J. S70009/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
GREGORY SAMUELS,                          :         No. 4088 EDA 2017
                                          :
                           Appellant      :


                Appeal from the PCRA Order, December 5, 2017,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0609081-2000


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED DECEMBER 20, 2018

        Gregory Samuels appeals pro se from the December 5, 2017 order

denying his third petition filed pursuant to the Post Conviction Relief Act

(“PCRA”)1 as untimely. After careful review, we affirm.

        The PCRA court summarized the relevant facts and procedural history

of this case as follows:

              On September 6, 1999, [appellant] fatally shot his
              girlfriend, Bathsheba Woodall, in Philadelphia.
              U.S. Marshalls apprehended [appellant] several
              months later in Jamaica.        On March 23, 2001,
              following a jury trial presided over by the Honorable
              James A. Lineberger, [appellant] was convicted of
              first-degree murder and possession of an instrument
              of crime (“PIC”).[2] On the same date, the trial court
              sentenced [appellant] to life imprisonment for the

1   42 Pa.C.S.A. §§ 9541-9546.

2   18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.
J. S70009/18


          murder conviction and a lesser, consecutive term of
          incarceration for the     PIC conviction.       On
          November 14, 2002, following a direct appeal, the
          Superior Court affirmed the judgment of sentence.
          [See Commonwealth v. Samuels, 816 A.2d 334
          (Pa.Super. 2002), appeal denied, 863 A.2d 1145
          (Pa. 2004).]    The Pennsylvania Supreme Court
          denied allocatur on November 12, 2004. [Id.]

          While his petition for allowance of appeal was still
          pending before our Supreme Court, [appellant] filed
          his first pro se PCRA petition on November 7,
          2003.[Footnote 4]      Counsel was appointed who
          subsequently filed a Turner/Finley “no-merit”
          letter.[Footnote 5] After conducting an independent
          review,    the   PCRA    court   denied   relief on
          November 23, 2004 and granted counsel leave to
          withdraw.    On May 3, 2006, the Superior Court
          affirmed the PCRA court’s denial of post-conviction
          relief. [See Commonwealth v. Samuels, 903 A.2d
          51 (Pa.Super. 2006).]      [Appellant] did not seek
          allocatur in the Pennsylvania Supreme Court.

               [Footnote 4] Although [appellant’s] PCRA
               petition was premature, the PCRA court
               did not finally rule on his petition until
               after the Pennsylvania Supreme Court
               denied his petition for allowance of
               appeal. Accordingly, the PCRA court
               deemed [appellant’s] petition timely filed
               on November 13, 2004, the day after our
               Supreme Court denied allowance of
               appeal.

               [Footnote   5]   Commonwealth     v.
               Turner, 544 A.2d 927 (Pa. 1988), and
               Commonwealth v. Finley, 550 A.2d
               213 (Pa.Super. 1988) (en banc).

          [Appellant] was subsequently unsuccessful in
          obtaining post-conviction relief through a serial PCRA
          petition filed in 2012. [See Commonwealth v.
          Samuels, 122 A.3d 1141 (Pa.Super. 2015), appeal
          denied, 126 A.3d 1284 (Pa. 2015).]


                                  -2-
J. S70009/18



            On January 24, 2017, [appellant] filed the instant
            pro se PCRA petition, his third. [Appellant] filed an
            amended petition [on May 2, 2017] which was
            reviewed jointly with his initial petition. Pursuant to
            Pennsylvania Rule of Criminal Procedure 907,
            Petitioner was served notice of the PCRA court’s
            intention to dismiss his petition on November 16,
            2017. [Appellant] did not submit a response to the
            Rule 907 notice. On December 5, 2017, the PCRA
            court dismissed his PCRA petition as untimely. On
            December 12, 2017, the instant notice of appeal was
            timely filed to the Superior Court.

PCRA court opinion, 4/16/18 at 1-2 (additional footnotes omitted).3

      Appellant raises the following issues for our review:

            1.    Is the after discovered fact is [sic] readily
                  available in public domain, and should be
                  considered previously known facts?

            2.    Does pro se prisoner have readily available
                  access to public information?

Appellant’s brief at 8 (unnecessary capitalization omitted).4

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in


3The PCRA court did not order appellant to file a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b). On April 16,
2018, the PCRA court filed its Rule 1925(a) opinion.

