J-S49022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    GEORGE WILLIAMS

                             Appellant                  No. 360 EDA 2019


             Appeal from the PCRA Order entered January 10, 2019
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0419612-1990


BEFORE: BENDER, P.J.E., STABILE, J. and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                       FILED NOVEMBER 18, 2019

       Appellant, George Williams, appeals pro se from the January 10, 2019

order entered in the Court of Common Pleas of Philadelphia County, denying

as untimely Appellant’s sixth petition for collateral relief filed pursuant to the

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

including review of Appellant’s reply brief, we affirm.1

____________________________________________


* Former Justice specially assigned to the Superior Court.

1 On August 29, 2019, Appellant filed a “Motion for Leave to File Attachments
to Reply Brief.” The motion is GRANTED. We have considered both his reply
brief and the attachments thereto in reaching our decision. We note, however,
that the focus of Appellant’s reply brief relates to perceived inconsistencies
between the counterstatement of the case in the Commonwealth’s brief and
the factual background set forth in an opinion authored by Third Circuit Court
of Appeals Judge Marjorie O. Rendell in a case involving Appellant’s accomplice
and co-defendant, Michael Rainey. See Rainey v. Secretary Pennsylvania
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        The PCRA court provided the following procedural history:

        On December 7, 1989, [Appellant] and an accomplice fatally shot
        seventy-four-year-old Carrol Fleming during a robbery at his
        home. On December 27, 1991, following a jury trial presided over
        by the Honorable John J. Poserina Jr., [Appellant] was convicted
        of second-degree murder, robbery, and possession of an
        instrument of crime. On April 8, 1994, the trial court imposed a
        sentence of life imprisonment. On December 21, 1994, following
        a direct appeal, the Superior Court affirmed the judgment of
        sentence. [Appellant] did not seek allocatur in the Pennsylvania
        Supreme Court.

PCRA Court Opinion, 3/29/19, at 1 (footnote omitted).

        As the PCRA court explained, Appellant filed his first PCRA petition on

March 4, 1995. The petition was dismissed as meritless and his subsequent

appeal was unsuccessful. Likewise unsuccessful were Appellant’s four PCRA

petitions filed between 2006 and 20122, all of which were neither timely filed

nor saved by any exception to the PCRA’s timeliness requirements.3 Id. at 2.

        Appellant filed his sixth PCRA petition on December 27, 2016.       On

October 9, 2018, the PCRA court notified Appellant that the petition, including

____________________________________________


Department of Corrections, 658 Fed.Appx. 142 (3d. Cir. 2016). Appellant’s
contention that the Commonwealth authored the statement of the case in the
Third Circuit opinion strains credulity. Further, to the extent any differences
exist in the two accounts, those differences are de minimus and
inconsequential.

2 In July 2013, Appellant filed a supplement to his 2012 petition. The PCRA
court addressed the supplemental petition when it dismissed the 2012 petition
as untimely. PCRA Court Opinion, 11/24/14, at 2.

3   42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).




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a supplemental petition filed on April 27, 2017, would be dismissed in

accordance with Pa.R.Crim.P. 907.4 Appellant filed a response on October 29,

2018. On January 10, 2019, the court dismissed the petition. This timely

appeal followed. Both Appellant and the PCRA court complied with Pa.R.A.P.

1925.

        In this appeal, Appellant asks us to consider four issues, which we set

forth here verbatim:

        1. WHETHER APPELLANT SATISFIED THE FILING REQUIREMENTS
           OF 42 PA.C.S. § 9545(B)(1)(i-iii)(2) WHEN HIS APRIL [27],
           2017 PCRA PETITION WAS FILED WITHIN 60 DAYS OF THE
           PENNSYLVANIA SUPREME COURTS MARCH 28, 2017
           ANNOUNCEMENT OF COMMONWEALTH-V-BURTON, 2015 PA
           SUPER 176, WAP 2016 AND PROPERLY PLED STATUTORY
           EXCEPTION 42 PA.C.S. § 9545(B)(1)(III)?

