J-S73003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
HENRY CHRISTOPHER STUBBS, III           :
                                        :
                  Appellant             :   No. 766 MDA 2017

                Appeal from the PCRA Order March 29, 2017
    In the Court of Common Pleas of Luzerne County Criminal Division at
                      No(s): CP-40-CR-0000844-2002


BEFORE:    OLSON, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                       FILED DECEMBER 15, 2017

      Appellant, Henry Christopher Stubbs, III, appeals pro se from the

order entered on March 29, 2017, dismissing as untimely his third petition

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§

9541-9546. Upon review, we affirm.

      We briefly set forth the facts and procedural history of this case as

follows.   Appellant is currently serving two consecutive life sentences

imposed after a jury convicted him of the first-degree murders of a woman

and her six-year-old daughter.   The jury also convicted Appellant of rape,

burglary, two counts of theft by unlawful taking or disposition, robbery,

persons not to possess, use, manufacture, control, sell or transfer firearms,

and two counts of access device fraud. On April 4, 2005, this Court affirmed

Appellant’s judgment of sentence and our Supreme Court subsequently

denied further review. On May 22, 2006, the United States Supreme Court

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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denied Appellant’s petition for writ of certiorari. Appellant filed his first PCRA

petition in May of 2007. The PCRA court denied relief. After remanding for

additional proceedings, this Court eventually affirmed the denial of relief in

an unpublished memorandum filed on March 24, 2010.             Appellant filed a

second PCRA petition in 2011, but later withdrew it.         On April 12, 2016,

Appellant filed the pro se PCRA petition currently at issue. The PCRA court

held an evidentiary hearing and denied relief by order entered on March 30,

2017. This timely appeal resulted.1

       Appellant presents the following issues, pro se, for our review:

    1. Whether the exception clause of Title 42 Pa.C.S.A.
       § 9545(b)(1)(i) (interference by government officials) and
       Pa.R.Crim.P. 720(c) (after-discovered evidence), supersede the
       provisions set forth in Title 42 Pa.C.S.A. § 9543(A)(3) and
       § 9544, et seq. (previous litigation and wavier), where during []
       Appellant’s previous state and federal appeals, attorneys on
       behalf of the Commonwealth withheld Brady v. Maryland, 373
       U.S. 83 [(1963)] material (the bench warrant of Angela M.
       Mayfield) and asserted [] that Brady was not violated at trial
       and that no agreement was made and no warrant exist[ed] for
       Mayfield; and whether such assertions (if not true) that were

____________________________________________


1   Appellant filed his notice of appeal on May 1, 2017. Because the 30-day
appeal period fell on a Saturday, filing the notice of appeal on the following
Monday was timely. See Pa.R.A.P. 903; 1 Pa.C.S.A. § 1908. Moreover,
because Appellant is incarcerated, the prisoner mailbox rule applies. See
Commonwealth v. Patterson, 931 A.2d 710 (Pa. Super. 2007) (where the
date of filing indicates an incarcerated appellant likely placed the notice of
appeal in the hands of prison authorities before the expiration of the 30-day
appeal period, the notice is deemed timely). Here, the notice of appeal was
filed on Monday, May 1, 2017. Thus, it follows that Appellant placed the
notice of appeal in the hands of prison authorities prior to the expiration of
the appeal period on Saturday, April 30, 2017.



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      made by the [Commonwealth] in judicial proceedings amount to
      perjury in violation of Title 18 Pa.C.S.A. § 4902(A), and in
      violation of [] Appellant’s right to due process of law under the
      14th Amendment to the United States Constitution?

   2. Whether the exception clause of Title 42 Pa.C.S.A.
      § 9545(b)(1)(i)(interference by government officials), supersede
      the provisions set forth in Title 42 Pa.C.S.A. § 9543(A)(3); and
      § 9544. et seq. (previous litigation and waiver), where the
      Luzerne County Office of the Clerk of Courts unlawfully
      destroyed [] Appellant’s [Pa.R.A.P. 1926(b)] motion and exhibits
      during [] Appellant’s first PCRA and habeas corpus proceedings,
      and whether [] Appellant is entitled to equitable tolling of his
      current appeal due to that interference by government officials
      where such interference undermined [] Appellant’s hearings in
      violation of [] Appellant’s right to due process of law under the
      14th Amendment to the United States Constitution?

