J-S01034-15


                                   2015 PA Super 24

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

GENE LEONARD BROWN

                            Appellant                       No. 1018 WDA 2014


                   Appeal from the PCRA Order May 28, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0014850-2000


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

OPINION BY GANTMAN, P.J.:                               FILED FEBRUARY 06, 2015

        Appellant, Gene Leonard Brown, appeals from the order entered in the

Allegheny County Court of Common Pleas, which dismissed his second

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

affirm.

        The relevant facts and procedural history of this case are as follows.

The Commonwealth charged Appellant with criminal homicide in connection

with the shooting death of Victim.             Appellant proceeded to a jury trial on

June 5, 2001. At trial, the Commonwealth presented the following evidence,

inter alia: on July 31, 2000, at approximately 6:00 p.m., Victim was sitting

on steps on Cresswell Street in the St. Clair Village housing project with
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
J-S01034-15


some friends, including Daron Freeman. Appellant was walking on a nearby

pathway; and when Appellant saw Victim, Appellant began shooting at him.

Appellant initially fired three or four shots, reloaded, and then fired an

additional thirteen to seventeen shots. During the shooting, Phil Peterson,

one of Victim’s friends, began firing shots from a nine-millimeter Glock in

Appellant’s direction to scare him off. Upon Mr. Peterson’s firing, Appellant

fled the scene and entered his cousin’s vehicle.    Appellant told his cousin

Appellant shot Victim in the leg. Victim sustained two bullet wounds to the

chest, which killed him. The Commonwealth’s expert in forensic pathology

testified that Victim did not sustain any gunshot wounds to his legs, calves,

or buttocks.

       Investigators recovered thirteen spent shell casings from the crime

scene. Police found three of the shell casings, including the casings from the

two bullets recovered from Victim’s body, in the pathway of the shots fired

by Appellant.   Police recovered the remaining ten casings, fired from Mr.

Peterson’s firearm, in two different locations on and around Cresswell Street.

Significantly, the Commonwealth’s expert in firearms testing opined that the

bullets which killed Victim could not have been fired from Mr. Peterson’s

gun.

       Relevant to this appeal, Mr. Freeman testified at trial that he was

sitting with Victim on the day of the shooting. When Mr. Freeman noticed

Appellant walking toward them, Mr. Freeman stood up and started to walk


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away because he suspected trouble.     Mr. Freeman thought Appellant and

Victim would fight due to a prior incident between them, but Mr. Freeman

did not know the details of what had transpired between the two men. Mr.

Freeman admitted he was concerned for Victim’s safety based on this prior

incident. When Mr. Freeman began to walk away, he heard gunshots. Mr.

Freeman turned around and saw Victim holding his chest and trying to run

away.    Mr. Freeman did not see Victim carrying a gun on the day of the

shooting.

        Appellant testified at trial that he shot Victim in self-defense.

Appellant explained that, two weeks before the shooting, Appellant was

leaving a bar when Victim walked up to Appellant, pulled out a gun, and

began patting Appellant’s pocket in an attempt to rob him.        Appellant

maintained the men struggled for a bit, but ultimately Appellant was able to

disarm Victim and turn over Victim’s weapon to the police.        Appellant

insisted that, on the day of the shooting, he was on his way to a birthday

party for his mother and just happened to see Victim on the steps.

Appellant claimed he was carrying his mother’s firearm that day for

protection after the attempted robbery. When Appellant walked up to Victim

and his friends, Appellant alleged Victim stood up and said: “What are you

going to do now? Where is the police at now, you little bitch?” Appellant

explained Victim had his hands in his pants and reached into his mid-section

area under his shirt, so Appellant suspected Victim might have a gun.


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Appellant then fired three shots toward the ground to scare Victim away.

Upon hearing additional shots fire, Appellant ran away. Appellant adamantly

maintained that he fired no more than three shots near Victim, and that if

Appellant did fire at Victim, Appellant fired only at Victim’s legs. Appellant

conceded he did not see Victim with a gun on the day of the shooting.

Appellant claimed there was actually a third shooter, but Appellant refused

to disclose the identity of this alleged third shooter.

      On June 7, 2001, the jury convicted Appellant of first-degree murder.

