J-S61010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

BENJAMIN COOPER,

                         Appellant                  No. 889 EDA 2018


            Appeal from the PCRA Order Entered March 9, 2018
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-1100941-2003


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.:                 FILED NOVEMBER 13, 2018

     Appellant, Benjamin Cooper, appeals from the post-conviction court’s

March 9, 2018 order denying, as untimely, his fifth petition filed under the

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

     The facts of Appellant’s underlying convictions are not pertinent to our

disposition of this appeal. We only note that a jury convicted Appellant of

third-degree murder and related offenses on April 12, 2005, and the court

sentenced him to an aggregate term of 31 to 62 years’ incarceration. After

this Court affirmed Appellant’s judgment of sentence on direct appeal, our

Supreme Court denied his petition for allowance of appeal on May 31, 2007.

See Commonwealth v. Cooper, 911 A.2d 178 (Pa. Super. 2006)

(unpublished memorandum), appeal denied, 927 A.2d 622 (Pa. 2007).
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       Over the next decade, Appellant filed four PCRA petitions, all of which

were denied.1 On January 11, 2018, Appellant filed his fifth pro se petition,

which underlies the present appeal. Therein, he contended that he is entitled

to a new trial pursuant to a recent federal decision, Brooks v. Gilmore, 2017

WL 3475475 (E.D. Pa. 2017) (holding that the jury instruction provided for

reasonable doubt, as explained to the jury through an emotionally-charged

hypothetical, improperly elevated the level of doubt necessary to secure an

acquittal). The PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to

dismiss Appellant’s petition without a hearing, concluding that it was untimely

filed. Appellant filed a pro se response, but on March 9, 2018, the PCRA court

formally dismissed his petition.

       Appellant filed a timely, pro se notice of appeal. It does not appear from

the record that the court ordered Appellant to file a Pa.R.A.P. 1925(b)

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

1925(a) opinion on April 13, 2018. Herein, Appellant raises the following three

issues for our review:
       1. Did not the PCRA court err and deny [Appellant] due process
          of law under the state and federal constitution(s) and his right
          to a proper legal evaluation of the reliability and effect of
          [Commonwealth v.] Lark[, 746 A.2d 585 (Pa. 2000),] by
          dismissing [Appellant’s] petition as untimely[?]

       2. Did no[t] the PCRA court err by dismissing [Appellant’s] claim
          of after-discovered evidence based off of facts that were
          unknown without hearing testimony of critical cooperating

____________________________________________


1For a detailed recitation of the procedural history of these petitions, see
PCRA Court Opinion (PCO), 4/13/18, at 2-4.

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         evidence of his actual innocence claim in testimony of
         disgraced Philadelphia detective Kenneth Rossite and Former
         A.D.A.s Robin Godfrey and Hugh Burns[?]

      3. Did not the PCRA court err by dismissing [Appellant’s] PCRA
         petition as untimely where [Appellant] asserts that the
         evidence he presented in his PCRA petition constitutes
         unknown Brooks facts, government interference and after-
         discovered evidence along with an actual innocence claim
         placing his petition squarely within the timeliness exceptions to
         the one[-]year limitations period[?]

Appellant’s Brief at 5-6 (some brackets added, others in original).

       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. 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

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            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.

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 2007 after our

Supreme Court denied his petition for permission to appeal and he did not

seek further review with the United States Supreme Court. Thus, Appellant’s

current petition filed in 2018 is patently untimely and, for this Court to have

jurisdiction to review the merits thereof, he must prove that he meets one of

the exceptions to the timeliness requirements set forth in 42 Pa.C.S. §

9545(b).

      Appellant first argues that the Brooks decision constitutes a newly-

discovered fact that satisfies the timeliness exception under section

9545(b)(1)(ii).   However, our Supreme Court has expressly declared that

“judicial determinations are not facts.” Commonwealth v. Watts, 23 A.3d

980, 986 (Pa. 2011). Instead, “an in-court ruling or published judicial opinion

is law, for it is simply the embodiment of abstract principles applied to actual

events.” Id. at 987. Therefore, the Brooks decision does not constitute a

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new ‘fact’ for purposes of satisfying the timeliness exception of section

9545(b)(1)(ii).2

       Additionally, we also reject Appellant’s argument that the governmental

interference exception of section 9545(b)(1)(i) applies in this case. In support

of this claim, Appellant contends that the trial judge ‘conspired’ with the

Commonwealth “to keep [him] in prison and deny him any and all relief on

appeal[].”     Appellant’s Brief at 8 (unnumbered).      However, Appellant’s

argument in support of this claim is confusing, at best. For instance, he avers

that the trial court provided a jury instruction that is erroneous in light of

Brooks, yet he does not explain how the government interfered with his abilty

to assert his Brooks claim. Indeed, Appellant raised that claim in his present

petition, and it fails not because of any interference by the government, but

because Appellant’s petition is untimely, and our Supreme Court’s holding in

Watts precludes him from satisfying a timeliness exception based on Brooks.

       Additionally, Appellant contends that the governmental interference

exception applies because: (1) the trial court gave “an emotionally disturbed

reason” for sentencing him to “the maximum time allowed[;]” (2) the court

ostensibly “altered” the certified record to shorten the period within which he
____________________________________________


2 Appellant premises a large part of his timeliness argument on the fact that
he met the 60-day requirement of section 9545(b)(2). Even if true, however,
Appellant misunderstands that ‘timely’ filing a petition within the 60 days
required by section 9545(b)(2) does not render his petition ‘timely’ under
section 9545(b)(1).      Under subsection (b)(1), Appellant must also
demonstrate that he discovered a ‘new fact’ that was previously unknown to
him. 42 Pa.C.S. § 9545(b)(1)(ii). For the reasons stated supra, Appellant’s
reliance on Brooks cannot satisfy this burden.

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could file a timely PCRA petition, thus erroneously rendering untimely his

second petition filed on November 19, 2012; and (3) the Commonwealth

committed a violation of Brady v. Maryland, 373 U.S. 83 (1963), when, at a

hearing on November 12, 2009, it refused to provide Appellant with “all case

files, discovery material and evidence belonging to his case….” Appellant’s

Brief at 8-9 (unnumbered).     However, Appellant does not explain how his

“failure to raise the[se] claim[s] 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[.]”    42 Pa.C.S. § 9545(b)(1)(i).       Therefore, he has not

demonstrated that this timeliness exception applies.

      In sum, Appellant has failed to prove the applicability of any exception

to the PCRA’s one-year time-bar that would permit the PCRA court, or this

Court, to review the merits of his underlying claims. Consequently, the PCRA

court properly denied his petition.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/18




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