J-S60012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RONALD WILLIAMS,

                        Appellant                  No. 1812 WDA 2016


               Appeal from the PCRA Order November 8, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0013431-1998
                        and CP-02-CR-0014585-1998


BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                        FILED OCTOBER 12, 2017

     Appellant, Ronald Williams, appeals pro se from the order entered on

November 8, 2016, dismissing his third petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     This Court has summarized the underlying facts of this case:

        During the early morning hours of October 4, 1998,
        Appellant, Raj Edge, John Johnson, and Donald Thomas
        were at Johnson’s apartment when Johnson informed the
        other individuals of a burglary which had occurred at the
        residence he shared with his girlfriend, Ebony Jordan.
        Jason Faulk, the murder victim, was identified by Johnson
        as one of the perpetrators of the burglary. The four men
        agreed to kill Faulk in retaliation for the burglary.

        Upon leaving the apartment, the four men encountered
        Faulk.   A verbal exchange between Johnson and Faulk
        culminated with Johnson, Edge, Thomas[,] and Appellant
        shooting Faulk to death. Appellant fired two shots during
        the execution.


*Former Justice specially assigned to the Superior Court.
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          The group then ran back to the front of Johnson’s
          apartment building. Edge and Thomas gave Johnson their
          handguns, but Appellant retained the chrome firearm he
          claims he used to shoot Faulk. Appellant, Edge[,] and
          Thomas then fled the scene in a vehicle driven by Thomas.

          Jackie Green, a woman who lived directly across from the
          crime scene, witnessed the shooting.       She recognized
          Johnson and observed him run into his apartment building.
          Ms. Green [telephoned] 911 and directed the police to
          Johnson’s apartment.      During the search, a number of
          firearms were recovered under a mattress upon which Ms.
          Jordan’s children were sleeping.

          During the course of the investigation, Appellant was
          identified as a suspect in the killing of Faulk and was
          questioned. After being properly informed of his rights,
          Appellant admitted to his participation in the incident.
          Thereafter[,] a chrome-plated firearm was recovered from
          his residence.

          A jury trial commenced on July 25, 2001, and Appellant was
          convicted of first degree murder, criminal conspiracy, and a
          violation of the Uniform Firearms Act.[1] [On October 17,
          2001, the trial court sentenced Appellant] to the mandatory
          life term of imprisonment for first degree murder, ten to
          [20] years’ imprisonment for criminal conspiracy[,] and
          three and one-half to seven years’ imprisonment on the
          firearms violation.      The sentences on the criminal
          conspiracy and firearm violation convictions were set to run
          consecutively to each other and also consecutively to the
          life sentence.

Commonwealth           v.   Williams,      849   A.2d   611   (Pa.   Super.   2004)

(unpublished memorandum) at 1-3, appeal denied, 868 A.2d 1200 (Pa.

2005).
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a), 903, and 6106, respectively.




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        On February 4, 2004, this Court affirmed Appellant’s judgment of

sentence.     Id. at 1-7.     On October 8, 2004, Appellant filed an untimely

petition for allowance of appeal to the Pennsylvania Supreme Court.         The

Supreme Court denied Appellant’s petition for allowance of appeal on

February 18, 2005.

        As this Court explained:

          On October 17, 2005, [Appellant] filed his first PCRA
          petition, pro se. Counsel was appointed and an amended
          petition was filed. Among the issues raised was a complaint
          that [Appellant] had not been accorded counsel on direct
          appeal when he petitioned the [Pennsylvania Supreme
          Court] for allowance of appeal. On May 5, 2008, the PCRA
          court granted relief permitting [Appellant] to again file a
          petition for allowance of appeal.[2]      The petition was
          subsequently filed on May 30, 2008, and was denied by the
          [Supreme        Court]   on     November      17,     2008.
          [Commonwealth v. Williams, 960 A.2d 840 (Pa. 2008)].

