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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :       IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
                     Appellee               :
                                            :
              v.                            :
                                            :
LAMONT GIST,                                :
                                            :
                     Appellant              :           No. 2620 EDA 2014

             Appeal from the PCRA Order entered on August 27, 2014
              in the Court of Common Pleas of Philadelphia County,
                  Criminal Division, No. CP-51-CR-1004651-1996

BEFORE: STABILE, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED APRIL 15, 2015

      Lamont Gist (“Gist”), pro se, appeals from the Order dismissing his

third Petition filed pursuant to the Post Conviction Relief Act (“PCRA”). See

42 Pa.C.S.A. §§ 9541-9546. We affirm.

      In August 1996, Gist shot and killed one man, and injured another,1

while they were gambling in a parking lot in Philadelphia. One year later, a

jury found Gist guilty of first-degree murder, aggravated assault and

possession of an instrument of crime. The trial court sentenced Gist to life

in prison.    This Court affirmed the judgment of sentence, after which the

Supreme      Court   of   Pennsylvania   denied   allowance   of   appeal.   See

Commonwealth v. Gist, 739 A.2d 586 (Pa. Super. 1999) (unpublished




1
 The injured man, Brian Johnston (“Johnston”), testified against Gist at trial
and identified him as the shooter.
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memorandum), appeal denied, Commonwealth v. Gist, 742 A.2d 168 (Pa.

1999).

        In January 2000, Gist filed a PCRA Petition. Subsequently, he retained

new counsel, who filed an Amended PCRA Petition. The PCRA court denied

the Petition. Gist did not file an appeal. Gist filed a second PCRA Petition in

July 2002, seeking the reinstatement of his right to appeal the dismissal of

his first PCRA Petition.    Although the PCRA court reinstated Gist’s appeal

rights, in September 2004, this Court quashed the appeal, determining that

Gist’s Petitions were untimely filed. See Commonwealth v. Gist, 863 A.2d

1222 (Pa. Super. 2004) (unpublished memorandum). The Supreme Court of

Pennsylvania      subsequently    denied    allowance    of   appeal.     See

Commonwealth v. Gist, 871 A.2d 188 (Pa. 2005).

        On March 7, 2014, Gist filed the instant pro se PCRA Petition.

Subsequently, the PCRA court gave Gist Notice, pursuant to Pa.R.Crim.P.

907, of its intention to dismiss his PCRA Petition without a hearing,

concluding that the Petition was not timely filed, and Gist had not proven

any of the three exceptions to the PCRA’s one-year jurisdictional time-bar.2

Shortly thereafter, Gist filed a Response to the court’s Rule 907 Notice. By

an Order entered on August 27, 2014, the PCRA court dismissed Gist’s

Petition. Gist timely filed a pro se Notice of Appeal.

        On appeal, Gist presents the following issues for our review:



2
    See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

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      1. Did [Gist] exercise diligence in ascertaining (i.e.
         discovering) the facts upon which [his] claims are
         predicated?

      2. Did the PCRA court commit error by refusing to allow
         [Gist] to proceed upon the merits of the claims?

      3. Was the failure to raise [Gist’s] claims previously the
         result of interference by government officials with
         presentation of the claims?

Brief for Appellant at 3 (issues renumbered).

      We begin by noting our well-settled standard of review: “In reviewing

the [dismissal] of PCRA relief, we examine 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).

      Under the PCRA, any PCRA petition, “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 PCRA’s timeliness requirements

are jurisdictional in nature and a court may not address the merits of the

issues raised if the PCRA petition was not timely filed. Commonwealth v.

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

      Gist concedes that his PCRA Petition is facially untimely, as it was filed

over thirteen years after his judgment of sentence became final in November

1999. However, according to Gist, he has met the requirements of two of

the PCRA’s timeliness exceptions: the governmental interference exception

and the newly discovered facts exception, set forth, respectively, in 42



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Pa.C.S.A. § 9545(b)(1)(i) and (ii) (providing that an untimely PCRA petition

may be considered timely if a petitioner alleges and proves (i) governmental

interference with the presentation of his claims; or (ii) discovery of

previously unknown facts which could not have been discovered earlier with

due diligence). See Brief for Appellant at 7-9.

      In his first and second issues,3 Gist contends that he met the newly

discovered facts exception based upon new information, which he had

allegedly discovered for the first time within sixty days of the filing of his

third PCRA Petition.   See id. at 6-8.    Specifically, Gist maintains that in

January 2014, he learned from a friend that one of the Commonwealth’s

witnesses at trial, Kadir Greene, had committed perjury by testifying under a

false identity and providing a false first name.4 Id. at 6. According to Gist,

this evidence reveals that Kadir Greene’s first name is, in fact, Clarence. Id.

      This Court has stated as follows concerning the newly discovered facts

exception:

            The timeliness exception set forth in Section 9545(b)(1)(ii)
      requires a petitioner to demonstrate he did not know the facts
      upon which he based his petition and could not have learned
      those facts earlier by the exercise of due diligence.        Due

3
 Gist’s second issue largely repeats the claims presented in his first issue.
Therefore, we will address these issues simultaneously.
4
  We explain in detail below the specific evidence concerning Kadir Greene
upon which Gist relies. Additionally, this Court explained the relevant
testimony of Kadir Greene in its Memorandum on direct appeal. See Gist,
739 A.2d 586 (unpublished memorandum at 4) (stating that Kadir Greene
testified to an incident that had occurred two weeks before the shooting,
wherein Gist had “pistol whipped” Johnston and pointed a gun at the murder
victim).

