J-S06014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
               v.                        :
                                         :
                                         :
 BRIAN THOMPSON                          :
                                         :
                    Appellant            :    No. 2502 EDA 2018

              Appeal from the Order Entered August 16, 2018
    In the Court of Common Pleas of Chester County Criminal Division at
                      No(s): CP-15-CR-0003498-2005


BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                               FILED MAY 21, 2019

      Brian Thompson appeals from the order denying as untimely his serial

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

      On July 7, 2005, Appellant shot and killed the mother of his children,

Crystal Thompson. At trial, Appellant claimed either that the shotgun went

off accidently when he tripped, or that it inadvertently fired while he was

cleaning and playing with the gun because he was under the influence of drugs

and alcohol.    To rebut these claims, the Commonwealth presented the

testimony of Appellant’s friend, Richard Mack (“Mack”), who contradicted

Appellant’s testimony that he had been drinking or doing drugs that morning.

Appellant was found guilty of first degree murder and sentenced to life

imprisonment.

      Appellant filed a timely direct appeal. On appeal, he contended that the

Commonwealth failed to turn over Brady material about Mack’s parole status
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and elicited false testimony from Mack that he was not on parole at the time

of the murder.1 See Brady v. Maryland, 373 U.S. 83 (1963). On August

24, 2007, this Court affirmed the judgment of sentence. Commonwealth v.

Thompson, 935 A.2d 24 (Pa.Super. 2007) (unpublished memorandum). The

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal on November 19, 2008. Commonwealth v. Thompson, 960 A.2d

840 (Pa. 2008).

       Appellant, acting pro se, filed a timely PCRA petition. The PCRA court

appointed counsel, although Appellant elected to proceed pro se with stand-

by counsel.      In his petition, Appellant raised numerous issues including

challenging his trial counsel’s effectiveness for failing to request a bill of

particulars for all of the prior convictions of Mack. Following a hearing, the

PCRA court denied Appellant’s first PCRA petition. This Court affirmed the

denial on August 23, 2011. Commonwealth v. Thompson, 32 A.3d 840

(Pa.Super. 2011).        The Pennsylvania Supreme Court denied Appellant’s

petition for allowance of appeal. Commonwealth v. Thompson, 38 A.3d

825 (Pa. 2012).


____________________________________________


1 This inconsistency was significant because, as a parolee, Mack could not
consume alcohol without violating the conditions of his parole. Appellant’s
primary defense at trial was diminished capacity from voluntary intoxication.
Appellant testified that, on the morning of the crime, Mr. Mack visited him,
bringing beer, which the two drank as they smoked marijuana. N.T. Trial,
3/8/06, at 124. Mr. Mack testified that he visited Appellant, but they did not
consume any intoxicating substances together and Appellant appeared to be
sober. N.T. Trial, 3/6/06, at 102.

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       On September 21, 2012, Appellant, acting pro se, filed his second PCRA

petition. In his petition, Appellant argued that he was entitled to relief under

the newly-discovered facts and governmental interference exceptions to the

PCRA time bar, based on the fact that the Commonwealth never informed him

that Mack had a pending criminal case at the time of Appellant’s trial. The

PCRA     court   dismissed   the   petition   as   untimely,   and   we   agreed.

Commonwealth v. Thompson, 105 A.3d 42 (Pa.Super. 2014) (unpublished

memorandum).        Our Supreme Court denied his subsequent petition for

allowance of appeal.     Commonwealth v. Thompson, 105 A.3d 42 (Pa.

2014).

       On May 1, 2018, Appellant filed his third PCRA petition, in which he

alleged that he had discovered new evidence of previously undisclosed prior

convictions of Mack. Appellant filed a memorandum of law in support of his

petition and the Commonwealth filed its Answer. The PCRA court issued notice

of its intent to dismiss the petition as untimely and Appellant filed a response.

On August 2, 2018, the PCRA court dismissed the petition. This pro se appeal

followed.

       Appellant presents the following two issues in his brief:

       1.    Did the trial court err by dismissing the properly filed PCRA
             petition without a hearing where the Appellant established
             that the Commonwealth suppressed evidence of numerous
             felony convictions by its witness-in-chief?

