J-S33036-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD CUNNINGHAM 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1334 WDA 2022

Appeal from the PCRA Order Entered October 12, 2022

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0015297-2006

BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: October 17, 2023 

Richard Cunningham appeals from the October 12, 2022 order

dismissing his petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely. After careful review, we 

affirm.

The relevant facts and lengthy procedural history of this case were 

summarized by a prior panel of this Court as follows: 

On the evening of February 19, 2005, Kevilin 

Middleton hosted a birthday party for T.C. Lyerly. 

Toward the end of the party, Mr. Middleton made 

arrangements for exotic dancers to come to his 

residence and perform in exchange for two hundred 

dollars ($200). The exotic dancers, Angel Potter and 

Helen McCorkle, arrived at Mr. Middleton’s residence 

along with Geneva Burrell. At this time, Mr. 

Middleton, Mr. Lyerly, and Chaoe Davis were the only 

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* Former Justice specially assigned to the Superior Court.
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people still at the party. Before the dancers’

performance, however Mr. Middleton insulted Ms. 

Potter’s appearance and refused to provide payment. 

Mr. Middleton, Ms. Potter, and Ms. Burrell began to 

argue. The argument escalated, and Ms. Potter 

reached into Mr. Middleton’s pocket and removed 

money. Ms. Burrell advised Ms. Potter to return the 

money, and Ms. Potter eventually complied. Shortly 

thereafter, Ms. Potter and Ms. Burrell telephoned 

[Appellant] and his co-defendants to come to Mr. 

Middleton’s home and help secure payment.

Approximately thirty (30) minutes later, a van arrived 

at Mr. Middleton’s house. [Appellant], Alfon Brown, 

Ramone Coto, and Eric Surratt exited the van and 

approached the residence. The men carried guns, and 

[Appellant] wore a hooded sweatshirt and ski mask. 

Upon their arrival, at least three (3) of the men 

entered Mr. Middleton’s house without permission and 

demanded payment for the dancers. Before Mr. 

Middleton had an opportunity to comply, the men 

began firing at Mr. Middleton, Mr. Lyerly, and Mr. 

Davis. Mr. Lyerly and Mr. Davis died instantly. Mr. 

Middleton sustained critical injuries from the 

gunshots.

. . . .

On June 18, 2007, [Appellant] proceeded to a bench 

trial. The court tried [Appellant] and his codefendants jointly.

. . . .

Following numerous continuances, the court 

scheduled closing arguments for February 8, 2008. 

After the defense rested its case, however, 

[Appellant’s] counsel became seriously ill and died. 

Consequently, the court appointed replacement 

counsel to represent [Appellant]. On February 8, 

2008, replacement counsel appeared before the court 

and explained that he was unprepared to proceed. As 

a result, the court rescheduled [Appellant’s] closing 

argument for July 7, 2008, giving replacement 
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counsel five (5) months to consult with [Appellant], 

review the file, and prepare to close for the defense.

On July 7, 2008, replacement counsel delivered 

closing argument. Subsequently, the court found 

[Appellant] guilty of two (2) counts of second degree 

murder and one (1) count each of burglary and 

criminal conspiracy.[fn] On September 22, 2008, the 

court sentenced [Appellant] to concurrent terms of life 

imprisonment for his second degree murder 

convictions. The court also imposed concurrent terms 

of thirty (30) to sixty (60) months’ imprisonment for 

his burglary conviction and eighteen (18) to thirty-six 

(36) months’ imprisonment for his conspiracy 

conviction. On October 2, 2008, [Appellant] timely 

filed a post-sentence motion, which the court denied 

on December 9, 2008. [Appellant] did not pursue a 

direct appeal with [this Court].

On April 6, 2009, [Appellant] timely filed a pro se

petition pursuant to [the PCRA]. Thereafter, the PCRA 

court appointed counsel. On July 8, 2009, counsel 

filed an amended PCRA petition, requesting 

reinstatement of [Appellant’s]] appellate rights nunc 

pro tunc. On August 20, 2009, the PCRA court 

granted the requested relief.

On September 18, 2009 [Appellant] timely filed his 

notice of appeal.

This Court affirmed Appellant’s judgment of sentence 

in part, but vacated the thirty to sixty month sentence 

for burglary. The panel held that the sentencing court 

erred in imposing a separate sentence for burglary 

because that conviction was the predicate felony for 

the felony murder conviction. Appellant filed a 

petition for allowance of appeal with the Pennsylvania 

Supreme Court, but the petition was denied on March 

30, 2011. [Commonwealth v. Cunningham, 6 A.3d 

579 (Pa.Super. 2010), appeal denied, 20 A.3d 484 

(Pa. 2011).]

On December 27, 2011, Appellant timely filed a pro 

se PCRA petition. Counsel was appointed, and she 
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filed an amended PCRA petition on June 11, 2012. On 

August 21, 2012, [Appellant] filed a pro se motion 

seeking to terminate PCRA counsel’s representation. 

