J-S09043-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN A. GREEN                              :
                                               :
                       Appellant               :   No. 866 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-0303591-2001


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

MEMORANDUM BY COLINS, J.:                                FILED APRIL 17, 2020

        Appellant, John A. Green, appeals, pro se, from the order denying his

second petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We

affirm.

        On November 28, 2000, two officers of the Philadelphia Police

Department observed Appellant discharge a firearm at two fleeing individuals,

one of whom died. Appellant and one of the officers exchanged gunfire during

an ensuing chase, and Appellant was apprehended after he was struck in the

foot by a bullet. Appellant proceeded to a non-jury trial in the spring of 2003,

at which his counsel extensively cross examined the officer regarding a prior

incident in which the officer shot an individual in a moving vehicle and was

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541-9546.
J-S09043-20



found to have violated a department directive. On May 30, 2003, the trial

court convicted Appellant of murder of the third degree, criminal conspiracy,

carrying a firearm on a public street, aggravated assault, recklessly

endangering another person, and resisting arrest.2 On October 7, 2003, the

trial court sentenced Appellant to an aggregate sentence of 19 to 38 years of

confinement. Appellant appealed the judgment of sentence, and this Court

affirmed the conviction. Commonwealth v. Green, No. 3340 EDA 2003 (Pa.

Super. filed March 15, 2005) (memorandum decision). Our Supreme Court

denied Appellant’s petition for allowance of appeal.            Commonwealth v.

Green, 880 A.2d 1236 (Pa. 2005) (table).

        Appellant filed a timely pro se PCRA petition on April 20, 2006. The

PCRA court appointed counsel for Appellant, and counsel filed an amended

PCRA petition on December 18, 2007. The PCRA court dismissed the petition

on April 25, 2008. Appellant appealed, and this Court affirmed the dismissal.

Commonwealth v. Green, No. 1550 EDA 2008 (Pa. Super. filed September

1, 2009) (memorandum decision).                Our Supreme Court denied Appellant’s

petition for allowance of appeal. Commonwealth v. Green, 991 A.2d 311

(Pa. 2010) (table).

        Appellant filed his second PCRA petition on January 30, 2018. In the

petition, Appellant asserts that his request for PCRA relief was timely under

the newly discovered fact exception to the PCRA’s one-year time bar. PCRA

____________________________________________


2   18 Pa.C.S. §§ 2502, 903, 6108, 2702, 2705, and 5104, respectively.

                                           -2-
J-S09043-20



Petition, 1/30/08, at 2-3, 5 (citing 42 Pa.C.S. .§ 9545(b)(1)(ii)). As the newly

discovered fact that would support the timeliness exception, Appellant cites to

a January 17, 2017 decision by the federal district court for the Eastern District

of Pennsylvania, Wright v. City of Philadelphia, 229 F.Supp.3d 322 (E.D.

Pa. 2017), in a case asserting federal civil rights and state law actions

concerning the alleged fabrication of evidence, forced confession, and

malicious prosecution of the plaintiff. PCRA Petition, 1/30/08, at 4-6, 12. In

Wright, the district court denied the motion to dismiss brought by the

defendants, the City of Philadelphia and eleven Philadelphia police officers.

Although neither of the officers who arrested Appellant were named in the

Wright suit, Appellant claimed in his PCRA petition that the federal decision

shows that “the Philadelphia City Police has a common pattern, practice and

custom of unconstitutional misconduct, which [Appellant] was in fact

subjected to first hand.” Id. at 5.

       On December 12, 2018, the PCRA court filed a notice of its intention to

dismiss the petition without a hearing pursuant to Rule of Criminal Procedure

907.    On March 14, 2019, the court dismissed the petition as untimely.

Appellant filed a timely appeal of the PCRA court’s March 14, 2019 order.3

       Appellant presents the following issues on appeal:

       I. Did the PCRA court err as a matter of law when it failed to hold
       an evident[i]ary hearing on Appellant’s claim of Newly Discovered
       [facts] and dismissed the PCRA Petition as being Time-Barred
____________________________________________


3The PCRA court did not order Appellant to file a concise statement of matters
complained of on appeal. The court issued an opinion on May 21, 2019.