4 Appellant’s pro se brief does not contain pagination; for the ease of our
discussion, we have assigned each page a corresponding number.


                                     -3-
J. S70009/18

the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.

2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.”       Commonwealth v. Hickman,

799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).          Additionally, we

note that, “[a]lthough this Court is willing to liberally construe materials filed

by a pro se litigant, pro se status confers no special benefit upon the

appellant[.]”    Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super.

2005) (citation omitted).

         All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence becomes

final.    42 Pa.C.S.A. § 9545(b)(1).      “A judgment becomes final at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

If a PCRA petition is untimely, a court lacks jurisdiction over the petition.

Commonwealth v. Callahan, 101 A.3d 118, 120-121 (Pa.Super. 2014).

         Here, appellant’s judgment of sentence became final on February 10,

2005, 90 days after our supreme court denied allowance of appeal and the

deadline for filing a petition for writ of certiorari in the Supreme Court of

the United States expired.      See 42 Pa.C.S.A. § 9545(b)(3).       Accordingly,

appellant had until February 10, 2006, to file a timely PCRA petition. See



                                      -4-
J. S70009/18

42 Pa.C.S.A. § 9545(b)(1). Appellant’s instant petition, filed nearly 11 years

later on January 24, 2017, is patently untimely. As a result, the PCRA court

lacked jurisdiction to review appellant’s petition, unless appellant alleged

and proved one of the statutory exceptions to the time-bar, as set forth in

Section 9545(b)(1).

      To invoke an exception under Section 9545(b)(1), 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).

      The crux of appellant’s argument is that his recent discovery of

allegations of police misconduct on the part of Detective Thomas Augustine,

the detective who took his statement in this case approximately 18 years

ago, satisfies the newly discovered fact exception to the PCRA time-bar.

(Appellant’s          brief   at   1-2.)      Appellant    alleges   he      discovered


                                            -5-
J. S70009/18

Detective Augustine’s misconduct from a Philadelphia Daily News article

that circulated during his “lifer’s association meeting” at SCI-Dallas on

January 8, 2017, which in turn led him to discover the United States District

Court’s decision in Hill v. Wetzel, 279 F.Supp.3d 550 (E.D. Pa. 2016).

(Id.; see also amended PCRA petition, 5/2/17 at unnumbered page 6, ¶ 23

and Exhibit B.)        In Hill, the United States District Court set forth

Detective Augustine’s     misconduct    in   taking    two     defendants’         sworn

statements “in the infamous 1995 ‘center city jogger’ case.”                See Hill,

279 F.Supp.3d at 558 n.9. This claim is meritless.

     Contrary     to    appellant’s   contention,     we     find   the     fact    that

Detective Augustine was involved in misconduct in unrelated cases does not

constitute a newly discovered fact that would invoke the protections afforded

by Section 9545(b)(1)(ii). Rather, the alleged newly discovered fact simply

supports a previously known “fact,” and therefore does not satisfy the

exception to the time-bar.       “[T]he focus of [the newly discovered fact]

exception is on the newly discovered facts, not on a newly discovered or

newly willing source for previously known facts.” Commonwealth v.

Fennell, 180 A.3d 778, 782 (Pa.Super. 2018) (citation omitted), appeal

denied, 192 A.3d 1111 (Pa. 2018).            Moreover, appellant has failed to

present a scintilla of verifiable evidence to support his contention that

Detective Augustine coerced or engaged in any misconduct whatsoever in

the taking of appellant’s statement in the case sub judice.               Additionally,



                                       -6-
J. S70009/18

even    if   appellant’s   claim   met       the   underlying     requirements    of

Section 9545(b)(1), he still would not be entitled to any relief. Appellant has

failed to demonstrate that he brought this exception to the PCRA time-bar

within 60 days of the date it could have been presented, as required by

Section 9545(b)(2).        Hill was decided on November 10, 2016; the

Philadelphia     Daily     News    article    in   question     was   published   on

November 17, 2016; and appellant did not file the instant pro se PCRA

petition until January 24, 2017.

       Based on the foregoing, we discern no error on the part of the PCRA

court in dismissing appellant’s third PCRA petition as untimely.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 12/20/18




                                       -7-