On August 29, 2012, Cunningham filed a pro se

motion to amend the PCRA petition to add new claims. 

On September 24, 2012, PCRA counsel filed a motion 

for a Grazier[

fn] hearing to determine whether 

[Appellant] knowingly and voluntarily wished to 

proceed pro se. On October 12, 2012, PCRA counsel 

filed a supplement to the amended PCRA petition, 

raising three additional claims that [Appellant]

included in his motion to amend.

On April 25, 2013, the PCRA court held a hearing on 

the PCRA petition. ... Following the hearing, on May 

20, 2013, the PCRA court granted [Appellant’s]

motion to appoint a fingerprint expert. . . . 

. . . .

On November 7, 2013, the PCRA court denied 

[Appellant’s] petition. On November 15, 2013, 

[Appellant filed a notice of appeal and concise 

statement of errors complained of on appeal pursuant 

to Pa.R.A.P.1925(b). On December 17, 2013, the trial 

court filed its Pa.R.A.P.1925(a) opinion. On January 

30, 2014, PCRA counsel filed a petition to withdraw as 

counsel.

[fn] 18 Pa.C.S.A. §§ 2502(b), 3502(a), and 903(a), 

respectively.

[fn] Commonwealth v. Grazier, 713 A.2d 81 (Pa.

1998).

Commonwealth v. Cunningham, 108 A.3d 102 (Pa.Super. 2014)

(unpublished memorandum at *1–3) (some internal citations omitted; some 

bracketed content amended), appeal denied, 109 A.3d 678 (Pa. 2015).
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On October 3, 2014, a panel of this Court granted PCRA counsel’s 

petition to withdraw and affirmed the PCRA court’s November 7, 2013 order.

Our Supreme Court denied Appellant’s petition for allowance of appeal on 

February 11, 2015. See id. Appellant did not file a petition for writ of 

certiorari with the United States Supreme Court. 

On June 18, 2019, Appellant filed the instant pro se PCRA petition. 

Therein, Appellant acknowledged that his petition was untimely but argued 

that the following comments from co-defendant Eric Surratt at his December 

6, 2017 resentencing hearing constituted newly-discovered facts:

THE COURT: I have one other question for you. These 

events took place with three other people .... None of 

which were under 18 .... Let’s assume that you do get 

paroled. What do you say to these other three, 

because they aren’t going anywhere?

ERIK SURRATT: Definitely because of my actions, 

because they didn’t know – they didn’t really 

know, because I didn’t know what I was going 

to do once I got there.

Pro Se PCRA petition, 6/18/19 at 5, ¶ 15, citing notes of testimony, 12/6/17 

at 99-100 (emphasis added); see also Amended PCRA petition, 7/25/22 at 

unnumbered 5. 

On August 26, 2021, Appellant retained his current PCRA counsel, Ryan 

H. James, Esq. (Attorney James). Attorney James filed an amended petition 

on Appellant’s behalf on July 25, 2022. On September 7, 2022, the PCRA 

court provided Appellant with notice of its intention to dismiss his petition 

without a hearing, pursuant to Pa.R.Crim.P. 907(1). Appellant did not file a
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response to the PCRA court’s Rule 907 notice. Thereafter, on October 12, 

2022, the PCRA court dismissed Appellant’s petition as untimely. This timely 

appeal followed on November 10, 2022.1

Appellant raises the following issue for our review:

I. Did the PCRA court err in determining that the

evidence presented at Erik Surrat’s 

resentencing hearing on April 19, 2019, did not 

constitute a newly-discovered fact that qualifies 

for an exception from the general time bar of 

the [PCRA] pursuant to 42 Pa.C.S.[A.]

§ 9543(a)(2)(ii)[?]

Appellant’s brief at 4.

Proper appellate review of a PCRA court’s dismissal of a PCRA petition 

is limited to the examination of “whether the PCRA court’s determination is 

supported by the record and free of legal error.” Commonwealth v. Miller, 

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s 

findings will not be disturbed unless there is no support for the findings in the 

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014) 

(citations omitted). “This Court grants great deference to the findings of the 

PCRA court, and we will not disturb those findings merely because the record 

could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d 

136, 140 (Pa.Super. 2002) (citation omitted). 

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1 Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
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This court has continually recognized that there is no absolute right to 

an evidentiary hearing. Commonwealth v. Hart, 911 A.2d 939, 941 

(Pa.Super. 2006) (citation omitted). When the PCRA court denies a petition 

without an evidentiary hearing, as is the case here, we “examine each issue 

raised in the PCRA petition in light of the record certified before it in order to 

determine if the PCRA court erred in its determination that there were no 

genuine issues of material fact in controversy and in denying relief without 

conducting an evidentiary hearing.” Commonwealth v. Khalifah, 852 A.2d 

1238, 1240 (Pa.Super. 2004). “It is within the PCRA court’s discretion to 

decline to hold a hearing if the petitioner’s claim is patently frivolous and has 

no support either in the record or other evidence.” Commonwealth v. Wah, 

42 A.3d 335, 338 (Pa.Super. 2012) (citations omitted). 

We must first consider the timeliness of Appellant’s PCRA petition 

because it implicates the authority of this Court to grant any relief. 

