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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM BRACEY                             :
                                               :
                       Appellant               :   No. 1281 MDA 2017

                    Appeal from the PCRA Order July 13, 2017
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002555-1994


BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                   FILED APRIL 20, 2018

        William Bracey appeals, pro se, from the order entered July 13, 2017,

in the Dauphin County Court of Common Pleas, denying his fourth petition for

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

Bracey seeks relief from the judgment of sentence of life imprisonment

imposed on May 24, 1995, following his jury conviction of first-degree murder.

On appeal, Bracey argues the PCRA court erred in concluding his petition was

untimely filed, and that he failed to sufficiently assert one of the time for filing

exceptions. For the reasons below, we affirm.

        The relevant facts underlying this appeal were summarized in a prior

decision of this Court as follows:


____________________________________________


1   42 Pa.C.S. §§ 9541-9545.
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     At trial, the Commonwealth established that Bracey, who was a
     drug dealer, was sitting outside a residence with some friends,
     when a car driven by [Houston] Simms pulled up. Bracey
     approached the driver’s window, and Simms grabbed some
     cocaine from Bracey and drove off. Bracey shot Simms, whose
     vehicle then careened into a house.        The Commonwealth’s
     witnesses included Thomas Plummer, Jr. and Sylvester Bell.
     Plummer testified that he saw Bracey approach the car, and that
     Bracey later told him that he shot the victim. Bell testified that
     Bracey told him that he shot the victim because he tried to drive
     off with a piece of cocaine.2
     __________

           Plummer and Bell did not participate in the murder of
           2

     Simms. They were simply Commonwealth witnesses.
     __________

           Plummer testified that in exchange for his testimony, the
     Commonwealth agreed that he would receive a sentence of four
     to twelve years’ incarceration for firearms violations and charges
     of possession with intent to deliver cocaine. The Commonwealth
     also agreed to dismiss charges of aggravated assault against him.
     Bell testified that in exchange for his testimony, the
     Commonwealth agreed to a sentence of two to four years’
     incarceration, and, if eligible, participation in the Boot Camp
     program, if he would plead guilty to charges of possession with
     intent to deliver cocaine.

Commonwealth v. Bracey, 38 A.3d 911 [417 MDA 2011] (Pa. Super. 2011)

(unpublished memorandum at 1-2).

     As noted above, a jury convicted Bracey of first-degree murder on May

23, 1995. The next day, when the jury was unable to reach a unanimous

decision regarding the penalty, the trial court sentenced Bracey to a term of

life imprisonment. The judgment of sentence was affirmed by this Court on

direct appeal. See Commonwealth v. Bracey, 726 A.2d 1075 (Pa. Super.

1998) (unpublished memorandum).




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       Thereafter, Bracey filed three PCRA petitions, each of which was denied

by the PCRA court, and the order denying relief was affirmed in an unpublished

decision of this Court. See Commonwealth v. Bracey, 777 A.2d 499 (Pa.

Super. 2001) (unpublished memorandum), appeal denied, 786 A.2d 985 (Pa.

2001); Commonwealth v. Bracey, 945 A.2d 757 (Pa. Super. 2007)

(unpublished memorandum); Bracey, supra, 38 A.3d 911.

       On October 27, 2016, Bracey filed the instant pro se petition, his fourth,

asserting he was entitled to relief based upon a “Brady violation and

governmental interference” that led to the denial of his third PCRA petition.

See Petition Requesting Relief under the Post Conviction Relief Act,

10/27/2016, at 1. Thereafter, on May 4, 2017, Bracey requested leave to

amend     his   PCRA     petition   to   include    the   recently   filed   decision   in

Commonwealth v. Burton, 153 A.3d 618 (Pa. 2017), in which the

Pennsylvania Supreme Court held “the ‘public record’ rule does not apply to

incarcerated pro se defendants.”2              Petition Requesting Leave to Amend,

5/4/2017, at 2.