       2.    Does the trial court’s failure to address or otherwise dispose
             of the July 9, 2018 properly[-]filed motion to amend the



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              PCRA and proposed amendment constitute an abuse of
              discretion and clear legal error?2

Appellant’s brief at 6.

       Our   standard     of   review    examines   “whether   the   PCRA   court’s

determination is supported by the evidence of record and free of legal error.

We grant great deference to the PCRA court’s findings, and we will not disturb

those findings unless they are unsupported by the certified record.”

Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa.Super. 2017) (citation

omitted).

       A PCRA petition must be filed within one year of the date the judgment

of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). “This time constraint is

jurisdictional in nature, and is not subject to tolling or other equitable

considerations.” Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017)

(citation omitted). The time bar can “only be overcome by satisfaction of one

of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)–(iii).”

Id.

       Appellant first alleges that he has uncovered newly-discovered facts

which entitle him to a new trial. When considering a claim seeking to invoke

the newly-discovered fact exception, our Supreme Court requires that a

petitioner establish that: “(1) the facts upon which the claim was predicated


____________________________________________


2 We note with displeasure that Appellant’s argument section does not
correspond to his statement of issues.


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were unknown and (2) they could not have been ascertained by the exercise

of due diligence.” Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016)

(citation omitted). Due diligence demands that the petitioner take reasonable

steps to protect his own interests. Commonwealth v. Carr, 768 A.2d 1164,

1168 (Pa.Super. 2001). This rule is strictly enforced. Commonwealth v.

Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010). Additionally, the focus of

this exception “is on the newly discovered facts, not on a newly discovered or

newly willing source for previously known facts.”          Commonwealth v.

Marshall, 947 A.2d 714, 720 (Pa. 2008).

      Appellant concedes that his petition is untimely, but asserts that he has

newly discovered evidence in the form of Mack’s “numerous felony drug

convictions,” which he discovered on March 8, 2018, from his private

investigator.   Appellant’s brief at 8.   Appellant contends that he was not

required to exercise due diligence, since it was “patently unreasonable” for

him to conclude that Mack had any more unknown prior convictions after the

conclusion of his second PCRA petition in 2012. Appellant’s brief at 13-14.

The trial court found Appellant’s argument unconvincing and we agree.

      The facts at issue are Mack’s prior convictions, which Appellant alleges

that he discovered for the first time in March of 2018. However, Appellant’s

direct appeal and two previous PCRA petitions already raised allegations about

Mack’s criminal history. Appellant was well-aware that Mack had a criminal

record before the conclusion of trial, as trial counsel brought the fact that Mack


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was out of jail on parole at the time of the murder to the attention of the jury,

Commonwealth, and trial court. N.T. Trial, 3/8/06, at 107-09. Additionally,

Appellant’s second PCRA petition challenged the Commonwealth’s failure to

disclose Mack’s pending charges at the time of trial.        Therefore, even if

Appellant was not aware of Mack’s entire criminal record at the conclusion of

his second PCRA petition in 2012, Appellant “was [at the very least] put on

notice that there was information unknown to him about Mack’s criminal

history and that further investigation may be necessary” at that time. Trial

Court Opinion, 9/20/18, at 15.

      In his brief, Appellant argues that he had no due diligence obligations

after his second PCRA petition was dismissed, because he had no reason to

believe that he did not have Mack’s entire criminal record. Appellant’s brief

at 14. This conclusion fails to account for the fact that “due diligence demands

that the petitioner take reasonable steps to protect his own interests.”

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

concedes this point, admitting that the information recovered during the

pendency of his second PCRA petition led him to continue to investigate Mack’s

prior criminal record. Appellant’s brief at 14-15. In fact, Appellant contends

that immediately following the conclusion of his second PCRA petition he spent

years seeking an investigator and an attorney to assist him. Id. at 24-25.

Thus, by Appellant’s own admission, he was aware of the need for further

investigation into Mack’s criminal record as of 2012.