   3. Whether [Appellant] was denied a fair trial and due process of
      law where police investigators tampered with physical evidence
      and documents in violation of Title 18 Pa.C.S.A. § 4910(1) and
      (2), and committed perjury at trial in violation of Title 18
      Pa.C.S.A. § 4902(A), in support of tainted evidence; and
      whether such violations amount to the prosecution committing
      fraud upon the court to procure conviction in violation of []
      Appellant’s rights under the 6th and 14th Amendments to the
      United States Constitution?

   4. Whether the PCRA court’s refusal to assert jurisdiction over this
      matter or enforce its inherent power to proceed further on []
      Appellant’s above claims is an abuse of discretion where []
      Appellant submitted argument and reliable evidence to show and
      prove that (1) the prosecution knowingly committed fraud upon
      the court at trial to procure conviction; (2) the prosecution
      knowingly (in bad faith) withheld Brady [] material in violation
      of a court order to produce such evidence; (3) the Luzerne
      County Office of the Clerk of Courts destroyed Appellant’s
      documents to undermine court proceedings; and (4) the
      [Commonwealth] on appeal committed perjury by lying to both
      state and federal courts?

Appellant’s Brief at iii-iv (suggested answers omitted).

      On appeal from the denial of PCRA relief,


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      our standard and scope of review is limited to determining
      whether the PCRA court's findings are supported by the record
      and without legal error. [… Our] scope of review is limited to the
      findings of the PCRA court and the evidence of record, viewed in
      the light most favorable to the prevailing party at the PCRA court
      level. [T]his Court applies a de novo standard of review to
      the PCRA court's legal conclusions. Additionally, courts will not
      entertain a second or subsequent request for PCRA relief unless
      the petitioner makes a strong prima facie showing that a
      miscarriage of justice may have occurred. Appellant makes a
      prima facie showing of entitlement to relief only if he
      demonstrates either that the proceedings which resulted in his
      conviction were so unfair that a miscarriage of justice occurred
      which no civilized society could tolerate, or that he was innocent
      of the crimes for which he was charged.

      […T]he timeliness of a PCRA petition implicates the jurisdiction of
      this Court and the PCRA court. Pennsylvania law makes clear no
      court has jurisdiction to hear an untimely PCRA petition.
      The PCRA confers no authority upon this Court to fashion ad
      hoc equitable exceptions to the PCRA time-bar. This is to accord
      finality to the collateral review process. 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, set forth at 42
      Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met.


Commonwealth v. Medina, 92 A.3d 1210, 1215 (Pa. Super. 2014).

      Moreover, Appellant must show that his allegations of error have not

been previously litigated.    See 42 Pa.C.S.A. § 9543(a)(3).       A claim is

previously litigated under the PCRA if the highest appellate court in which

the petitioner could have had review as a matter of right has ruled on the

merits of the issue.   See 42 Pa.C.S.A. § 9544(a)(2).

      Initially, we note that Appellant’s conviction became final on May 22,

2006, when the United States Supreme Court denied Appellant’s petition for

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writ of certiorari. Thus, Appellant’s current PCRA petition, filed on April 12,

2016, is patently untimely. Appellant attempts to invoke the governmental

interference and unknown facts exceptions to the PCRA under 42 Pa.C.S.A.

§ 9545(b)(1)(i) and (ii) to support his first and fourth claims as presented

above. Appellant claims that on March 22, 2017, he received evidence that,

at the time of trial, there was an active bench warrant in New Jersey against

witness, Angela M. Mayfield, who is Appellant’s step-sister. See Appellant’s

Brief at viii-ix. Appellant attached the warrant to his current PCRA petition.

Appellant claims that the Commonwealth withheld Mayfield’s warrant from

him in violation of Brady.

