trial counsel was not ineffective. On appeal, this Court affirmed the**  **PCRA court’s conclusion, taking note of the PCRA court’s e xclusive prerogative to**  **make credibility determinations. See Mitchell II, 105 A.3d at 1276-77.**  **On February 13, 2015, Mitchell filed an untimely seco nd PCRA petition, arguing**  **that the facts surrounding Ms. Britton’s recollection of the telephone calls constituted** 

**after-discovered evidence that entitled him to a new t rial. See 42 Pa.C.S.**  **§ 9543(a)(2)(vi). Recognizing that his petition was fa cially untimely, Mitchell invoked the**  **exception to the PCRA’s time bar for the discovery of a new fact. See 42 Pa.C.S.**  **§ 9545(b)(1)(ii). 4**  **Specifically, Mitchell relied upon the PCRA court’s re asoning in** 

**4 The “newly-discovered fact” exception provides that a**  **PCRA claim need not be filed within the one-year time restriction where “the**  **facts upon which the claim is predicated were unknown to the petitioner and could no**  **t have been ascertained by the exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(i**  **i). This exception is distinct from a claim for relief premised upon the existence of “afte**  **r-discovered evidence,” which the PCRA provides for in 42 Pa.C.S. § 9543(a)(2)(vi). I**  **n Commonwealth v. Bennett, 930 A.2d 1264, 1270-73 (Pa. 2007), this Court clarified t**  **he distinctions between the applicable inquiries under both sections of the PCRA and**  **sought to eliminate the confusion that had resulted from prior instances of termi**  **nological imprecision. The “newly-discovered fact” exception applies only to the PC**  **RA’s time bar, and it “requires petitioner to allege and prove that there were ‘fac**  **ts’ that were ‘unknown’ to him and that he exercised ‘due diligence.’” Id. at 1270. An “afte**  **r-discovered evidence” claim, by contrast, provides a basis for substantive relief and requ**  **ires that the proffered evidence be “exculpatory” and that it “would have changed the**  **outcome of the trial.” Id. [J-76-2016] - 9** 

**denying his ineffectiveness claim in his first petition, a rguing that the judicial conclusion** 

**that Ms. Britton would not have disclosed the relevant information about the manner of**  **her recollection prior to trial constituted a “fact” tha t previously was unknown and could**  **not have been discovered by the exercise of due diligen ce, thereby satisfying the newly**  **discovered fact exception to the PCRA’s time bar. Furth ermore, Mitchell argued that he**  **properly raised this claim within sixty days following th e issuance of this Court’s opinion**  **affirming the dismissal of his first PCRA petition, as he had no opportunity to raise the**  **claim prior to this Court’s affirmance. The PCRA court rejected Mitchell’s newly-discovered fact**  **argument, reasoning that the court’s prior conclusion was not a new fact, but**  **, rather, that “the ‘facts’ upon which the claim is predicated are the facts surrounding th**  **e manner, the day after the murder, in which [Ms.] Britton ‘remembered’ the phone**  **calls from [Mitchell].” PCRA Ct. Op., 12/10/2015, at 6. Mitchell learned these facts i**  **n 2008, as evidenced by Attorney Wright’s affidavit. The PCRA court noted that Mitchel**  **l chose to rely upon the relevant**

**facts as the basis for an ineffective assistance of counsel cl aim in his first PCRA**  **petition, but then sought to recast the facts in his secon d petition as establishing a claim**  **premised upon the existence of after-discovered evidence. However, because the**  **claim was not predicated upon previously-unknown facts t hat could not have been**  **ascertained by the exercise of due diligence, the PCRA c ourt concluded that Mitchell’s**  **petition failed to establish an exception to the time bar, leaving the court without**  **jurisdiction to entertain the petition. Accordingly, t he PCRA court dismissed Mitchell’s**  **second petition without a hearing. Mitchell appeals the PCRA court’s order dismissing his pe**  **tition, presenting three questions for our review:** 

**I. Did the PCRA court err when it dismissed the [p]etit ion as untimely**  **where it was timely filed under 42 Pa.C.S. § 9545(b) (1)(ii)?** **[J-76-2016] - 10**

**II. Did the PCRA court err when it determined that t he [p]etition was**  **without merit where the after-discovered evidence enti tled Mr.**  **Mitchell to a new trial based on (A) Pennsylvania’s afte r-discovered**  **evidence standard, and (B) Mr. Mitchell’s Fifth, Eighth and**  **Fourteenth Amendment rights to due process and a verdict based**  **on reliable evidence? III. Did the PCRA court err in finding the petition**  **untimely and denying relief without holding a hearing as to both timelin**  **ess and the merits of the petition?** 

