J-S41002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

PAUL SEAN JONES,

                            Appellant                 No. 2561 EDA 2015


             Appeal from the PCRA Order Entered August 10, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0000885-2010


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

MEMORANDUM BY BENDER, P.J.E.:                           FILED JUNE 22, 2016

        Appellant, Paul Sean Jones, appeals pro se from the post-conviction

court’s August 10, 2015 order denying, as untimely, his petition filed under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The facts of Appellant’s conviction are unnecessary to our disposition

of his appeal.     We only briefly note that Appellant, along with a cohort,

murdered Maurice Williams in June of 1998.         Appellant was charged with

various offenses and ultimately pled guilty to third-degree murder.        On

December 6, 2011, he received a sentence of 20 to 40 years’ imprisonment.

He did not file a direct appeal.



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*
    Former Justice specially assigned to the Superior Court.
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      Appellant did, however, file a timely, pro se PCRA petition and counsel

was appointed. After conducting a hearing on Appellant’s petition, the PCRA

court denied it.    Appellant timely appealed, and this Court affirmed.

Commonwealth v. Jones, 116 A.3d 681 (Pa. Super. 2014) (unpublished

memorandum).

      On June 29, 2015, Appellant filed a second, pro se PCRA petition,

which underlies the present appeal.    Therein, he argued that his sentence

was excessive and illegal, and also that his trial counsel and initial PCRA

counsel were ineffective in representing him. On June 30, 2015, the PCRA

court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s

petition. Therein, the court directed that Appellant had 20 days within which

to respond.

      On August 6, 2015, Appellant filed an untimely response to the court’s

Rule 907 notice, raising various new claims, including the assertions

presented herein (discussed infra).    On August 10, 2015, the PCRA court

issued an order denying Appellant’s petition. Appellant filed a timely notice

of appeal. The court did not direct him to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal, but the court did issue a Rule

1925(a) opinion on October 1, 2015.         On appeal, Appellant presents one

issue for our review:

      Whether the PCRA Court erred, and abused its discretion in its
      ruling when it denied Appellants [sic] PCRA Petition based on
      timeliness without conducting a full and fair evidentiary hearing
      where there is no time bar for a Brady/Giglio violation or actual
      innocence and where a challenge [to] jurisdiction can be brought

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      at any time regardless of timeliness[,] thus denying [Appellant]
      Equal Protection and Due Process of law under the 1st, 4th, 5th,
      6th, and 14th Amendments.

Appellant’s Brief at 5.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.      Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.    See Commonwealth v. Bennett, 930

A.2d 1264, 1267 (Pa. 2007).         Under the PCRA, any petition for post-

conviction relief, including a second or subsequent one, must be filed within

one year of the date the judgment of sentence becomes final, unless one of

the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (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




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             (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. § 9545(b)(1)(i)-(iii).    Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

     Here, Appellant’s judgment of sentence became final in January of

2012, making his petition filed in June of 2015 patently untimely.

Consequently, for this Court to have jurisdiction to review the merits of

Appellant’s claims, he must prove that he meets one of the exceptions to the

timeliness requirements set forth in 42 Pa.C.S. § 9545(b).

     Instantly, Appellant alleges in his brief that he meets the newly

discovered   fact   exception   of   section   9545(b)(1)(ii),    as    well    as   the

governmental interference exception of section 9545(b)(1)(i), based on the

Commonwealth’s       purportedly     withholding     “favorable        information….”

Appellant’s Brief at 8. Specifically, Appellant argues that the Commonwealth

withheld the fact that his arrest warrant was defective because it was “not

properly authorized by the appropriate issuing authority.”             Id.     Appellant

avers that he discovered this ‘new evidence’ on June 16, 2015, when the

“law library worker at [the State Correctional Institution at] Coal Township”

informed him that his arrest warrant was flawed in this regard. Id.

