J-S67029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN E. MINNICK                            :
                                               :
                       Appellant               :   No. 3852 EDA 2017

                 Appeal from the PCRA Order November 7, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0009788-2008


BEFORE:      OTT, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                            FILED JANUARY 17, 2019

        Appellant John E. Minnick appeals pro se from the order dismissing his

third petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. Appellant claims that the PCRA court erred in dismissing his PCRA

petition as untimely because he met the governmental interference and newly

discovered evidence exceptions.1 We affirm.

        The PCRA court summarized the history of this case as follows:

        [Appellant] was tried before th[e trial c]ourt and a jury in the early
        fall of 2009 and at the conclusion of the trial the jury found
        [Appellant] guilty of third-degree murder and certain weapons
        offenses. These charges arose out of an incident that occurred on
        January 20, 2008, during which [Appellant] and an accomplice
        fired numerous shots at Eduardo Tubens[,] killing him. Two
        witnesses identified [Appellant] as one of the persons firing guns
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. § 9545(b)(1)(i) and (ii), respectively.
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     the night of the incident. On April 8, 2010, [Appellant] received
     an aggregate sentence of twenty to forty years’ incarceration.
     [Appellant] later appealed and on July 22, 2011, the Superior
     Court affirmed the judgment of sentence. Commonwealth v.
     Minnick, 32 A.3d 279 (Pa. Super. 2011) [(unpublished mem.)].
     [Appellant] thereafter sought re-argument before the Superior
     Court. The request was denied. [Appellant] did not file a petition
     for allowance of appeal.

     On October 24, 2011, [Appellant] filed his first pro se [PCRA
     petition].   Counsel was appointed to represent [Appellant].
     However, on July 9, 2012, [Appellant] was granted permission to
     represent     himself    following     a    hearing   pursuant   to
     Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), with
     respect to his PCRA petition. On March 18, 2013, after [Appellant]
     was sent a Pa.R.Crim.P. 907 Notice of Intent to Dismiss, th[e PCRA
     c]ourt denied [Appellant] PCRA relief without a hearing.
     [Appellant] thereafter filed a notice of appeal. On March 14, 2014,
     the Superior Court affirmed th[e PCRA c]ourt’s order denying
     [Appellant] post-conviction collateral relief. (950 EDA 2013).
     [Appellant] did not file a petition for allowance of appeal.

     On July 14, 2014, [Appellant] filed a second PCRA petition. In
     that petition, [Appellant] sought relief based on newly discovered
     evidence. According to [Appellant], he recently found a witness
     who is willing to testify that she saw him inside the bar where the
     incident occurred as the shots that purportedly killed the victim
     herein were being fired outside the bar.

     Following th[e PCRA c]ourt’s review of the petition and the service
     upon [Appellant] of a Pa.R.Crim.P. 907 Notice of Intent to Dismiss,
     th[e PCRA c]ourt denied [Appellant]’s request for collateral relief
     on July 30, 2015, without a hearing after concluding that
     [Appellant]’s most recent PCRA petition had been untimely filed.
     [Appellant] filed an appeal from that order and on May 19, 2016,
     the Superior Court affirmed the order dismissing [Appellant]’s
     PCRA petition. (2516 EDA 201[5]). [Appellant] filed a petition for
     allowance of appeal and on November 2, 2016, the Supreme Court
     issued a per curiam order denying the petition. (290 EAL 2016).




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       On July 25, 2017,[2] [Appellant] filed a third PCRA petition
       predicated on newly discovered evidence. In it[,] he claimed that
       he found another witness who was willing to testify that he was
       inside the bar when the shooting herein occurred outside the bar.
       The witness, Mr. Keyon Boyd, who is currently serving a sentence
       of life imprisonment, signed an affidavit on July 11, 2017, wherein
       he stated that he saw [Appellant] in the prison on May 23, 2017,
       at which time [Appellant], who [Boyd] knew from his
       neighborhood, showed him some paperwork with his (Boyd’s)
       name on it. Upon seeing his name on the paperwork, Boyd
       recalled speaking to the police about the incident and advising
       them that he had been inside the bar when the shooting occurred
       and that at the time, [Appellant] was also inside the bar. Upon
       carefully reviewing [Appellant]’s filing th[e PCRA c]ourt
       determined that [Appellant] did not timely file his third PCRA
       petition because he failed to file his petition within sixty days of
       the date he learned that Boyd possessed information helpful to his
       case. The [c]ourt further determined that even had he filed his
       petition within sixty days[,] no relief was due [to] him because he
       failed to prove that he exercised due diligence and, therefore, that
       none of the exceptions to the one-year filing deadline of the PCRA
       excused the late filing of his petition. Consequently, th[e PCRA
       c]ourt sent [Appellant] a Pa.R.Crim.P. 907 Notice of Intent to
       Dismiss, to which [Appellant] filed a response. Upon reviewing
       [Appellant]’s response in conjunction with the entire record, th[e
       PCRA c]ourt determined that [Appellant]’s petition had been
       untimely filed. Consequently, on November 7, 2017, th[e PCRA
       c]ourt issued an order dismissing [Appellant]’s petition.