**Brief of Appellant at 1. Our standard of review over the denial of a PCRA pe**  **tition is well-settled. “In reviewing the denial of PCRA relief, we examine whe**  **ther the PCRA court’s determination ‘is supported by the record and free of**  **legal error.’” Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (quoting Comm**  **onwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)). A PCRA petition, including a**  **second or subsequent petition, must be filed within one year of the date that the judgm**  **ent of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). For purposes of the PCRA,**  **“a judgment becomes final at the conclusion of direct review, including discretionary revie**  **w 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).**  **There are three exceptions to the timeliness requireme nt, including an exception**  **concerning the discovery of a previously-unknown fact. Se e 42 Pa.C.S. § 9545(b)(1)(ii).**  **Under this exception, a petitioner must file a PCRA pe tition within sixty days of the date**  **that the claim could have been presented. See 42 Pa.C .S. § 9545(b)(2). “PCRA time**  **limits are jurisdictional in nature, implicating a court ’s very power to adjudicate a**  **controversy.” Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014). “Accordingly, the**  **‘period for filing a PCRA petition is not subject to the doctrine of equitable tolling;’**  **instead, the time for filing a PCRA petition can be e xtended only if the PCRA permits it** **[J-76-2016] - 11**

**to be extended,** i.e. **, by operation of one of the statutorily enumerated exceptions to the**  **PCRA time-bar.” Id. (quoting Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999)).**  **“The court cannot ignore a petition’s untimeliness and reach the merits of the petition.”**  **Taylor, 67 A.3d at 1248. “[A] petition for post-con viction relief in a capital case may be**  **dismissed without an evidentiary hearing if there are no genuine issues of material fact**  **and the petitioner is not entitled to relief.” Comm onwealth v. D’Amato, 856 A.2d 806,**  **820 (Pa. 2004); see also Pa.R.Crim.P. 909(B)(2). We need only address Mitchell’s first issue, because our r**  **esolution of that issue is dispositive of this appeal. Mitchell’s judgment of sen**  **tence became final on January 16, 2007. Because Mitchell filed his second PCRA petiti**  **on on February 13, 2015, the petition was facially untimely. Therefore, Mitchell co**  **uld establish the PCRA court’s jurisdiction only by pleading and proving an exception**  **to the PCRA’s timeliness requirement. Mitchell pursued the “newly-discovered fact**  **” exception to the time bar, which provides that a PCRA claim need not be filed with**  **in the one-year time restriction where “the facts upon which the claim is predicated were**  **unknown to the petitioner and could not have been ascertained by the exercise of due d**  **iligence.” 42 Pa.C.S. § 9545(b)(1)(ii). As he argued before the PCRA cour**  **t, Mitchell maintains that the PCRA court’s prior conclusion that Ms. Britton would not have**  **disclosed the manner of her recollection prior to trial constituted such a “fact.”**  **Mitchell’s argument is not unlike one that this Court r ejected in Commonwealth v.**  **Gamboa-Taylor, 753 A.2d 780 (Pa. 2000). In that ca se, the defendant in a capital case**  **instructed his trial counsel not to defend against the cha rges and not to present**  **mitigating evidence at the penalty stage, but later cl aimed that his counsel was**  **ineffective for failing to override the defendant’s decisions. The PCRA court concluded**  **that counsel was not ineffective. The defendant subsequ ently filed a second PCRA** **[J-76-2016] - 12**

**petition, in which he alleged that his first PCRA couns el was ineffective. After the PCRA**  **court dismissed the second petition as untimely, this Cou rt affirmed, noting that the**  **defendant’s “attempt to interweave concepts” of ineffect ive assistance and newly**  **discovered facts was insufficient to establish jurisdiction. Id. at 785. This Court**  **explained that “a conclusion that previous counsel was ineffective is not a newly**  **discovered ‘fact’ entitling Appellant to the benefit o f the exception for [newly-discovered**  **facts]. In sum, a conclusion that previous counsel was inef fective is not the type of**  **[newly-discovered fact] encompassed by the exception.” Id**

**. Similarly, in the instant case, the PCRA court correctly**  **concluded that Mitchell failed to prove the existence of a newly-discovered “fa**  **ct” that he could not have ascertained previously through the exercise of due dilige**  **nce. The PCRA court’s earlier**

**determination that Ms. Britton would not have disclosed the relevant information to**  **Mitchell’s counsel prior to trial was part of the court’ s reasoning for rejecting Mitchell’s**  **ineffective assistance of counsel claim. The court’s legal conclusion, itself, did not**  **establish any new and previously-unknown fact regarding the circumstances**  **surrounding Ms. Britton’s recollection of the telephone calls. Accordingly, Mitchell has**  **failed to satisfy the newly-discovered fact exception to the PCRA’s time bar. Therefore,**  **Mitchell’s petition was untimely, leaving the PCRA cour t without jurisdiction to entertain**  **his claims. See Ali,** supra

**. Because Mitchell failed to satisfy any exception to th**  **e PCRA’s time bar, the PCRA court did not err in concluding that Mitchell’s pet**  **ition was untimely, and that it lacked jurisdiction to hear Mitchell’s claims. Accordingly,**  **the PCRA court did not err in dismissing Mitchell’s petition without a hearing.** 

**Order affirmed. Justices Baer, Todd, Donohue and Dougherty join the opi**  **nion. [J-76-2016] - 13** 

**Chief Justice Saylor files a concurring opinion.**