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation 

omitted). All PCRA petitions, including second and subsequent petitions, must 

be filed within one year of when an Appellant’s judgment of sentence becomes 

final. See 42 Pa.C.S.A. § 9545(b)(1). “[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 Pennsylvania, or at the 

expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).
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Here, the record reveals that Appellant’s judgment of sentence became 

final on June 28, 2011, 90 days after our Supreme Court denied Appellant’s 

petition for allowance of appeal, and the time for filing a petition for writ of 

certiorari with the United States Supreme Court expired. See id. 

Accordingly, Appellant had until June 28, 2012 to file a timely PCRA petition. 

See id. at § 9545(b)(1). Appellant’s instant petition was filed on June 18, 

2019, nearly 7 years late, and is patently untimely, unless he can plead and 

prove that one of the three statutory exceptions to the one-year jurisdictional 

time-bar applies.

The three statutory exceptions to the PCRA time-bar are as follows:

(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.

42 Pa.C.S.A. § 9545(b)(1)(i-iii).

Instantly, Appellant invokes the “newly-discovered facts” exception to 

the PCRA time-bar and argues that he is entitled to a new trial based upon 
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the fact that his co-defendant Eric Surratt testified at his December 6, 2017 

resentencing hearing that Appellant and fellow co-defendant Ramone Coto 

“didn’t know – they didn’t really know, because [he] didn’t know what [he] 

was going to do once [he] got [to the crime scene].” Appellant’s brief at 13-

16; see also Pro se PCRA petition, 6/18/19 at 5, ¶ 15. Appellant avers that 

he only learned of these “facts” on April 19, 2019, approximately two months 

before he filed his instant PCRA petition. Appellant’s brief at 7.

The newly-discovered fact exception requires a petitioner to plead and 

prove two components: (1) the facts upon which the claim was predicated 

were unknown, and (2) these unknown facts could not have been ascertained 

by the exercise of due diligence. Commonwealth v. Burton, 158 A.3d 618, 

638 (Pa. 2017). “Due diligence demands that the petitioner take reasonable 

steps to protect his own interests. A petitioner must explain why he could not 

have learned the new fact(s) earlier with the exercise of due diligence. This 

rule is strictly enforced.” Commonwealth v. Brown, 111 A.3d 171, 176 

(Pa.Super. 2015) (citations and quotation marks omitted), appeal denied, 

125 A.3d 1197 (Pa. 2015). The focus of the newly discovered fact exception 

is on “newly discovered facts, not on a newly discovered or newly willing 

source for previously known facts.” Commonwealth v. Reid, 235 A.3d 1124, 

1153 (Pa. 2020) (citation omitted). 

Here, we find no error in the PCRA court’s conclusion that Appellant has 

failed to satisfy the newly-discovered fact exception to the PCRA’s time bar. 
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As recognized by the PCRA court, “[c]ontrary to Appellant’s assertion that 

Surratt produced new facts that would have changed the outcome of the trial, 

[co-defendants Ramone] Coto, [Surratt] and Appellant herein were all in their 

own ways participants in the crime, with firsthand knowledge of their 

involvement and intentions.” Trial court opinion, 2/16/23 at 6. The extent of 

Appellant’s involvement or participation in the crime “is something that he 

alone has the unique knowledge.” Id. 

The record herein reflects that Surratt’s testimony amounts only to 

Surratt being a ‘new source’ of facts that were previously known to Appellant. 

Surratt’s nebulous comments, even if they are construed as him taking sole 

reasonability for the shooting, simply do not qualify as newly-discovered 

evidence because Appellant would have known well before trial that Surratt 

was the alleged, sole participant. Moreover, Surratt’s comments do not in any 

way exonerate Appellant from being present at the house at the time of the 

shooting. Ballistic evidence introduced at trial established that the victims 

were struck by bullets from more than one firearm. Notes of testimony, 6/21, 

6/25-26, 7/10-11/07 at 479-491, 498-499, 504. Additionally, Appellant’s 

presence at the crime scene was further established by forensic testing that

showed that his fingerprint and palm print were found on interior door of the 

house in question. Notes of testimony, 8/16-17/07 at 14-19.

Based on the foregoing, Appellant has clearly failed to demonstrate that 

his untimely petition satisfies the newly-discovered fact exception to the 
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statutory one year time-bar. Accordingly, we discern no error on the part of 

the PCRA court in dismissing Appellant’s PCRA petition as untimely.

Order affirmed.

 10/17/2023