J-S23025-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CORNELL SUTHERLAND 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2199 EDA 2017

Appeal from the PCRA Order June 15, 2017

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

No(s): CP-51-CR-0003313-2012

BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.: FILED JUNE 26, 2018

Pro se Appellant Cornell Sutherland appeals from the order dismissing 

his second and third Post Conviction Relief Act1 (PCRA) petitions because they 

were untimely and, on the merits, did not warrant relief. Appellant argues 

that his petitions were timely filed and that after-discovered evidence entitles 

him to withdraw his guilty plea. We affirm.

We adopt the facts and procedural history set forth in this Court’s prior 

decision affirming the denial of Appellant’s first PCRA petition. 

Commonwealth v. Sutherland, 3703 EDA 2015, 2017 WL 529826, *1 (Pa. 

Super. filed Feb. 8, 2017). “To summarize, during a drug transaction that 

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* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
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went awry, [Appellant] shot the victim in the head multiple times and then 

attempted to conceal the murder by dumping the body and setting the car on 

fire.” Id. 

At the guilty plea hearing, the Commonwealth stated it would have 

called several witnesses, including Dante Williams and Marcus Dillard. Dillard

would have testified that after he saw the victim enter Appellant’s car, he

heard gunshots. N.T. Guilty Plea Hr’g, 11/1/13, at 35-36. Following his guilty 

plea, the trial court sentenced Appellant on November 1, 2013, to a negotiated

aggregate sentence of twenty to forty years’ imprisonment for third-degree 

murder and other offenses. Sutherland, 2017 WL 529826 at *1. Appellant 

did not file a direct appeal but did file a first PCRA petition, which was 

dismissed as untimely on November 20, 2015. Id. Appellant appealed the 

dismissal, and this Court affirmed on February 8, 2017. Id.

While Appellant’s appeal from his first PCRA petition was pending, the 

PCRA court docketed Appellant’s second pro se PCRA petition on August 12, 

2016. Appellant’s second petition alleged that on August 2, 2016, he received 

from the PCRA court an affidavit from Ryshine Davis recanting his statement 

to police inculpating Appellant. Appellant’s Second PCRA Pet., 8/12/16, at 3 

& Ex. Specifically, the Davis affidavit stated that he never saw the shooting 

or any crime by Appellant. Id. at Ex. 

The PCRA court also docketed Appellant’s third pro se PCRA petition on 

December 27, 2016. Appellant’s third PCRA petition claimed that on 
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December 4, 2016, he received from the PCRA court an affidavit from Dante 

Williams recanting his statement to police. Appellant’s Third PCRA Pet., 

12/27/16, at 3 & Ex. B. Williams states that it was his and Appellant’s intent 

to sell the victim drugs and to not harm the victim. Id. The affidavit states 

that Williams had no idea that the victim and Marcus Dillard planned to rob or 

kill him and Appellant. Id. Williams asserted that Appellant’s “reaction was 

to defend our safety and possessions; never to harm anyone.” Id. The 

affidavit later states that Williams never witnessed Appellant “kill or attempt 

to kill anyone.”2 Id.

The PCRA court did not refuse to accept for filing either petition because 

of Appellant’s then-outstanding appeal from his first PCRA petition. Rather, 

after this Court’s decision resolving Appellant’s first PCRA petition was filed on 

February 8, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice on May 

12, 2017.3 The Rule 907 notice stated that Appellant’s issues lacked merit, 

but did not advise Appellant that his petition was untimely filed. Rule 907 

Notice, 5/12/17. 

The PCRA court docketed Appellant’s Rule 907 response on May 26, 

2017, which reiterated that the Davis and Williams affidavits establish 

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2 Given the apparent contradiction, Williams was presumably averring that 

Appellant acted in self-defense, which resulted in the victim’s death.

3 Appellant did not seek allowance of appeal from this Court’s February 8, 

2017 order resolving his first PCRA petition.
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Appellant acted in self-defense and thus, he would not have pled guilty. The 

PCRA court dismissed both outstanding petitions on June 15, 2017.

The PCRA court’s decision explained that it dismissed both petitions 

because Appellant “failed to re-file his petitions” within sixty days of this 

Court’s February 8, 2017 decision resolving Appellant’s first PCRA petition. 

The court, however, also addressed the merits, and held that the newlydiscovered evidence was either not exculpatory or was cumulative. PCRA Ct. 

