J-S10011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
JABRIL TOMONEY                           :
                                         :
                   Appellant             :   No. 592 EDA 2017

               Appeal from the PCRA Order January 13, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0009271-2011


BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY BOWES, J.:                         FILED OCTOBER 17, 2018

      Jabril Tomoney appeals from the January 13, 2017 order dismissing

his PCRA petition as untimely. We affirm.

      On May 18, 2012, Appellant was tried in absentia, after absconding

from the court on the first day of trial, and convicted by a jury of aggravated

assault, criminal conspiracy, and three counts each of firearms not to be

carried without a license and possession of instruments of crime.          The

convictions stemmed from the May 11, 2011 gunfight he and a codefendant

engaged in with Carmelo Ortiz in Philadelphia. On May 21, 2012, the trial

court sentenced Appellant in absentia to an aggregate sentence of fifteen to

thirty years imprisonment.     Appellant did not file a direct appeal.      He

remained a fugitive for four years, until he was arrested following a traffic

stop on February 18, 2016.
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        On March 17, 2016, Appellant filed a counseled PCRA petition that

alleged that trial counsel provided ineffective assistance by failing to secure

his post-sentence and appellate rights.        Following the Commonwealth’s

motion to dismiss the petition as untimely, Appellant filed an amended PCRA

petition that remolded his argument to invoke the newly-discovered-fact

exception to the PCRA time-bar under 42 Pa.C.S. § 9545(b)(1)(ii).            The

Commonwealth renewed its motion to dismiss, and the court issued notice of

its intention to dismiss the PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907. It ultimately dismissed Appellant’s petition on January 13,

2017.

        Appellant filed a timely notice of appeal and a court-ordered statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). He raised

four issues that he reiterates on appeal as follows:

        I.     Did the PCRA court err in denying [Appellant’s] request for
        an evidentiary hearing and relief on the issue of whether [his]
        discovery of prior counsel’s abandonment [satisfied] the 42
        Pa.C.S. § 9545(b)(1)(ii) exception to the one-year deadline for
        filing a PCRA petition?

        II.    Did the PCRA court err in not determining that prior
        counsel was ineffective for failing to make reasonable efforts to
        consult with [Appellant] about his post-sentence and appellate
        rights and to take step[s] to preserve these rights where [his]
        absence from trial did not constitute a waiver of his right to
        effective counsel?

        III. Did the PCRA court err in denying [Appellant’s] request for
        an evidentiary hearing and in concluding that the discovery of
        the existence of an independent witness, who would have
        testified that petitioner shot the victim in self-defense, did not


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      constitute newly-discovered evidence within the meaning of 42
      Pa.C.S. § 9545(b)(1)(ii)?

      IV.   Did the PCRA court err in concluding that prior counsel was
      not ineffective for failing to object to the trial court’s decision to
      issue a self-defense instruction to the jury after closing
      arguments where the court’s instruction prejudiced [Appellant]
      in that it contradicted petitioner’s theory of the case?

Appellant’s brief at 4.

      Our standard of review is well settled.       “In reviewing the denial of

PCRA relief, we examine whether the PCRA court's determination is

supported by the record and free of legal error.”           Commonwealth v.

Mitchell, 141 A.3d 1277, 1283-83 (Pa. 2016) (quotation and citation

omitted).

      Appellant’s first three issues pertain to the timeliness of his petition

and therefore implicate our jurisdiction.     See Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (“[N]either this Court nor the trial court

has jurisdiction over [an untimely] petition.”). In order for a petition to be

timely under the PCRA, it must be filed within one year of the date when the

petitioner’s judgment of sentence became final.       42 Pa.C.S. § 9545(b)(1).

Appellant’s petition, filed nearly four years after his sentence became final

on June 20, 2012, is patently untimely.       Thus, unless Appellant pled and

proved one of the three exceptions to the PCRA time-bar outlined in 42

Pa.C.S. § 9545(b)(1)(i-iii), we cannot address the claims he asserts therein.

The statutory exceptions include interference by government officials, newly-

discovered facts that were unknown to the petitioner and which could not

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have been ascertained with due diligence, and a new constitutional right

held to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(i-iii).1 Any claim based

on an exception to the time-bar must be filed within sixty days of the date it

could have first been presented. Id. at § 9545 (b)(2).

        We address Appellant’s first two assertions regarding counsel’s

ineffective assistance collectively. He contends that his PCRA petition falls

within the timeliness exception for newly-discovered facts.2       Specifically,

Appellant asserts that, upon his arrest on the bench warrant, he discovered

that trial counsel “abandoned” him by failing to zealously represent his post-


____________________________________________


1   These exceptions are:

        (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).

2 The second aspect of Appellant’s argument concerns the merits of his
ineffective assistance claim. However, since Appellant cannot overcome the
PCRA time-bar, we do not address the merits of that assertion.



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trial and appellate interests.   Appellant’s brief at 12-13.   For the following

reasons, no relief is due.

      The § 9545(b)(1)(ii) exception requires the petitioner to establish (1)

the facts upon which the claim was predicated were unknown, and (2) the

facts could not have been discovered through the exercise of due diligence.

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007).

      Appellant’s claim fails for two reasons. First, the newly-discovered fact

that Appellant invokes in this case does not support the ineffective

assistance claim upon which his § 9545(b)(ii) exception is predicated.       In

Commonwealth v. Deemer, 705 A.2d 827, 829 (Pa.1997), our Supreme

Court addressed whether a fugitive forfeits post-trial and appellate rights per

se and concluded that a defendant’s fugitive status does not automatically

bar review. The High Court explained,

      [A] fugitive who has returned to the jurisdiction of the court
      should be allowed to exercise his post-trial rights in the same
      manner he would have done had he not become a fugitive. If he
      became a fugitive between post-trial motions and an appeal and
      he returns before the time for appeal has expired and files an
      appeal, he should be allowed to appeal. If he returns after the
      time for filing an appeal has elapsed, his request to file an
      appeal should be denied. . . . In short, a fugitive who returns to
      court should be allowed to take the system of criminal justice as
      he finds it upon his return: if time for filing has elapsed, he may
      not file; if it has not, he may.