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      Consequently, we reject Appellant’s attempt to tailor his newly-

discovered fact analysis to his alleged 2018 discovery. There are situations in

which a petitioner may passively rely on learning information as opposed to

actively seeking out those facts. See Commonwealth v. Medina, 92 A.3d

1210 (Pa.Super. 2014) (en banc) (finding that a PCRA petition based on

newly-discovered facts was timely where witnesses contacted the defendant

and recanted their testimony, claiming that a police detective coerced their

statements; Medina was not required to contact the witnesses because he had

no reason to suspect the coercion and no duty to engage in a fishing expedition

as to why witnesses lied). However, this is not one of those situations.

      In contrast to Medina, the fact that Mack had a prior criminal record

should have been obvious to Appellant back at trial in 2006, when it was

brought to his attention that Mack had been on parole at the time of the

crimes. Therefore, Appellant bore the duty to seek out the facts that he now

attempts to use to support his claim twelve years later. His failure to do so is

fatal to his claim.

      Appellant relies on Commonwealth v Burton, 158 A.3d 618 (Pa.

2017), which held that, for purposes of § 9545(b)(1)(ii)’s requirement that

the facts be unknown, materials in the public record are not presumptively

known to an incarcerated pro se petitioner. Appellant contends that his failure

to discover the full extent of Mack’s criminal record prior to 2018 does not

preclude a finding of due diligence in light of Burton, since he was pro se from


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2009 until 2018; therefore, he lacked the necessary “conduit to such records.”

Appellant’s brief at 16. We disagree, and find that Burton does not compel

such a result.

      Burton holds only that material in the public record is not presumptively

known to an incarcerated pro se PCRA petitioner just because that information

is publicly available. It does not follow from Burton that Appellant is relieved

of his duty to seek out facts as a matter of due diligence. Appellant has to

prove both that the facts were unknown and that he exercised due diligence

when uncovering them.      42 Pa.C.S. 9545(b)(1)(ii).    The knowledge about

Mack’s criminal history gleaned from trial and his previous PCRA petitions

supplied a basis for Appellant to seek out further information. It is readily

apparent from the lengthy delay that resulted, between when Appellant was

put on notice and when he allegedly uncovered the information, that Appellant

failed to proceed in a duly-diligent manner. Notably, Appellant’s claim that he

could not have learned of this information earlier because he was incarcerated

and unrepresented is specious since Appellant remains incarcerated and

unrepresented, yet he became aware of the alleged new material. Therefore,

we conclude that the PCRA court did not err when it determined that Appellant

failed to meet the newly-discovered fact exception to the PCRA time-bar

necessary to establish jurisdiction.

      Second, Appellant asserts that the Commonwealth’s failure to disclose

the complete criminal history of Mack constitutes a Brady violation that falls


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within the ambit of the PCRA time-bar exception for governmental

interference. Appellant’s brief at 17-24; see also 42 Pa.C.S. § 9545(b)(1)(i).

Appellant further alleges that “no affirmative due diligence duty is required”

in order to meet this exception. Id. at 22. We disagree.

        Although    a    Brady   violation     may    fall   within    the   governmental

interference exception, that conclusion does not end the analysis, since a

petition must still be filed within sixty days3 of the date the claim could have

been filed pursuant to 42 Pa.C.S. § 9545(b)(2). See also Commonwealth

v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999). This means that a petitioner

must still plead and prove that the failure to previously raise the claim was

the result of interference by government officials, and that the petition was

filed   within   sixty   days    of   when     he    could   first    present   the   claim.

Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001).

        As previously noted, Appellant has failed to convincingly explain why the

information concerning Mack’s prior record could not have been obtained or

presented earlier. Thus, he also fails to meet his burden of proof regarding

the governmental interference exception. We therefore affirm the dismissal

of Appellant’s third PCRA petition on this basis.

        Order affirmed.



____________________________________________


3 Since the filing of Appellant’s brief, 42 Pa.C.S. § 9545(b)(2) has been
amended to allow petitioners one year to present claims, in lieu of the
previously-allotted sixty days.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/19




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