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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1982 EDA 2014


                   Appeal from the PCRA Order June 18, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-1100941-2003

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 17, 2015

        Appellant, Benjamin Cooper, appeals pro se from the order dismissing

his second Post Conviction Relief Act1 (“PCRA”) petition as untimely.

Appellant asserts an exception to the PCRA time bar because he obtained

previously unknown facts and filed the instant petition within sixty days of

the conclusion of his appeal from the denial of his first PCRA petition. We

affirm.

        The facts underlying Appellant’s convictions were recited in this Court’s

previous memorandum affirming the judgment of sentence and need not be

restated for the purposes of this appeal. See Commonwealth v. Cooper,

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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1257 EDA 2005 (unpublished memorandum at 1-4) (Pa. Super. Sept. 22,

2006) (quoting Trial Ct. Op., 12/7/05, at 1-5), appeal denied, 17 EAL 2007

(Pa. May 31, 2007).    A jury found Appellant guilty of murder of the third

degree, robbery, theft, and abuse of a corpse.2     The trial court sentenced

him to thirty-one to sixty-two years’ imprisonment on April 12, 2005. This

Court affirmed the judgment of sentence on September 22, 2006.3            The

Pennsylvania Supreme Court denied allowance of appeal on May 31, 2007.

       Appellant timely filed a pro se PCRA petition, his first, on August 3,

2007, and the PCRA court appointed counsel. Following a Grazier4 hearing,

the court granted Appellant permission to represent himself, after which he

filed an amended pro se petition. The PCRA court issued a Pa.R.Crim.P. 907

notice of intent to dismiss Appellant’s first petition without a hearing and on

June 18, 2010, entered the order dismissing that petition.           Appellant

requested counsel for an appeal. The PCRA court appointed John M. Belli,

Esq. (“prior PCRA counsel”),5 who subsequently filed a petition to withdraw


2
  Appellant was represented by Anthony D. Jackson, Esq. (“trial counsel”) at
trial.
3
  Appellant was represented by Thomas L. McGill, Esq. (“direct appeal
counsel”) in his direct appeal.
4
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
5
  Appellant was initially represented by James S. Bruno, Esq., in the appeal
from the dismissal of his first PCRA petition. See Commonwealth v.
Cooper, 1849 EDA 2010 (unpublished memorandum, at 3 n.4) (Pa. Super.
Sept. 21, 2012). Attorney Bruno failed to file a brief, and this Court



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and a no-merit letter6 in this Court. Appellant did not file a pro se response

or obtain new counsel for the purposes of that appeal. This Court affirmed

the order dismissing Appellant’s first PCRA petition on September 21, 2012.

Cooper, 1849 EDA 2010 at 7. Appellant did not seek allowance of appeal

from the Pennsylvania Supreme Court.

     On November 19, 2012, the PCRA court received Appellant’s pro se

“Motion for Extraordinary Relief,” which gives rise to this appeal. Appellant

asserted “he acquired evidence of an exculpatory nature that completely

exonerates him of this heinous crime” and came into possession of alibi

evidence. Appellant’s Mot. for Extraordinary Relief, 11/19/12, at ¶ 8. The

court subsequently received Appellant’s pro se “Amended Petition for

Collateral Relief” on March 11, 2013. The court regarded Appellant’s filings

as a second PCRA petition and issued a Rule 907 notice of intent to dismiss

the petition as time-barred.    Appellant did not respond, and the court

entered the underlying order dismissing Appellant’s petition on June 18,

2014. This timely appeal followed.7




remanded to determine whether Appellant was abandoned by counsel. Id.
Following remand, Attorney Belli was appointed to represent Appellant. Id.
6
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
7
 The PCRA court did not order a Pa.R.A.P. 1925(b) statement, but filed an
opinion in support of its order.




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       Appellant, in his pro se brief, argues the PCRA court erred in

dismissing his filings as an untimely PCRA petition. He argues he recently

obtained the following evidence: (1) on September 21, 2012, an eyewitness

report from defense investigator Walter P. Lee; (2) on February 28, 2012,

Attorney Belli’s no-merit letter; (3) on September 21, 2012, the criminal

complaint and arrest report; (4) on December 12, 2012, the April 3, 2009

order of the Pennsylvania Supreme Court disbarring trial counsel; and (5) on

January     4,   2013,   a   letter   from   his   mother,   Pamela   Smith-Payton.

Appellant’s Brief at 9.        He also asserts his filings were timely under

Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000).8 Id. at 10. No relief is

due.

       The principles governing our review are well-settled.

             On appeal from the denial of PCRA relief, our standard
          of review calls for us to determine whether the ruling of
          the PCRA court is supported by the record and free of legal
          error. The PCRA court’s findings will not be disturbed
          unless there is no support for the findings in the certified
          record.

