J-S59018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 THORNTON SAVAGE,                         :
                                          :
                     Appellant            :   No. 2332 EDA 2016

                 Appeal from the PCRA Order June 28, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-1210952-1985


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                      FILED NOVEMBER 21, 2018

      Thornton Savage appeals from the order, entered in the Court of

Common Pleas of Philadelphia County, denying his petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After

review, we affirm.

      The trial court summarized the factual and procedural history of this

case as follows:

      On November 10, 1985, [Savage] argued with sixteen [] year[-
      ]old Lamont Poller inside a bar [] in Philadelphia. The argument
      spilled into the street, and [Savage] shot Poller in the back as the
      unarmed victim ran away. [] [F]ollowing a jury trial, [Savage]
      was convicted of first[-]degree murder and related offenses, and
      sentenced to life in prison without the possibility of parole. The
      Superior Court [] affirmed [Savage’s] judgment of sentence on
      December 19, 1989. On January 17, 1992, the Supreme Court
      affirmed said judgment, and denied re-argument on May 15,
      1992.
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       On April 16, 2015, [Savage] filed his sixth [PCRA] [p]etition[.]
       . . . [Savage] claims entitlement to relief based on the racial
       composition of his jury.[1]

Trial Court Opinion, 6/6/17, 1-2.

       Savage amended the instant PCRA petition three times on March 10,

2016, April 18, 2016 and April 26, 2016.2 On June 28, 2016, the PCRA court

dismissed Savage’s sixth PCRA petition. Savage filed a timely notice of appeal

on July 8, 2016. Both Savage and the trial court have complied with Pa.R.A.P.

1925. On appeal, Savage raises the following issues for our review:

       1. Whether the PCRA court erred when it failed to analyze [] new
          evidence related to [] Savage’s Batson claim, but instead,
          wrongfully concluded that [] [his] [Batson] claim was
          previously litigated, and therefore, untimely?

       2. Whether the PCRA court erred when it based its decision to
          dismiss [] Savage’s PCRA petition, in part, on statements taken
          out of context in this Court’s 2014 Opinion . . . affirming the
          dismissal of [] Savage’s untimely PCRA petition?

       3. Whether the PCRA court erred in holding that [] Savage’s
          petition was untimely filed under the newly-discovered
          evidence and government interference exceptions to the PCRA
          time bar?

       4. Whether [] Savage’s conviction should be vacated because of
          Jack McMahon’s racially discriminatory jury selection?

       5. Whether the PCRA court erred in dismissing [] Savage’s
          petition without holding an evidentiary hearing[?]
____________________________________________


1 Savage premises his argument on the rule announced in Batson v.
Kentucky, 476 U.S. 79 (1986). Savage raised a Batson claim in several
previous PCRA petitions, all of which the PCRA court dismissed. This is at least
the third time Savage has sought PCRA relief through a Batson claim.

2 Savage avers that he became aware of the discovery of voir dire sheets on
April 15, 2015.

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Brief of Appellant, at 3-4.

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”         Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

Before addressing the merits of Savage’s claims, our Supreme Court has

required this Court to examine whether we have jurisdiction to entertain the

underlying PCRA petition. See Commonwealth v. Fahy, 737 A.2d 214, 223

(Pa. 1999). A PCRA petition “must normally be filed within one year of the

date the judgment becomes final . . . unless one of the exceptions in §

9545(b)(1)(i)-(iii) applies and the petition is filed within 60 days of the date

the claim could have been presented.” Commonwealth v. Copenhefer, 941

A.2d 646, 648 (Pa. 2007) (internal citations and footnote omitted).

      Jurisdictional time limits go to a court’s right or competency to
      adjudicate a controversy. These limitations are mandatory and
      interpreted literally; thus, a court has no authority to extend filing
      periods except as the statute permits. Unlike a statute of
      limitations, a jurisdictional time limitation is not subject to
      equitable principles such as tolling except as provided by statute.
      Thus, the filing period is only extended as permitted; in the case
      of the PCRA, the time limitations are extended upon
      satisfaction of the exceptions found in § 9545(b)(1)(i)-(iii)
      and timely filing pursuant to (b)(2). As it has been established
      that the PCRA’s time restrictions are jurisdictional, we hold that
      the period for filing a PCRA petition is not subject to the doctrine
      of equitable tolling, save to the extent the doctrine is embraced
      by § 9545(b)(1)(i)-(iii).