Op., 6/15/17, at 6-7.

Appellant timely appealed and although the PCRA court did not order 

him to comply with Pa.R.A.P. 1925(b), the PCRA court filed a Pa.R.A.P. 

1925(a) decision directing this Court to its June 15, 2017 decision.

Appellant raises the following issues:

1. Whether the PCRA court erred in dismissing Appellant’s PCRA 

without a hearing?

2. Whether crime committed after a homicide forecloses a claim 

for self-defense or voluntary manslaughter? 

Appellant’s Brief at iii.

Appellant first contends the PCRA court improperly held that his second 

and third petitions were untimely. Id. at 3. He claims he filed his petitions 

within sixty days of receiving the newly-discovered evidence, specifically the 

affidavits of Davis and Williams. Id. at 3-4. 

The Commonwealth agrees that the PCRA court erred by concluding that 

Appellant’s PCRA petitions were not filed within sixty days of the disposition 
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of his first PCRA petition, because the court never formally dismissed the prior 

petitions under Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000). The 

Commonwealth, however, maintains that Appellant is not entitled to relief on 

the merits of his after-discovered evidence claim. 

This Court’s standard of review regarding an order dismissing a petition 

under the PCRA is “to determine whether the determination of the PCRA court 

is supported by the evidence of record and 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. Barndt, 74 A.3d 185, 191-92 

(Pa. Super. 2013) (citations and quotation marks omitted).

The timeliness of a PCRA petition is jurisdictional. Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). Generally, a petition for 

relief under the PCRA, including a second or subsequent petition, must be filed 

within one year of the date the judgment of sentence is final, unless the 

petition alleges and the petitioner proves one of the three exceptions to the 

time limitations for filing the petition that are set forth in Section 9545(b) of 

the statute. See 42 Pa.C.S. § 9545(b). The three statutory exceptions to the 

timeliness requirement are:

(i) the failure to raise the claim previously was the result of 

interference of 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
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(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. § 9545(b)(1).

Initially, no party disputes that Appellant’s second and third PCRA 

petitions were filed more than one year after his judgment of sentence became 

final. Recently, in Commonwealth v. Montgomery, 181 A.3d 359 (Pa. 

Super. 2018) (en banc), this Court addressed whether “a PCRA court . . . has 

the ability to consider a later-filed PCRA petition when a prior PCRA petition is 

pending before the PCRA court and is not pending on appeal . . . .” Id. at 364 

(footnote omitted).

In Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000), 

our Supreme Court held that a subsequent PCRA petition cannot 

be filed until the resolution of review of the pending PCRA petition 

by the highest state court in which review is sought, or upon the 

expiration of the time for seeking such review. Our Supreme 

Court reasoned that a second appeal cannot be taken when 

another proceeding of the same type is already pending. Where 

a petitioner attempts to raise a subsequent, independent claim for 

relief during the pendency of an earlier PCRA petition, his or her 

only option is to raise it within a second PCRA petition filed within 

60 days of the date of the order that finally resolves the pending

PCRA petition.

More recently, however, in Commonwealth v. Porter, 613 Pa. 

510, 35 A.3d 4 (2012), our Supreme Court held that the pendency 

of a PCRA petition that was held in abeyance, at the request of 

the petitioner, did not divest the PCRA court of jurisdiction to 

consider a subsequent PCRA petition . . . . Our Supreme Court 

stated that Lark does not speak to the PCRA court’s authority in 

situations like this one, where no appeal was pending, and where 

a prior petition was set aside, in accordance with the petitioner’s 

demand that it not be decided. Thus, Porter held that the 
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pendency of a PCRA petition did not affect the PCRA court’s 

jurisdiction to consider a subsequent PCRA petition in a case 

where no PCRA appeal was pending and a prior petition was being 

held in abeyance at the petitioner’s request.

Montgomery, 181 A.3d at 363-64 (quotation marks, brackets, footnote, and 

some citations omitted).

According to the Montgomery Court, Porter narrowed the Lark

holding and 

announced a new general rule—a PCRA court may not entertain a 

new PCRA petition when a prior petition is still under appellate 

review and, thus, is not final; however, nothing bars a PCRA court 

from considering a subsequent petition, even if a prior petition is 

pending, so long as the prior petition is not under appellate 

review.

