Opinion
330 EDA 2021 J-A03028-22
04-07-2022
COMMONWEALTH OF PENNSYLVANIA v. BERNARD LANE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered January 7, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0420611-1984
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM
DUBOW, J.
Appellant, Bernard Lane, appeals pro se from the January 7, 2021 Order that dismissed as untimely his fourth petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46. Upon review, we conclude that the PCRA court erred in finding that it lacked jurisdiction to consider the newly discovered fact claim raised in Appellant's March 26, 2019 amended PCRA petition. Accordingly, we vacate and remand.
A detailed factual and procedural history is unnecessary to our disposition. Briefly, in 1984 a jury convicted Appellant of second-degree Murder, Robbery, and Possessing an Instrument of Crime after, inter alia, hearing eye-witness testimony that then-24-year-old Appellant fatally shot victim Wesley Mahoney and subsequently stole his wallet. On February 11, 1985, the trial court sentenced defendant to a mandatory sentence of life imprisonment without parole ("LWOP").
The PCRA court found that Appellant was 24 years old when he committed the crime. PCRA Ct. Op., filed 4/6/21, at 2 (unpaginated). Appellant avers he was 23 years old at the time of the crime. PCRA Petition, filed 8/23/12, at 15, 19 (repaginated). While we could not resolve this discrepancy through our independent review of the record, the relevant fact is that Appellant was over 18 when he committed the murder, and whether he was 23 or 24 years old is not germane to our disposition.
After the trial court reinstated Appellant's direct appeal rights nunc pro tunc, this court affirmed Appellant's judgment of sentence. Commonwealth v. Lane, 596 A.2d 252 (Pa. Super. 1991). On February 23, 1993, after granting allocatur, the Pennsylvania Supreme Court also affirmed Appellant's judgment of sentence. Commonwealth v. Lane, 621 A.2d 566 (Pa. 1993). Appellant did not seek further review of his judgment of sentence which, thus, became final on May 24, 1993. See 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13 (petition for writ of certiorari must be filed within 90 days of final judgment). On August 23, 2012, more than eighteen years after his judgment of sentence became final, Appellant filed the instant pro se PCRA Petition, his fourth, raising a claim that his LWOP sentence is illegal under Miller v. Alabama, 567 U.S. 460 (2012), a case involving the sentencing of juvenile homicide offenders. PCRA Petition, 8/23/12, at 4, 10-20 (repaginated). Appellant argued that, even though he was not a juvenile offender, Miller should apply to him because studies demonstrate that an individual's brain is not fully developed until that individual is 25 years old. Id.
In Miller, the U.S. Supreme Court held that it is unconstitutional for state courts to impose an automatic life sentence without possibility of parole upon a homicide defendant for a murder committed while the defendant was under 18 years old. Miller, 567 U.S. at 470. We note that since Appellant filed his PCRA petition, Montgomery v. Louisiana, 136 S.Ct. 718 (2016), held that the rule announced in Miller, has retroactive effect in cases on state collateral review.
After filing his petition, Appellant submitted approximately eleven pro se filings to the PCRA court, including motions for leave to amend, amended PCRA petitions, and supplemental petitions citing additional cases to support his claim that his LWOP sentence is illegal under Miller.
On June 29, 2017, the court issued a Pa.R.Crim.P. 907 Notice to Dismiss Appellant's petition as untimely. Appellant filed a timely Response, which again asserted that his LWOP sentence is illegal and cited additional cases to support his Miller claim. Response, 7/19/17, at 1-5 (unpaginated).
Once again, Appellant proceeded to submit numerous pro se filings, including a motion to amend accompanied by an amended PCRA petition on March 26, 2019. In the amended PCRA petition, Appellant raised a new claim that he recently learned of the "newly-discovered fact" from a 2019 "newsletter" that the Philadelphia District Attorney's Office engaged in unethical practices during the time of his trial. Amended Petition, 3/26/19, at 1-2 (unpaginated).
