Opinion
No. 23 EDA 2021
04-06-2022
COMMONWEALTH of Pennsylvania, Appellee v. Gerald JONES, Appellant
MEMORANDUM BY STABILE, J.:
Appellant Gerald Jones pro se appeals from the September 10, 2020 order of the Court of Common Pleas of Philadelphia County ("PCRA court"), that dismissed as untimely his ninth petition under the Post Conviction Relief Act (the "Act"), 42 Pa.C.S.A. §§ 9541 -46. Upon review, we affirm.
The facts and procedural history of this case are undisputed. Briefly, following his December 3, 1977, participation in the firebombing of a house that claimed three innocent lives, Appellant was convicted of three counts of first-degree murder, two counts of arson, and one count each of causing and risking a catastrophe and criminal conspiracy. On April 15, 1981, Appellant was sentenced to life in prison. This Court affirmed Appellant's judgment of sentence on November 5, 1986 and Appellant did not file a petition for allowance of appeal.
18 Pa.C.S.A. §§ 2502(a), 3301(a), 3302, and 903, respectively.
On January 4, 1990, Appellant filed his first PCRA petition, which was dismissed on January 14, 1992. This Court affirmed the PCRA court's order on February 23, 1993, and our Supreme Court denied allowance of appeal on March 22, 1994. Commonwealth v. Jones , 627 A.2d 202 (Pa. Super. 1993) (unpublished memorandum), appeal denied , 644 A.2d 733 (Pa. 1994). Appellant filed a second PCRA petition, which was dismissed by the PCRA court on May 29, 1997. This Court again affirmed the PCRA court's order, and our Supreme Court again denied allowance of appeal. Commonwealth v. Jones , 718 A.2d 858 (Pa. Super. 1998) (unpublished memorandum), appeal denied , 727 A.2d 1118 (Pa. 1998). Thereafter, we dismissed as untimely Appellant's third through eighth PCRA petitions.
On November 15, 2017, less than two months after we affirmed the dismissal of his eighth PCRA petition, Appellant filed the instant – his ninth – PCRA petition, which he amended on December 29, 2017. Appellant asserted a Brady claim, alleging that the Commonwealth withheld exculpatory testimony. Following the issuance of a Pa.R.Crim.P. 907 notice, the PCRA court dismissed as untimely Appellant's instant petition for relief on September 10, 2020. On December 4, 2020, Appellant pro se filed a notice of appeal. The PCRA court did not direct Appellant to file a Pa.R.A.P. 1925 statement of errors complained of on appeal.
Brady v. Maryland , 373 U.S. 83 (1965) (holding that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.").
Following a remand, the PCRA court found that Appellant received its September 10 order on December 1, 2020. PCRA Supplemental Opinion, 2/22/22, at 3 (unpaginated). As a result, the court determined that his December 4, 2020 notice of appeal was timely.
On appeal, Appellant argues only that the PCRA court erred in applying the timeliness and due diligence requirements contained in the Act to his Brady claims. Appellant's Brief at 6. We disagree.
"In reviewing the denial of PCRA relief, we examine whether the PCRA court's determination ‘is supported by the record and free of legal error.’ " Commonwealth v. Fears , 86 A.3d 795, 803 (Pa. 2014) (quoting Commonwealth v. Rainey , 928 A.2d 215, 223 (Pa. 2007) ).
It is settled that the PCRA contains the following restrictions governing the timeliness of any PCRA petition.
(b) Time for filing petition.--
(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;
(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.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within sixty days of the date the claim could have been presented.[ ]
(3) For purposes of this subchapter, 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.
Section 9545(b)(2) was recently amended, effective December 24, 2018, to extend the time for filing from sixty days of the date the claim could have been presented to one year. The amendment applies only to claims arising on or after December 24, 2017. As a result, this amendment does not apply to Appellant's PCRA petition because it was filed prior to the amendment's effective date.
42 Pa.C.S.A. § 9545(b). Section 9545 ’s timeliness provisions are jurisdictional. Commonwealth v. Ali , 86 A.3d 173, 177 (Pa. 2014). Additionally, we have emphasized repeatedly that "the PCRA confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar in addition to those exceptions expressly delineated in the Act." Commonwealth v. Robinson , 837 A.2d 1157, 1161 (Pa. 2003) (citations omitted).
Here, Appellant's judgment of sentence became final late 1986, more than 30 years ago. Appellant filed the instant PCRA petition, his ninth, on November 25, 2017. Accordingly, the petition is facially untimely.
The one-year time limitation, however, can be overcome if a petitioner alleges and proves one of the three exceptions set forth in Section 9545(b)(1)(i)-(iii) of the PCRA. See Commonwealth v. Marshall , 947 A.2d 714, 719 (Pa. 2008). Here, Appellant has failed to prove at any stage of the proceeding any exceptions to the one-year time bar. Although he appears to invoke the government-interference or newly-discovered facts exceptions, he does not tell us how he satisfied the sixty-day period in subsection 9545(b)(2) for invoking the exceptions. On the contrary, he argues, without citing any binding authority, that the PCRA's sixty-day requirement is inapplicable to Brady claims. He is wrong. In Commonwealth v. Bennett , 930 A.2d 1264 (Pa. 2007), our Supreme Court noted that the sixty-day requirement under subsection 9545(b)(2) was applicable to Brady claims raised on collateral review. Moreover, the PCRA court reasoned:
In an attempt to establish the government-interference exception, 42 Pa.C.S.A. § 9545(b)(1)(i), [Appellant] claimed that the Commonwealth concealed exculpatory evidence, arguably in violation of Brady . Specifically, [Appellant] alleged that the Commonwealth withheld the fact that witness Fitzgerald Lawrence exculpated him while testifying at his co-defendant's retrial in 1988. [Appellant] failed, however, to demonstrate that the alleged facts underlying his Brady claim were unknown prior to 2017 . To the contrary, [Appellant] presented these alleged facts in 2002 [in connection with this third PCRA petition ]. Thus, [Appellant] failed to demonstrate that he raised this Brady claim within sixty days of the date it could have been presented.
See Commonwealth v. Jones , No. 2582 EDA 2003, unpublished memorandum, at 2-6 (Pa. Super. filed July 8, 2004) (noting that Fitzgerald recanted his trial testimony, stating that "Appellant [was] not present during the firebombing").
PCRA Court Opinion, 12/4/20, at 1 (citations omitted) (emphasis added). Finally, to the extent Appellant argues that our 2017 decision affirming the dismissal of his eighth PCRA petition provided him with newly-discovered facts to form a basis to assert his Brady claims, the argument is wholly frivolous. See Commonwealth v. Reid , 235 A.3d 1124, 1146 (Pa. 2020) (in-court rulings and judicial opinions "do not satisfy the newly discovered fact exception because ‘an in-court ruling or published judicial opinion is law, for it is simply the embodiment of abstract principles applied to actual events. The events that prompted the analysis, which must be established by presumption or evidence, are regarded as fact.’ "). Accordingly, the PCRA court did not err in dismissing as untimely the instant PCRA petition.
Order Affirmed.