J-S11024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

ERIC NIGEL TAULTON

                         Appellant                   No. 3636 EDA 2017


           Appeal from the PCRA Order entered October 20, 2017
           In the Court of Common Pleas of Montgomery County
             Criminal Division at No: CP-46-CR-0004611-2003


BEFORE: OTT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                           FILED APRIL 27, 2018

      Appellant, Eric Nigel Taulton, appeals pro se from the October 20, 2017

order of the Court of Common Pleas of Montgomery County, dismissing his

fifth petition for collateral relief pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

      The underlying facts and procedural history are not at issue here.

Briefly, on September 24, 2004, a jury convicted Appellant of corrupt

organizations, criminal conspiracy, multiple counts of criminal use of

communication facility, and three counts of delivery of cocaine in an amount

of at least 100 grams.    On December 8, 2004, the trial court sentenced

Appellant to an aggregate term of incarceration of not less than 21 nor more

than 42 years.   On May 2, 2006, we affirmed the judgment of sentence, and

our Supreme Court denied leave to appeal on December 13, 2006.
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         Subsequently, Appellant filed four PCRA petitions.       The PCRA court

dismissed each petition, and this Court affirmed each dismissal on appeal. On

May 26, 2017, Appellant filed the instant PCRA petition, his fifth. The PCRA

court dismissed it on October 20, 2017. This appeal followed.

         “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). 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, [i]f 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) (first alteration in original) (internal citations and quotation marks

omitted). As timeliness is separate and distinct from the merits of Appellant’s

underlying claims, we first determine whether this PCRA petition is timely

filed.    See Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008)

(consideration of Brady1 claim separate from consideration of its timeliness).




____________________________________________


1   Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).

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       At issue here is the timeliness exception set forth in Section

9545(b)(1)(ii), which requires a petitioner to plead and prove                two

components: 1) the facts upon which the claim was predicated were

unknown, and (2) these unknown facts could not have been ascertained by

the exercise of due diligence.        See Commonwealth v. Burton, 158 A.3d

618, 638 (Pa. 2017).

       As noted, under the above exception, a petitioner must explain why he

could not have learned the new facts earlier with the exercise of

due diligence. See Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa.

2001).    Due diligence demands the petitioner to take reasonable steps to

protect his own interests. See Commonwealth v. Carr, 768 A.2d 1164,

1168 (Pa. Super. 2001). This standard, however, does not require “perfect

vigilance nor punctilious care, but rather it requires reasonable efforts by

a petitioner, based on the particular circumstances, to uncover facts that may

support a claim for collateral relief.” Commonwealth v. Shiloh, 170 A.3d

553, 558 (Pa. Super. 2017) (citation omitted).

       Appellant acknowledges that the issue raised in the instant petition (i.e.,

failure to disclose Commonwealth witness’s criminal record qualified as a

Brady violation) has been previously addressed and decided in connection

with his third PCRA petition.2 Appellant’s Brief at 8. Appellant also noted that

this Court affirmed the PCRA court’s denial of that PCRA petition merely on
____________________________________________


2See Commonwealth v. Taulton, No. 3385 EDA 2012 (Pa. Super. filed
November 8, 2013).

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timeliness grounds (based on Appellant’s failure to prove he met the exception

at (b)(1)(ii)). Indeed, we noted there was no support in the record for finding

that Appellant acted with due diligence to learn about the witness’s criminal

record. We noted the witness’s criminal record was available on Public Access

to Court Electronic Records (PACER) and that the information about the

witness’s conviction in particular had been available since February 13, 2009,

approximately 35 months prior to the filing of Appellant’s third PCRA petition.3

We concluded, therefore, that the “unknown facts” exception did not apply.

See Commonwealth v. Taulton, No. 3385 EDA 2012, unpublished

memorandum at 11-12 (Pa. Super. filed November 8, 2013).

       Here, in essence, Appellant is relitigating the issue he raised in his third

PCRA petition, relying on a new theory to address the timeliness issue that

derailed his third PCRA petition.         Appellant claims that Burton created “a

newly discovered evidence exception” to the timeliness requirements.