On November 11, 2020, the PCRA court issued a second Rule 907 Notice to dismiss Appellant's petition as untimely. Appellant filed a pro se Response, requesting that the PCRA court rule on his outstanding motions to amend his PCRA petition. On January 11, 2021, the PCRA court issued an order that stated "upon consideration of [Appellant's PCRA] petition and supplemental petitions, it is hereby ordered and decreed that [Appellant's PCRA] Petition is dismissed as untimely[.]" Order, 1/7/21 (some capitalization and emphasis omitted).
Appellant timely appealed. The PCRA court did not order Appellant to file a Pa.R.A.P 1925(b) Statement, but the court did file a Rule 1925(a) Opinion.
In his pro se Brief, Appellant raises the following issue for our review: "Whether the lower court erred without ruling whether or not [] Appellant's Amended PCRA Petition was filed timely or not?" Appellant's Br. at 1 (some capitalization omitted).
We review the denial of a PCRA Petition to determine whether the record supports the PCRA court's findings and whether its Order is otherwise free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This Court grants great deference to the findings of the PCRA court if they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). "We give no such deference, however, to the court's legal conclusions." Commonwealth v. Smith, 167 A.3d 782, 787 (Pa. Super. 2017).
The timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v. Zeigler, 148 A.3d 849, 853 (Pa. Super. 2016). A PCRA petition, including a second or subsequent petition, must be filed within one year of the date the underlying judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). Appellant's Petition, filed more than eighteen years after his judgment of sentence became final, is facially untimely. However, Pennsylvania courts may consider an untimely PCRA petition if an appellant pleads and proves one of the three exceptions set forth in Section 9545(b)(1) within 60 days of the date the claim could have been presented. 42 Pa.C.S §§ 9545(b)(1)(i-iii), (b)(2).
Effective December 24, 2018, Section 9545(b)(2) now provides that for claims arising on or after December 24, 2017, "[a]ny petition invoking an exception . . . shall be filed within one year of the date the claim could have been presented."
In his original PCRA petition and numerous supplemental petitions, Appellant attempts to invoke the timeliness exception under Section 9545(b)(1)(iii), alleging that his sentence is illegal based on a newly recognized constitutional right under Miller.
"Although legality of sentence is always subject to review within the PCRA, claims must still first satisfy the PCRA's time limits or one of the exceptions thereto." Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). "When a petitioner files an untimely PCRA petition raising a legality-of-sentence claim, the claim is not waived, but the jurisdictional limits of the PCRA itself render the claim incapable of review." Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007).
We acknowledge that Appellant filed the instant PCRA petition on August 23, 2012, which was within 60 days of the issuance of the Miller decision (decided June 25, 2012). Nevertheless, Appellant's Miller claim fails because Appellant was 24 years old at the time he committed the murder. See Commonwealth v. Lawson, 90 A.3d 1, 6 (Pa. Super. 2014) (stating that the holding in Miller is limited to those offenders who were juveniles at the time they committed their crimes).
Further, this Court has repeatedly refused to render relief on the brain science argument that Appellant raises in his PCRA petition. See Commonwealth v. Lee, 206 A.3d 1, at 7-12 (Pa. Super. 2019) (en banc) (holding that appellant, who was over 18 years of age at the time of her offense, could not invoke Miller as an exception to the PCRA time-bar, despite her argument that "immature brain" studies would have established that her brain was underdeveloped at time of her crime); Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (rejecting the 19-year-old appellant's argument based on neuroscientific theories of brain development that he is entitled to PCRA relief because he was a "technical juvenile" at the time he committed his crimes). Accordingly, Appellant's Miller claim fails to overcome the PCRA's time-bar.
In his Brief, Appellant avers that the PCRA court erred when it failed to address whether the newly discovered fact claim raised in Appellant's March 26, 2019 amended PCRA petition satisfied an exception to the PCRA's time-bar. Appellant's Br. at 1. In order to determine whether the court erred in ruling on Appellant's newly discovered fact claim, we must first consider whether Appellant properly supplemented his fourth PCRA petition.
