J-S53018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NATHANIEL JACKSON                          :
                                               :
                       Appellant               :   No. 2716 EDA 2017

                   Appeal from the PCRA Order July 31, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1300127-2006,
                             CP-51-CR-1300175-2006


BEFORE:      GANTMAN, P.J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                             FILED SEPTEMBER 17, 2018

        Nathaniel Jackson appeals pro se from the order entered July 31, 2017,

in the Court of Common Pleas of Philadelphia County, dismissing as untimely

his second petition filed pursuant to the Pennsylvania Post Conviction Relief

Act, 42 Pa.C.S. §§ 9541-9546.1 Jackson seeks relief from the judgment of

sentence of life imprisonment and a consecutive term of seven to 20 years,

after he was convicted by a jury of first degree murder, robbery, possession
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   Retired Senior Judge assigned to the Superior Court.

1 On June 28, 2018, the Commonwealth filed a notice pursuant to Rule of
Professional Conduct 1.12(c)(2), informing this Court and Jackson that First
Assistant District Attorney Carolyn Temin had previously participated as the
trial judge in this case. The notice also states that First Assistant District
Attorney Carolyn Temin “has disqualified and screened herself from any
participation in this matter.” See Pa. R. Prof. Conduct 1.12(c)(2).
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of an instrument of crime, conspiracy, and carrying a firearm without a

license.2    Jackson claims (1) he is entitled to an evidentiary hearing on his

claim of newly discovered evidence, (2) he is entitled to a new trial based

upon his claim of newly discovered evidence, and (3) he is entitled to a

resentencing hearing based upon the United States Supreme Court decision

in Miller v. Alabama, 567 U.S. 460 (2012). Based upon the following, we

affirm.

        The facts underlying Jackson’s conviction have been succinctly

summarized by the PCRA court:

        [Jackson] was arrested and subsequently charged in connection
        with the shooting death of Kenna Carey on December 5, 2005, in
        the city and county of Philadelphia. [Jackson] was also charged
        with an incident occurring earlier in the day, in which a shotgun
        was fired into the residence of Ronald Long, also in the city and
        county of Philadelphia.


PCRA Court Opinion, 9/14/2017, at 1.

        On October 10, 2007, a jury convicted Jackson of the above stated

charges and the trial court sentenced him on December 18, 2007, to an

aggregate term life imprisonment plus 7 to 20 years. On July 20, 2009, this

Court affirmed the judgment of sentence, and the Pennsylvania Supreme

Court denied Jackson’s petition for allowance of appeal on December 31, 2009.




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2   18 Pa.C.S. §§ 2502(a), 3701(a)(1)(i), 907(a), 903, 6106(a)(1), respectively.


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Commonwealth v. Jackson, 981 A.2d 923 (Pa. Super. 2009), appeal

denied, 989 A.2d 8 (Pa. 2009).

       On July 26, 2010, Jackson filed his first PCRA petition, which was

unsuccessful. Commonwealth v. Jackson, 82 A.3d 455 (Pa. Super. 2013),

appeal denied, 86 A.3d 232 (Pa. 2014).

       On July 16, 2015, Jackson filed the present PCRA petition. Jackson also

submitted numerous supplemental filings, which the PCRA court reviewed

jointly with the 2015 petition. See PCRA Court Opinion, 9/14/2017, at 2. On

June 19, 2017, the PCRA court issued Pa.R.Crim.P. 907 notice of intent to

dismiss the petition. On July 31, 2017, the PCRA court dismissed the PCRA

petition as untimely. This appeal followed.3

       “Our review of a PCRA court’s decision is limited to examining whether

the PCRA court's findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Cox, 636

Pa. 603, 146 A.3d 221, 226 n.9 (Pa. 2016) (citation omitted).

       We first address Jackson’s claim that he is entitled to an evidentiary

hearing based upon his claim of newly discovered evidence.

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

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

final at the conclusion of direct review, including discretionary review in the


____________________________________________


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

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

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

Here, Jackson’s judgment of sentence became final on March 31, 2010, 90

days after the Pennsylvania Supreme Court denied his petition for allowance

of appeal from his direct appeal, and he failed to petition for a writ of certiorari

in the United States Supreme Court. See U.S. Sup. Ct. Rule 13. Therefore,

Jackson had until March 31, 2011, to file a timely petition. As such, Jackson’s

present petition, filed July 16, 2015, is patently untimely.

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

of the three time-for-filing exceptions applies. See 42 Pa.C.S. § 9545(b)(1)(i)-

(iii). Any petition raising a statutory exception must be filed “within 60 days

of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(3).

Here, Jackson’s claim of newly discovered evidence implicates the unknown

facts exception to the PCRA’s one-year time bar.               See 42 Pa.C.S. §

9545(b)(1)(ii).

      With regard to Section 9545(b)(1)(ii), our Court has explained:

      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. Commonwealth v.
      Bennett, 930 A.2d 1264, 1271 (Pa. 2007). Due diligence
      demands that the petitioner take reasonable steps to protect his
      own interests. Commonwealth v. Carr, 768 A.2d 1164, 1168
      (Pa. Super. 2001). A petitioner must explain why he could not
      have learned the new fact(s) earlier with the exercise of due
      diligence. Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa.
      2001); Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.


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      Super. 2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011).
      This rule is strictly enforced. Id. …

Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015).

      In support of his claim of newly discovered evidence, Jackson submitted

an affidavit from Lynn Chamberlin, dated June 30, 2015, which he contends

satisfies Section 9545(b)(1)(ii). The affidavit reads:

      I, Lynn Chamberlin, am willing and available to appear in a court
      of law, and testify on behalf of my claim that on the morning of
      December 5, 2005, Nathaniel Jackson did not own a shotgun and
      did not shoot at my grandfather, Ronald Long, through the
      window. I was present that morning inside of my grandfather’s
      house.

