J-S69045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PURCELL BRONSON,                           :
                                               :
                       Appellant               :   No. 1097 EDA 2019

              Appeal from the PCRA Order Entered March 14, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0317321-1977


BEFORE:      SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                FILED APRIL 20, 2020

        Appellant, Purcell Bronson, appeals pro se from the March 14, 2019

Order entered in the Court of Common Pleas of Philadelphia County dismissing

as untimely his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. After careful review, we agree that the petition

was untimely filed, and therefore affirm.

        Appellant was convicted of second degree murder, robbery, conspiracy,

and possessing an instrument of crime on February 9, 1979, and sentenced

to life imprisonment. His sentence was affirmed by the Pennsylvania Supreme

Court on May 19, 1982; he did not file a petition for certiorari with the United

States Supreme Court, and his sentence therefore became final 90 days later,




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*   Retired Senior Judge assigned to the Superior Court.
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on August 17, 1982. He has since filed six prior PCRA petitions, all of which

were dismissed.

      On February 2, 2018, Appellant filed the instant petition, his seventh.

He asserted that the trial court erred by failing to complete a competency

evaluation, and that trial and appellate counsel provided ineffective assistance

by failing to litigate the issue of competency at trial or on direct appeal. On

December 12, 2018, pursuant to Pa.R.Crim.P. 907, the PCRA court issued a

notice of intent to dismiss the petition as untimely. Appellant filed a reply

thereto on December 24, 2018, and on March 14, 2019, the PCRA court

dismissed the petition as untimely; this appeal followed, on April 8, 2019.

Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      Appellant now presents the following issues for our review:

        1. Did the trial court try an incompetent defendant?

        2. Did the trial court required defendant to prove his
        incompetence by ‘clear and convincing evidence,’ thus in
        violation of Cooper v. Oklahoma, [517 U.S. 48 (1996).]

        3. Were issues of material facts in dispute warranting the
        scheduling of an evidentiary hearing?

        4. Should an incompetent person be responsible for his
        incompetent acts?

        5. Was [Appellant] deprived of due process, by the [trial
        court] proceeding under an unlawful statute 50 P.S. §[§]
        7101-7503?


Appellant’s Brief at 4.




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       We review the denial of a PCRA petition to determine whether the

record supports the PCRA court’s findings and whether its order is otherwise

free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

However, “[i]t is well-settled that the PCRA’s time restrictions are jurisdictional

in nature.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016)

(citation omitted).   Therefore, we must first determine whether we have

jurisdiction to entertain the PCRA petition. Commonwealth v. Albrecht, 994

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

      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

             (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

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         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 one year of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).1

       As the instant petition is patently untimely by more than three and a

half decades, we are without jurisdiction to decide Appellant’s appeal unless

he pled and proved one of the three exceptions provided in Section 9545(b)(1)

and set forth above. Commonwealth v. Derrickson, 923 A.2d 466, 468

(Pa. Super. 2007).

        Appellant argues that his petition satisfies section 9545(b)(1)(ii). His

claim is predicated upon the newly discovered ‘fact’ that a pre-trial

competency examination that was ordered in 1979 was never completed,

which he contends is demonstrated by the fact that the county court probation

department does not have a copy of the post-exam evaluation. He asserts

that after reading our Supreme Court’s decision in Commonwealth v. Cruz,

852 A.2d 287 (Pa. 2004),2 he immediately attempted, unsuccessfully, to
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1 Appellant alleges his claim arose on or about January 6, 2018, and he filed
his petition on February 2, 2018.

2  In Commonwealth v. Cruz, our Supreme Court held that “mental
incompetence at the relevant times, if proven, may satisfy the requirements
of Section 9545(b)(1)(ii), in which case, claims defaulted by operation of that
incompetence may be entertained.” 852 A.2d 287, 288 (Pa. 2004). The
appellant in Cruz had suffered brain damage from a self-inflicted gunshot
wound, and the trial court accepted his plea of nolo contendere without a
determination of whether he was competent. Appellant does not compare



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obtain a copy of the evaluation, and following his discovery, on or about

January 6, 2018, that no record exists to substantiate his competency to stand

trial, he filed his PCRA petition on February 2, 2018. Appellant further argues

that other than bald hearsay statements, the Commonwealth has offered no

evidence that a mental health evaluation was completed.