Commonwealth v. Lewis, 63 A.3d 1274, 1278 (Pa. Super. 2013) (citation

omitted).

       “The PCRA’s time restrictions are jurisdictional in nature.       Thus, if a

PCRA petition is untimely, neither this Court nor the PCRA court has


8
    Appellant does not dispute that the PCRA court appropriately regarded
Appellant’s filings as a petition for PCRA relief and, under the PCRA, the
filings were untimely on their face. See 42 Pa.C.S. § 9545(b)(1).



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jurisdiction over the petition.”      Id. at 1280-81 (citation and punctuation

omitted). It is well settled that a

         second petition is untimely unless [a petitioner] can plead
         and prove that one of the following three exceptions to 42
         Pa.C.S. § 9545(b)(1) applies:

            (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.

         42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, [a petitioner]
         who invokes one of these exceptions must file his claim
         “within 60 days of the date the claim could have been
         presented.” 42 Pa.C.S. § 9545(b)(2).

Lark, 746 A.2d at 587.

             The timeliness exception set forth in Section
         9545(b)(1)(ii) requires a petitioner to demonstrate he did
         not know the facts upon which he based his petition and
         could not have learned those facts earlier by the exercise
         of due diligence.       Due diligence demands that the
         petitioner take reasonable steps to protect his own
         interests. A petitioner must explain why he could not have
         obtained the new fact(s) earlier with the exercise of due
         diligence. This rule is strictly enforced.

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010)

(citations omitted).     “[T]o constitute facts which were unknown to a


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petitioner and could not have been ascertained by the exercise of due

diligence, the information must not be of public record and must not be facts

that were previously known but are now presented through a newly

discovered source.” Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa.),

cert. denied, 134 S. Ct. 639 (2013).

     In Lark, a petitioner obtained newly discovered evidence while an

appeal from the dismissal of a prior PCRA petition was pending. Lark, 746

A.2d at 586-87. The Lark Court held:

        [W]hen an appellant’s PCRA appeal is pending before a
        court, a subsequent PCRA petition cannot be filed until the
        resolution of review of the pending PCRA petition by the
        highest state court in which review is sought, or upon the
        expiration of the time for seeking such review.[ ] If the
        subsequent petition is not filed within one year of the date
        when the judgment became final, then the petitioner must
        plead and prove that one of the three exceptions to the
        time bar under 42 Pa.C.S. § 9545(b)(1) applies. The
        subsequent petition must also be filed within sixty days of
        the date of the order which finally resolves the previous
        PCRA petition, because this is the first “date the claim
        could have been presented.” 42 Pa.C.S. § 9545(b)(2).

Id. at 588.

     Following our review, we conclude that Appellant failed to demonstrate

that his underlying second PCRA petition was timely filed under Section

9545(b)(1)(ii) or Lark.    Specifically, our review reveals: (1) Appellant

provided no explanation why a defense investigator’s report generated

before trial, or the information that he was with his girlfriend in New Jersey

around the time of the incident, was unknown to him; (2) prior PCRA



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counsel’s no-merit letter contained no new facts, and Appellant waived his

opportunity to respond to the no-merit letter during his first PCRA appeal;

(3) his claim that he recently obtained copies the criminal complaint and

arrest report is belied by the fact that he referred to both documents during

the litigation of his first PCRA petition; (4) the April 3, 2009 order disbarring

trial counsel was a matter of public record9 and available during the litigation

of his first PCRA petition; and (5) the assertions in the January 4, 2013

letter from his mother were identical to claims he already raised during the

litigation of his first PCRA petition. Accordingly, Appellant did not establish

previously unknown facts warranting a time-bar exception under Section

9545(b)(1)(ii). See Edmiston, 65 A.3d at 352; Monaco, 996 A.2d at 1080.

Moreover, because the items and facts identified by Appellant could have

been discovered before his appeal from the denial of his first PCRA

petition,10 he is not entitled to relief under Lark. Thus, we discern no basis

to disturb the PCRA court’s order dismissing the instant PCRA petition as

untimely.


9
  See Commonwealth Lopez, 51 A.3d 193, 195 (Pa. 2012) (per curiam);
Commonwealth v. Feliciano, 69 A.3d 1270, 1277-78 (Pa. Super. 2013)
(noting disciplinary orders of the Supreme Court are matters of public
record). We note the reasons for trial counsel’s disbarment did not pertain
to his representation of Appellant.
10
  Indeed, our review reveals that with exception of prior PCRA counsel’s no-
merit letter and the April 3, 2009 disciplinary order disbarring trial counsel,
the facts and/or documents identified by Appellant were referred to during
the litigation of his first PCRA petition.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/17/2015




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