Id. at 364-65 (stating, “Lark precludes consideration of a subsequent petition 

from the time a PCRA order is appealed until no further review of that order 

is possible.”). “In sum, we hold that PCRA courts have jurisdiction to consider 

multiple PCRA petitions relating to the same judgment of sentence at the same 

time so long as a prior petition is not under appellate review and, therefore, 

not yet final.” Id. at 367.

Here, this Court did not resolve Appellant’s appeal for his first PCRA 

petition until February 8, 2017. The PCRA court should not have accepted 

Appellant’s second and third PCRA petitions for filing because his appeal from 

the first was ongoing. See Montgomery, 181 A.3d at 363-64. But the PCRA 

court did not rule on them while the first PCRA petition was on appeal. See 

id. 
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The PCRA court, however, erred when it dismissed both the second and 

third petitions as untimely because Appellant “failed to re-file his petitions” 

within sixty days of this Court’s February 8, 2017 decision resolving 

Appellant’s first PCRA petition. The PCRA court, we note, never should have 

accepted Appellant’s second and third petitions for filing in the first place. See 

id. But it did. Under the unique circumstances of this case, we decline to 

hold that Appellant was required to re-file his second and third petitions within 

sixty days of February 8, 2017, because the PCRA court essentially held them 

in abeyance until the appellate process was complete for his first PCRA 

petition.

Next, we consider whether Appellant properly pleaded an exception to 

the PCRA time-bar. In Commonwealth v. Cox, 146 A.3d 221 (Pa. 2016), 

the Pennsylvania Supreme Court highlighted the distinctions between the 

timeliness exception of Section 9545(b)(1)(ii), and eligibility for relief based 

on after-discovered evidence under Section 9543(a)(2)(vi).4

When considering a claim seeking to invoke section 

9545(b)(1)(ii), the petitioner must establish only that (1) the facts 

upon which the claim was predicated were unknown and (2) they 

could not have been ascertained by the exercise of due diligence. 

We have unequivocally explained that the exception set forth in 

subsection (b)(1)(ii) does not require any merits analysis of the 

underlying claim. Rather, the exception only requires a petitioner 

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4 Section 9543(a)(2)(vi) provides as follows: “The unavailability at the time of 

trial of exculpatory evidence that has subsequently become available and 

would have changed the outcome of the trial if it had been introduced.” 42 

Pa.C.S. § 9543(a)(2)(vi).
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to prove that the facts were unknown to him and that he exercised 

due diligence in discovering those facts.

Cox, 146 A.3d at 227 (citations and internal quotation marks omitted); 

accord Commonwealth v. Bennett, 930 A.2d 1264, 1270 (Pa. 2007). 

In Commonwealth v. Marshall, 947 A.2d 714 (Pa. 2008), the 

Pennsylvania Supreme Court emphasized that the Section 9545(b)(1)(ii) 

exception “requires petitioner to allege and prove that there were ‘facts’ that 

were ‘unknown’ to him and that he could not have ascertained those facts by 

the exercise of ‘due diligence.’” Id. at 720 (citation omitted). The fact of a 

recantation itself may qualify as a newly-discovered fact for purposes of the 

timeliness exception. Commonwealth v. Medina, 92 A.3d 1210, 1217-18 

(Pa. Super. 2014) (en banc) (holding record established that defendant’s 

second PCRA petition—filed within sixty days of witness contacting defendant 

and recanting testimony—was not time-barred because the defendant could 

not have discovered source of witness recantation or recantation itself through 

due diligence). 

In contrast to Medina, in Commonwealth v. Breakiron, 781 A.2d 94 

(Pa. 2001), the Pennsylvania Supreme Court rejected the defendant’s attempt 

to invoke Section 9545(b)(1)(ii) based on juror affidavits that they 

misunderstood “the meaning of a life sentence.” Id. at 99. The defendant 

had filed his PCRA petition within sixty days of the dates of the juror affidavits. 

Id. The Breakiron Court, however, affirmed the dismissal of the PCRA 

petition for lack of jurisdiction because the defendant “had numerous 
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opportunities at different levels of the appellate process and with the 

assistance of different counsel to pursue these [juror] claims and he did not.” 

Id. at 100.