     Initially, the Commonwealth argues, and we agree, that Appellant

waived these claims for our review. We have examined Appellant’s pro se


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petition, as well as his “Legal Memorandum in Support of PCRA Petition,”

and it is clear that Appellant only argued that his plea counsel was

ineffective for not challenging the allegedly defective arrest warrant.            See

Legal    Memorandum        in   Support    of   PCRA   Petition,    6/29/15,      at    9

(unnumbered). Appellant did not argue that his discovery of the defect in

the     arrest   warrant    satisfied   section   9545(b)(1)(ii),     or   that        the

Commonwealth’s purportedly withholding this ‘evidence’ met the exception

of section 9545(b)(1)(i).       Instead, Appellant first raised these claims in

response to the PCRA court’s Rule 907 notice. Not only was that response

untimely filed, but Appellant also did not ask the court to consider his

response as an amendment to his petition, and the court did not explicitly

grant Appellant leave to amend. As our Supreme Court recently noted:

        The Rules of Criminal Procedure contemplate that amendments
        to pending PCRA petitions are to be “freely allowed to achieve
        substantial justice,” Pa.R.Crim.P. 905(A), but Rule 905
        amendments are not “self-authorizing” such that a petitioner
        may simply “amend” a pending petition with a supplemental
        pleading. See Commonwealth v. Porter, 613 Pa. 510, 523–
        24, 35 A.3d 4, 12 (2012). “Rather, the Rule explicitly states that
        amendment is permitted only by direction or leave of the PCRA
        court.” Id., 613 Pa. at 524, 35 A.3d at 12.

Commonwealth v. Mason, 130 A.3d 601, 621 (Pa. 2015).

        Because Appellant did not raise the claims he presents herein in his

initial petition, he did not seek leave to amend that petition, and he only

asserted these claims in an untimely-filed response to the court’s Rule 907

notice, we agree with the Commonwealth that he has waived these

arguments for our review. See Pa.R.A.P. 302(a) (“Issues not raised in the

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lower court are waived and cannot be raised for the first time on appeal.”);

see also Commonwealth v. Lambert, 797 A.2d 232, 240-42 (Pa. 2001)

(citing Rule 302(a) in concluding that claims not raised in a PCRA petition

are waived for appellate review).

      In any event, even if preserved, we would conclude that Appellant’s

arguments would not satisfy either of the exceptions set forth in section

9545(b)(1)(i) or (ii). Appellant does not claim that his arrest warrant was

unavailable to him; instead, he seems to contend that the fact that the

warrant was defective only became known to him when he spoke to the

prison law library worker.       Appellant maintains that the Commonwealth

withheld this “favorable information” from him in violation of Brady v.

Maryland, 83 S.Ct. 1194 (1963) (holding that the prosecution has a

constitutional   duty   to   disclose   to   the   defense   material,   exculpatory

evidence), and based on these facts, he has met the exceptions of section

9545(b)(1)(i) and (ii).

      Appellant makes no attempt to explain how the ‘new fact’ of the defect

in his arrest warrant could not have been discovered earlier with the

exercise of due diligence.     Appellant does not indicate when he came into

possession of the arrest warrant or why he (or any of his prior attorneys)

could not have discovered the apparent defect in the warrant earlier. While

he contends “that [a] lack of ‘due diligence’ is not a bar to relief for a

Brady[] violation[,]” he cites only a federal case in support of that claim.

Appellant’s Brief at 8 (citing Amado v. Gonzalez, 758 F.3d 1119 (9th Cir.

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2014)). Even if Amado stands for the principal espoused by Appellant, this

Court is “not bound by the decisions of federal intermediate appellate court

panels.”   Cellucci v. General Motors Corp., 676 A.2d 253, 255 n.1 (Pa.

Super. 1996) (citations omitted).          It is clear, under the case law of this

Commonwealth, that a Brady claim can only meet the timeliness exceptions

pled by Appellant, i.e., section 9545(b)(1)(i) or (ii), if the petitioner proves

that the information on which his claim is based could not have been

discovered or obtained earlier with the exercise of due diligence.1 Appellant

has failed to meet this burden.          Accordingly, even if his claims had been

preserved below, we would conclude that Appellant has not proven the

applicability of any timeliness exception, and the PCRA court did not err in

denying his petition.

       Order affirmed.




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1
  See Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008)
(stating that, “[a]lthough a Brady violation may fall within the governmental
interference exception, the petitioner must plead and prove the failure to
previously raise the claim was the result of interference by government
officials, and the information could not have been obtained earlier
with the exercise of due diligence”) (emphasis added); see also id.
(stating that the exception of section 9545(b)(1)(ii) “requires that the ‘facts’
upon which such a claim is predicated must not have been known to
appellant, nor could they have been ascertained by due diligence”)
(emphasis added).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2016




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