J-S07030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN GIBSON                               :
                                               :
                       Appellant               :   No. 1880 EDA 2017

                   Appeal from the PCRA Order May 25, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0310141-2004
                                          CP-51-CR-0310151-2004
                                          CP-51-CR-0310161-2004
                                          CP-51-CR-0907971-2004


BEFORE: BENDER, P.J.E., PANELLA, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY PANELLA, J.                          FILED AUGUST 02, 2018

       Over six years after his judgment of sentence became final, Kevin

Gibson filed, pro se, a second PCRA petition. In it, he alleged the newly

discovered facts exception.1 Specifically, he alleged that on April 3, 2015, he

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1 He referred to it as the “newly discovered evidence” exception. The reference
to “newly discovered evidence,” also referred to as the “after discovered
evidence” exception, however, is incorrect. See Commonwealth v. Bennett,
930 A.2d 1264, 1270 (Pa. 2007) (explaining that the “shorthand reference”
to 42 Pa.C.S.A. § 9545(b)(1)(ii) as the “after discovered evidence” exception
“was a misnomer, since the plain language of subsection (b)(1)(ii) does not
require the petitioner to allege and prove a claim of ‘after-discovered
evidence[ ]’”). Here, the “newly discovered evidence” or “after discovered
evidence” would become relevant after the petitioner established the
timeliness exception, thus establishing jurisdiction for the PCRA court,
allowing the court to reach the merits of the underlying claim. See id., at
1271-1272; 42 Pa.C.S.A. § 9543(a)(2)(vi).
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“conducted a microscopic test on the search warrant used in this case, and

discovered … that the police had altered the warrant.”2 In another filing,

Gibson explained that the “microscopic test” “consisted of the use of a

magnifying     glass   which     revealed      the   alterations   contained   with   the

document….” The alleged alteration was the inclusion of an “unlawful

phrase”—“and any other stolen property”—typed in where the warrant

identified the items to be searched and seized. Ultimately, after providing the

proper notice, the PCRA court dismissed the petition without a hearing. This

timely appeal follows.

       On appeal, Gibson argues the PCRA court erred in summarily dismissing

his petition. “On appeal from the denial of PCRA relief, our standard of review

is whether the findings of the PCRA court are supported by the record and free

of legal error.” Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007)

(citations omitted).

       To overcome the PCRA’s time-bar, see 42 Pa.C.S.A. § 9545(b)(1),

Gibson relies on 42 Pa.C.S.A. § 9545(b)(1)(ii). That subsection “has two

components, which must be alleged and proved. Namely, the petitioner must

establish that: 1) ‘the facts upon which the claim was predicated were

unknown’ and 2) ‘could not have been ascertained by the exercise of due

diligence.’” Bennett, 930 A.2d at 1272 (quoting § 9545(b)(1)(ii); emphasis

in original). “If the petitioner alleges and proves these two components, then
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2Gibson conducted this “test” on a copy of the search warrant. See Appellant’s
Brief, at 11.

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the PCRA court has jurisdiction over the claim under this subsection.” Id.

(citation omitted).

       Gibson cannot, at the very least, establish the exercise of due diligence.

The search warrant featured prominently in the trial and post-trial

proceedings. For instance, Gibson challenged the search warrant prior to trial

through the filing of a suppression motion. And he later challenged the denial

of that motion in his direct appeal. See, e.g., Commonwealth v. Gibson,

No. 168 EDA 2008, at 2, 10-12 (Pa. Super., filed November 17, 2008)

(unpublished memorandum). Certainly, the use of a magnifying glass to

discover an alteration on the face of the search warrant was, as the PCRA

court aptly observed, “available prior to and during trial, and he could have

performed the testing at that time.”3

       The PCRA court committed no legal error in summarily dismissing

Gibson’s second petition.4
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3 For the first time on appeal, Gibson claims the trial court steadfastly refused
to provide him access to the search warrant; it was not until April 3, 2015, he
maintains, that he was able to secure a copy. See Appellant’s Brief, at 11.
That assertion is preposterous on its face given the pre-trial litigation over the
search warrant.

4  Gibson also argues the PCRA court erred in denying his Brady violation
claim. Gibson alleged that claim in an amendment filed over a year after the
filing of his second PCRA petition. See Amended Petition for Post-Conviction
Relief Pursuant to the Post-Conviction Relief Act, filed 7/7/16. To have
properly filed the amended petition Gibson had to seek permission from the
PCRA court. See Pa.R.Crim.P. 905(A); Commonwealth v. Porter, 35 A.3d
4, 12 (Pa. 2012) (explaining Rule 905 amendments are not “self-authorizing
i.e., that a petitioner may simply ‘amend’ a pending petition with a



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       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/2/18




____________________________________________


supplemental pleading. Rather, the Rule explicitly states that amendment is
permitted only by direction or leave of the PCRA court[ ]”).

 “[I]t was incumbent upon Appellant to identify where in the record the
supplemental [PCRA] petitions were authorized and/or to reconstruct the
record if such authorization was provided off the record.” Commonwealth v.
Reid, 99 A.3d 470, 484 (Pa. 2014). Gibson has not done this. And a review
of the certified docket entries and the certified record reveals that Gibson
never requested permission to file his amended petition. Thus, the amended
petition was an unauthorized filing, rendering the claims raised therein waved.
See, e.g., id.

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