The court sentenced Appellant on June 20, 2001, to life imprisonment. This

Court affirmed the judgment of sentence on March 19, 2003, and our

Supreme Court denied allowance of appeal on February 17, 2004.           See

Commonwealth v. Brown, 828 A.2d 394 (Pa.Super. 2003), appeal denied,

577 Pa. 676, 843 A.2d 1236 (2004) (unpublished memorandum). On July 9,

2004, Appellant timely filed a PCRA petition, which the court denied on April

4, 2007.   This Court affirmed the denial of PCRA relief on September 23,

2009, and the Supreme Court denied allowance of appeal on March 9, 2010.

See Commonwealth v. Brown, 986 A.2d 1249 (Pa.Super. 2009), appeal

denied, 605 Pa. 692, 990 A.2d 726 (2010) (unpublished memorandum).

      On March 26, 2014, Appellant filed pro se the current PCRA petition,

claiming he had obtained “newly discovered evidence.”        In his petition,

Appellant maintains Mr. Freeman failed to tell the “whole story” at trial.

Appellant contends Mr. Freeman has since come forward to elaborate on his


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testimony, stating that, on the day of the shooting, Mr. Freeman heard

Victim curse at Appellant, and saw Victim reach into his waistband and stand

up.2    Mr. Freeman then stood up and walked away before the shots fired.

Appellant claims Mr. Freeman did not reveal this information sooner because

he was married to Victim’s cousin.             Mr. Freeman’s wife has since passed

away, so Mr. Freeman felt he should come forward.              Appellant insists Mr.

Freeman’s “new evidence” would have bolstered Appellant’s claim of self-

defense.    Appellant further avers Mr. Freeman relayed this information to

Appellant’s wife on February 11, 2014; and Appellant became aware of Mr.

Freeman’s “new” information on February 28, 2014.

        On May 5, 2014, the court issued Pa.R.Crim.P. 907 notice of its intent

to dismiss the petition without a hearing, based in part on Appellant’s failure

to attach to his PCRA petition a declaration from Mr. Freeman attesting to

his proposed testimony or a declaration from Appellant’s wife stating the

date she became aware of Mr. Freeman’s testimony. Appellant responded to

the court’s Rule 907 notice, alleging he had attached Mr. Freeman’s

declaration to his PCRA petition (and providing proof in the form of a receipt

from a prison guard and signature from a mailroom bookkeeper). Appellant

attached another copy of Mr. Freeman’s declaration to his response, as well

as a declaration from his wife indicating she learned of Mr. Freeman’s

____________________________________________


2
    Appellant does not claim Mr. Freeman saw Victim with a firearm.



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testimony on February 16, 2014.3               On May 28, 2014, the court dismissed

Appellant’s petition as untimely. Appellant timely filed a notice of appeal on

June 25, 2014.       On June 30, 2014, the court ordered Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Appellant timely filed a Rule 1925(b) statement on July 15, 2014.

       Appellant raises the following issues for our review:

          THE PCRA COURT ERRED IN DISMISSING APPELLANT’S
          SECOND PETITION AS UNTIMELY FILED BECAUSE IT
          DETERMINED    THAT  HE   FAILED  TO  MEET   THE
          [REQUIREMENTS] OF THE AFTER-DISCOVERED EVIDENCE
          EXCEPTION TO THE PCRA WHERE:

              A.   THE [WITNESS’ DECLARATION] WAS TIMELY
              FILED WITH APPELLANT’S SECOND PCRA PETITION
              IN ACCORDANCE WITH THE MAILBOX RULE, AND

              B.   APPELLANT PROVIDED THE PCRA COURT WITH
              AN   ADDITIONAL   COPY    OF   THE    WITNESS’
              [DECLARATION]   AND    EVIDENCE    OF   TIMELY
              DELIVERING   HIS    SECOND    PETITION     AND
              [DECLARATION]   TO    THE    DEPARTMENT     OF
              CORRECTIONS WITH HIS TIMELY FILED RESPONSE
              TO THE COURT’S NOTICE OF INTENT TO DISMISS.