          On March 3, 2009, [Appellant] filed [what was technically
          his first PCRA petition].[fn.1] . . . [O]n July 23, 2009, the
          [PCRA] court appointed counsel for [Appellant]. . . . On
          April 16, 2010, the PCRA court dismissed [Appellant’s]
          petition.

              [fn.1] “When a petitioner is granted a direct appeal nunc
              pro tunc in his first PCRA petition, a subsequent PCRA
              petition is considered a first PCRA petition for timeliness
              purposes.” Commonwealth v. Karanicolas, 836 A.2d
              940, 944 (Pa. Super. 2003).




____________________________________________


2
    The PCRA court’s May 5, 2008 order is not contained in the certified record.




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J-S60012-17



Commonwealth v. Williams, 53 A.3d 929 (Pa. Super. 2012) (unpublished

memorandum) at 2-3.

       On June 12, 2012, this Court affirmed the PCRA court’s order,

dismissing Appellant’s first PCRA petition.         Id.    Appellant did not file a

petition for allowance of appeal with the Pennsylvania Supreme Court.

       Appellant filed a second PCRA petition on August 9, 2012.                   See

Appellant’s Second PCRA Petition, 8/9/12, at 1-5.                Within the petition,

Appellant relied upon Miller v. Alabama, wherein the United States

Supreme Court held that “mandatory life without parole for those under the

age of 18 at the time of their crimes violates the Eighth Amendment’s

prohibition on ‘cruel and unusual punishments.’”           Miller v. Alabama, ___

U.S. ___, 132 S.Ct. 2455, 2460 (2012).                Appellant claimed that his

mandatory sentence of life in prison without the possibility of parole was

unconstitutional     under    the   Eighth     Amendment    to   the    United   States

Constitution, as interpreted by Miller. The PCRA court dismissed Appellant’s

untimely, serial PCRA petition on October 2, 2012 and Appellant did not file

an appeal from the PCRA court’s order.3 PCRA Court Order, 10/2/12, at 1.

       On April 5, 2016, Appellant filed the current, pro se PCRA petition.

The filing constitutes Appellant’s third petition under the PCRA. Within the


____________________________________________


3
 Appellant was 29 years old at the time of the offense.                See Appellant’s
Second PCRA Petition, 8/9/12, at 4.




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petition, Appellant acknowledged that his petition was facially untimely

under the PCRA.      See Appellant’s Third PCRA Petition, 4/5/16, at 2.

However,    Appellant   claimed   his   petition   was   timely   under   the

“newly-discovered facts” exception to the PCRA’s one-year time-bar.

Appellant wrote:

        [City of Pittsburgh Police] Detective Dennis Logan and his
        partner Richard McDonald [were] . . . the lynchpin of the
        Commonwealth’s case against [Appellant].

                                     ...

        [During Appellant’s trial,] Detectives Logan and McDonald
        testified that upon [Appellant’s] arrest, Detective Logan
        interviewed [Appellant]. The detective stated that after
        giving [Appellant] pre-interrogation warnings, [Appellant]
        voluntarily waived his rights and confessed his involvement
        in the crime. When asked specifically if [Appellant] was told
        that he was free to leave the detective answered in the
        affirmative.

        In contrast, [Appellant] steadfastly maintained he was
        never informed of his right to remain silent nor did he
        review the document that he allegedly signed.

        In an effort to advance the defense, trial counsel attempted
        to    impeach      Detective    Logan’s      credibility  on
        cross-examination. Unfortunately, counsel’s attempts to
        discredit the detective proved futile. This [is] because
        counsel was unarmed with any information remotely
        suggesting that the detective had less than a stellar
        character.

Appellant’s Third PCRA Petition, 4/5/16, at 2 and 10-11 (internal citations

and some internal capitalization omitted).

