J-S05037-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                  Appellee                :
          v.                              :
                                          :
PAUL FORD,                                :
                                          :
                  Appellant               :   No. 1202 WDA 2018

                Appeal from the PCRA Order Entered July 13, 2018
                in the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0002612-1994

BEFORE:        PANELLA, P.J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                     FILED APRIL 25, 2019

     Paul Ford (Appellant) appeals pro se from the July 13, 2018 order

dismissing his untimely-filed petition pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

            At docket number 2612-1994, the Commonwealth charged
     Appellant with one count each of criminal homicide [] and
     criminal conspiracy [] in connection with the fatal shooting of
     Maurice Price during a gunpoint robbery. Appellant was 18 years
     old when this incident occurred. At the conclusion of trial on
     September 21, 1994, a jury found Appellant guilty of second-
     degree murder.1 That same day, the trial court imposed the
     mandatory sentence of life imprisonment without parole.
     Following a direct appeal, this Court affirmed Appellant’s
     judgment of sentence on March 26, 1997 and our Supreme
     Court denied further review on December 19, 1997. See
     Commonwealth v. Ford, 695 A.2d 436 (Pa. Super. 1997),
     appeal denied, 705 A.2d 1305 (Pa. 1997). Thereafter, Appellant
     initiated several unsuccessful attempts at attaining collateral
     relief in both state and federal court.
     _________
            1 The Commonwealth withdrew the conspiracy charge

              immediately prior to trial.


*Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Ford, 190 A.3d 695 (Pa. Super. 2018) (unpublished

memorandum).

        Most recently, Appellant filed pro se a PCRA petition on May 11, 2018.

Therein, Appellant asserted that the Commonwealth violated Appellant’s due

process rights by “withholding valuable impeachment material” regarding a

key witness in Appellant’s 1994 criminal trial.       Pro Se PCRA Petition,

5/11/2018, at 2. Specifically, Appellant averred he recently discovered that

this witness, Nikela Carrington, “had mental problems and frequented [a]

psychiatric hospital for treatment.” Id. On June 22, 2018, the PCRA court

filed a notice of intent to dismiss the petition without a hearing pursuant to

Pa.R.Crim.P. 907. Appellant responded, and the petition was dismissed by

order of July 13, 2018.     Appellant timely filed a notice of appeal.1   We

review the PCRA court’s July 13, 2018 order mindful of the following.

        Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final unless the petition alleges, and the petitioner proves,

that an exception to the time for filing the petition is met.      42 Pa.C.S.

§ 9545.     “In addition, [t]he PCRA limits the reach of the exceptions by




1
    Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.




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providing that the exceptions must be pled within [60] days[2] of the date

the   claim   could   have    been   presented.   42   Pa.C.S.   §   9545(b)(2).”

Commonwealth v. Geer, 936 A.2d 1075, 1077 (Pa. Super. 2007)

(quotation marks omitted; brackets in original).

      It is clear that Appellant’s petition is facially untimely; his judgment of

sentence became final in 1998.        While Appellant concedes his petition is

“patently untimely[,]” see Appellant’s Brief at 8, Appellant alleges his

petition was timely filed because it “was filed within 60 days[3] of Appellant

becoming      aware    that    the   [Commonwealth]       suppressed     valuable

impeachment material pertaining to [Carrington], and that this evidence



2  We are cognizant that Section 9545(b)(2) was amended on October 24,
2018, effective in 60 days (December 24, 2018), extending the time for
filing from sixty days of the date the claim could have been presented, to
one year. The amendment applies to claims arising on December 22, 2017,
or thereafter. See Act 2018, Oct. 24, P.L. 894, No. 146, § 3. We decline to
decide whether Appellant is entitled to the extension of time created by the
amendment because, irrespective of which timeliness requirement is applied,
for the reasons set forth infra, Appellant is not entitled to relief.