        2. WHETHER APPELLANT’S SENTENCE IS LAWFUL WHEN THERE
           IS NO SENTENCING STATUTE AUTHORIZING A MANDATORY
           LIFE IMPRISONMENT SENTENCE UNDER 18 PA.C.S. § 1102
           FOR SECOND DEGREE MURDER AS OF HIS 12/27/91
           CONVICTION AND 4/8/94 SENTENCING; AND THIS COURT DID
           NOT HAVE AN OPPORTUITY TO IMPOSE AN ALTERNATIVE
           SENTENCE UPON FINDING THAT NO AGGRAVATING FACTORS
           WERE PRESENT TO WARRANT A MANDATORY LIFE
           IMPRISONMENT SENTENCE AND/OR TO HEAR MITIGATING
           FACTORS AND TO TAILOR AN APPROPRIATE SENTENCE TO
           ADDRESS THE REHABILITIVE NEED OF THE 20 YEAR OLD
           CHILD/JUVENILE (42 PA.C.S. § 6138 GIVES 18, 19 AND 21
           YEARS OF AGE FOR A CHILD)?
____________________________________________


4 The document filed by Appellant on December 27, 2016 was actually a letter
directed to the Honorable Jeffrey Minehart, who had dismissed Appellant’s fifth
PCRA petition as untimely. On April 27, 2017, Appellant “supplemented” the
letter with a document titled, “Petition under [PCRA].” PCRA Petition,
4/27/17, at 1. The matter was assigned to the Honorable Genece Brinkley,
who considered the filings jointly before issuing the Rule 907 notice.


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      3. WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL WHEN
         THE SUPERIOR COURT PANEL ANNOUNCED IN ITS JULY 14,
         2015 NONPRECENDENTIAL DECISION FOR THE FIRST TIME
         THAT APPELLANT’S TRIAL TRANSCRIPTS HAVE BEEN
         PERMANENTLY LOST AND THERE IS NO TRANSCRIBED
         RECORD OF APPELLANT’S CONVICTION FOR THE COURT TO
         REVIEW?

      4. WHETHER    APPELLANT   IS  ENTITLED    TO   REMAND,
         DEVELOPMENT OF RECORD AND/OR A NEW TRIAL BASED
         UPON: THE SUPRESSED 75-48S (POLICE REPORTS), MAY 28,
         2013 AFFIDAVIT OF KEVIN M. LEWIS; ADAs BARBARA
         CHRISTIE,  THOMAS    PERRICONE,    AND    DETECTIVES
         MISCONDUCT; AND THE KNOWINGLY USED PERJURED
         TESTIMONY OF ALVIN “EYEBALL” MORGAN AND KEVIN M.
         LEWIS LEFT UNCORRECTED BY ADA PERRICONE THAT WAS
         PREVIOUSLY UNKNOWN TO APPELLANT, BUT THAT HAS SINCE
         BEEN REVEALED/DISCOVERED?

Appellant’s Brief at vi.

      “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).   All PCRA petitions, “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes final.”

42 Pa.C.S.A. § 9545(b)(1). The one-year time limitation, however, can be

overcome if a petitioner (1) alleges and proves one of the three exceptions

set forth in Section 9545(b)(1)(i)-(iii) of the PCRA, and (2) files a petition




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raising this exception within sixty days of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).5

        We begin by addressing the timeliness of Appellant's petition,

recognizing that “[t]he 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.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation 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

Brady6 claim separate from consideration of its timeliness).                       Further,

“[a]lthough legality of sentence is always subject to review within the PCRA,

claims must still first satisfy the PCRA’s time limits or one of the exceptions

thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).

        As noted above, this Court affirmed Appellant’s judgment of sentence

on December 21, 1994.             Appellant did not seek allowance of appeal.

Therefore, Appellant’s judgment of sentence was final on January 20, 1995,



____________________________________________


5 Section 9545(b)(2) was amended, effective December 24, 2018, to enlarge
the deadline from sixty days to one year. Appellant’s petition and the claims
raised therein predate the amendment.

6   Brady v. Maryland, 373 U.S. 83 (1963).

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when his time to seek allowance of appeal expired.         See Pa.R.A.P. 1113.

Consequently, Appellant had until Monday, January 22, 1996, to file a PCRA

petition. The instant petition filed on December 27, 2016, and supplemented

on April 27, 2017, is facially untimely.     Unless Appellant has alleged and

proven an exception to the PCRA’s time bar, neither this Court nor the PCRA

court can exercise jurisdiction over his claims.

      To invoke an exception to the PCRA’s time bar, a petitioner must allege

and prove:

      (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).

      As the PCRA court recognized, Appellant attempted to invoke the newly-

recognized constitutional right exception to save his untimely sixth PCRA

petition. Specifically, Appellant “advanced the Pennsylvania Supreme Court’s

decision in Commonwealth v. Burton, 158 A.3d 618 (Pa. Super. 2017).”