          THE PCRA COURT ERRED IN DISMISSING APPELLANT’S
          SECOND PETITION BECAUSE [A DECLARATION] FROM HIS
          WIFE WAS NOT ATTACHED TO HIS PETITION WHEN
          APPELLANT ATTACHED HER [DECLARATION] TO THE
          TIMELY-FILED RESPONSE TO THE COURT’S NOTICE OF
          INTENT TO DISMISS.

          [THE] PCRA COURT ERRED IN DISMISSING [APPELLANT’S]
____________________________________________


3
  Appellant does not contend that his wife’s declaration constitutes “newly
discovered evidence,” but uses it to demonstrate when Appellant learned of
Mr. Freeman’s statements.



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         SECOND PCRA PETITION WITHOUT A HEARING BECAUSE
         IT FOUND THE PETITION TO BE PATENTLY FRIVOLOUS
         AND LACKING SUPPORT IN THE RECORD WHEN
         [APPELLANT] ALLEGED FACTS THAT, IF PROVEN, WOULD
         ENTITLE HIM TO RELIEF IN THE FORM OF A CONVICTION
         OF A LESSER CHARGE.

         THE PCRA COURT ERRED IN DISMISSING [APPELLANT’S]
         SECOND PCRA PETITION BECAUSE IT FOUND THAT NO
         FURTHER PURPOSE WOULD BE SERVED BY CONDUCTING
         AN EVIDENTIARY HEARING WHEN [APPELLANT] ALLEGED
         FACTS THAT, IF PROVEN, WOULD ENTITLE HIM TO RELIEF
         IN THE FORM OF A CONVICTION OF A LESSER CHARGE.

         THE PCRA COURT ERRED IN DETERMINING THAT
         APPELLANT WAS NOT ENTITLED TO APPOINTED COUNSEL
         TO REPRESENT HIM IN HIS SECOND PCRA PETITION.

(Appellant’s Brief at 4-5).

      As a prefatory matter, the timeliness of a PCRA petition is a

jurisdictional requisite.     Commonwealth v. Robinson, 12 A.3d 477

(Pa.Super. 2011).     A PCRA petition, including a second or subsequent

petition, shall be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused.    42 Pa.C.S.A. § 9545(b)(1).    To invoke an exception, a


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petition must allege and the petitioner must prove:

         (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).    Additionally, a PCRA petitioner must

present his claimed exception within sixty days of the date the claim first

could have been presented. 42 Pa.C.S.A. § 9545(b)(2). “As such, when a

PCRA petition is not filed within one year of the expiration of direct review,

or not eligible for one of the three limited exceptions, or entitled to one of

the exceptions, but not filed within 60 days of the date that the claim could

have been first brought, the [PCRA] court has no power to address the

substantive merits of a petitioner’s PCRA claims.”       Commonwealth v.

Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).

      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. Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,


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1271 (2007).      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). A petitioner must explain why he could not

have learned the new fact(s) earlier with the exercise of due diligence.

Commonwealth v. Breakiron, 566 Pa. 323, 330-31, 781 A.2d 94, 98

(2001); Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super

2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011).             This rule is

strictly enforced.    Id.   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, 596 Pa. 587,

596, 947 A.2d 714, 720 (2008) (emphasis in original).

      The timeliness exception set forth at Section 9545(b)(1)(ii) has often

mistakenly been referred to as the “after-discovered evidence” exception.

Bennett, supra at 393, 930 A.2d at 1270. “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.’”

Id.   Rather, as 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. See 42

Pa.C.S.A.   §   9545(b)(1)(ii);    Bennett,    supra.     Once   jurisdiction   is

established, a PCRA petitioner can present a substantive after-discovered-

evidence claim.      See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be


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eligible for relief under PCRA, petitioner must plead and prove by

preponderance of evidence that conviction or sentence resulted from, inter

alia, unavailability at time of trial of exculpatory evidence that has

subsequently become available and would have changed outcome of trial if it

had been introduced). In other words, the “new facts” exception at:

          [S]ubsection (b)(1)(ii) has two components, which must
          be alleged and proved.      Namely, the petitioner must
          establish that: 1) the facts upon which the claim was
          predicated were unknown and 2) could not have been
          ascertained by the exercise of due diligence. If the
          petitioner alleges and proves these two components, then
          the PCRA court has jurisdiction over the claim under this
          subsection.