     However, Appellant claimed, in February 2016, a fellow inmate named

Pierre Pinson spoke with Appellant and “informed [him] that Detective Logan

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had fabricated evidence at [Mr. Pinson’s] trial and that [Mr. Pinson] had

‘finally’ received evidence that substantiated [Detective Logan’s] history,

pattern, and practice of Constitutional violations against criminal suspects

during interrogation.”   Affidavit of Pierre Pinson, 3/16/16, at Appellant’s

Exhibit “A”. Mr. Pinson then supplied Appellant with documents that were

filed in the civil case of Manns v. City of Pittsburgh, et al. and Manns v.

McDonald, et al., as well as documents filed in the Office of Municipal

Investigation (hereinafter “OMI”). See id.

      With respect to the civil case file, on March 13, 2000, an individual

named Clyde Manns filed a civil complaint, in the Court of Common Pleas of

Allegheny County, against individuals that included Detectives Logan and

McDonald.     Within the complaint, Clyde Manns claimed that Detectives

Logan and McDonald engaged in coercive interrogation techniques against

him. See Complaint in Manns v. City of Pittsburgh, et al., dated 5/1/00,

at Appellant’s Exhibit “B”.   Moreover, on June 27, 2002, a federal jury

reached a verdict in the case, finding that Detectives Logan and McDonald

violated Clyde Manns’ “right to be free from an unlawful arrest” and

awarding Clyde Manns $2,000.00 in compensatory damages and $23,000.00

in punitive damages.     See Verdict Form in Manns v. McDonald, et al.,

dated 6/27/02, at Appellant’s Exhibit “G”.

      Further, the OMI report is dated October 26, 1999, and lists a series of

complaints against Detectives Logan and McDonald. See OMI Report, dated

10/26/99, at Appellant’s Exhibits “E” and “F”.

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J-S60012-17



      According to Appellant, even though the allegations against Detectives

Logan and McDonald were matters of public record, he did not know of the

allegations and he could not have learned of the allegations earlier because

he is a pro se incarcerated petitioner.        Appellant’s Third PCRA Petition,

4/5/16, at 3. Therefore, Appellant claimed, his petition is timely under the

newly-discovered facts exception to the PCRA’s one-year time-bar. Id.

      On April 13, 2016, the PCRA court provided Appellant notice that it

intended to dismiss his PCRA petition in 30 days, without holding a hearing,

as the petition was untimely. PCRA Court Order, 4/13/16, at 1; see also

Pa.R.Crim.P. 907(1).         The PCRA court finally dismissed Appellant’s PCRA

petition on November 8, 2016 and Appellant filed a timely notice of appeal to

this Court. PCRA Court Order, 11/8/16, at 1.

      Appellant raises two claims on appeal:

         [1.] Do the facts upon which Appellant’s claims are
         predicated adhere to the plain language of 42 Pa.C.S.A.
         § 9545(b)(1)(ii)?

         [2.] Was Appellant’s right to due process violated when the
         prosecutor violated the Brady v. Maryland mandates?

Appellant’s Brief at viii.

      “As a general proposition, we review a denial of PCRA relief to

determine whether the findings of the PCRA court are supported by the

record and free of legal error.”      Commonwealth v. Eichinger, 108 A.3d

821, 830 (Pa. 2014).




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J-S60012-17



      Before this Court can address the substance of Appellant’s claims, we

must determine if this petition is timely.

        [The PCRA requires] a petitioner to file any PCRA petition
        within one year of the date the judgment of sentence
        becomes final.    A judgment of sentence becomes final at
        the conclusion of direct review . . . or at the expiration of
        time for seeking review.

                                      ...

        However, an untimely petition may be received when the
        petition alleges, and the petitioner proves, that any of the
        three limited exceptions to the time for filing the petition,
        set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are
        met. A petition invoking one of these exceptions must be
        filed within [60] days of the date the claim could first have
        been presented. In order to be entitled to the exceptions to
        the PCRA’s one-year filing deadline, the petitioner must
        plead and prove specific facts that demonstrate his claim
        was raised within the [60]-day timeframe.

Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (some

internal citations omitted) (internal quotations omitted).

      On May 5, 2008, the PCRA court restored Appellant’s right to file a

petition for allowance of appeal to the Pennsylvania Supreme Court nunc pro

tunc and, on November 17, 2008, the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal. Therefore, Appellant’s judgment

of sentence became final at the end of the day on Tuesday, February 17,

2009, which was 90 computable days after the Pennsylvania Supreme Court

denied Appellant’s petition for allowance of appeal and the time for filing a

petition for a writ of certiorari with the United States Supreme Court expired.

See 42 Pa.C.S.A. § 9545(b)(3) (“A judgment becomes final at the conclusion

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J-S60012-17



of direct review, including discretionary review in the Supreme Court of the

United States . . . , or at the expiration of time for seeking the review”); see

also U.S.Sup.Ct.R. 13.1; 1 Pa.C.S.A. § 1908 (computation of time).          The

PCRA explicitly requires that a petition be filed “within one year of the date

the judgment becomes final.”        42 Pa.C.S.A. § 9545(b)(1).        As such,

Appellant had until February 17, 2010 to file a timely PCRA petition.

      Appellant filed his current petition on April 5, 2016. Thus, the current

petition is patently untimely and the burden fell upon Appellant to plead and

prove that one of the enumerated exceptions to the one-year time-bar

applied to his case.   See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.

Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to properly invoke a

statutory exception to the one-year time-bar, the PCRA demands that the

petitioner properly plead and prove all required elements of the relied-upon

exception).

      Appellant claims to invoke the “newly-discovered facts” exception to

the time-bar. This statutory exception provides:

        (1) Any petition under this subchapter, including a second
        or subsequent petition, shall be filed within one year of the
        date the judgment becomes final, unless the petition alleges
        and the petitioner proves that:

                                      ...

              (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[]

                                      ...


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J-S60012-17



         (2) Any petition invoking an exception provided in
         paragraph (1) shall be filed within 60 days of the date the
         claim could have been presented.

42 Pa.C.S.A. § 9545(b).

      As our Supreme Court has explained:

         subsection (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.” 42 Pa.C.S.
         § 9545(b)(1)(ii)(emphasis added). If the petitioner alleges
         and proves these two components, then the PCRA court has
         jurisdiction over the claim under this subsection.

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

original).

      Further, to properly invoke the newly-discovered facts exception, the

petitioner is statutorily required to file his petition “within 60 days of the

date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b). As our

Supreme Court has explained, to satisfy this “60-day requirement,” a

petitioner must “plead and prove that the information on which he relies

could not have been obtained earlier, despite the exercise of due diligence.”

Commonwealth       v.   Stokes,   959   A.2d   306,   310-311   (Pa.   2008);

Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001).             Moreover,

because the “60-day requirement” of section 9545(b)(2) is a statutory

mandate, the requirement is “strictly enforced.”        Commonwealth v.

Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010).


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J-S60012-17


      In the case at bar, Appellant has not pleaded why he or his prior

counsel could not have discovered the evidence against Detectives Logan

and McDonald earlier, with the exercise of due diligence.        To be sure,

Appellant acknowledges that the OMI reports and the entries and documents

in Manns v. City of Pittsburgh, et al. and Manns v. McDonald, et al.,

were matters of public record. Appellant’s Third PCRA Petition, 4/5/16, at 3.

Moreover, the OMI reports were issued on October 26, 1999 and the

complaint in Manns v. City of Pittsburgh, et al., was filed in the Allegheny

County Court of Common Pleas on March 13, 2000 – when counsel

represented Appellant for the jury trial – and the verdict in Manns v.

McDonald, et al., was rendered in the United States District Court for the

Western District of Pennsylvania on June 27, 2002 – when counsel

represented Appellant for his direct appeal.