       On June 13, 2017, the PCRA court notified Bracey of its intent to dismiss

his petition as untimely filed without first conducting an evidentiary hearing

pursuant to Pa.R.Crim.P. 907. Bracey filed a pro se response to the court’s

____________________________________________


2 As will be discussed infra, Bracey’s third petition was denied because this
Court concluded information he claimed was newly discovered had been
discoverable as a public record since 1995.




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Rule 907 notice, insisting the Supreme Court’s decision in Burton was

dispostive. Nevertheless, on July 13, 2017, the PCRA court entered an order

dismissing Bracey’s petition. This timely appeal follows.3

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted).       Further, a PCRA court may

dismiss a petition “without an evidentiary hearing if there are no genuine

issues of material fact and the petitioner is not entitled to relief.” Id. at 1284

(citations omitted).

       Here, the PCRA court concluded Bracey’s petition was untimely filed,

and Bracey failed to establish the applicability of one of the time-for-filing

exceptions. See PCRA Memorandum Opinion, 6/12/2017, at 7-12.

       A PCRA petition must be filed within one year of the date the underlying

judgment becomes final. See 42 Pa.C.S. § 9545(b)(1).

       The PCRA timeliness requirement … is mandatory and
       jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
       1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
       A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
       753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
       untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

134 S.Ct. 2695 (U.S. 2014).

____________________________________________


3 The PCRA court did not order Bracey to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).

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        Bracey’s judgment of sentence was final on October 11, 1998, 30 days

after this Court affirmed his judgment of sentence on direct appeal, and he

failed to file a petition for allowance of appeal with the Pennsylvania Supreme

Court. See id. at § 9545(b)(3). Therefore, he had until October 11, 1999, to

file a timely petition, and the one before us, filed 17 years later, is patently

untimely.

        Nevertheless, an untimely PCRA petition may still be considered if one

of the three time-for-filing exceptions applies, namely, the governmental

interference exception, the newly discovered facts exception, or the newly

recognized constitutional right exception.4 See 42 Pa.C.S. § 9545(b)(1)(i)-



____________________________________________


4   Section 9545(b) provides, in relevant part:

        (1) Any petition under this subchapter, including a second or
        subsequent petition, shall be filed within one year of the date the
        judgment becomes final, unless the petition alleges and the
        petitioner proves that:

           (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



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(iii). A PCRA petition alleging any of the exceptions under Section 9545(b)(1)

must be filed within 60 days of when the PCRA claim could have first been

brought. 42 Pa.C.S. § 9545(b)(2).

       Bracey maintains his petition was timely filed pursuant to the

governmental interference exception to the PCRA’s timing requirements,

although his argument conflates all three timing exceptions. See Bracey’s

Brief at 15. The following background is instructive.

       On December 1, 2010, Bracey filed his third PCRA petition, in which he

claimed that “on October 13, 2010, his sister told him she discovered that the

information the Commonwealth disclosed to him, and presented to the jury,

regarding Plummer’s and Bell’s outstanding criminal matters was incomplete”

and that both witnesses faced additional criminal charges, which the

Commonwealth withdrew after his trial.           Bracey, supra, 38 A.3d 911

(unpublished memorandum at 2) (footnote omitted).           Consequently, he

insisted “the Commonwealth’s failure to disclose [that] information violate[d]

Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405

U.S. 150 (1972).” Id. (unpublished memorandum at 3). Accordingly, Bracey

argued his petition was timely filed pursuant to the “newly discovered facts”

____________________________________________


          provided in this section and has been held by that court to
          apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).




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exception in Section 9545(b)(1)(ii). See id. (unpublished memorandum at

5).

       The PCRA court, however, denied relief after concluding the purportedly

new information Bracey had uncovered was available as early as 1995, when

both of the Commonwealth’s witnesses entered guilty pleas. 5                   See id.

