J-S62026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 DAVID BRADLEY                          :
                                        :
                   Appellant            :   No. 650 WDA 2019

             Appeal from the PCRA Order Entered May 25, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0002043-2005,
                          CP-02-CR-0004586-2005


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                   FILED JANUARY 21, 2020

     David Bradley appeals pro se from the order that denied as untimely his

third petition filed pursuant to the Post Conviction Relief Act (PCRA).    42

Pa.C.S.A. §§ 9541-46. We affirm.

     The relevant factual and procedural history are as follows: On March

27, 2006, following a non-jury trial, the trial court convicted Bradley of

second-degree murder and related charges.     The convictions stem from a

January 12, 2005, confrontation during which Bradley and his co-defendant,

Oscar Brown, shot Christopher Martine and Joshua Woy, killing Mr. Martine
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and seriously injuring Mr. Woy.1 On June 26, 2006, the trial court imposed

an aggregate term of life in prison. Bradley filed a timely notice of appeal to

this Court. On February 12, 2008, we affirmed his judgment of sentence and,

on August 22, 2008, our Supreme Court denied Bradley’s petition for

allowance of appeal. Commonwealth v. Bradley, 951 A.2d 1205 (Pa. Super.

2008) (unpublished memorandum), appeal denied, 955 A.2d 355 (Pa. 2008).

       Bradley filed a timely pro se PCRA petition on August 10, 2009. The

PCRA court appointed counsel, and PCRA counsel filed an amended petition,

in which Bradley raised three claim of ineffective assistance of counsel.

Thereafter, the PCRA court issued Pa.R.Crim.P. 907 notice of its intention to

dismiss Bradley’s petition without a hearing. Bradley filed a response. By

order entered November 16, 2010, the PCRA court denied Bradley’s PCRA

petition. Bradley filed a timely appeal to this Court. On June 22, 2011, we

affirmed the order denying post-conviction relief and, on January 18, 2012,

our Supreme Court denied Bradley’s petition for allowance of appeal.




____________________________________________


1 A jury convicted Brown of first-degree murder and related charges and the
trial court sentenced him to an aggregate term of life in prison. We affirmed
his judgment of sentence on appeal. Brown subsequently filed a PCRA petition
that was denied and he filed an appeal to this Court. Brown later withdrew
this appeal so that he could litigate a second PCRA, which raised the same
“newly-discovered” evidence that is the subject of the instant appeal. See
Commonwealth v. Brown, 945 A.2d 757 (Pa. Super. 2007) (unpublished
memorandum).


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Commonwealth v. Bradley, 31 A.3d 752 (Pa. Super. 2011), appeal denied,

37 A.3d 1193 (Pa. 2012).

       Bradley filed a second pro se petition on April 7, 2016, which the PCRA

court denied on July 1, 2016. Bradley did not file an appeal.

       On December 4, 2017, Bradley filed the petition at issue, his third. On

February 23, 2018, the PCRA Court filed Rule 907 notice of its intention to

dismiss petition as untimely filed. Bradley filed a response. By order entered

on May 25, 2018, the PCRA court denied Bradley’s PCRA petition. This timely

appeal followed.2        The PCRA court did not require Pa.R.A.P. 1925(b)

compliance, but by order entered May 8, 2019, the PCRA court referred to its

Rule 907 notice as providing this Court with the reasons for denying Bradley’s

petition.

       Bradley raises the following issues on appeal:

            I.   Did the [PCRA] court err when denying [Bradley’s]
                 requested relief under the PCRA on the basis that his
                 petition   was      untimely,    where     [Bradley]


____________________________________________


2 Bradley’s pro se notice of appeal inappropriately lists two docket numbers.
See generally, Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). The
Commonwealth urges us to quash this appeal on this basis.                   See
Commonwealth’s Brief at 15-1. We decline to do so. A review of the record
reveals that in its May 25, 2018 order, the PCRA court informed Bradley that
he had thirty days to file a “Notice of Appeal.” Recently, this Court concluded
that to instruct a pro se litigant in this manner constituted a breakdown in
court operations such that, rather than quash pursuant to Walker, we could
address the merits of the appeal. See Commonwealth v. Stansbury, 2019
WL 4197218, ___ A.3d ___ (Pa. Super. 2019). Since there may have been
confusion caused by the court’s instruction in this case, we will do the same.


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                 demonstrate[d] his petition is properly pled and
                 properly cognizable under 42 Pa.C.S.A. § 9545(b)(ii)?

         II.     Did the [PCRA] court err when denying [Bradley’s]
                 requested relief under the PCRA on the basis that the
                 after-discovered witness testified at a hearing held in
                 response to [his] co-defendant’s petition for [post-
                 conviction] relief?

         III.    Did the [PCRA] court err in denying [Bradley’s]
                 request for an evidentiary hearing relative to the
                 issues raised in [Bradley’s] PCRA petition?