      After Nathaniel’s trial in 2007, my grandfather told me that he lied
      on Nathaniel to get out of going to jail himself. He was not fond
      of Nathaniel being my boyfriend and that he would get rid of
      Nathaniel by filing a false police report, if I did not end our
      relationship. At the time, my grandfather owed money to other
      guys for buying crack cocaine and would not pay them. Those
      guys are the ones that shot at my grandfather’s front window.

      I, Lynn Chamberlin, do hereby verify that the facts set forth in the
      above statement are true and correct to the best of my
      knowledge, information and belief, and that any false statements
      made herein are made subject to the penalties of section 4904 of
      the Crimes Code (18 Pa.C.S. [§] 4904) relating to unsworn
      falsification to authorities.

Jackson’s PCRA Petition, 7/16/2015, Exhibit "A".

      In assessing import of the affidavit on Jackson’s trial, the PCRA court

explained:

      [Jackson’s] trial consolidated two separate incidents, both
      occurring on December 5, 2005. The first involved a shotgun
      being discharged into Mr. Long’s residence that morning. The
      second, involved the killing of Mr. Carrey with the use of a shotgun
      later that day. They were consolidated as it was used to prove

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      [Jackson] was in possession of a shotgun on that day. The
      affidavit relates solely to the first incident, though [Jackson]
      contends that these allegations will call into question the
      determination of guilt in [the] second incident as well.

PCRA Court Opinion, 9/14/2017, at 5 n.8.    Furthermore, the PCRA court

analyzed the affidavit as follows:

      [E]ven if Long’s statement to Chamberlin constituted a previously-
      unknown fact, [Jackson] failed to demonstrate that the
      information could not have been discovered earlier through the
      exercise of due diligence. Assuming that Chamberlin’s statement
      is true, [Jackson] failed to demonstrate that this could not have
      been addressed earlier through the exercise of due diligence.
      [Jackson] indicated that he learned of Chamberlin’s statement
      regarding Long through his brother, immediately obtained an
      affidavit and subsequently filed a pro se PCRA Petition, though he
      does not provide a date on which this statement was relayed to
      him. See [Jackson’s] Response to [Rule] 907 Notice, 7/25/17 at
      exhibit “A.” He presents this as evidence of his exercise of due
      diligence. Beginning in 2007, [Jackson] has known Long testified
      Chamberlin was present during the incident. However, there is no
      explanation as to why efforts were not made to investigate
      Chamberlin’s version of the events, beginning in 2007. Assuming
      this recanted version is true, an exercise of due diligence would
      have resulted in Chamberlin presenting exculpatory evidence
      nearly a decade ago. While it may not have been possible to
      obtain the alleged recantation earlier with the exercise of due
      diligence, much stronger evidence in the form of Chamberlin’s
      eye-witness testimony would have been obtainable since 2007.
      Thus, [Jackson’s] failure to demonstrate due diligence between
      2007 and 2015 was fatal to his attempt to satisfy subsection
      9545(b)(1)(ii),

Id. at 5-6.

      Based on our review of the record, the parties’ briefs, and the relevant

statutory and case law, we agree with the PCRA court’s assessment.

Chamberlin was Jackson’s girlfriend, and Jackson was aware of Long’s

testimony, and he has failed to show why he could not have obtained the


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information from Ms. Chamberlin sooner with the exercise of due diligence.

See Brown, supra.4            Therefore, Jackson’s petition does not fall within

Section 9545(b)(1)(ii)’s timeliness exception.

       In his final issue, Jackson contends that based upon the recent United

States Supreme Court decisions in Miller, supra, and Montgomery v.

Louisiana, 136 S. Ct. 718 (2016), he is entitled to review pursuant to the

PCRA’s exception for a newly recognized constitutional right, set forth at 42

Pa.C.S. § 9545(b)(1)(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”).

       In Miller, supra, the United States Supreme Court held that

“mandatory life without parole for those under the age of 18 at the time of

their crimes violates the Eighth Amendment's prohibition on cruel and unusual

punishments.” Miller, 567 U.S. at 465 (emphasis added). Subsequently, in

Montgomery, supra, the United States Supreme Court decided the Miller

holding was a new substantive right that, under the United States

Constitution, must be applied retroactively in cases on state collateral review.

Montgomery, 136 S.Ct. at 736.


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4 Because Jackson failed to satisfy the unknown facts exception, 42 Pa.C.S. §
9545(b)(1)(ii), we need not address his second issue wherein he contends he
is entitled to a new trial based on the newly discovered evidence of Ms.
Chamberlin.

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      Jackson’s reliance on these decisions is misplaced.      Jackson was 20

years old when he committed the murder and therefore Miller, and by

extension Montgomery, do not apply to him.           See Commonwealth v.

Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (relying on the holding in

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) “that

petitioners who were older than 18 at the time they committed murder are

not within the ambit of the Miller decision and therefore may not rely on that

decision to bring themselves within the time-bar exception in Section

9545(b)(1)(iii).”). Accordingly, Jackson’s petition does not fall within Section

9545(b)(1)(iii)’s timeliness exception.

      In sum, because Jackson has failed to satisfy any exception to the

PCRA’s time bar, his petition is untimely and there is no jurisdiction to review

this petition on the merits. Accordingly, we affirm the PCRA court’s dismissal

of Jackson’s second PCRA petition without an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/18




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