J-S70016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

ROBERT FENNELL

                            Appellant               No. 1119 EDA 2016


                   Appeal from the PCRA Order March 22, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0406281-2005


BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                          FILED FEBRUARY 13, 2017

       Robert Fennell appeals, pro se, from the order entered in the

Philadelphia County Court of Common Pleas, dated March 22, 2016,

dismissing his serial petition filed under the Post-Conviction Relief Act

(“PCRA”)1 as untimely. Fennell seeks relief from the judgment of sentence

imposed on December 4, 2006, following his jury convictions of unlawful

restraint, aggravated assault, robbery of a motor vehicle, kidnapping, and

criminal conspiracy.2 On appeal, Fennell contends the PCRA court erred in

dismissing his claim asserting the newly-discovered evidence exception to

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. §§ 2902, 2702(a)(1), 3702(a)(1)(ii), 2901, and 903,
respectively.
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the timeliness requirement.         After careful review, we reverse and remand

with instructions.

       On February 25, 2005, Fennell and his two co-conspirators kidnapped

the victim, his family and two neighbors in order to rob a check-cashing

business where the victim’s wife worked.3 On September 22, 2005, a jury

convicted Fennell of the above-mentioned crimes. The trial court sentenced

him on November 15, 2006.4 A panel of this Court affirmed the judgment of

sentence on July 16, 2008, and the Pennsylvania Supreme Court denied his

petition for allowance of appeal (“PAA”) on April 1, 2009. Commonwealth

v. Fennell, 959 A.2d 961 [915 EDA 2007] (Pa. Super. 2008) (unpublished

memorandum), appeal denied, 968 A.2d 231 (Pa. 2009).
____________________________________________


3
    See Trial Court Opinion, 10/10/2007, at 1-3.
4
  We note that in a prior PCRA decision, a panel of this Court indicated the
record was unclear as to the length of Fennell’s sentence:

       The Commonwealth and the present trial court opinion state that
       his sentence was 10 to 20 years’ imprisonment. However, a trial
       court opinion filed October 7, 2007, prepared during [Fennell]’s
       direct appeal, states that he was sentenced to 17 to 34 years’
       imprisonment. [Fennell]’s PCRA petition claims that he was
       sentenced to 20 to 40 years’ imprisonment.          Neither the
       sentencing order nor the sentencing transcript appears in the
       record before us. Fortunately, [Fennell] raises no issue related
       to sentencing, and the discrepancy is of no moment.

Commonwealth v. Fennell, 48 A.3d 478 [1748 EDA 2011] (Pa. Super.
2012) (unpublished memorandum at 1-2 n. 1). Upon reviewing the record
again, we agree that the length of Fennell’s sentence remains unclear.
Nevertheless, as will be discussed below, Fennell does not raise a
sentencing-related issue in his present appeal.



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       Since then, Fennell has filed three petitions under the PCRA. 5 None of

these petitions has provided Fennell any relief. Fennell filed the present pro

se PCRA petition, his fourth, on March 19, 2014. After determining that the

petition was untimely, the PCRA court denied relief on March 22, 2016.6

This pro se appeal followed.7

       Fennell raises the following issues for our review:

       1. Whether the PCRA court erred by dismissing [Fennell]’s PCRA
          [petition] as untimely, even though the PCRA petition was
          filed within 30 days of the discovery of new evidence.

       2. Whether the PCRA court erred by failing to address the merits
          of the case[, w]hereas it was discovered that a juror lied on
          the voir dire when he denied ever being convicted of crimes
          when asked by the trial judge.

Fennell’s Brief at iv.

       “Crucial 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).
____________________________________________


5
    See PCRA Court Opinion, 5/10/2016, at 2.
6
  The record reveals the PCRA court did not issue a Pa.R.Crim.P. 907 notice
before it dismissed Fennell’s fourth petition. Nonetheless, Fennell did not
challenge the lack of Rule 907 notice on an appeal, which constitutes waiver
of any rule-related claim. See Commonwealth v. Boyd, 923 A.2d 513,
514 n.1 (Pa. Super. 2007), appeal denied, 932 A.2d 74 (Pa. 2007).
7
   The PCRA court did not order that Fennell file a concise statement of
errors complained of on appeal under Pa.R.A.P. 1925(b). On May 10, 2016,
the court issued an opinion under Pa.R.A.P. 1925(a).