       It is well-settled that the newly discovered exception to the PCRA time

bar requires that the facts upon which the claim is predicated were not

previously known to the petitioner and could not have been ascertained

through due diligence. Commonwealth v. Burton, 158 A.3d 618, 629 (Pa.

2017). “The focus of the exception is on the newly discovered facts, not on a

newly discovered or newly willing source for previously known facts.”

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008).

       We reject, first, any contention by Appellant that our decision in Cruz

might serve as a newly discovered fact. “[S]ection 9545(b)(1)(i) applies only

if the petitioner has uncovered facts that could not have been ascertained

through    due    diligence,    and    judicial   determinations   are   not   facts.”

Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011).

       Furthermore, Appellant has failed to establish that he could not have

obtained information as to the existence of a 1979 competency evaluation

through the exercise of due diligence.            Indeed, the record of this case

____________________________________________


himself to Cruz, but rather suggests that it prompted him to contact the court
for a copy of his record as to his competency determination. Petitioner’s
Objections to the Court’s 12/12/18 Notice to Dismiss.

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demonstrates that Appellant was well aware of events surrounding the

evaluation of his competency to stand trial, beginning in 1977.          The

Pennsylvania Supreme Court summarized relevant facts and a portion of the

relevant procedural history as follows:

        The jury selection process commenced on July 5, 1977… [o]n
        July 6, 1977, [Appellant’s] counsel requested a continuance
        to obtain a psychiatric evaluation of his client. Although
        [Appellant] had not previously claimed to have any mental
        health problems, he had now submitted to his counsel a [p]ro
        se memorandum of law in support of such a motion seeking
        a mental examination and advising he had informed counsel
        that he was not competent to stand trial. The court denied
        the motion, and proceeded to take testimony on [a previously
        requested] motion to suppress identification. On July 13,
        1977, during the jury selection process, [Appellant]
        requested medical attention, through counsel, for physical
        illness. Seven jurors had been selected by that time. Court
        was recessed so [Appellant] could be examined by a
        physician, but the examination revealed no physical problem.
        Because of [Appellant’s] behavior, the court ordered a
        psychiatric evaluation be made forthwith by the Psychiatric
        Division of the Probation Department. The following day, the
        trial judge noted on the record that an examining psychiatrist
        had tentatively diagnosed [Appellant] as psychotic and
        incompetent to stand trial and that a thirty-day
        hospitalization under the Mental Health Procedures Act of
        1976 [ ], was recommended. The court followed this
        recommendation.

        Because of this development, the seven jurors who had been
        chosen were dismissed, and, by agreement, the case was
        returned to the calendar room for the purpose of scheduling
        a competency hearing. All counsel agreed for the record that
        jeopardy had not attached. The competency hearing was
        commenced on July 21, 1977.             On July 22, the
        Commonwealth’s motion for an extension [ ] was granted.
        Furthermore, [Appellant’s] counsel withdrew, and new
        counsel was appointed to represent him. On September 27,
        [Appellant] was declared competent to stand trial.


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Commonwealth v. Bronson, 393 A.2d 453, 453-54 (Pa. 1978). Appellant

subsequently filed a motion to dismiss the charges on the ground of double

jeopardy; the motion was denied, and on appeal, our Supreme Court affirmed

and remanded the case to the trial court to conduct his trial. Id.

      Appellant’s claims do not meet the newly discovered facts exception; he

has failed to plead and prove that he could not have ascertained information

about his competency to stand trial by the exercise of due diligence, and the

record of his case demonstrates that he was in fact aware that there were

issues concerning his competence in 1977. Appellant does not state that he

learned new facts concerning his mental condition at any later date. The PCRA

court properly concluded that Appellant failed to prove any of the timeliness

exceptions provided in 42 Pa.C.S. § 9545(b)(1), and properly dismissed

Appellant’s petition as untimely.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/20




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