J-S24020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

PIERRE LAMONT PINSON

                            Appellant                Nos. 1067 WDA 2016


                Appeal from the PCRA Order Dated June 10, 2016
               In the Court of Common Pleas of Allegheny County
            Criminal Division at Nos: CP-02-CR-0014157-1999; and
                            CP-02-CR-0013750-1999


BEFORE: PANELLA, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                               FILED JUNE 8, 2017

        Appellant Pierre Lamont Pinson pro se appeals from the June 10, 2016

order of the Court of Common Pleas of Allegheny County (“PCRA court”),

which dismissed as untimely his serial petitions for collateral relief under the

Post Conviction Relief Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46.         Upon

review, we affirm.

        The facts and procedural history of this case are undisputed. Briefly,

Appellant’s judgment of sentence at docket number 13750 (“Case 1”)

became final on November 26, 2002, and his judgment of sentence at




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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docket number 14157 (“Case 2”) became final on June 25, 2004.1            Thus,

Appellant had until November 26, 2003, and June 25, 2005, respectively, to

file timely PCRA petitions. On October 22, 2015, Appellant pro se filed his

fourth (instant) PCRA petition in Case 1. A few days later, on October 28,

2015, Appellant pro se filed his second (instant) PCRA petition in Case 2.

Both petitions raised identical claims that had been decided by prior panels

of this Court on collateral review. See Commonwealth v. Pinson, 82 A.3d

1068 (Pa. Super. 2013), appeal denied, 87 A.3d 319 (Pa. 2014);

Commonwealth v. Pinson, 968 A.2d 795 (Pa. Super. 2009), appeal

denied, 983 A.2d 727 (Pa. 2009). Specifically, Appellant asserted that his

prior attorneys were ineffective for failing to raise the issue of prosecutorial

misconduct when the Commonwealth failed to disclose to Appellant that its

main witness, Detective Dennis Logan, had used questionable tactics to

obtain information and confessions from other individuals charged with

crimes in Allegheny County. The trial court ultimately dismissed as untimely

Appellant’s PCRA petitions. Appellant timely appealed to this Court.

       On appeal,2 Appellant raised three issues for our review:


____________________________________________


1
  In Case 1, Appellant was convicted of four counts of aggravated assault,
one count of criminal conspiracy, and one count of carrying a firearm without
a license. In Case 2, Appellant was convicted of one count of attempted
robbery, two counts of criminal conspiracy, and three counts of robbery.
2
 “On appeal from the denial of PCRA relief, our standard of review requires
us to determine whether the ruling of the PCRA court is supported by the
(Footnote Continued Next Page)


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      [I.] Do Appellant’s claims adhere to the plain language of 42
      Pa.C.S.A. § 9545(b)(1)(ii)?

      [II.] Was Appellant’s right to due process violated when the
      prosecutor whether in good or bad faith withheld material
      evidence (crimen falsi) favorable to the defense?

      [III.] Did the PCRA court abuse its discretion and thereby
      commit reversible error in failing to address Appellant’s motion
      to withdraw counsel which was filed prior to counsel’s no-merit
      letter and subsequently dismissing Appellant’s PCRA without a
      hearing?

Appellant’s Brief at viii (unnecessary capitalization omitted).

      As a threshold matter, we must determine whether the PCRA court

erred in dismissing as untimely Appellant’s PCRA petitions.            The PCRA

contains the following restrictions governing the timeliness of any PCRA

petition.

      (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

             (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.
                       _______________________
(Footnote Continued)

record and free of legal error.” Commonwealth v. Widgins, 29 A.3d 816,
819 (Pa. Super. 2011).



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      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have
      been presented.

      (3) For purposes of this subchapter, 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 time for seeking the
      review.

42   Pa.C.S.A.    §   9545(b).    Section    9545’s   timeliness   provisions   are

jurisdictional.   Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).

Additionally, we have emphasized repeatedly that “the PCRA confers no

authority upon this Court to fashion ad hoc equitable exceptions to the PCRA

time-bar in addition to those exceptions expressly delineated in the Act.”