(unpublished memorandum at 7). A panel of this Court agreed, explaining:

“Criminal dockets are ‘a matter of public record and, therefore, cannot be said

to have been ‘unknown’ to [Bracey] for purposes of the PCRA’s ‘newly

discovered evidence’ exception to the PCRA’s one year jurisdictional time-

bar.’” Id., quoting Commonwealth v. Chester, 895 A.2d 520 (Pa. 2006).

       Presently, Bracey argues this Court’s prior decision was erroneous based

on two recent decisions, namely Burton, supra, and Commonwealth v.

Davis, 86 A.3d 883 (Pa. Super. 2014).              As noted above, in Burton, the

Pennsylvania Supreme Court held that, for purposes of the newly discovered

facts timing exception, the public record rule does not apply to pro se

petitioners. See Bracey’s Brief at 14-15. Furthermore, Bracey asserts the

Davis Court “faced [] an ‘identical’ situation where [the defendant] discovered

sentencing     transcripts    nearly    3      decades   later   that   depict[ed]   the


____________________________________________


5 Indeed, Bracey referred to the transcripts from both Plummer’s and Bell’s
1995 guilty pleas to support his argument that the information the
Commonwealth provided to the jury was deceptive, or at the very least,
incomplete. See Bracey, supra, 38 A.3d 911 (unpublished memorandum at
3).


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Commonwealth gave deals to two Commonwealth witnesses and this Court

remanded for an evidentiary [hearing].”       Id. at 14.    Bracey concludes

“governmental interference” blocked review of his previous filings. Id. at 15.

      Our review of the record, the parties’ briefs, and the relevant statutory

and case law reveals Bracey is entitled to no relief. He simply cannot satisfy

any of the three time-for-filing exceptions. With regard to the governmental

interference exception, Bracey appears to make the same argument that he

made in his prior petition, that is, the Commonwealth interfered with his claim

by failing to reveal the extent of the deals it provided to the two witnesses.

That issue, which was addressed in our prior decision, is previously litigated.

See 42 Pa.C.S. § 9543(a)(3) (to obtain relief under the PCRA a petitioner

must plead and prove that his claim has not been previously litigated or

waived).

      Nor does Bracey’s claim meet the newly discovered facts exception. As

noted above, Bracey first learned Plummer’s and Bell’s sentencing deals in

October of 2010. Therefore, the present petition was not filed within the 60-

day requirement of Section 9545(b)(1)(ii). Moreover, to the extent Bracey

claims the recent decisions in Davis and Burton affect this Court’s prior

ruling, we note “‘subsequent decisional law does not amount to a new ‘fact’

under section 9545(b)(1)(ii) of the PCRA.’” Commonwealth v. Brandon, 51

A.3d 231, 235 (Pa. Super. 2012) (quotation omitted).




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      Lastly, we also conclude Bracey is not entitled to relief pursuant to the

newly recognized constitutional rights exception.       Our Supreme Court has

explained:

      Subsection (iii) of Section 9545 has two requirements. First, it
      provides that the right asserted is a constitutional right that was
      recognized by the Supreme Court of the United States or this court
      after the time provided in this section. Second, it provides that
      the right “has been held” by “that court” to apply retroactively.
      Thus, a petitioner must prove that there is a “new” constitutional
      right and that the right “has been held” by that court to apply
      retroactively. The language “has been held” is in the past tense.
      These words mean that the action has already occurred, i.e., “that
      court” has already held the new constitutional right to be
      retroactive to cases on collateral review. By employing the past
      tense in writing this provision, the legislature clearly intended that
      the right was already recognized at the time the petition was filed.

Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002).

      The Burton decision does not meet either of these requirements. The

Supreme Court did not state its ruling was based upon the petitioner’s

constitutional rights, and it did not hold its decision should apply retroactively.

See Burton, supra.

      Accordingly, because Bracey has failed to demonstrate the applicability

of any of the three timing exceptions, we conclude the PCRA court properly

dismissed his petition as untimely filed.

             Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/20/18




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