                                           -3-
J-S09043-20


      where Appellant pled and met the exception to the PCRA Time-
      Bar.

      II. Is the Appellant entitled to the relief he seeks based on the
      recent Judicial decisions of both the Pennsylvania Superior and
      Supreme Court’s concerning the After-Discovered Facts exception
      to the PCRA Time-Bar.

Appellant’s Brief at 4 (suggested answers omitted). We review the denial of

a PCRA petition to determine whether the record supports the PCRA court’s

findings and whether its decision is free of legal error. Commonwealth v.

Brown, 196 A.3d 130, 150 (Pa. 2018).

      The PCRA provides that “[a]ny petition under this subchapter, including

a second or subsequent petition, shall be filed within one year of the date the

judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A PCRA petition may be

filed beyond the one-year period only if the petitioner alleges and proves one

of the following three exceptions:

      (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.

Id. Any petition attempting to invoke these exceptions “shall be filed within

60 days of the date the claim could have been presented.”           42 Pa.C.S. §




                                      -4-
J-S09043-20



9545(b)(2) (former version).4          “The PCRA’s time limitations implicate our

jurisdiction and may not be altered or disregarded in order to address the

underlying merits of a claim.” Commonwealth v. Greco, 203 A.3d 1120,

1124 (Pa. Super. 2019).

       Appellant does not dispute that his second PCRA petition is untimely as

it was not filed within one year of the date his conviction became final, but

contends that his petition satisfies the newly discovered fact timeliness

exception based upon the Wright decision.            “The newly discovered fact

exception has two components, which must be alleged and proved[:] 1) the

facts upon which the claim was predicated were unknown and 2) could not

have been ascertained by the exercise of due diligence.” Commonwealth v.

Brensinger, 218 A.3d 440, 448 (Pa. Super. 2019) (en banc) (citation and

quotation marks omitted).           “Due diligence requires the petitioner take

reasonable steps to protect his own interests.” Id. (citation and quotation

marks omitted).

       In this matter, the PCRA court did not err in concluding that Appellant

failed to satisfy the newly discovered facts exception. The newly discovered

“fact” upon which Appellant relies is the federal district court decision in

Wright; however, “judicial determinations are not facts,” and therefore


____________________________________________


4 Appellant filed the instant PCRA petition prior to the October 24, 2018
amendment of Section 9545(b)(2) enlarging the time period for asserting a
timeliness exception from 60 days to one year. See Act of October 24, 2018,
P.L. 894, No. 146, §§ 2, 4 (effective December 24, 2018).

                                           -5-
J-S09043-20



“decisional law does not amount to a new ‘fact’ under section 9545(b)(1)(ii)

of the PCRA.” Commonwealth v. Watts, 23 A.3d 980, 986-87 (Pa. 2011).

Even looking at the underlying determination in Wright, the district court was

ruling on the defendants’ motion to dismiss, and therefore the court accepted

as true all of the allegations in the plaintiff’s complaint for the purpose of its

decision.   229 F.Supp.3d at 325 n.1, 329.        “A [c]omplaint is a pleading

asserting allegations or accusations,” not facts. Commonwealth v. Griffin,

137 A.3d 605, 609 (Pa. Super. 2016). Thus, the complaint that serves as the

basis for the Wright decision does not state newly discovered “facts” that

would allow    Appellant to     meet the     timeliness exception of      Section

9545(b)(1)(ii). Compare Commonwealth v. Castro, 93 A.3d 818, 827 (Pa.

2014) (holding that “[s]imply relying on conclusory accusations made by

another, without more, is insufficient to warrant a hearing” for a new trial

based on supposed after-discovered evidence); Griffin, 137 A.3d at 609

(allegations contained in a federal rights complaint do not constitute after-

discovered evidence that would authorize a trial court to grant a new trial).

      As Appellant did not satisfactorily plead an exception to the one-year

PCRA time bar based on a newly discovered fact, the PCRA court properly

dismissed Appellant’s petition as untimely.

      Order affirmed.




                                      -6-
J-S09043-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/20




                          -7-