Bennett, supra at 395, 930 A.2d at 1272 (internal citations omitted)

(emphasis in original).          Thus, the “new facts” exception at Section

9545(b)(1)(ii) does not require any merits analysis of an underlying after-

discovered-evidence claim.4 Id. at 395, 930 A.2d at 1271.

       Instantly, the court sentenced Appellant on June 20, 2001.         Our

Supreme Court denied allowance of appeal on February 17, 2004.

____________________________________________


4
  To obtain relief on a substantive after-discovered-evidence claim under the
PCRA, a petitioner must demonstrate: (1) the evidence has been discovered
after trial and it could not have been obtained at or prior to trial through
reasonable diligence; (2) the evidence is not cumulative; (3) it is not being
used solely to impeach credibility; and (4) it would likely compel a different
verdict. See, e.g., Commonwealth v. Washington, 592 Pa. 698, 927
A.2d 586 (2007); Commonwealth v. D’Amato, 579 Pa. 490, 856 A.2d 806
(2004). The substantive merits-based analysis is more stringent than the
analysis required by the “new facts” exception to establish jurisdiction. See
Bennett, supra at 395-96, 930 A.2d at 1271-72.



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Appellant’s judgment of sentence became final on May 17, 2004, upon

expiration of the time to file a petition for writ of certiorari with the United

States Supreme Court.         See U.S.Sup.Ct.R. 13.    Thus, Appellant’s current

petition, filed on March 26, 2014, is patently untimely. See 42 Pa.C.S.A. §

9545(b)(1). Additionally, Appellant did not acknowledge the untimeliness of

his petition or allege in his petition any exception to the PCRA time-bar. See

42 Pa.C.S.A. § 9545(b)(1)(i-iii).          Instead, Appellant maintained he had

“newly discovered evidence” and was entitled to relief under 42 Pa.C.S.A. §

9543. See 42 Pa.C.S.A. § 9543(a)(2)(vi). Appellant’s reliance on Section

9543 as a basis for asserting an after-discovered-evidence claim under the

PCRA, however, did not suspend Appellant’s initial obligation to establish

jurisdiction by alleging and proving (a) the existence of facts that were

unknown to him and (b) his exercise of due diligence in discovering those

facts. See 42 Pa.C.S.A. § 9545(b)(1)(ii); Bennett, supra. Consequently,

as presented, Appellant failed to plead and prove in his petition any

exception to the PCRA’s time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).5

       Nevertheless, based on Appellant’s allegations, the PCRA court treated

Appellant’s petition as attempting to invoke the “new facts” exception set

forth under Section 9545(b)(1)(ii). In dismissing the petition as untimely,

the court explained:
____________________________________________


5
  On appeal, Appellant similarly advances arguments on the merits of his
underlying after-discovered-evidence claim.



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          In response to the Notice of Intent to Dismiss, [Appellant]
          submitted [declarations] from his wife, Malik James, and
          from Daron Freeman, the eyewitness who testified at trial.
          [Mr.] Freeman’s [declaration] states that just before the
          shooting, he saw [Victim] reach toward his waistband, but
          then he looked away and did not see the shooting. In his
          filings, [Appellant] avers that this supports his claim of
          self-defense. [Ms.] James’ [declaration] reiterates [Mr.]
          Freeman’s [declaration] and states that she became aware
          of this evidence on February 1[6], 2014 when [Mr.]
          Freeman called her without provocation.

          At trial, [Appellant] testified that he was involved in an
          altercation with [Victim] several days prior to the shooting.
          [Appellant] also testified to pulling out his gun and
          shooting [Victim] on the public street, even though he
          could have run away. Although [Mr.] Freeman now claims
          not to have seen [Appellant] shoot [Victim], [Appellant]
          has already admitted he did so. Although [Mr.] Freeman
          now claims to have seen [Victim] reaching towards his
          waistband, the physical evidence proved that [Victim] was
          unarmed. The new “evidence” contained in [Mr.]
          Freeman’s [declaration] does not change any
          analysis of the facts and there is no reasonable
          argument that it would compel a different verdict.
          As such, [Appellant] has failed to satisfy the
          requirements of the after-discovered evidence
          exception.

