Opinion
1882 EDA 2022 J-S42026-23
01-16-2024
COMMONWEALTH OF PENNSYLVANIA v. KAREEM JONES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered July 6, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0309721-2004
BEFORE: BOWES, J., STABILE, J., and DUBOW, J.
MEMORANDUM
STABILE, J.
Appellant, Kareem Jones, appeals pro se from the July 6, 2022 order of the Court of Common Pleas of Philadelphia County, which denied his second petition for collateral relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The factual and procedural background of the instant appeal is not at issue. Briefly, following a trial, a jury found Appellant guilty of one count each of first-degree murder and firearms not to be carried without a license. On December 19, 2005, the trial court sentenced Appellant to life in prison for his conviction of first-degree murder. The trial court imposed no further sentence for Appellant's conviction of the firearms charge. Appellant's counsel failed to file a timely direct appeal of the judgment of sentence. However, the trial court subsequently reinstated Appellant's direct appeal rights, nunc pro tunc.
On direct appeal, we affirmed the judgment of sentence. See Commonwealth v. Jones, No. 1079 EDA 2006 (Pa. Super. filed September 25, 2007). Appellant did not file a petition for allowance of appeal in our Supreme Court.
On August 15, 2008, Appellant filed a timely pro se PCRA petition. After appointing counsel, the PCRA court denied relief on September 13, 2013. On appeal, Appellant raised several issues of ineffective assistance of counsel. See Commonwealth v. Jones, No. 3114 EDA 2013, unpublished memorandum (Pa. Super. filed February 17, 2015). Upon review, we concluded all of Appellant's issues were either waived or devoid of merit. Id. Our Supreme Court denied Appellant's petition for allowance of appeal on October 14, 2015. See Commonwealth v. Jones, 125 A.3d 1199 (Pa. 2015).
In Jones, No. 3114 EDA 2013, Appellant argued that trial counsel was ineffective, inter alia, for failing to object to the Commonwealth's failure to produce its key witness, Ms. Treadway, live at trial. Treadway gave previously-recorded testimony on videotape, she was subject to cross-examination, and the tape was played for the jury. However, Appellant claimed that after Treadway's testimony was recorded, it came to light that Officer Still had several private conversations with Treadway, and Appellant was denied the opportunity to cross-examine her as to those conversations. Id. *12. We concluded that Appellant failed to prove he suffered prejudice from counsel's omission. To this end, we noted: "Appellant does not explain how cross-examining her on these conversations would have so undermined her credibility as to create a reasonable probability that . . . the result of the proceeding would have been different." Id. at *13.
On April 14, 2021, Appellant pro se filed the underlying PCRA petition, arguing, inter alia, that trial counsel was ineffective for failing to object to the Commonwealth's failure to call Ms. Treadway to testify at trial. On May 11, 2022, the PCRA court issued a notice pursuant to Pa.R.Crim.P. 907 informing Appellant of the PCRA court's intent to dismiss his petition due to its untimeliness. The PCRA court formally dismissed Appellant's petition on July 6, 2022. This appeal followed.
On appeal, Appellant raises several substantive issues for our review. See Appellant's Brief at 4-5. However, Appellant neglects to meaningfully address the timeliness of the underlying petition. As explained below, Appellant's PCRA petition is untimely and the PCRA court properly dismissed it on that basis.
We review an order denying a petition for collateral relief to determine whether the PCRA court's decision is supported by the evidence of record and free of legal error. See, e.g., Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super. 2016). "This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings." Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).
On appeal,
[w]e review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010). This review is limited to the findings of the PCRA court and the evidence of record. Id. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. Id. This Court may affirm a PCRA court's decision on any grounds if the record supports it. Id. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011). However, we afford no such deference to its legal conclusions. Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011); Commonwealth v. Reaves, 923 A.2d 1119, 1124 (Pa. 2007). Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010).Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
All PCRA petitions, "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final," unless an exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). "The PCRA's time restrictions are jurisdictional in nature. Thus, if a PCRA petition is untimely, neither this Court nor the [PCRA] court has jurisdiction over the petition. Without jurisdiction, we simply do not have the legal authority to address the substantive claims." Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006) (internal citations and quotation marks omitted) (overruled on other grounds by Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020)). As timeliness is separate and distinct from the merits of Appellant's underlying claims, we first determine whether this PCRA petition is timely filed. Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008). If it is not timely, we cannot address the substantive claims raised in the petition. Id.
