J-S46030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EUGENE MYRICK                              :
                                               :
                       Appellant               :   No. 3144 EDA 2018

             Appeal from the PCRA Order Entered October 4, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-1120961-1986


BEFORE:      PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.:                              FILED OCTOBER 22, 2019

        Appellant, Eugene Myrick, appeals pro se from an order entered on

October 4, 2018, which dismissed his petition for collateral relief filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We

affirm.

        On a previous appeal, we summarized the facts of this case as follows:

        In July [] 1986, Appellant shot [the victim], in the victim’s home.
        [The victim identified Appellant as his shooter prior to succumbing
        to his injuries. The victim told Officer Leslie Gunter that he and
        Appellant had been in prison together]. In January [] 1988,
        Appellant was tried before a jury and found guilty of [first-degree
        murder] and possession of an instrument of crime. [] Appellant
        received a sentence of life imprisonment for the murder
        conviction[.] In April 1988, the trial court denied Appellant’s
        [post-sentence] motions. This Court affirmed the judgment of
        sentence on May 31, 1989. Appellant did not seek review by the


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*   Retired Senior Judge assigned to the Superior Court.
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       Supreme Court of Pennsylvania, and thus, his judgment of
       sentence became final on June 30, 1989.

       In January 1997, Appellant filed his first petition for collateral
       relief. The PCRA court dismissed the petition in November 2001.
       This Court affirmed, and the Supreme Court of Pennsylvania
       denied Appellant’s petition for allowance of appeal.

Commonwealth v. Myrick, __A.2d__, 2140 EDA 2015 (Pa. Super. 2016)

(unpublished memorandum), at 1-2 (citation omitted).

       On August 19, 2014, Appellant filed his second PCRA petition. Id. at 2.

In it, Appellant attempted to overcome the PCRA’s timeliness requirement by

arguing that “a copy of the victim’s prison record from SCI Dallas” qualified

as a newly-discovered fact under Section 9545(b)(1)(ii).             Id. at 5.1

Subsequently, counsel was appointed and submitted an amended petition.

Id. at 2. On June 12, 2015, the PCRA court dismissed Appellant’s petition and

on November 8, 2016, this Court affirmed the PCRA court’s dismissal order.

Id. at 1-6.       Our Supreme Court denied allocatur on May 15, 2017.

Commonwealth v. Myrick, 169 A.3d 522 (Pa. 2017).

       On October 27, 2017, Appellant filed the current PCRA petition.

Appellant’s Third PCRA Petition, 10/27/17, at 1-15. On September 4, 2018,

the PCRA court issued notice that it intended to dismiss Appellant’s PCRA

petition in 20 days without holding a hearing, because it found that the petition

was untimely, lacked arguable merit, and raised claims that were previously

litigated. PCRA Court Order, 9/4/18, at 1; see Pr.R.Crim.P. 907(1). Appellant

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1 Appellant argued that he recently learned that he and the victim did not
serve time together in prison as the victim had claimed to Officer Gunter.

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filed a response on September 19, 2018.             The PCRA court dismissed

Appellant’s petition on October 4, 2018. PCRA Court’s Order, 10/4/18, at 1.

Appellant timely appealed, raising various issues. However, “[c]rucial to the

determination of any PCRA appeal is the timeliness of the underlying petition.

Thus, we must first determine whether the instant PCRA petition was timely

filed.”     Commonwealth v. Smith, 35 A.3d 766, 768 (Pa. Super. 2011),

appeal denied, 53 A.3d 757 (Pa. 2012).

          The timeliness requirement for PCRA petitions “is mandatory and

jurisdictional in nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248

(Pa. 2013) (citation omitted). A PCRA petition is timely if it is “filed within one

year of the date the judgment [of sentence] becomes final.” 42 Pa.C.S.A.

§§ 9545(b)(1).       “[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)(3).      Here, Appellant’s

judgment of sentence became final on June 30, 1989, 30 days after this

Court’s May 1989 decision affirming his judgment of sentence.              Hence,

Appellant’s petition is manifestly untimely.      Therefore, unless one of the

statutory exceptions to the time-bar applies, no court may exercise

jurisdiction to consider this petition.