PCRA Court Opinion, 3/29/19, at 4 (citing Appellant’s Supplemental Petition,

4/27/17, at 1). However, Appellant failed “to show that Burton created a


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new constitutional right for purposes of subsection 9545(b)(1)(iii).”           Id.

Therefore, the court determined, Appellant’s “attempt to resurrect claims

raised in prior PCRA petitions on the basis of Burton was unavailing.” Id.

      We agree.     In Commonwealth v. Kretchmar, 189 A.3d 459 (Pa.

Super. 2018), appeal denied, 198 A.3d 1046 (Pa. 2018), this Court rejected

a claim that Burton created a new constitutional right. The Court announced:

      In Burton, our Supreme Court held that the presumption that
      information which is of public record cannot be deemed
      “unknown,” for purposes of Section 9545(b)(1)(ii), does not apply
      to incarcerated, pro se petitioners. Burton, 158 A.3d at 638.
      Nowhere in the Burton decision did our Supreme Court suggest
      the creation of a new constitutional right, nor did the Court engage
      in any form of constitutional analysis in reaching that decision. To
      the contrary, Burton is a case of statutory construction or, more
      specifically, it limits the scope of a prior interpretation of the text
      of Section 9545(b)(1)(ii). In narrowing that prior interpretation,
      the Burton Court did not invoke any provisions or rights set forth
      in the Pennsylvania or Federal Constitutions. Indeed, there is not
      a single reference to either Constitution in the opinion.

      Instead, the Burton Court grounded its decision on two precepts.
      First, the Burton Court determined that “the application of the
      public record presumption to pro se prisoners is contrary to the
      plain language of subsection 9545(b)(1)(ii)[.]” Id.
      (emphasis added). Second, the Court found that the prior
      interpretation “was imposed without any apparent consideration
      of a pro se prisoner’s actual access to information of public
      record.” Id. Thus, the Burton decision was based on the plain
      text of Section 9545(b)(1)(ii), and a common sense
      understanding that incarcerated PCRA petitions do not have carte
      blanche access to information in the public domain.

      Moreover, the Burton decision did not constitute a watershed rule
      of criminal procedure.

Id. at 463 (emphasis in original).




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     The PCRA court also properly rejected Appellant’s reliance on Miller v.

Alabama, 132 S.Ct. 2455 (2012), to resurrect his time-barred claim under

the new constitutional right exception. PCRA Court Opinion, 3/29/19, at 4

(addressing Miller claim asserted in Appellant’s December 27, 2016 filing).

The United States Supreme Court recognized Miller’s retroactive application

on collateral review in Montgomery v. Louisiana, 136 S.Ct. 718 (2016).

However, Miller proscribes a sentence of “mandatory life without parole for

those under the age of 18 at the time of their crimes[.]” Miller, 132 S.Ct.

at 2460 (emphasis added).     Appellant was 20 years old at the time of his

crime. Therefore, as this Court recognized when rejecting Appellant’s Miller

claim raised in his fifth PCRA petition, “the holding in Miller is wholly

inapplicable to [Appellant’s] case, and [Appellant] has failed to plead and

prove a timeliness exception with respect to this claim.” Commonwealth v.

Williams, 2523 EDA 2014, unpublished memorandum at 6 (Pa. Super. filed

July 14, 2015).

     In addition to the newly-recognized constitutional right exception,

Appellant suggests he has satisfied the requirements of the newly-discovered

facts exception with respect to three police reports and a May 28, 2013

affidavit from Commonwealth witness Kevin Lewis that highlights alleged

misconduct of assistant district attorneys and detectives relating to perjured

testimony of Commonwealth witnesses.           These claims were likewise




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considered and rejected by this Court in response to Appellant’s fifth PCRA

petition as lacking in merit. Id. at 6-13.

      We conclude the PCRA court’s findings with regard to Appellant’s sixth

PCRA petition are supported by the record. To the extent claims of newly-

discovered facts were not addressed in the PCRA court’s March 2019 opinion,

we find those claims were previously litigated and rejected as meritless.

Further, we discern no error in the PCRA court’s conclusions regarding

untimeliness of the petition and the lack of any applicable exception to save

the petition from the PCRA’s time bar. Therefore, we shall affirm the order of

the PCRA court dismissing Appellant’s petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/19




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