      Upon review of the record, we conclude that this issue was previously

raised and litigated on his first PCRA petition. The PCRA court, in denying

Appellant relief on his first PCRA petition, stated:

      During the [first] PCRA hearing stand-by counsel represented he
      discerned no Brady violation[.] “The question is, does [the]
      Commonwealth have a deal with Ms. Mayfield. I’m not aware of
      anything that I’ve read through the trial transcript, any
      documents that I have received that there was any proof or
      evidence that show there may have been a deal for her
      testimony which would have been a Brady violation. Unless
      [defense counsel at trial] has anything to add to that, I would
      say I didn’t recognize a Brady violation.” [Defense counsel at
      trial] added[,] “I can tell you that our mitigation specialist []
      spent considerable time with the family and there was never an
      indication that a deal was cut with this woman.” [Defense
      counsel at trial] also provided a lengthy response outlining why,
      even if an outstanding warrant existed, he would not have
      attempted impeach[ment of Mayfield]. First[,] the referenced
      witness provided positive testimony for the defense. Second,
      and more importantly, the defense planned to use this witness
      during the penalty phase[.] [He stated,] “I surely didn’t want to

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       get into a situation in the guilt phase of the trial where I’m
       telling the jury, don’t believe [Mayfield]. And God forbid if we
       got to the sentencing phase, then I have to tell the jury to
       believe her. That would be pretty contradictory and pretty
       hypocritical on my part.” [The PCRA court] noted [Mayfield] did
       in fact testify on [Appellant’s] behalf during the penalty phase.

PCRA Court Opinion, 11/16/2009, at 19-20.             Thus, the PCRA court

previously determined that Appellant failed to prove trial counsel was

ineffective.2   We adopted the PCRA court’s reasoning and affirmed on the

basis of the PCRA’s court’s opinion. See Commonwealth v. Stubbs, 981

A.2d 322 (Pa. Super. 2009) (unpublished memorandum) at *9.

       While Appellant currently claims that he is entitled to relief because he

just recently uncovered Mayfield’s New Jersey bench warrant, the PCRA

court had already analyzed the claim in 2009 on two distinct bases. First, it

determined that there was no evidence of a bench warrant against Mayfield

(which obviously Appellant currently refutes). However, the PCRA court also

determined, in the alternative, that counsel had a reasonable strategy in

purposefully not impeaching Mayfield, because she was a positive witness for

Appellant at trial and her credibility was important to Appellant during the

____________________________________________


2 In analyzing a claim of ineffective assistance of counsel, we begin with the
presumption that counsel is effective. See Commonwealth v. Domek, 167
A.3d 761, 764 (Pa. Super. 2017) (citation omitted). In order to succeed on
such a claim, an appellant must establish, by a preponderance of the
evidence: (1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel's actions or failure to act; and (3) appellant
suffered prejudice as a result of counsel's error, with prejudice measured by
whether there is a reasonable probability that the result of the proceeding
would have been different. Id.



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penalty phase. Thus, even though Appellant currently has a physical copy of

Mayfield’s New Jersey bench warrant, the PCRA court already determined

that trial counsel was effective because he had a reasonable basis for not

impeaching Mayfield. Hence, the issue was previously litigated.

      Appellant claims that he has uncovered newly discovered evidence

when he obtained a copy of the Mayfield warrant.            This Court has

consistently determined that a petitioner must allege and prove previously

unknown “facts,” not merely a “newly discovered or newly willing source for

previously known facts.” Commonwealth v. Smallwood, 155 A.3d 1054,

1067 (Pa. Super. 2017) (citation omitted). Here, the Mayfield warrant was

not a new fact, because this claim was previously litigated.      Accordingly,

Appellant is not entitled to relief on his first claim.

      Next, in his second issue presented, Appellant claims that when he

filed his first PCRA petition in 2007, he also filed a motion pursuant to

Pa.R.A.P. 1926(b) to correct the record with attached exhibits. Appellant’s

Brief at 11. He currently claims, in sum, that:

      Appellant’s [Rule] 1926(b) motion and exhibits were never filed
      or docketed by the Luzerne County Office of the Clerk of Courts,
      and records reflect that the [Rule] 1926(b) motion or exhibits
      were not returned to Appellant to date. The exhibits held the
      merits to the claims raised on appeal and due to the obvious
      destruction of [] Appellant’s motion and exhibits, the reviewing
      courts including the PCRA court; the Superior Court at 871 MDA
      2008; and the U.S. District Court at No. 1:10-CV-1849, could
      not reach the merits of [] Appellant’s claims throughout the
      course of the first appellate proceedings.