PCRA Ct. Op., 11/29/17, at 1-3 (footnotes omitted).




____________________________________________


2  Appellant has provided a cash slip indicating that he delivered the instant
PCRA petition into the prison authorities’ hands on July 21, 2017. See
Commonwealth v. Chambers, 35 A.3d 34, 38, 40 (Pa. Super. 2011) (“[T]he
prisoner mailbox rule provides that a pro se prisoner’s document is deemed
filed on the date he delivers it to prison authorities for mailing.” (citation
omitted)); stating that “a cash slip ‘may be sufficient to establish that an
appeal was delivered to prison officials or deposited in the prison mailbox
within the . . . filing period’” (citation omitted)).

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       On November 22, 2017, the PCRA court docketed Appellant’s timely

notice of appeal. The PCRA court did not order, and Appellant did not file, a

Pa.R.A.P. 1925(b) statement.

       The PCRA court, however, filed a Pa.R.A.P. 1925(a) opinion, concluding

that

       [Appellant] failed to establish that he exercised due diligence.
       Although he spoke to Boyd on May 23, 2017, Boyd’s affidavit
       indicates that [Appellant] showed him paperwork with Boyd’s
       name on it, which triggered his recollection of the incident and his
       discussion with the police. By failing to identify the paper[]work
       he showed Keyon Boyd or state when he obtained the paperwork
       in which Boyd’s name appeared, [Appellant] did not meet his
       burden of proving that he acted with due diligence because
       [Appellant] did not establish when he learned of Boyd’s alleged
       involvement in the case. This was fatal to his claim because, as
       noted above, a defendant seeking to establish that the late filing
       of a PCRA petition must establish that he exercised due diligence.
       Due diligence demands that a 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, 781 A.2d 94, 98
       ([Pa.] 2001).       Here, [Appellant] utterly failed in this vital
       endeavor, so even had he timely filed his most recent PCRA
       petition, he still would not have been entitled to relief.

PCRA Ct. Op. at 6-7.

       Appellant raises the following questions on appeal, which we have

reordered as follows:

       1. Did the [PCRA] court err when denying the Appellant a new
          trial for the Commonwealth withholding exculpatory evidence
          from the defense?

       2. Did the [PCRA] court err when dismissing Appellant’s pro se
          PCRA petition as “untimely” without considering the date in
          which Appellant learned of the newly discovered evidence as

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         the Appellant has met the exception for newly discovered
         evidence under 42 Pa.C.S. § 9545(b)(1)(ii)?

      3. Did the [PCRA] court err when dismissing Appellant’s pro se
         PCRA as “untimely” without first conducting a factual
         []evidentiary hearing where the pleadings raised contained
         material issues of fact?

Appellant’s Brief at 6 (full capitalization omitted).

      We address Appellant’s first two claims together, as they both assert

error in the PCRA court’s conclusion that Appellant’s petition was untimely

filed. Appellant essentially argues that he could not have learned of Boyd’s

statement before May 23, 2017 because of governmental interference. Id. at

35. He claims that Boyd had given a statement to the police indicating that

Boyd saw Appellant inside the establishment at the time of the shooting, while

the shooting occurred outside. Id. Appellant contends that he was unaware

that Boyd was interviewed or provided a statement to police and that the

Commonwealth did not disclose Boyd’s statement in discovery. Id. at 36.

Appellant, therefore, asserts that the Commonwealth withheld exculpatory

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Id. at 37.

      Appellant also argues that he met the newly discovered facts exception

because he learned of this information—Boyd’s statement—on May 23, 2017.

Id. at 23. Appellant maintains that Boyd provided an affidavit on July 11,

2017 and that Appellant then gave his PCRA petition to prison authorities for

mailing on July 21, 2017. Id. at 23-24.