          Inasmuch as [Appellant] has failed to satisfy the
          requirements of the after-discovered evidence exception to
          the time limitation provisions of the Post Conviction Relief
          Act, his Petition was properly classified as untimely. …

(PCRA Court Opinion, filed September 2, 2014, at 4-5) (emphasis added).6

The court’s reasoning makes clear it conflated the distinct requirements of

____________________________________________


6
  To the extent Appellant complains the court dismissed his petition for
failure to attach the required declarations to his petition, the record belies
that contention. See id.



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the “new facts” exception per Section 9545(b)(1)(ii) and the merits-based

“after-discovered evidence” analysis relevant to Section 9543(a)(2)(vi).

Compare      42    Pa.C.S.A.    §    9545(b)(1)(ii)     with      42    Pa.C.S.A.      §

95439(a)(2)(vi). See also Bennett, supra.

     Even if we accept the PCRA court’s position that Appellant meant to

invoke the “new facts” exception at Section 9545(b)(1)(ii), our examination

of Appellant’s petition confirms he failed in his efforts.         Significantly, Mr.

Freeman sat on the steps with Victim just before the shooting.                 Appellant

knew Mr. Freeman was present on the steps when Victim allegedly cursed at

Appellant and reached in his waistband. Thus, at the time of the shooting

and going forward, Appellant would have had reason to believe Mr. Freeman

overheard Victim’s alleged remarks and saw Victim stand up and place his

hands   in   his   waistband.       Mr.     Freeman   testified   at   trial    for   the

Commonwealth.       At no point during Appellant’s cross-examination of Mr.

Freeman, however, did Appellant attempt to elicit from Mr. Freeman

testimony regarding whether Mr. Freeman heard Victim curse at Appellant

prior to the shooting or whether Mr. Freeman saw Victim stand up and reach

toward his waistband.    Further, Mr. Freeman’s reluctance to come forward

with the purported new information sooner, due to his marriage to Victim’s

cousin, does not explain why Appellant was unable to discover this

information earlier with the exercise of due diligence.           Notably, Appellant

makes no claim that he attempted to contact Mr. Freeman at any point since


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trial to determine whether Mr. Freeman had additional information regarding

the day of the shooting.        See Breakiron, supra; Monaco, supra; Carr,

supra. Compare Bennett, supra (holding petitioner alleged sufficient due

diligence, for purposes of Section 9545(b)(1)(ii) time-bar exception, where

petitioner provided description of steps he took to ascertain status of his

case, including writing to PCRA court and Superior Court). Thus, Appellant

failed to meet the “new facts” exception to establish jurisdiction.       See 42

Pa.C.S.A. § 9545(b)(1)(ii); Bennett, supra. Absent proper jurisdiction, the

PCRA court lacked authority to address the substantive merits of Appellant’s

after-discovered-evidence claim.7 See Gamboa-Taylor, supra.

       Based upon the foregoing, we hold that a facially untimely PCRA

petitioner attempting to raise a substantive after-discovered-evidence claim

must first establish jurisdiction by pleading and proving an exception to the

PCRA time-bar. Additionally, the “new facts” exception set forth at Section

9545(b)(1)(ii) does not require any merits analysis of an underlying after-

discovered-evidence claim.         Rather, to establish jurisdiction under Section

9545(b)(1)(ii), a petitioner must allege and prove (a) the existence of facts

that were unknown to him and (b) his exercise of due diligence in
____________________________________________


7
  Due to our disposition, we need not address Appellant’s claim seeking
appointment of counsel. See Pa.R.Crim.P. 904(D) (stating on second or
subsequent PCRA petition, when unrepresented defendant satisfies court
that defendant is unable to afford or otherwise procure counsel and
evidentiary hearing is required, court shall appoint counsel to represent
defendant).



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discovering   those   facts.   Appellant      failed   to   satisfy   this   exception.

Accordingly, we affirm the order dismissing Appellant’s petition as untimely.

See generally Commonwealth v. Lee, 947 A.2d 199 (Pa.Super. 2008),

appeal denied, 602 Pa. 676, 981 A.2d 218 (2009) (explaining appellate court

can affirm trial court’s decision on any basis).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/2015




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