          Pursuant to 42 Pa.C.S.A. §9545(b), there are three statutory exceptions

to the timeliness provision that allow for very limited circumstances under




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which the late filing of a PCRA petition will be excused.           To invoke an

exception, a petitioner must allege and prove one of the following:

       (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.A. § 9545(b)(1)(i)-(iii). If an exception applies, a PCRA petition

may be considered if it is filed “within 60 days of the date the claim could have

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

       In this case, Appellant argues that his petition is timely under Section

9545(b)(1)(ii), the newly-discovered fact exception.3 Appellant’s Brief at 1;

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2 Effective December 24, 2018, the legislature amended Section 9545(b)(2)
to read: “Any petition invoking an exception provided in paragraph (1) shall
be filed within one year of the date the claim could have been presented.” See
42 Pa.C.S.A. § 9545(b)(2) (effective December 24, 2018). However, the
amendment to Section 9545(b)(2) only applies to “claims arising on
[December] 24, 2017 or thereafter.” See id. at Comment. Appellant filed his
current petition on October 27, 2017; thus, the amended Section 9545(b)(2)
does not apply to Appellant’s claim.

3 In addition, Appellant argues that his petition      is not time-barred under
Section 9545(b)(1)(iii) because Commonwealth           v. Burton, 158 A.3d 618
(Pa. 2017) established a new constitutional right.     Appellant’s Brief at 1. His
position is erroneous and need not be addressed        on appeal. This Court, in



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see 42 Pa.C.S. § 9545(b)(1)(ii) (“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 ... 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”). We disagree.

       Notably, Appellant presents the same newly-discovered fact as he did

on his appeal in 2016. See Commonwealth v. Myrick, __A.2d__, 2140 EDA

2015 (Pa. Super. 2016) (unpublished memorandum), at 1-6 (citation

omitted).    Appellant argues that he recently obtained the victim’s prison

records and discovered that he was not incarcerated at SCI Dallas at the same

time as the victim. Appellant’s Brief at 1 and Appendix D. On his previous

appeal, this Court determined that Appellant failed to prove that he could not

have “ascertained this information [] with the exercise of due diligence.” See

Myrick, __A.2d__, 2140 EDA 2015 (Pa. Super. 2016) (unpublished

memorandum), at 5. Hence, Appellant is not entitled to relief because his

newly-discovered fact claim was previously litigated.

       Nonetheless, Appellant seeks to resurrect his previous claim by

advancing a new theory. In particular, Appellant argues that, in light of our

Supreme Court’s decision in Commonwealth v. Burton, 158 A.3d 618 (Pa.
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Commonwealth v. Kretchmar, 189 A.3d 459, 464 (Pa. Super. 2018), held
that Burton did not establish a new constitutional right or a watershed rule
of criminal procedure. Thus, Burton does not afford Appellant any relief
under Section 9545(b)(1)(iii).

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2017), his petition is timely under Section 9545(b)(1)(ii).    Per Appellant,

under Burton, “prisoners [have] no [access] to public records,” and therefore,

he exercised proper due diligence in pursuing his claim. Appellant’s Brief at

4. We disagree.

     Burton is factually distinguishable from the Appellant’s case and does

not support application of the newly-discovered facts exception under the

current circumstances. In Burton, the appellant and his co-defendant, Melvin

Goodwine, were tried jointly for murder in 1993. Burton, 158 A.3d at 620.

Ultimately, Burton was convicted of first-degree murder and conspiracy, while

Goodwine was convicted only of conspiracy. Id. Twenty years later, Burton

received a letter from the Pennsylvania Innocence Project enclosing an

expungement motion filed by Goodwine in 2009, in which Goodwine asserted

that he committed the murder “‘in self-defense,’” and now, “‘an innocent man

was in jail for a crime [Goodwine] committed.’” Id. at 622. Upon receipt of

this letter, Burton filed a PCRA petition, alleging that Goodwine’s motion

qualified as a newly-discovered fact. Id.

     Initially, the PCRA court denied Burton relief because prior decisions

held that information within the public sphere could not be deemed “unknown”

for purposes Section 9545(b)(1)(ii). Id. Thereafter, this Court vacated the

PCRA court’s order. See Commonwealth v. Burton, 121 A.3d 1063 (Pa.

Super. 2015) (en banc).    In doing so, we reasoned that the public record

presumption relied upon by the PCRA court does not apply in all instances.

Id. Significant to our decision was the recognition that, prior to the letter

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from the Pennsylvania Innocence Project, Burton “‘had no reason to seek out’

facts in support of a claim for collateral relief.”            Id. at 1070, quoting

Commonwealth           v.   Davis,    86   A.3d   883,   890    (Pa.   Super.   2014).

Subsequently, our Supreme Court made clear that the presumption of access

to public information does not apply to defeat a petitioner's invocation of the

newly-discovered facts exception where the petitioner is incarcerated and

acting as his own counsel. Burton, 158 A.3d at 638.