Bradley’s Brief at 4.

      This Court’s standard of review regarding an order dismissing 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.

Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). “The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the certified

record.” Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).

      Before addressing the merits of Bradley’s issues, we must first

determine whether the PCRA court correctly concluded that Bradley’s third

PCRA petition was untimely filed.

      The      timeliness   of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition is met. The three narrow statutory



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exceptions to the one-year time bar are as follows:       “(1) interference by

government officials in the presentation of the claim; (2) newly discovered

facts; and (3) an after-recognized constitutional right.” Commonwealth v.

Brandon, 51 A.3d 231-233-34 (Pa. Super. 2012) (citing 42 Pa.C.S.A. §

9545(b)(1)(i-iii)). A PCRA petition invoking one of these statutory exceptions

must “be filed within 60 days of the date the claim could have been

presented.” See Hernandez, 79 A.3d 651-52 (citations omitted); see also

42 Pa.C.S.A. § 9545(b)(2).3 Finally, exceptions to the PCRA’s time bar must

be pled in the petition, and may not be raised for the first time on appeal.

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also

Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are

waived and cannot be raised for the first time on appeal).

       Here, Bradley’s judgment of sentence became final on November 20,

2008, ninety days after our Supreme Court denied his petition for allowance

of appeal and the time for filing a writ of certiorari to the United States

Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13.

Therefore, Bradley had until November 20, 2009, to file a timely petition.

Because Bradley filed his third petition in 2017, it is patently untimely unless


____________________________________________


3 Our legislature recently amended this section of the PCRA to provide
petitioners one year to file a petition invoking a time-bar exception. See
2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018].
This amendment does not apply to Bradley’s petition since he filed it on
December 4, 2017.


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he has satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Hernandez, supra.

      In his first issue, Bradley asserts that he had established a time-bar

exception. In his petition, Bradley stated that, on November 8, 2017, he was

working in the prison law library when he was approached by his co-

defendant, Oscar Brown.      According to Bradley, Brown informed him that

Brown’s mother “had hired a private investigator a few years back and that

the investigator had unearthed that a key Commonwealth witness in their case

had admitted to being threatened by the District Attorney and offered a deal

for his cooperation at [Bradley’s] trial.” PCRA Petition, 12/4/17, at 2. Bradley

averred that this claim raised “newly-discovered facts” of “which he could not

have been aware of regardless of his diligence and of which the

Commonwealth had an obligation to make aware pursuant to Brady v.

Maryland, 373 U.S. 83 (1963), and its progeny, prior to or during his trial.”

Id. According to Bradley, these “newly-discovered facts” entitled him to post-

conviction relief in the form of a new trial.

      With this claim, Bradley attempts to establish the PCRA’s timeliness

exception found at section 9545(b)(1)(ii).

            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 of 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 learned the
         new fact(s) earlier with the exercise of due diligence. This
         rule is strictly enforced. Additionally, the focus of this

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         exception is on the newly discovered facts, not on a newly
         discovered or newly willing source for previously known
         facts.

            The timeliness exception set forth at Section
         9545(b)(1)(ii) has often mistakenly been referred to as the
         “after-discovered evidence” exception.       This shorthand
         reference was a misnomer, since the plain language of
         subsection (b)(1)(ii) does not require the petitioner to allege
         and prove a claim of “after-discovered evidence.” Rather,
         an initial jurisdictional threshold, Section 9545(b)(1)(ii)
         requires a petitioner to allege and prove that there were
         facts unknown to him and that he exercised due diligence in
         discovering those facts. Once jurisdiction is established, a
         PCRA petitioner can present a substantive after-discovered
         evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citations

omitted).

      Here, the PCRA court did not hold an evidentiary hearing and did not

first conduct a timeliness analysis regarding Bradley’s newly-discovered

evidence claim. Rather, the PCRA court directly addressed Bradley’s averment

as an after-discovered evidence claim and found it to be meritless.        See

Brown, supra. We need not remand for this initial determination at this time

because there is no record evidence that Bradley knew of the witness’s alleged

statement that he was threatened. In addition, Bradley filed his third PCRA

petition within sixty days of learning of this information. Thus, we review the

PCRA court’s determination that Bradley cannot establish his claim of after-

discovered evidence.




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      To address this issue, we first note the test applied to after-discovered

evidence.   When discussing the test in the context of a PCRA appeal, our

Supreme Court recently summarized:

             [W]e have viewed this analysis in criminal cases as
         comprising four distinct requirements, each of which, if
         unproven by the petitioner, is fatal to the request for a new
         trial. As stated, the four-part test requires the petitioner to
         demonstrate the new evidence: (1) could not have been
         obtained prior to the conclusion of trial by the exercise of
         reasonable diligence; (2) is not merely corroborative or
         cumulative; (3) will not be used solely to impeach the
         credibility of a witness; and (4) would likely result in a
         different verdict if a new trial were granted. The test applies
         with full force to claims arising under Section 9543(a)(2)(vi)
         of the PCRA. In addition, we have held the proposed new
         evidence must be producible and admissible.

Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (citations omitted).

      Here, the PCRA court first noted that Bradley has “not attached an

Affidavit to his Petition from this alleged after-discovered witness[.]” Rule 907

Notice, 2/23/18, at 1.      The court then explained why Bradley’s after-

discovered evidence claim failed:

         The alleged after-discovered witness, William Perry Bagley,
         Jr., testified in the hearing held in response to a [PCRA
         petition] filed by [Bradley’s] co-defendant, Oscar Brown, on
         June 21, 2012. His testimony at that hearing was contrary
         to what is represented in this Petition and in the Affidavit
         from the private detective attached to this Petition, in that
         at that hearing, Bagley denied that he was promised any
         particular sentence for testifying in the trial of [Bradley] and
         his co-defendant.

Id.




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      Our review of the record supports the PCRA court’s conclusion that

Bradley’s after-discovered evidence claim failed to meet the Small criteria,

and, therefore, did not warrant the award of a new trial. In addition, we note

that Bradley’s claim also fails because his proffered after-discovered evidence

was not “producible and admissible.” Small, supra. Initially, we note that

Bradley’s averment of what Brown allegedly told him—as well as what the

private investigator allegedly was told by Mr. Bagley—is clearly inadmissible

hearsay.   See Commonwealth v. Yarris, 731 A.2d 581, 592 (Pa. 1999)

(explaining and after-discovered evidence claim “which rests exclusively upon

inadmissible hearsay is not of a type” that would warrant a new trial). As

noted by the PCRA court, Bradley’s failure to attach an affidavit from Mr.

Bagley establishes that the alleged after-discovered facts are not “producible.”

Small, supra. Thus, because Bradley failed to establish an exception to the

PCRA’s time bar, his first issue fails.

      In second issue, Bradley asserts that the PCRA court “erred when

denying [his] requested relief under the PCRA on the basis that the After-

Discovered witness testified at a hearing held in response to [Bradley’s] co-

defendant.” Bradley’s Brief at 11. To support this claim, Bradley questions

whether Mr. Bagley could have lied at Brown’s PCRA hearing “to protect

himself from a charge of perjury or any of the threats made to him by the

Commonwealth[.] Id. He further he asserts that Mr. Bagley’s testimony was

self-serving, and that there was no “logical reason at why Bagley would lie to

this detective.” Id. at 12. This claim entitles Bradley to no relief.

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       Here, the PCRA court correctly found that Mr. Bagley’s prior sworn

testimony refutes Bradley’s after-discovered evidence claim.               Although

Bradley offers various theories regarding Mr. Bagley’s testimony, he proffers

no evidence, by affidavit or otherwise to warrant a remand.                    See

Commonwealth v. Clark, 961 A.2d 80, 94 (Pa. 2008) (explaining that, in

the absence of a sufficient proffer, a petitioner’s bare assertions would

inappropriately convert an evidentiary hearing into a “fishing expedition” for

possible exculpatory evidence). Thus, Bradley’s second issue fails.4

       In his third and final claim, Bradley asserts that the PCRA court erred in

dismissing his third PCRA petition without a hearing. We cannot agree.


           When the PCRA court has dismissed a petitioner’s PCRA
          petition without an evidentiary hearing, we review the PCRA
          court’s    decision    for    an   abuse     of    discretion.
          Commonwealth v. Roney, 79 A.2d 595, 604 (Pa. 2013).
          The PCRA court has discretion to dismiss a petition without
          a hearing when the court is satisfied that there are no
          genuine issues concerning any material fact, the defendant
          is not entitled to post-conviction collateral relief, and no
          legitimate purpose would be served by further proceedings.
          Id. To obtain a reversal of a PCRA court’s decision to
          dismiss a petition without a hearing, an appellant must show
          that he raised a genuine issue of material fact which, if
          resolved in his favor, would have entitled him to relief, or


____________________________________________


4  As part of his argument in support of this claim, Bradley discusses the
Commonwealth’s discovery obligations and alleged violations of Brady,
supra. See Bradley’s Brief at 12-15. We need not address these arguments;
however, given the PCRA court’s previously crediting Mr. Bagley’s PCRA
hearing testimony that the Commonwealth made no promises in return for his
trial testimony.


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         that the court otherwise abused its discretion in denying a
         hearing.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014). Given our

foregoing discussion, and rejection of Bradley’s first and second issues, we

summarily conclude that the PCRA court did not err in dismissing Bradley’s

third PCRA petition without first holding a hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2020




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