Fahy, 737 A.2d at 222 (citations omitted) (emphasis added).




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      Instantly, we review whether the PCRA court erred by holding Savage’s

sixth PCRA petition was untimely. See 42 Pa.C.S.A. § 9545(b)(1); Fahy, 737

A.2d at 222. Savage’s judgment of sentence became final on or about August

15, 1992, ninety days after our Supreme Court denied re-argument. U.S.

Sup. Ct. Rule 13; Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super.

1998) (conviction become final after Pennsylvania Supreme Court denies

allocatur and time for seeking certiorari in United States Supreme Court

expires). Savage filed the instant PCRA petition almost twenty-three years

later. Thus, this Court must discern whether the PCRA court erred by holding

Savage did not plead or prove either the government interference or newly-

discovered evidence timeliness exception. Trial Court Opinion, 6/6/17, at 5.

See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii); Copenhefer, 941 A.2d at 648.

      The three timeliness exceptions are:

      (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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).




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      Savage avers that the PCRA court erred in holding that he filed his

petition late. Specifically, Savage argues that newly-discovered facts related

to his voir dire proceeding support his claim that the government interfered

with his attempt to prove his Batson claim. In effect, Savage raises two time-

bar exceptions, which intertwine with one another.

      In   order     to   meet     the    statutory    requirements      of   the

“governmental interference” exception to the PCRA’s one[-]year jurisdictional

time-bar, [an appellant is] required to plead and prove that his “failure to raise

the claim [or claims] previously was the result of interference by government

officials with the presentation of the claim [or claims] in violation of the

Constitution or law of this Commonwealth or the Constitution or laws of the

United States[.]” 42 Pa.C.S.A. § 9545(b)(1)(i).

      In order to meet the requirement of the newly-discovered facts

exception, “a petitioner must allege and prove that there were ‘facts’ that were

‘unknown’ to him and that he exercised ‘due diligence.’” Commonwealth v.

Bennett, 930 A.2d 1264, 1270 (Pa. 2007) (footnote omitted).             In other

words, “a petitioner must explain why he could not have learned the

new fact(s) earlier with the exercise of due diligence.” Commonwealth v.

Brown, 111 A.3d 171, 176 (Pa. Super. 2015).                This rule is strictly

enforced. Id. “If the petitioner alleges and proves these two components,

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

Id. at 1272. “The focus of the exception is on the newly-discovered

facts, not on a        newly-discovered or newly-willing source for

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previously known facts.”       Commonwealth v. Marshall, 947 A.2d 714,

720 (Pa. 2008) (quotation marks and citation omitted) (emphasis added).

      In Commonwealth v. Brown, this Court discussed, in greater detail,

the exception set forth in section 9545(b)(1)(ii):

      The timeliness exception set forth at Section 9545(b)(1)(ii) has
      often   mistakenly    been    referred   to    as   the   “after-
      discovered evidence” exception. Bennett, [] 930 A.2d at 1270.
      “This shorthand reference 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.’” Id. Rather, as an initial jurisdictional
      threshold, Section 9545(b)(1)(ii) requires a petitioner to
      allege and prove that there were facts unknown to him and
      that   he    exercised    due     diligence    in   discovering
      those facts. See 42 Pa.C.S.A. § 9545(b)(1)(ii); Bennett,
      supra. Once jurisdiction is established, a PCRA petitioner can
      present a substantive after-discovered-evidence claim. In other
      words, the “new facts” exception at:

            [S]ubsection (b)(1)(ii) 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. If the petitioner alleges and proves these
            two components, then the PCRA court has jurisdiction
            over the claim under this subsection.