Pennsylvania Rule of Criminal Procedure 905 allows for the amendment of a PCRA petition to "achieve substantial justice[, ]" but explicitly provides that a petitioner may only amend a PCRA Petition by direction or leave of the PCRA court. Pa.R.Crim.P. 905(a); Commonwealth v. Porter, 35 A.3d 4, 12 (Pa. 2012). Generally, claims raised in unauthorized supplements and amendments to PCRA petitions are subject to waiver. Commonwealth v. Reid, 99 A.3d 470, 484 (Pa. 2014). However, this Court has held that a PCRA court implicitly permits amendment under Rule 905(a) when the court fails to strike the supplement and considers the supplement in its decision. Commonwealth v. Brown, 141 A.3d 491, 503-04 (Pa. Super. 2016). See also Commonwealth v. Boyd, 835 A.2d 812, 816 (Pa. Super. 2003)
Although the PCRA court never issued an order granting leave to amend, we conclude that the PCRA court accepted Appellant's amended petition. The PCRA court did not strike the amended petition and considered the amended petition in its dismissal order. Thus, like in Brown, we conclude that the PCRA court implicitly allowed Appellant to supplement his fourth PCRA petition and we will consider the claim raised in the amended petition.
In his amended petition and brief to this Court, Appellant avers that on February 19, 2019, he learned from an article that the Philadelphia District Attorney's Office had engaged in unethical non-disclosure of evidence practices in previous decades. Amended PCRA at 1-2; Appellant's Br. at 4. Appellant argues that the claims of prosecutorial misconduct that he raised in the amended PCRA petition within 60 days of reading the article overcame the PCRA's time-bar under the newly discovered facts exception set forth in Section 9545(b)(1)(ii). Appellant's Br. at 1-2, 5-7. We agree.
In his amended PCRA petition, Appellant also asserts that the claims of prosecutorial misconduct satisfy the "interference by government officials" exception to the PCRA's time-bar. Amended PCRA at 4-5. Appellant contends that the previous administration of the District Attorney's office knew about the prosecutorial misconduct and failed to disclose it. Appellant further states that he learned about the prosecutorial misconduct from the February 2019 article. This is more properly categorized as a newly discovered fact exception to the PCRA's time-bar and we will treat it as such.
To satisfy this exception, a petitioner must plead and prove "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." 42 Pa.C.S. § 9545(b)(1)(ii). Our Supreme Court has held that this exception "does not require any merits analysis of the underlying claim." Commonwealth v. Bennett, 930 A.2d 1264, 1271 (Pa. 2007). Rather the exception merely requires the petitioner to plead and prove two elements: "1) the facts upon which the claim was predicated were unknown and 2) could not have been ascertained by the exercise of due diligence ." Id. at 1272 (internal quotation marks omitted, emphasis in original), citing 42 Pa.C.S. § 9545(b)(1)(ii).
The Commonwealth concedes that Appellant pleaded an exception to the PCRA's time bar when he filed his March 26, 2019 amended petition within a year of learning a newly-discovered fact from a February 2019 article. Appellant claims that the article "unambiguously confirm[s] that it was the policy and practice of the previous administration of the Philadelphia District Attorney's Office to "sanitize" the record and hide evidence in order to obtain a[] conviction. Amended PCRA at 1-2 (unpaginated). We agree with Appellant's assertions that he did not know this new fact until the article was published and could not have ascertained this new fact by the exercise of due diligence. Accordingly, Appellant has overcome the PCRA's jurisdictional time-bar and the PCRA court erred when it dismissed his petitions as untimely.
Following our review, we conclude that the record does not support the PCRA court's finding that Appellant failed to plead facts that would satisfy an exception to the PCRA's time-bar. Thus, as Appellant's newly discovered facts claim overcomes the PCRA's time-bar, we conclude that the PCRA court erred in finding that it lacked jurisdiction to consider the merits of the claim. Accordingly, we vacate and remand for the PCRA court to consider the merits of Appellant's newly discovered fact claim raised in his March 26, 2019 amended PCRA petition.
Order vacated. Case remanded. Jurisdiction relinquished.
Judge Stabile joins the memorandum.
Judge McCaffery concurs in result.
Judgment Entered.