J-S50043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

GERALD JONES,

                         Appellant                    No. 63 EDA 2017


         Appeal from the PCRA Order entered December 20, 2016,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0607981-1979.
                       June Term, 1979 No. 798-804



BEFORE: PANELLA, MOULTON, and RANSOM, JJ.

MEMORANDUM BY RANSOM, J.:                      FILED SEPTEMBER 27, 2017

      Appellant, Gerald Jones, appeals from the December 20, 2016 order

dismissing as untimely his eighth petition for post-conviction relief filed

pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S. §§ 9541-46.

We affirm.

      Appellant seeks relief from the aggregate term of life imprisonment

imposed on April 15, 1981, after he was convicted of multiple counts of first-

degree murder and arson, as well as related charges.       These convictions

resulted from Appellant’s participation in the firebombing of two houses in

December 1977.

      The pertinent procedural history as gleaned from our review of the

certified record is as follows:   This Court affirmed Appellant’s judgment of
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sentence on November 5, 1986, and Appellant did not file a petition for

allocatur.     Thereafter,   Appellant   unsuccessfully      litigated   seven   post-

conviction petitions.    On November 17, 2014, Appellant filed the instant

petition and amended it on December 1, 2014.                 By order and opinion

entered on December 20, 2016, the PCRA court dismissed the petition. This

timely appeal follows.       The PCRA court did not require Pa.R.A.P. 1925

compliance.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported     by   the   evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).       Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that petitioner’s claim is

patently frivolous and is without a trace of support in either the record or

from other evidence.      Commonwealth v. Jordan, 772 A.2d 1011, 1014

(Pa. Super. 2001).

      The PCRA court determined that Appellant’s instant petition, filed

almost thirty years after his judgment of sentence became final, is patently

untimely.     The timeliness of a post-conviction petition is jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).


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Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.1 42 Pa.C.S.A. § 9545. A PCRA petition

invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.” See Hernandez, 79 A.3d

651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).          Finally,

exceptions to the PCRA’s time bar must be pleaded in the petition and may

not be raised for the first time on appeal. Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that

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1
    The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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.

42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).




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issues not raised before the lower court are waived and cannot be raised for

the first time on appeal).

      Appellant’s judgment of sentence became final on or about December

5, 1986, when the thirty-day time period for filing a petition for allocatur

with our Supreme Court expired.      See 42 Pa.C.S.A. § 9545(b)(3).        Thus,

Appellant’s eighth PCRA petition, filed decades later, is patently untimely.

The PCRA court lacked jurisdiction to consider this most recent petition

unless Appellant has satisfied his burden of pleading and proving that one of

the enumerated exceptions applies. See Hernandez, supra.

      Appellant has failed to establish a time-bar exception. He claims that

he has established both the governmental interference exception and the

newly discovered facts exception. Appellant’s claims are premised upon his

alleged recent receipt of an affidavit from a “prison paralegal.”   Based upon

this affidavit, Appellant claims to have learned that three of his co-

defendants refused to testify at a co-defendant’s 1988 retrial and the

Commonwealth used storyboard exhibits.          According to Appellant, the

government interfered with his ability to obtain the notes of testimony and

the storyboards, thus thwarting his efforts to determine how they were used

at his co-defendant’s retrial.      Moreover, according to Appellant, the

existence of these storyboards and the fact that three co-defendants refused

to testify are newly discovered facts. We find no merit to these claims.




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       Appellant    first   asserts    that    he   established   the   governmental

interference exception because he was unsuccessful in his attempts to obtain

the transcripts from his co-defendant’s 1988 retrial.             Although Appellant

makes general assertions regarding the difficulties he encountered in

attempting to obtain these trial transcripts, as well as the exhibits, he has

not established that he was “denied access to such evidence because of

governmental interference.” PCRA Court Opinion, 12/20/16, at 6 (footnote

omitted).      Moreover, it is clear that Appellant knew of this alleged

interference many years before the applicable sixty-day period he had in

which to raise the exception. See 42 Pa.C.S. § 9543(b)(2).2

       Appellant next argues that he met the newly-discovered facts

exception because he filed his latest PCRA petition within sixty days of

receiving the prison paralegal’s affidavit.           When considering a PCRA’s

petitioner’s claim that he or she has established an exception to the PCRA’s

time bar under section 9545(b)(1)(ii), the petitioner must establish only that

the facts upon which the claim are predicated were unknown to him, and

that he could not have ascertained the facts earlier despite the exercise of

____________________________________________


2
  Within his brief, Appellant also alleges a Brady violation, but this claim
fails because it too could have been raised decades earlier.            See
Commonwealth v. Abu Jamal, 941 A.2d 1263 (Pa. 2008) (explaining that
the government interference exception to the PCRA’s time bar requires the
facts upon which a Brady claim is predicated were not previously known to
the petitioner and could not have been ascertained through due diligence).




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due diligence. Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa.

2007). The determination of timeliness does not require a merits analysis.

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).