      Bennett, [] 930 A.2d at 1272 (internal citations omitted)
      (emphasis in original). Thus, the “new facts” exception at Section
      9545(b)(1)(ii) does not require any merits analysis of an
      underlying after-discovered-evidence claim. Id. at 395.

Brown, supra at 176-177 (emphasis added).

      Here, Savage argues that he is entitled to relief based on an alleged

violation of Batson, when then-Assistant District Attorney Jack McMahon used

peremptory challenges to strike a black venire person, resulting in an all-white

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jury. Savage also argues that he is entitled to relief based on the newly-

discovered fact that there was “governmental interference” in obtaining the

transcripts from his voir dire proceeding. See 42 Pa.C.S.A. § 9545(b)(1)(i).

Specifically, Savage argues that voir dire sheets recovered from his co-

defendant’s case file and an affidavit prepared by the Deputy Court

Administrator for the First Judicial District of Pennsylvania constitute newly-

discovered facts that also demonstrates governmental interference.              The

relevant inquiry here is whether the voir dire sheets and affidavit evidence

newly-discovered facts or are just new sources for previously known facts.

      Savage first alleges that the Court Reporter covered up the loss of his

voir dire transcripts; as evidence of this, Savage cites a letter he received on

July 26, 2000. The letter purportedly states that his voir dire hearing was

never transcribed; Savage characterizes that assertion as an intentional lie.

To meet the newly-discovered fact exception, Savage now presents an

affidavit prepared by the Deputy Court Administrator of Philadelphia County.

Savage avers that the affidavit “flat out disputes the contents of the [July 26,

2000] letter and uncovers an intentional lie told to Mr. Savage by the Court

Reporter’s Office.” Brief of Appellant, at 6. In short, Savage argues that the

affidavit evidences governmental interference.

      However, the affidavit prepared by the Deputy Court Administrator

belies Savage’s assertion that it evidences government interference.

Specifically, the affidavit states, “it is inconceivable that any senior staff would

have sent or authorized the sending of the ‘2000 Letter.’”          Deputy Court

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Administrator Affidavit, 4/25/16, at 1. The affidavit goes on to suggest that

the 2000 Letter’s suggestion that voir dire was not recorded by a court

reporter is inaccurate; “[t]he docket reflects that Beverly Lawson[] was the

stenographer assigned to Judge Ivin’s courtroom[,]” id., and thus, should

have taken down the voir dire proceedings. Ultimately, the letter concludes

that the stenographer likely contemporaneously took down the voir dire

proceeding and subsequently prepared transcripts that were later lost,

misfiled or taken. In other words, the affidavit concludes that in all likelihood

the voir dire transcripts were prepared and then lost. The affidavit, as Savage

alleges, does not suggest that the government intentionally compromised his

ability to acquire the voir dire sheets or lied to him. Additionally, Savage has

failed to show that the voir dire sheets are an underlying source of a newly-

discovered fact. See Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa.

2013) (to constitute “facts” which were unknown to petitioner and could not

have been ascertained by the exercise of due diligence, the information must

not be facts that were previously known but are now presented through newly-

discovered source).     The affidavit is not newly-discovered evidence, but

rather, newly-created evidence that confirms a previously known fact (i.e.,

that the voir dire transcripts were likely lost).

      Second, Savage argues that the voir dire sheets from his voir dire

proceeding constitute newly-discovered evidence. However, while Savage’s

brief compellingly argues why the voir dire sheets are, in fact, newly

discovered (i.e., they could not have been discovered with due diligence and

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are public documents3), his brief is devoid of any argument regarding what

new evidence the sheets present. Our review of the record and the voir dire

sheets confirms only what Savage knew at the time of his trial: his jury was

composed entirely of white jurors.

       In light of the foregoing, the PCRA court lacked jurisdiction to consider

Savage’s petition.     Having discerned no error of law by the trial court, we

conclude that the trial court was correct in determining that it is without

jurisdiction to entertain Savage’s PCRA claims.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/18




____________________________________________


3   See Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017).

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