       Appellant, unlike Burton, had every “reason to seek out” the victim’s

prison records as early as his 1988 trial. Compare Burton, 121 A.3d at 1070.

Indeed, at Appellant’s preliminary hearing, the Commonwealth introduced

testimony showing that the victim identified Appellant as his killer in a dying

declaration because the victim knew Appellant from prison.                Trial Court

Opinion, 3/7/16, at 5. Accordingly, even before his 1988 trial, Appellant knew

that the Commonwealth’s case rested upon the victim’s identification which,

in turn, relied on the victim’s and Appellant’s overlapping stays in prison. In

fact, a review of testimony indicates that Appellant’s trial counsel attempted

to locate the victim’s prison records to verify the Commonwealth’s claims. 4


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4 Appellant attached to his brief an excerpt of trial testimony. In it, Appellant’s
trial counsel discussed the victim’s identification with the court. Specifically,
they addressed whether, in view of the possible prejudice to Appellant, Officer
Leslie Gunter could testify to the fact that, before the victim died, he indicated
that his killer was “Gene the Hack” from “Broad and Erie” and that the two
“were in jail together.” N.T. Pre-Trial Hearing, 11/12/86, at 18-22. See also
Appellant’s Brief at Appendix B. Trial counsel stated the following:



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       The court: [By stating Appellant and victim lived together] it [is]
       a specific reference. There is no neighborhood in jail, you are
       living together, maybe two cells down on the same cell block or
       lived together in the same – or they used to be in jail together. []
       So, I will go so far to eliminate prejudice, but I [will not] go any
       further than that. []

       [Trial counsel]: I would object to that.

       The court: You certainly are entitled to do that and I do [not] have
       any quarrel with you about that. It [is] either that or let it come
       in the way it is, and I think it [is] best to do it my way and you
       have an objection. The other thing is –

       [Trial counsel]: Excuse me, Your Honor. Before that matter is
       closed out, I wanted to talk to the District Attorney, we can do
       this at a later time, but to compare, if he has that information,
       when and where these two people were said to have been
       in jail together, to make certain that the reference could –

       The court: It does [not] make any difference – well, it may or may
       not make a difference. Your client’s record does indicate he
       served the time in prison. Now—

       [Trial counsel]: I might want to forego or he might be willing
       to forego his right that the jury know that he was in jail if
       we can find out that he was not in jail at the same time with
       this person.

       [The Commonwealth]:       About six months or a year before
       [Appellant] was sentenced to the seven to twenty, [the victim]
       was sentenced to four to ten[.]

       The court: Where was he –

       [The Commonwealth]: I am going to have the officers check that
       out today, but I understand that [Appellant] was in Camp Hill. I
       know that because his F.B.I. extract has him being arrested out
       there for assault on another prisoner, and I also believe that [the
       victim] had been at Camp Hill.



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Therefore, unlike Burton, as early as 1988, Appellant had a reason to

investigate whether he and the victim were incarcerated simultaneously in the

same penal institutions.

          Moreover, the records also establish that Appellant was represented by

counsel when the relevant inquiry – the overlapping prisons stays with the

victim – emerged as an issue of significance. Thus, Burton is inapplicable

because the Supreme Court limited its holding to pro se prisoners.                   See

Burton 58 A.3d at 719 (holding that “the presumption that information which

is   of    public   record   cannot   be       deemed   ‘unknown’   for   purposes    of

subsection(b)(1)(ii) does not apply to pro se prisoner petitioners”)

(emphasis in original). Therefore, because Appellant was not pro se at the

relevant time, his reliance on Burton is misplaced.




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                                           ***

          The court: My own off the cuff thought, [trial counsel], is that your
          client is not likely to forgo his right to let the jury know that he
          was in jail but not with [the victim].

          [Trial Counsel]: It could be worth it.

Appellant’s Brief at Appendix C (emphasis added). Accordingly, upon review
of this transcript, it is clear that Appellant and trial counsel knew the
significance of overlapping prison stays with the victim and attempted to
ascertain whether the victim and Appellant were, in fact, incarcerated
together. Also, evidence of the victim’s incarceration at SCI Dallas (and,
presumably, Appellant’s absence from that facility) would have little relevance
in this case since it was the overlapping stay at Camp Hill which allowed the
victim to identify Appellant.


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     As such, the PCRA court was correct in finding it lacked jurisdiction to

address Appellant’s claims because he has not established that a timeliness

exception applies.

     Order affirmed. Appellant’s motion to enter judgment denied.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/19




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