Id. at 11-12.


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          Appellant’s claim fails for several reasons.             First, Appellant baldly

claims      interference    by   governmental       officials    without    identifying   the

substance of the documents allegedly filed as a Rule 1926(b) motion to

correct the record.        It is Appellant’s duty to plead and prove entitlement to

relief.     Moreover, when invoking an exception to the PCRA’s one-year

jurisdictional timing requirement, a petitioner must file a PCRA petition

“within 60 days of the date the claim could have been presented.”                          42

Pa.C.S.A. § 9545(b)(2). Appellant claims that he filed his motion to correct

the record in 2007.         He does not aver when he learned that it was not

docketed or omitted from the certified record.                  However, Appellant claims

that the omission of record documents precluded this Court from reaching

the merits of his prior PCRA claims in 2009.               Appellant has not explained

why he would not have known about the alleged omission before filing his

current      PCRA   petition     in   2016.     Thus,    Appellant’s       claim   is   wholly

undeveloped and could have been raised earlier. Accordingly, Appellant has

not complied with Section 9545(b)(2) to establishing jurisdiction before the

PCRA court and his second issue fails.

          In his third pro se issue presented, Appellant claims he “was denied a

fair trial and due process of law where police investigators tampered with

physical evidence and documents[.]” Id. at 13. Appellant does not identify

the physical evidence and/or documents with which the police allegedly

tampered.       We could find this issue waived.                 See Commonwealth v.

Fears, 86 A.3d 795, 809, 624 Pa. 446, 470 (Pa. 2014) (citation omitted)

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(claims waived for failure to develop). However, we also note that Appellant

raised the following ineffective assistance of counsel claims in his first PCRA

petition:

        Appellant [] suggest[ed] [t]rial [c]ounsel was ineffective for
        failing “to challenge the Commonwealth’s misrepresentation of
        DNA evidence.” Here he essentially argue[d] the adult victim’s
        sexual assault evidence collection kit arrived at the State Police
        Crime Laboratory “improperly sealed.” Appellant suggest[ed]
        [t]rial [c]ounsel should have challenged the admissibility of this
        evidence in contrast to that of the six-year-old murder victim
        which was “properly sealed.” Appellant additionally argue[d]
        that [the] Pennsylvania State Trooper[’s] examination of the
        adult victim’s body during the autopsy with a “forensic light
        source” [was] inconsistent with multiple deposits of semen
        discovered on the adult victim’s clothing.


PCRA Court Opinion, 11/16/2009, at 7.           The PCRA court determined that

Appellant did not deny having sexual intercourse with the adult victim and

admitted to ejaculating. Id. at 8-9. Thus, the PCRA court concluded that

trial counsel articulated a reasonable basis for not raising a claim of

tampering. Because the PCRA court already examined issues pertaining to

evidence tampering by the police and Appellant since does not otherwise

develop the issue further, we conclude that Appellant is not entitled to relief

on his third claim.

        In his final claim, Appellant argues that trial counsel “aided the

prosecution in obtaining” his convictions and “the current fraud upon the

court” should “invoke the [PCRA] court[’]s inherent power regardless of

lapse    of   time.”   Appellant’s Brief   at    14.     As   previously   stated,



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“[t]he PCRA confers no authority upon this Court to fashion ad hoc equitable

exceptions to the PCRA time-bar.” Medina, 92 A.3d at 1215.         “The period

for filing a PCRA petition is not subject to the doctrine of equitable tolling[,

i]nstead, the time for filing can be extended only if the PCRA permits it to be

extended, i.e., by operation of one of the statutorily enumerated exceptions

to the PCRA time-bar” listed at 42 Pa.C.S.A. § 9545(b). Smallwood, 155

A.3d at 1059–1060. Having already determined that Appellant’s PCRA was

untimely, and not subject to exception, this claim is meritless.

      Finally, on August 2, 2017, Appellant filed a petition for the remission

of the record and remand to the lower court pursuant to Pa.R.A.P. 123.

However, because we have already determined that Appellant’s PCRA

petition is untimely, we deny the petition to remit.

      Order affirmed.     Petition for remission of the record and remand

denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2017




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