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      The PCRA timeliness requirement … is mandatory and
      jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
      1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
      A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa.
      1, 753 A.2d 201, 203 (2000)). The court cannot ignore a
      petition’s untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

134 S.Ct. 2695 (U.S. 2014).

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

underlying judgment becomes final. 42 Pa.C.S. § 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 review.” 42 Pa.C.S. §

9545(b)(3).    Here, our review of the record reveals the Pennsylvania

Supreme    Court    denied    Fennell’s   PAA    on     April   1,   2009.   See

Commonwealth v. Fennell, 968 A.2d 231 (Pa. 2009) (per curiam).

Therefore, Fennell’s judgment of sentence became final on June 30, 2009,

90 days after the Pennsylvania Supreme Court denied his petition for

allowance of appeal and the time for filing a petition for review with the

United States Supreme Court expired.            See 42 Pa.C.S. § 9545(b)(3);

U.S.Sup.Ct.R. 13. As such, any PCRA petition had to be filed by June 30,

2010. Fennell did not file the present PCRA petition until March 19, 2014.

Accordingly, Fennell’s petition is patently untimely.

      Nevertheless, an untimely PCRA petition may be considered if one of

the following three exceptions applies:

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J-S70016-16


       (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). Furthermore, a PCRA petition alleging any of

the exceptions under Section 9545(b)(1) must be filed within 60 days of

when the PCRA claim could have first been brought.              42 Pa.C.S. §

9545(b)(2).8

       As indicated above, Fennell’s allegations touch upon the newly

discovered fact exception in Section 9545(b)(1)(ii).      Specifically, Fennell

states he discovered that a juror provided false information regarding that

juror’s criminal background during voir dire and the juror’s perjured

statement violated Fennell’s constitutional rights. See Fennell’s Brief at v.

       The timeliness exception set forth in Section 9545(b)(1)(ii)
       requires a petitioner to demonstrate he did not know the facts
____________________________________________


8
   Moreover, we are mindful that “although this Court is willing to construe
liberally materials filed by a pro se litigant, pro se status generally confers
no special benefit upon an appellant.” Commonwealth v. Lyons, 833 A.2d
245, 252 (Pa. Super. 2003) (citation omitted), appeal denied, 879 A.2d 782
(Pa. 2005). It merits mention that Fennell’s brief is disjointed and rambling
at various points.



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J-S70016-16


      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,
      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).

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

denied, 125 A.3d 1197 (Pa. 2015).

      Here, Fennell states he “has exercise[d] due diligence in order to

protect his own interests” where “he repeatedly wrote letters to his trial

counsel Scott J. O’Keefe requesting copies of his entire file including

transcripts, exhibits, and medical files of the officers in the case.” Fennell’s

Brief at 2. Fennell points out that on March 14, 2007, O’Keefe sent a copy of

the notes of testimony to Fennell and “informed him that was everything

[counsel] had.” Id. However, Fennell alleges he “did not receive the jury

transcripts until December 31, 2013, from a co-defendant who he has not

seen or spoke to since the trial in 2006.” Id. Moreover, Fennell asserts that

he did not receive a background report regarding the juror at issue until

February 14, 2014, and therefore, he “did not and could not have learned of




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the juror misconduct” until that date. Id. at 3. He states he then filed his

PCRA petition on March 19, 2014, well within the 60-day requirement. Id.

      The PCRA court succinctly determined the claim presented in Fennell’s

fourth PCRA petition was “not asserted within 60 days of the date [it] could

have been presented[,]” and therefore, the court was “without jurisdiction to

address the merits” of Fennell’s petition. PCRA Court Opinion, 5/10/2016, at

4.