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

omitted).

      Here, as stated earlier, the record reflects that Appellant’s judgments

of sentence became final on November 26, 2002 (Case 1) and June 25, 2004

(Case 2).    See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).           Appellant,

therefore, had until November 26, 2003, and June 25, 2005, respectively, to

file a timely PCRA petition.     The current filings are facially untimely given

they were filed on October 22, 2015, and October 28, 2015, respectively.

      The one-year time limitation, however, can be overcome if a petitioner

alleges and proves one of the three exceptions set forth in Section

9545(b)(1)(i)-(iii) of the PCRA.     Here, Appellant concedes that the instant

PCRA petitions are untimely.       He, however, alleges that he is entitled to

relief under Section 9545(b)(1)(ii) because, through an open records

request, he learned that Detective Logan was named in a federal civil rights

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lawsuit   initiated   in   2000   and    that    the   Commonwealth     committed

prosecutorial misconduct in failing to disclose this information.        Appellant

alleges that he filed the instant PRCA petitions within 60 days of learning this

new fact concerning Detective Logan. Appellant’s discovery through an open

records request that Detective Logan was named in a federal lawsuit does

not amount to a new fact. Rather, what Appellant is arguing is that he has

discovered a new source to support his allegation of prosecutorial

misconduct. It is settled that the discovery of new sources for a previously

known fact cannot satisfy a petitioner’s burden under Section 9545(b)(1)(ii).

See Commonwealth v. Johnson, 863 A.2d 423, 427 (Pa. 2004) (“The

after-discovered evidence exception, however, focuses on newly discovered

facts, not on a newly discovered or a newly willing source for previously

known facts.”) (emphasis in original).          Instantly, as a prior panel of this

Court noted, “Appellant was aware               of Detective   Logan’s history   of

misconduct as early as 2003, when he filed his first PCRA petition.”

Commonwealth          v.   Pinson,      No.     1869   WDA     2012,   unpublished

memorandum at 8-9 (Pa. Super. filed July 16, 2013).             Moreover, another

prior panel of this Court noted that Appellant “relies on a newspaper article

dated June 28, 2002, which indicated that a federal jury had awarded

compensatory and punitive damages to a man whom Logan and his partner

had improperly treated during a criminal investigation.” Commonwealth v.

Pinson, No. 2053 WDA 2007, unpublished memorandum at 4 (Pa. Super.

January 6, 2009) (emphasis added).

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      Additionally, Appellant’s open records request yielded a public record,

i.e., a case file for the 2000 federal law suit against Detective Logan, upon

which he relied in his instant PCRA petitions. Our Supreme Court has held

that matters of public record cannot be previously unknown facts for

purposes of Section 9545(b)(1)(ii). Commonwealth v. Chester, 895 A.2d

520, 523 (Pa. 2006). This Court, however, has held that the presumption of

access to public information does not apply where a petitioner is a pro se

prisoner when the information becomes publicly available. Commonwealth

v. Burton, 121 A.3d 1063, 1071 (Pa. Super. 2015) (en banc), affirmed,

2017 WL 1149203 (Pa. March 28, 2017).         Burton does not apply here

because Appellant was represented by counsel in 2000 when the federal

lawsuit was initiated. Based on the foregoing, Appellant does not meet the

due diligence requirement under Section 9545(b)(1)(ii).       We, therefore,

conclude that the PCRA court did not err in dismissing as untimely his PCRA

petitions for want of jurisdiction.

      Even if the PCRA court had jurisdiction, Appellant still would not have

been entitled to relief as his claim of prosecutorial misconduct had been

litigated previously.   See 42 Pa.C.S.A. § 9543(a)(3) (requiring that the

allegation of error an appellant presents in a PCRA petition has not been

previously litigated or waived); see also 42 Pa.C.S.A. § 9544(a)(2) (an

issue is previously litigated if “the highest appellate court in which the

petitioner could have had review as a matter of right has ruled on the merits

of the issue”).

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     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/2017




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