Here, neither the PCRA court nor the Commonwealth contested whether 

the recantation affidavits constituted newly-discovered evidence under 

Section 9545(b)(1)(ii), or whether Appellant exercised due diligence in 

obtaining discovering the new evidence. Assuming that Appellant could not 

have discovered the purported recantations earlier, see Medina, 92 A.3d at 

1217-18, and that the PCRA court should have properly exercised jurisdiction 

over Appellant’s PCRA petitions because they were timely under Section 

9545(b)(1)(ii), we will address whether Appellant’s second and third PCRA 

petitions warrant relief. 

Appellant argues that the Davis and Williams affidavits qualify as afterdiscovered evidence. Appellant’s Brief at 5. Appellant explains that his 

decision to plead guilty was based upon his “trial counsel and the trial judge 

informing him”5that he could not prevail under any defense. Id. He asserts 

that the affidavits would negate the malice element for murder and he could 

have argued self-defense or voluntary manslaughter before a jury. Id. at 5-

6. Because the two affidavits, in Appellant’s view, established a viable self-

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5 There is no indication in the record that the trial court participated in the 

plea negotiation process or informed Appellant that he could not prevail under 

any defense. 
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defense claim, he essentially reasons the PCRA court should have considered 

them. Id. Appellant challenges the PCRA court’s holding that the 

Commonwealth had sufficient evidence to refute any self-defense claim. Id.

at 7, 10-11. He does not advance any claim that plea counsel rendered 

ineffective assistance of counsel.

To establish eligibility for relief under the “after-discovered evidence” 

provision of Section 9543(a)(2)(vi):

a petitioner must prove that (1) the evidence has been discovered 

after trial and it could not have been obtained at or prior to trial 

through reasonable diligence; (2) the evidence is not cumulative; 

(3) it is not being used solely to impeach credibility; and (4) it 

would likely compel a different verdict.

Cox, 146 A.3d at 228 (citation omitted).

“[A]ny after-discovered evidence which would justify a new trial would 

also entitle a defendant to withdraw his guilty plea.” Commonwealth v. 

Peoples, 319 A.2d 679, 681 (Pa. 1974) (affirming denial of post-conviction 

relief under the statutory predecessor to the PCRA, under which the defendant 

sought withdrawal of guilty plea on the basis of after-discovered evidence). 

For example, in Peoples, the defendant sought to withdraw his guilty plea 

based on after-discovered testimony that “would have proved that the killing 

in the instant case was done in self-defense, thus excusing [the defendant] 

from criminal liability.” Peoples, 319 A.2d at 681. The Peoples Court 

summarized the testimony in question and opined as follows:

[The] ambiguous testimony could hardly be said to prove that [the 

defendant] was in reasonable fear for his life when he shot the 
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decedent, and thus falls far short of establishing self-defense in 

this case. It would not even prove that [the defendant] was acting 

out of an unreasonable fear so as to be entitled to a verdict of 

voluntary manslaughter. Moreover, the statements of several 

eyewitnesses established that the killing was not done in selfdefense, and the post-mortem report established that the

decedent died of numerous gunshot wounds, all of which, while 

not conclusive, would indicate that the killing was not done in selfdefense.

Id. at 682. The after-discovered testimony in Peoples, however, was not 

recantation testimony. We acknowledge that “[r]ecantation testimony is 

considered extremely unreliable. . . . It is up to the trial court to judge the 

credibility of the recantation.” Commonwealth v. Nelson, 398 A.2d 636, 

637 (Pa. 1979).

After careful consideration of the record, including the affidavits in 

question, the parties’ briefs, and the decision of the Honorable Barbara A. 

McDermott, we affirm on the basis of the PCRA court’s decision that Appellant 

has not established eligibility for relief under Section 9543(a)(2)(vi). See 

PCRA Ct. Op., 6/15/17, at 6-10. Like the PCRA court, we note that the victim 

was shot four times—with three bullets to the head—which, in conjunction 

with other evidence discussed at the guilty plea hearing, tends to suggest no 

self-defense. N.T. Guilty Plea Hr’g, 11/1/13, at 37; Peoples, 319 A.2d at 

682. Accordingly, having discerned no basis for relief, we affirm the order 

dismissing Appellant’s second and third PCRA petitions. See Barndt, 74 A.3d 

at 191-92. We note that if a PCRA petition is on appeal, the PCRA court should 
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refuse to accept for filing any subsequent PCRA petition. See Montgomery, 

181 A.3d at 367-68.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/26/18