       With respect to due diligence, Appellant claims that when Boyd arrived

at the prison, Appellant “inquire[d] about the night of this incident[,]” and


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Boyd disclosed the “new facts” to him. Id. at 25. He further contends that

he had seen Boyd’s signature, but when he asked trial counsel about it, trial

counsel indicated to him that it was not worth pursuing. Id. at 30.

      Our standard of review for the dismissal of a PCRA petition is limited to

“whether the record supports the PCRA court’s determination and whether the

PCRA court’s decision is free of legal error.” Commonwealth v. Lawson, 90

A.3d 1, 4 (Pa. Super. 2014) (citation omitted).

      It is well-settled that “the timeliness of a PCRA petition is a jurisdictional

[pre-]requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super.

2015). “A PCRA petition, including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final.” Id. A judgment

is 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 the review.” Id. (citing

42 Pa.C.S. § 9545(b)(3)).

      Courts may consider a PCRA petition filed more than one year after a

judgment of sentence becomes final only if the petitioner pleads and proves

one of the following three statutory exceptions:

      (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

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       (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).3

       The Pennsylvania Supreme Court has noted that

       [a]lthough a Brady violation may fall within the governmental
       interference exception, the petitioner must plead and prove the
       failure to previously raise the claim was the result of interference
       by government officials, and the information could not have been
       obtained earlier with the exercise of due diligence. Section
       9545(b)(1)(ii)’s exception requires the facts upon which the
       Brady claim is predicated were not previously known to the
       petitioner and could not have been ascertained through due
       diligence. In [Commonwealth v. Bennett, 930 A.2d 1264, 1271
       (Pa. 2007)], we clarified that § 9454(b)(1)(ii)’s exception does not
       contain the same requirements as a Brady claim, noting “we
       made clear the exception set forth in subsection (b)(1)(ii) does
       not require any merits analysis of the underlying claim. Rather,
       the exception merely requires that the ‘facts’ upon which such a
       claim is predicated must not have been known to appellant, nor
       could they have been ascertained by due diligence.”

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (citations

omitted).

       Instantly, there is no dispute that Appellant failed to file the instant

PCRA petition within one year of his conviction becoming final. Moreover, the

record supports the PCRA court’s conclusions that Appellant could have

learned of these facts earlier with the exercise of due diligence. See PCRA Ct.

Op at 6-7. Appellant acknowledges that Boyd’s signature was in Appellant’s
____________________________________________


3Moreover, a petition invoking any one of the exceptions “shall be filed within
60 days of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).

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file and that he knew of Boyd’s existence as he asked trial counsel about Boyd.

See Appellant’s Brief at 30. Further, Appellant and Boyd knew each other

“from the neighborhood.”     See Boyd’s Aff., 7/11/17; see also Appellant’s

Brief at 18. Accordingly, Appellant failed to explain why he could not have

contacted Boyd earlier to investigate his case and learn about Boyd’s alleged

exculpatory statement.

      Therefore, we agree with the PCRA court that Appellant has not

established why he could not have raised these exceptions earlier with the

exercise of due diligence. See Abu-Jamal, 941 A.2d at 1268. Accordingly,

the PCRA court properly concluded that it lacked jurisdiction to consider the

merits of Appellant’s claims. See Brown, 111 A.3d at 175.

      Lastly, Appellant claims that the PCRA court failed to hold an evidentiary

hearing “to hear and evaluate the facts set before them to determine the

veracity or credibility of [the new] information.” Appellant’s Brief at 20. He

claims that he “asserted material issues of fact and should have been awarded

the opportunity at a factual hearing to assert his claims.” Id. at 21.

      Generally, “a PCRA court must hold a hearing when a PCRA petition

raises any issues of material fact.” Commonwealth v. Marshall, 947 A.2d

714, 723 (Pa. 2008) (citation omitted); see also Pa.R.Crim.P. 907(1).

However, “a PCRA court has discretion to dismiss a PCRA petition without a

hearing if the court is satisfied that there are no genuine issues concerning

any material fact; that the defendant is not entitled to post-conviction

collateral relief; and that no legitimate purpose would be served by further

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proceedings.” Commonwealth v. Burton, 158 A.3d 618, 622 n.4 (Pa. 2017)

(citations omitted).

      Instantly, because Appellant failed to raise any genuine issue of fact that

his petition was timely filed, the PCRA court lacked jurisdiction to consider his

claims. Accordingly, the court did not err in dismissing Appellant’s petition

without an evidentiary hearing. See Marshall, 947 A.2d at 723.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/19




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