      Within Appellant’s PCRA petition, Appellant has simply not pleaded

why either he or his multiple prior counsel did not discover the cited facts

earlier or why he or his multiple prior counsel could not have discovered the

facts earlier with the exercise of due diligence. See Appellant’s Third PCRA

Petition, 4/5/16, at 1-18. Therefore, Appellant has failed to plead the newly-

discovered fact exception to the PCRA’s time-bar.        Commonwealth v.

Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010) (“Due diligence demands

that the petitioner take reasonable steps to protect his own interests.     A




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petitioner must explain why he could not have obtained the new fact(s)

earlier with the exercise of due diligence. This rule is strictly enforced”).4

       Thus, Appellant failed to properly plead any exception to the PCRA’s

one-year time-bar.       As such, our “courts are without jurisdiction to offer

[Appellant] any form of relief.” Commonwealth v. Jackson, 30 A.3d 516,




____________________________________________


4
  The Pennsylvania Supreme Court has held that “matters of public record
are not unknown.” Commonwealth v. Taylor, 67 A.3d 1245, 1248-1249;
see also Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006).
Thus, our Supreme Court has held, a petitioner cannot succeed on a
“newly-discovered facts” claim, where he relies upon cases and legal
documents that “were docketed, filed with the clerk of court, and readily
available.” Taylor, 67 A.3d at 1249. However, in Commonwealth v.
Burton, 158 A.3d 618 (Pa. 2017), our Supreme Court held that “the
presumption that information which is of public record cannot be deemed
‘unknown’ for purposes of subsection 9545(b)(1)(ii) does not apply to pro se
prisoner petitioners.” Burton, 158 A.3d at 638 (emphasis omitted).

Nevertheless, the rule announced in Burton does not do away with the
statutory requirement that a PCRA petitioner “plead and prove that the
information on which he relies could not have been obtained earlier, despite
the exercise of due diligence.” Stokes, 959 A.2d at 310-311; see also
Burton, 158 A.3d at 628 (“subsection (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.” 42 Pa.C.S. § 9545(b)(1)(ii)[]. If the petitioner alleges
and proves these two components, then the PCRA court has jurisdiction
over the claim under this subsection”) (emphasis omitted) (internal
emphasis added). In the case at bar, Appellant failed to plead his or his
prior counsels’ due diligence. Therefore, neither this Court nor the PCRA
court has jurisdiction over the claim.




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523 (Pa. Super. 2011). We thus affirm the PCRA court’s order dismissing

Appellant’s third PCRA petition without a hearing.5

       Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2017


____________________________________________


5
  The PCRA court dismissed Appellant’s third PCRA petition on November 8,
2016, on the ground that it was untimely. PCRA Court Order, 11/8/16, at 1.
Appellant then filed a notice of appeal. On May 16, 2017, the PCRA court
issued its Rule 1925(a) opinion and, within its opinion, the PCRA court
(apparently) analyzed Appellant’s prior PCRA petition: it declared that
Appellant’s petition was untimely because it was filed beyond the PCRA’s
one-year time-bar and Appellant is not entitled to relief under Miller v.
Alabama. See PCRA Court Opinion, 5/16/17, at 1-7.

Appellant raised his Miller claim in his second PCRA petition – not in his
current petition. Nevertheless, given the time that elapsed between the
PCRA court’s order and its opinion, we recognize that such a mistake could
occur in the drafting of the opinion. Further, “this Court is not bound by the
rationale of the [PCRA] court, and [we] may affirm on any basis.”
Commonwealth v. Doty, 48 A.3d 451, 456 (Pa. Super. 2012) (internal
quotations, citations, corrections, and some internal capitalization omitted).
Therefore, since Appellant’s PCRA petition is patently untimely and since
Appellant has failed to plead his or his prior counsels’ due diligence in
obtaining the facts he now relies upon, neither this Court nor the PCRA court
has jurisdiction to grant Appellant relief. See Jackson, 30 A.3d at 523.




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