3  Appellant avers he became aware of this exculpatory information on June
9, 2017, while a prior PCRA petition he filed in March 2016 was pending
before this Court. Pro Se PCRA petition, 5/11/2018, at 3-4, n.1. In
conformity with well-established case law, Appellant filed the instant petition
within 60 days following the resolution of his prior PCRA petition. See
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding that if a
“petition is not filed within one year of the date when the judgment became
final, then the petitioner must plead and prove that one of the three
exceptions to the time bar under 42 Pa.C.S. § 9545(b)(1) applies. The
subsequent petition must also be filed within sixty days of the date of the
order which finally resolves the previous PCRA petition, because this is the
first ‘date the claim could have been presented.’”).



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could not have been discovered earlier as it was in exclusive control of the

Commonwealth.”         Id.   at 7.   As such, Appellant alleges the following

timeliness exceptions apply:

      (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[.]

42 Pa.C.S. § 9545(b)(1)(i)-(ii). See also Pro Se PCRA petition, 5/11/2018,

at 3; Appellant’s Brief at 9.     On appeal, Appellant argues the PCRA court

erred in dismissing his petition as “frivolous” when the claim raised by

Appellant fell within the aforementioned timeliness exceptions. Appellant’s

Brief at 14.

      In response, the Commonwealth asserts Appellant is not entitled to

relief because the record reflects that: (1) the information at issue was

known to Appellant prior to June 9, 2017; and (2) Appellant raised this issue

in a prior PCRA petition before abandoning it on appeal. Commonwealth’s

Brief at 10-12. Our review of the certified record confirms the foregoing.

      On February 25, 2014, Appellant pro se filed a PCRA petition and

memorandum of law in support of his petition, wherein Appellant averred

that he

      uncovered evidence that the other Commonwealth star witness,
      [] Carrington had testified in a previous case and admitted that

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      she was under psychiatric care multiple times, while also
      admitting she was a habitual drug user and a liar[.] As this
      witness [sic] medical records are closed to petitioner, the
      Commonwealth knew and withheld this vital information from
      trial counsel, thus again, in violation of the United States
      Supreme Court holding in [Brady v. Maryland, 373 U.S. 83
      (1963)]. Thereby violating [Appellant’s] due process [rights]
      under the Fourteenth Amendment. … Petitioner ask that this
      [h]onorable court allow[] petitioner to reserve the right to
      amend his findings as this witness [sic] medical record is not
      readily available.

Memorandum of Law in Support of [PCRA] Petition, 2/25/2014, at 5. See

also Petition to Withdraw as Counsel, 9/30/2014, at 9 (Appellant “also

alleges that he has uncovered evidence that another witness, [] Carrington,

admitted to being under psychiatric care and a habitual drug user and liar

and that the Commonwealth knew and withheld this information at the time

of trial and that this is a Constitutional violation under Brady[.]”). Thus, the

record contradicts Appellant’s averment that he discovered the foregoing

information regarding Carrington in June 2017, as it is apparent that

Appellant was aware of this information in February 2014.            Therefore,

because Appellant’s petition was untimely filed and he did not file his petition

within the requisite 60 days of the date the claim could have been brought,

he is not entitled to relief. See Commonwealth v. Williams, 35 A.3d 44,

53 (Pa. Super. 2011) (stating that if a PCRA petition alleges a timeliness

exception or the court determines the claim raised within is “entitled to one

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




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

substantive merits of a petitioner’s PCRA claims”).

      Moreover, Appellant’s February 2014 PCRA petition involved and

sought to explore, inter alia, the same issue Appellant presents in his current

appeal: that the Commonwealth committed a Brady violation by withholding

pertinent information regarding Carrington. The fact that this Court has not

reviewed this issue because Appellant abandoned this claim by virtue of

failing to raise it on appeal when he had the opportunity to do so is of no

moment, as claims are considered “waived if the petitioner could have raised

it but failed to do so … on appeal or in a prior state postconviction

proceeding.” 42 Pa.C.S. § 9544(b).

      Accordingly, after a thorough review of the record and briefs, we find

the PCRA court properly dismissed Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2019




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