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     diligence demands that the petitioner take reasonable steps to
     protect his own interests. A petitioner must explain why he
     could not have learned the new fact(s) earlier with the exercise
     of due diligence. This rule is strictly enforced. Additionally, the
     focus of this exception is on the newly discovered facts, not on a
     newly discovered or newly willing source for previously known
     facts.

Commonwealth v. Brown, 2015 PA Super 24, *10 (Pa. Super. 2015)

(citations and quotation marks omitted).

     In its Pa.R.A.P. 1925(a) Opinion, the PCRA court explained the

evidence upon which Gist relies, and addressed Gist’s claims as follows:

            The evidence proffered by [Gist] consists of two exhibits
     [attached to his third PCRA Petition]: Exhibit A, which includes a
     portion of [Gist’s] trial transcript in which a witness identified as
     “Kadir Greene” is sworn in to testify, as well as a four[-]page
     “Investigation Interview Record” purportedly memorializing an
     interview conducted by Philadelphia Police Officers of one “Kadir
     Greene,” who states that he is also known by the nickname
     “CC.” Exhibit B contains a two-page printout from a website that
     appears to list a “Clarence Greene” as the owner of two houses
     in Philadelphia, and [a] screenshot of what appears to be a
     December 19, 2012, comment thread from the website
     Facebook, in which a woman sends the message “Clarence
     where have you been?” to an account with the username “C.c.
     Greene.” [Gist] claimed that these exhibits, taken together,
     proved that one of the witnesses at his trial testified under a
     false identity. As a result, [Gist] claims that his conviction was
     obtained by perjury, that his due process rights were violated by
     prosecutors because they failed to notify him of the alleged
     perjury, and that his counsel was ineffective for failing to
     discover the alleged perjury.

            [Gist’s] exhibits were insufficient for the purpose of
     pleading or proving [newly]-discovered [facts] for two reasons:
     First, as a threshold matter, the proffered exhibits failed to prove
     any facts relevant to this case, much less perjury. The fact that
     a witness named “Kadir Greene” was interviewed by Police and
     testified at [Gist’s] trial, coupled with a webpage printout
     alleging that a person named “Clarence Greene” lives in
     Philadelphia[,] and a Facebook comment in which a user named

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       “C.c. Greene” is referenced by another user as “Clarence,”
       proved nothing, other than the existence of a vast and limitless
       internet.    In sum, this purported evidence did not support
       [Gist’s] claim that a witness committed perjury at his trial.

             Second, and more importantly, [Gist] failed to explain
       why, with the exercise of due diligence, this purported evidence
       could not have been ascertained much earlier in the intervening
       years since his conviction became final, or at trial, where the
       witness in question was subject to cross-examination. The trial
       testimony of Kadir Greene and the police notes of his interview
       have been available to [Gist] for over a decade, and the
       Facebook comment upon which [Gist] bases his claim is dated
       over a year before the instant [PCRA P]etition was filed.

PCRA Court Opinion, 9/23/14, at 4-5 (unnumbered).                 Our review confirms

that the PCRA court’s cogent analysis is supported by the record and the

law, and we agree with the court’s determination that Gist failed to meet the

newly discovered facts exception.5

       Next,    Gist   argues   that    he     has   met   the   requirements   of    the

governmental interference exception, asserting that the Commonwealth

violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), by

allegedly withholding from the defense the fact that Kadir Greene’s legal first

name    is     Clarence.    See        Brief   for   Appellant   at   8-9;   see     also

Commonwealth v. Williams, 105 A.3d 1234, 1240 (Pa. 2014) (observing




5
  To the extent that Gist alleged in his PCRA Petition that his trial counsel
was ineffective for failing to discover the alleged perjury committed by
Greene, Gist does not raise this argument on appeal. Nevertheless, even if
Gist had argued this claim on appeal, we note that it would not save his
otherwise untimely PCRA Petition.       See Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 785 (Pa. 2000) (stating that “a claim for ineffective
assistance of counsel does not save an otherwise untimely petition for
review on the merits.” (citation omitted)).

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that a Brady violation may fall within the governmental interference

exception if the requirements of the exception are met). We disagree.

      Even assuming, arguendo, that Kadir Greene’s first name is Clarence,

Gist has not proffered any evidence in support of his bald claim that the

Commonwealth possessed this information, let alone withheld it from him.

      Furthermore, Gist has failed to establish a Brady violation. “[T]here is

no Brady violation when the appellant knew, or with reasonable diligence,

could have uncovered the evidence in question.”          Commonwealth v.

Bomar, 104 A.3d 1179, 1190 (Pa. 2014) (citation and brackets omitted).

Here, Gist has failed to explain why he could not have discovered Greene’s

legal first name earlier, with the exercise of due diligence. However, even if

Gist had uncovered and presented this evidence sooner, he fails to establish

a Brady violation because the evidence was not material. See id. at 1189

(setting forth the requirements to establish a Brady violation, including a

showing that “the undisclosed evidence must be material to guilt or

punishment.”    (citation   and   quotation   marks   omitted));   see    also

Commonwealth v. Chambers, 807 A.2d 872, 887 (Pa. 2002) (stating that

“[e]vidence is material only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would

have been different.” (citation omitted)).    Even if Gist had known prior to

trial that Greene was using a first name different from his legal name, at

most, Gist’s counsel could have used this in an attempt to impeach Greene’s




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credibility.6   However, we determine that this would not have altered the

outcome of the trial, particularly in light of the other significant evidence of

Gist’s guilt, including Johnston’s testimony.

      Based upon the foregoing, we conclude that Gist did not meet any of

the exceptions to the PCRA’s time bar. Therefore, the PCRA court properly

dismissed Gist’s third PCRA Petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/15/2015




6
 Moreover, unlike Johnston, Greene was not an eyewitness to the shooting.
Rather, he testified to the “bad blood” between Gist and the victims.

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