      We disagree and find Fennell did meet his burden under the newly

discovered fact exception. We are mindful of the following:

      The state legislature has provided the following criteria for juror

qualifications, in pertinent part:

             (a) General rule. — Every citizen of this Commonwealth
      who is of the required minimum age for voting for State or local
      officials and who resides in the county shall be qualified to serve
      as a juror therein unless such citizen:

                                       …

         (3) has been convicted of a crime punishable by
         imprisonment for more than one year and has not been
         granted a pardon or amnesty therefor.

42 Pa.C.S. § 4502(a)(3).

            A criminal defendant’s right to an impartial jury is explicitly
      granted by Article 1, Section 9 of the Pennsylvania Constitution
      and the Sixth Amendment of the United States Constitution. The
      jury selection process is crucial to the preservation of that right.
      The purpose of voir dire is to provide an opportunity to counsel
      to assess the qualifications of the prospective jurors to serve. It
      is therefore appropriate to use such an examination to disclose
      fixed opinions or to expose other reasons for disqualification. It
      is well settled that the sole purpose of examination of jurors

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J-S70016-16


      under voir dire is to secure a competent, fair, impartial and
      unprejudiced jury.

Commonwealth v. Ellison, 902 A.2d 419, 423 (Pa. 2006) (citations

omitted). Moreover,

      “‘[i]t is the duty of the parties to ascertain, by proper
      examination at the time the jury is impaneled, the existence of
      any reasons for objection to the jurors.... [T]he failure to do so
      and to make objection at the proper time operates as a
      waiver....’” Such a waiver will be excused, however, where “‘the
      party affected has been intentionally misled or deceived by the
      juror or the opposite party[.]’”

Commonwealth v. Didyoung, 535 A.2d 192, 193 (Pa. Super. 1988)

(citations omitted).

      Based on the record before us, we find Fennell pled sufficient facts to

support the newly-discovered facts exception to the timeliness requirements,

and that he acted with due diligence. In his PCRA petition, Fennell pled he

continuously   requested   transcripts   from    his   attorneys   after   he   was

convicted. See Pro Se PCRA Petition, 3/19/2014, attachment. He indicated

that in March of 2007, counsel sent him a copy of all the notes of testimony

counsel had in his file, but the copy did not include the voir dire transcripts.

Fennell alleged he did not receive the voir dire transcripts until December

31, 2013, when he was finally able to obtain them from a co-defendant. Id.

Furthermore, Fennell pled he did not learn of the juror at issue’s alleged

criminal background until February 14, 2014, when a prison mate assisted

him in doing the background check.       Id.    Fennell includes a February 15,

2014, affidavit from the prison mate, Anthony Murphy, who averred,

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“[Fennell] has been asking me to help him to get a background report for

over a year but I could not get it until Feb[ruary] 13 20[1]4.” See Pro Se

PCRA Petition, 3/19/2014, Anthony Murphy’s Affidavit. Fennell then filed his

PCRA petition on March 19, 2014, well within the 60-day requirement.

       As indicated above, Fennell sufficiently pled that facts regarding the

juror were unknown to him at the time of trial and could not have been

discovered.     Moreover, based on the specific circumstances of this case,

Fennell appears to have demonstrated he acted with due diligence in

obtaining the information, and reasonable steps to protect his own interests.

See Carr, 768 A.2d at 1168. As such, it appears Fennell properly invoked

the   newly-discovered       facts   exception   to   the   PCRA’s   time-bar   rule.

Therefore, we conclude the PCRA court erred in determining the claim

presented in Fennell’s fourth petition was not asserted within 60 days of the

date it could have been presented. Accordingly, we reverse the PCRA court

order and remand this matter for a hearing to allow Fennell to prove he

acted with due diligence, and if the court determines he has done so, then to

demonstrate the merits of his underlying issue.9



____________________________________________


9
   We are aware that in its brief, the Commonwealth points out that Fennell
may have incorrect criminal background information regarding the juror at
issue. See Commonwealth’s Brief at 12 n.4. We find the PCRA evidentiary
hearing on Fennell’s petition will be the appropriate time to address this
allegation.



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      Order     reversed.   Case   remanded   for   a   hearing.   Jurisdiction

relinquished.

      Judge Musmanno joins in this Memorandum.

      Judge Olson files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2017




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