      Although the PCRA court found that Appellant filed his latest petition

within sixty days of receiving the affidavit, the court did not expressly

discuss whether Appellant exercised “due diligence” in discovering the

information found within the prison paralegal’s affidavit. Our review of the

record reveals that in Appellant’s third PCRA petition, filed in 2002, he

acknowledged the untimeliness of his petition, but averred that he met the

“newly discovered fact” exception, based on a witness’s recantation

testimony at his co-defendant’s retrial.    A panel of this Court cited the

following recitation by the PCRA court as providing the factual foundation for

the claim:


      The Superior Court granted new trials for Smith and Lamar,
      because the trial judge had excluded either on cross-
      examination or by independent medical testimony, of the
      psychiatric history of Fitzgerald Lawrence, an accomplice who
      testified against him at trial. The Superior Court noted that
      Fitzgerald Lawrence was the only witness who inculpated Smith
      and Lamar in the arson. It then went on to state. “However, we
      are equally convinced that impeachment of Lawrence’s testimony
      with evidence of his psychological problems was not vital to the
      remaining Appellants[’] defense.” Commonwealth v. Mason,
      [518 A.2d 282, 286 (Pa. Super. 1986)].

            Mack Smith died in prison before he could be retried.
      Darryl Lamar was retried in 1988. At trial, Fitzgerald Lawrence
      recanted his trial testimony. [He said Lamar and Appellant were
      not present at the firebombing]. Lamar was found not guilty of



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      the arson which had resulted in the death of the three victims.
      He was found guilty of felony arson on another property.

Commonwealth v. Jones, 2582 EDA 2003, at 2 (citing PCRA Court

Opinion, 8/25/03, at 1-2)).

      We rejected Appellant’s claim because he could not establish due

diligence:

      [I]n 1986, this Court affirmed Appellant’s judgment of sentence,
      vacated Lamar’s judgment, and ordered a new trial. Therefore,
      as early as 1986, Appellant knew Lamar was going to get a new
      trial and in 1988 Lamar was re-tried. Appellant has wholly failed
      to explain why he was unable to ascertain the events of the re-
      trial for the next 14 years. Nothing in the record before this
      Court supports Appellant’s contentions that he was prevented
      from contacting Lamar by the conditions of Lamar’s parole as
      well as the [Department of Corrections] policies. In fact, the
      [Department of Corrections] policy Appellant relies upon states
      correspondence with former inmates was allowed as long as the
      Facility Manager approved the communication.            In sum,
      Appellant has failed to demonstrate reasonably why he could not
      have discovered the alleged exculpatory information sooner by
      the exercise of due diligence. See Pa.C.S.A. § 9545(b)(1)(ii).

Jones, mem. opin. at 7.           Additionally, we cited to Appellant’s original

appeal, in which this Court had stated that “impeachment of Lawrence’s]

testimony with evidence of psychological problems was not vital” to

Appellant’s defense since he was “implicated in the events of December 3,

1977 by the testimony” of two other co-defendants to the incident. Id., at 8

(emphasis deleted).

      Now, over ten years later, Appellant’s attempt to establish due

diligence    is   even   less   compelling.   Although   Appellant   details   his

unsuccessful attempts to locate the storyboards once he received the prison

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paralegal’s affidavit, see Appellant’s Brief at 8, as in his 2002 petition, he

provides little argument regarding his inability to contact Lamar regarding

the latter’s 1988 retrial other than the bare assertion that he and his family

could not find Lamar once he was paroled in 1989. See Appellant’s Brief at

15. Thus, we must again conclude that Appellant has failed to establish due

diligence in discovering these “new facts.”

      We also note that, not only is the evidence of due diligence less

compelling, but the alleged new facts—that three co-defendants did not

testify at the retrial and the Commonwealth’s use of storyboards—is clearly

not exculpatory, and in fact irrelevant. As the PCRA court stated:

         This Court is satisfied that the storyboard introduced by
         the Commonwealth [at Lamar’s re-trial] is not new
         evidence, as it revealed no new information which was
         previously unknown by [Appellant]; this information has
         no exculpatory effect on [Appellant’s] case.        Thus,
         [Appellant’s] failure to obtain access to Lamar’s trial
         transcript is immaterial. No relief is due.

PCRA Court Opinion, 12/20/16, at 7.

      In reaching this conclusion the trial court did not engage in a merit

analysis of his proposed newly discovered evidence. See Appellant’s Brief at

9-10; Abu Jamal, supra. Rather, as the PCRA court notes, and Appellant

concedes, the storyboards contained only pictures of the various co-

defendants—information known to Appellant before his original trial in 1980.

See Appellant’s Brief at 12.    Thus, at best, Appellant’s proffered affidavit

constitutes only a “newly willing source of previously known facts.”

Commonwealth v. Ward-Green, 141 A.3d 527, 533 (Pa. Super. 2016),


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appeal granted on other grounds, 2016 WL 7386799 (Pa. Dec. 21, 2016)

(citation omitted). Such a source does not qualify as a fact unknown to the

petitioner.   Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super.

2015), appeal denied, 125 A.3d 1197 (Pa. 2015).

      In sum, the PCRA court correctly determined that Appellant did not

establish a time-bar exception.    Therefore, the PCRA court properly found

Appellant’s eighth PCRA petition to be untimely, and we affirm the PCRA

court’s order denying Appellant post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2017




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