Id.   Accordingly, under the Deemer Court’s framework, a fugitive must

accept the procedural posture of the case as he finds it upon his

apprehension.



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      Instantly, Appellant forfeited his post-appeal and appellate rights

because he absconded from the court’s jurisdiction for four years, well

beyond the period to file post-trial motions or a direct appeal.               See

Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa.Super. 2006),

(“Pursuant to Deemer, Appellant’s claim that trial counsel was ineffective

for failing to file a timely direct appeal is, thus, meritless because Appellant

was not captured until after the 30-day period to file an appeal had

expired.”).    Hence, Appellant’s discovery of counsel’s purported inaction in

failing to pursue appellate rights that Appellant forfeited does not render the

instant petition timely.

      More importantly, even if we ignore the disconnect between the newly-

discovered fact that Appellant alleges and the argument he raised to excuse

his untimely filed PCRA petition, the claimed timeliness exception fails

because Appellant neglected to demonstrate that he exercised due diligence

pursuant to § 9545(b)(1)(ii).        See Bennett, supra.        As we stated in

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

omitted), “[d]ue 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.”

      We addressed a similar situation in Commonwealth v. Carr, 768

A.2d 1164 (Pa.Super. 2001), and concluded that the PCRA petitioner’s

failure   to   exercise   due   diligence   precluded   him   from   relying   upon

§ 9545(b)(1)(ii) to circumvent the PCRA’s time requirements. In that case,

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a petitioner invoked the newly-discovered-fact exception to the time bar by

claiming that counsel ignored his request to file an appeal from the

judgment of sentence. Since the judgment of sentence became final during

1995, and the PCRA petition was not filed until 1999, the trial court

dismissed the petition as untimely. We affirmed, holding that the petitioner

did not establish that he acted with due diligence during the interceding

four-year period to discover his counsel’s inaction.           Specifically, we

observed, “[a] phone call to his attorney or the clerk of courts would have

readily revealed that no appeal had been filed. Due diligence requires that

Appellant take such steps to protect his own interests.” Id. at 1168. The

same rationale applies in the case at bar.

      Assuming that counsel abandoned Appellant by failing to pursue his

post-sentence and direct appeal rights, this claim fails because the

abandonment could have been uncovered through the exercise of due

diligence.   Like the scenario we addressed in Carr, the fact of counsel’s

abandonment was easily ascertainable.        Notwithstanding Appellant’s status

as a fugitive from justice, he or his designated friends or family members

could have contacted his attorney, the clerk of courts, or the Superior Court

Prothonotary to determine whether an appeal was filed on his behalf.

Appellant did not pursue any of these reasonable options to protect his own

interests.   Instead, for more than four years, Appellant did nothing to

investigate the status of his case until after he was apprehended on a bench

warrant.     This prolonged idleness belies any suggestion that Appellant

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exercised due    diligence   to   uncover   the   purported   fact of   counsel’s

abandonment. Thus, Appellant failed to establish the grounds to assert the

newly-discovered-fact exception to the timeliness requirements.

      Appellant’s third contention is that the PCRA court erred in failing to

conduct an evidentiary hearing to address a newly-discovered-fact claim

regarding the discovery of an independent witness, Melvin Smith, who

submitted an affidavit stating that he observed Appellant shoot at Carmelo

Ortiz in self-defense and that he was prevented from coming forward earlier

due to his subsequent imprisonment until May 2016.            The implication of

Appellant’s claim is that he could not have determined that Mr. Smith

witnessed the shootout through due diligence.         Appellant continues that,

since he filed the instant petition within sixty-days of the date that Mr. Smith

made himself known as a witness, his claim qualifies as an exception to the

time-bar. For the following reasons, we disagree.

      Appellant’s reliance upon Mr. Smith’s testimony is unavailing. Plainly,

the “fact” that forms the basis of Appellant’s assertion is not Mr. Smith’s

presence at the shootout with Ortiz; rather, Appellant seeks to invoke

Smith’s testimony that Appellant acted in self-defense. However, the latter

fact does not satisfy § 9545(b)(1)(ii). Indeed, as the circumstances of the

gunfight were obvious to Appellant when it occurred, Appellant knew at the

time of trial whether or not he had acted in self-defense. Thus, Appellant’s

newly-discovered-fact claim is not premised upon a previously unknown fact,

but rather, a newly discovered source of reporting a previously known fact.

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Accordingly, no relief is due.         Commonwealth v. Robinson, 185 A.3d

1055, 1063-64 (Pa.Super. 2018) (en banc) (rejecting newly-discovered-fact

exception     premised      upon    third-party   affidavit   noting   trial   counsel

ineffectiveness because “Appellant always ‘knew’ that his counsel supplied

ineffective advice, and he has failed to show why he could not have learned

these newly-discovered facts at an earlier time”).

       For the foregoing reasons, we affirm the PCRA court’s determination

that Appellant’s PCRA petition was untimely.3

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/18




____________________________________________


3 As Appellant’s PCRA petition is untimely and without exception to the PCRA
time bar, we lack jurisdiction to address the merits of his remaining claim
concerning trial counsel’s ineffectiveness for failing to object to the trial
court’s jury instruction on self-defense.



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