Appellant’s Brief at 8. Specifically, according to Appellant, under Burton, pro

____________________________________________


3 We disagreed with the PCRA court’s analysis to the extent it focused on the
date Appellant received the information about the witness’s criminal record
from the private investigator (April 4, 2011) as determinative for purposes of
the exception at Section 9545(b)(1)(ii). Indeed, we specifically noted that
said date was not dispositive. We also noted that “[i]n order for the PCRA
court to have jurisdiction to consider his Brady claim, Appellant was required
to show that the information regarding [the witness’s] conviction could not
have been obtained earlier with the exercise of due diligence.” Taulton, 3385
EDA 2012, at 11 (citing Stokes, 959 A.2d at 310). Applying the proper
standard, we concluded that Appellant could have learned of the witness’s
criminal record (including conviction) as early as February 13, 2009, the date
on which the judgment against the witness was entered on the docket, as
evidenced in PACER. Id.

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se inmates cannot be presumed to have access to information available in the

public domain. Applying Burton in the instant matter, Appellant argues, he

exercised proper due diligence in pursuing his claim.        The PCRA found

Appellant’s argument had no merit. We agree.

      First, Burton is inapposite. Even if Burton recognized a new timeliness

exception, as Appellant claims, the new exception is not applicable here

because we are not concerned with the ability to access public records.

Indeed, even if we were to conclude that Appellant could not have learned of

the witness’s conviction as early as February 13, 2009, it is clear from the

record that Appellant knew about the conviction as of April 4, 2011, the date

he received the information from the private investigator. Thus, the instant

matter is factually distinguishable from Burton.

      Furthermore, regardless of whether he learned of the facts underlying

the instant petition in 2009 or 2011, Appellant cannot claim the facts used for

purpose of the instant petition were previously unknown to him. Indeed, they

were used to support his third PCRA petition. The PCRA court aptly noted:

      In regard to [Appellant]’s claim that the Commonwealth
      committed a Brady violation concerning the criminal record and
      testimony of [witness], it is on the face of the record that this
      claim does not rely upon facts that were previously unknown to
      [Appellant].     [] Appellant has previously acknowledged
      discovering the facts underlying this claim as early as April 4,
      2011, and said facts formed the basis of the Brady claim raised
      in [Appellant]’s third PCRA petition. [Appellant] thus cannot
      proceed to a review of the merits of his Brady claim pursuant to
      §9545(b)(1)(ii), as his claim does not rest upon facts that were
      previously known to him.



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PCRA Court Opinion, 12/8/17, at 10.

      We agree with the PCRA court’s analysis and conclusions. Appellant,

therefore, failed to meet the requirements set forth failed to prove “the facts

upon which the claim was predicated were unknown.”               42 Pa.C.S.A.

§ 9545(b)(1)(ii).

      To the extent Appellant relies on Burton for purposes of the exception

set forth in Section 9545(b)(1)(iii), said reliance is misplaced. Indeed, we

agree with the PCRA court’s analysis on this point:

      [Section] 9545(b)(1)(iii) requires that, in order for the facially
      untimely claim to be eligible for review on the merits, said claim
      must rely upon a newly-recognized constitutional right that has
      been held by the court that recognized the constitutional right’s
      existence to apply retroactively. Stated simply, our Supreme
      Court’s opinion in [Burton] neither directly holds, nor provides
      any intimation, that the Court is recognizing any new
      constitutional right that is to be applied retroactively.

PCRA Court Opinion, 12/8/17, at 10-11.

      Finally, Appellant is not entitled to relief on another ground: as noted,

the issue raised here has been previously litigated.       See 42 Pa.C.S.A.

§§ 9543(a)(3), 9544(a)(3).

      For the foregoing reasons, we affirm the order of the PCRA court denying

Appellant’s fifth PCRA petition.

      Order affirmed.

      Judge Musmanno joins this memorandum.

      Judge Ott concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/18




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