The one-year time limitation can be overcome if a petitioner (1) alleges and proves one of the three exceptions set forth in Section 9545(b)(1)(i)-(iii) of the PCRA, and (2) files a petition raising this exception within one year of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).
It is undisputed that the instant petition is facially untimely. Although not presented as a timeliness argument, Appellant nonetheless, in his petition and in his brief before this Court, claims that the prosecution interfered with his right to confrontation and cross-examination by not disclosing that their only eyewitness, Jessica Treadway, initially talked to police about the shooting before she was interviewed. See PCRA Petition, April 14, 2021, at 2; Appellant's Brief at 15; see also Court's Notice 5/11/22 under Rule 907 at 3.
We affirmed Appellant's judgment of sentence on September 25, 2007. Appellant did not file a petition for allowance of appeal. Accordingly, the judgment of sentence became final on October 25, 2007, at the expiration of the 30-day period available to petition our Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa R.A.P. 1113(a). Appellant had one year from October 25, 2007 to file a timely PCRA petition (i.e., October 27, 2008). The underlying petition was filed on April 14, 2021, which is more than 13 years after his judgment of sentence became final. Thus, the underlying PCRA petition is facially untimely.
See Section 9545, which in relevant part, reads:
(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[.]42 Pa.C.S.A. § 9545(b)(1)(i).
"In order to meet the statutory requirements of the 'governmental interference' exception to the PCRA's one year jurisdictional time-bar, Appellant was required to plead and prove that his 'failure to raise the claim [or claims] previously was the result of interference by government officials with the presentation of the claim [or claims] in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States . . ..'" Chester, 895 A.2d at 523 (quoting 42 Pa.C.S.A. § 9545(b)(1)(i)) (alterations and emphasis in original); 42 Pa.C.S.A. § 9545(b)(1)(i). In other words, a petitioner is required to show that but for the interference of a government actor "he could not have filed his claim earlier." Stokes, 959 A.2d at 310; see also Commonwealth v. Breakiron, 781 A.2d 94 (Pa. 2001) (rejecting governmental interference exception where petitioner failed to offer reasonable explanation why, with the exercise of due diligence, alleged interference of government officials could not have been ascertained earlier).
Here, the record shows that Appellant was aware of the alleged prosecution "interference" from the time of trial. Thus, the record shows that the claim could have been raised as early as on direct appeal, but Appellant failed to do so. Additionally, Appellant has failed to plead and prove how the Commonwealth prevented Appellant from presenting his claim. Accordingly, we conclude that Appellant failed to meet the governmental interference exception. See Chester, supra (petitioner must allege and prove that the claim could not have been presented earlier due to the government interference); Commonwealth v. Howard, 788 A.2d 351, 355 (Pa. 2002) ("Appellant, however, has failed to explain how the District Attorney's conduct hobbled his development or prevented his discovery of any particular claim. Thus, he has not established the existence of governmental interference such that this PCRA petition is excused from the timeliness requirements.").
Because the underlying petition is facially untimely and considering that Appellant is unable to prove that his petition meets the requirements for the governmental interference exception, we conclude that Appellant's underlying petition is untimely. As such, we have no jurisdiction to entertain the merits of his challenge.
We also note that this claim was raised and addressed in connection with Appellant's first PCRA petition. Jones, No. 3114 EDA 2013, at *12-*14. As such, even if timely, Appellant would not be entitled to relief because the claim was "previously litigated." See 42 Pa.C.S.A. § 9544(a) (previous litigation).
Order affirmed.
Judgment Entered.