v.
Yates, A.
J-S46010-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANDRE LAMAR YATES : : Appellant : No. 653 WDA 2023
Appeal from the PCRA Order Entered May 5, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005902-2003
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANDRE LAMAR YATES : : Appellant : No. 317 WDA 2024
Appeal from the PCRA Order Entered May 5, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0014110-2003
BEFORE: LAZARUS, P.J., BOWES, J., and KING, J. MEMORANDUM BY LAZARUS, P.J.: FILED: March 26, 2025
Andre Lamar Yates appeals1 pro se from the order, entered in the Court of Common Pleas of Allegheny County, dismissing his petition filed pursuant ____________________________________________
1 Initially, Yates filed only one notice of appeal containing both docket numbers, in violation of the dictates of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). See id. (requiring appellants file separate notices of appeal when single order resolves issues arising on more than one lower court (Footnote Continued Next Page) J-S46010-24
to the Post Conviction Relief Act (PCRA). See 42 Pa.C.S.A. §§ 9541-9546. After review, we affirm. This Court previously summarized the history of this case as follows: On November 12, 2002, [Yates] fired several shots at a vehicle occupied by Edward Powell and Alean Hudson. Hudson died and Powell was injured as a result of the shooting. [Yates] was charged[, and later convicted,] in connection with the shooting. On November 1, 2004, the trial court sentenced [Yates] to an aggregate term of life imprisonment without the possibility of parole [as a result of his convictions] of first-degree murder, attempted murder, and aggravated assault. This Court affirmed [Yates’] judgment of sentence[,] and our Supreme Court denied allowance of appeal. [See] Commonwealth v. Yates, 902 A.2d 984 (Pa. Super. 2006) ([Table]), appeal denied, 907 A.2d 1101 (Pa. 2006). [Yates] filed a pro se PCRA petition[, his first,] and counsel was appointed. Eventually, the PCRA court denied [this] petition and this Court affirmed. [See id.], 30 A.3d 532 (Pa. Super. 2011) ([Table]). Thereafter, [Yates] filed a second, untimely pro se PCRA petition. The PCRA court found that [Yates had] satisfied the newly-discovered fact exception to the PCRA’s timeliness requirement and appointed counsel. [The court] later denied [Yates] relief on the merits and this Court affirmed the denial of relief. [See id.], 102 A.3d 535 (Pa. Super. 2014) ([Table]). Commonwealth v. Yates, 200 A.3d 539 (Pa. Super. 2018) (Table). On July 17, 2017, Yates filed his third pro se PCRA petition, which the PCRA court ____________________________________________ docket). On February 29, 2024, this Court issued an order directing that Yates file amended notices of appeal in compliance with Commonwealth v. Young, 280 A.3d 1049 (Pa. Super 2022). See id. (holding when there is Walker defect in appeal to which Pa.R.A.P. 902 applies, default position is to allow correction of defect unless good cause is shown by opposing party); Order, 2/29/24, at 1-2. Yates filed compliant amended notices of appeal and this Court sua sponte consolidated Yates’ appeals pursuant to Pa.R.A.P. 513.
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dismissed on September 27, 2017. Yates appealed and this Court affirmed. See id. On January 20, 2021, Yates filed the instant, his fourth, pro se PCRA petition. The PCRA court appointed counsel, who filed an amended PCRA petition on March 25, 2022. The Commonwealth filed a response and, on October 18, 2022, Yates filed a second amended PCRA petition. On November 1, 2022, the PCRA court conducted a hearing, after which it dismissed Yates’ fourth petition as untimely. On the same day, Yates filed a motion to amend his PCRA petition. On November 10, 2022, the PCRA court issued an order vacating its November 2, 2022 order dismissing Yates’ PCRA petition and granting Yates’ motion for leave to amend his PCRA petition. See Order, 11/10/22, at 1. The PCRA court directed that Yates had 30 days to file a third amended PCRA petition. See id. Yates filed another amended PCRA petition and, on May 3, 2023, the PCRA court conducted an evidentiary hearing. See N.T. PCRA Hearing, 5/3/23, at 1-70. At the conclusion of the May 3, 2023 hearing, the PCRA court dismissed Yates’ PCRA petition. Yates filed timely pro se notices of appeal and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Yates, acting pro se,2 now raises the following claims for our review: ____________________________________________ 2 On November 28, 2023, the PCRA court conducted a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), after which the court concluded that Yates wished to proceed pro se. See N.T. Grazier Hearing, 11/28/23, at 6-7.
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1. Whether the PCRA court abused its discretion in denying Professor Margaret Reardon the opportunity to testify [regarding] the applicability of the science of eyewitness identification to the facts of the case?
2. Whether the PCRA court’s order denying Yates’ request for relief pursuant to 42 Pa.C.S.[A.] § 9543(a)(2)(vi) is supported by the record evidence?
3. Whether the PCRA court’s order denying Yates’ request for relief pursuant to 42 Pa.C.S.[A.] § 9543(a)(2)(vi) is free from legal error?
4. Whether the PCRA court abused its discretion in denying Yates’ request for discovery pursuant to 42 Pa.C.S.[A.] § 9543(d)(2) and Pa.R.Crim.P. 902(E)(1)?
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of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively. Id. Any petition invoking one of these exceptions “shall be filed within 60 days of the date the claim could have been presented.” Id. at § 9545(b)(2).3 “The PCRA petitioner bears the burden of [pleading and] proving the applicability of one of the exceptions.” Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017).
Here, Yates argued, before the PCRA court, that his petition satisfied the newly-discovered facts exception. Specifically, Yates claims that Smith’s eyewitness account of the homicide, coupled with Dr. Margaret Reardon’s proffered expert testimony regarding the reliability of eyewitness identifications, satisfies the newly-discovered facts exception. See Brief for Appellant, at 26 (citing PCRA Court Opinion, 5/28/24, at 4); Brief for Appellant, at 26-27 (citing amended PCRA petition in which Yates raised newly-discovered facts exception).
The newly-discovered facts exception to the PCRA time bar “renders a petition timely when the petitioner establishes that 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.” Commonwealth v. Small, 238 ____________________________________________
3 Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days (i.e., December 24, 2018), extending the time for filing from 60 days of the date the claim could have been first presented, to one year. The amendment applies to claims arising on December 24, 2017, or thereafter. See Act 2018, Oct. 24, P.L. 894, N. 146, § 3. Instantly, Yates’ claims originated in 2002, well before December 24, 2017, and, therefore, the original 60-day time limit applies.
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