J-S22022-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RASHAD ALI IBRAHIM                         :
                                               :
                       Appellant               :   No. 30 MDA 2020

            Appeal from the PCRA Order Entered November 27, 2019
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0008008-2015


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                                  FILED MAY 08, 2020

        Rashad Ali Ibrahim (Appellant) appeals pro se from the order denying

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        The PCRA court determined that Appellant’s petition, filed on July 23,

2019, was untimely. Appellant concedes the untimeliness, but presents the

following question on appeal:

        Did the PCRA court error by dismissing Appellant’s first PCRA
        petition as untimely where Appellant pled and proved a timeliness
        exception?




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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Appellant’s Brief at 4.1

       It is well-settled that in reviewing the denial of a PCRA petition, our

review is limited to examining whether the PCRA court’s findings are supported

by the record and free of legal error. See Commonwealth v. Hanible, 30

A.3d 426, 438 (Pa. 2011). We view the findings of the PCRA court and the

evidence of record in the light most favorable to the prevailing party.     Id.

“The PCRA court’s credibility determinations, when supported by the record,

are binding on this Court; however, we apply a de novo standard of review to

the PCRA court’s legal conclusions.” See Commonwealth v. Mason, 130

A.3d 601, 617 (Pa. 2015).

       Pennsylvania law is unequivocal that no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa. 2003)). A petitioner must file a PCRA petition within one year of

the date on which the petitioner’s judgment of sentence became final, unless

one of the three statutory exceptions applies:

____________________________________________


1  Pa.R.Crim.P. 904 provides for the appointment of counsel on a first PCRA
petition. Here, Appellant elected to proceed pro se in his direct appeal, after
being afforded a hearing pursuant to Commonwealth v. Grazier, 713 A.2d
81 (Pa. 1998). See Commonwealth v. Ibrahim, 450 MDA 2107 (Pa. Super.
Apr. 18, 2018) (unpublished memorandum). After Appellant filed his pro se
PCRA petition on July 23, 2019, the court appointed counsel, who ultimately
filed a Turner/Finley “no merit” letter and petition for leave to withdraw as
counsel.    The PCRA court granted counsel’s request to withdraw from
representation on November 22, 2019.


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       (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.A. § 9545(b)(1). A petitioner must file a petition invoking one of

these exceptions within one year of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).2 If a petition is untimely, and the

petitioner has not pled and proven any exception, “neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

Instantly, we are without jurisdiction to decide Appellant’s appeal unless he
____________________________________________


2 Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2), effective December
2018, and provides that a PCRA petition invoking a timeliness exception must
be filed within one year of the date the claim could have been
presented. Previously, a petitioner had 60 days from when the claim could
have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.
Section 3 of Act 2018 provides that the amendment to subsection (b)(2) “shall
apply only to claims arising one year before the effective date . . . or
thereafter.” Id.




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pled and proved one of the three timeliness exceptions of Section 9545(b)(1).

See Derrickson, 923 A.2d at 468.

       Appellant claims “governmental interference” and “newly discovered

facts” to qualify for an exception to the PCRA time-bar prescribed in 42

Pa.C.S.A. § 9545(b)(1)(i) and (ii). See Appellant’s Brief at 10. Relevant to

this claim, a jury found that Appellant set fire to his ex-girlfriend’s residence.

See Commonwealth v. Ibrahim, 450 MDA 2107 (Pa. Super. Apr. 18, 2018)

(unpublished memorandum) at *1-2.              The jury convicted Appellant of arson

and related crimes, and on January 30, 2017, the trial court sentenced

Appellant to two to four years in prison. Id. Appellant asserts that he is

entitled to post-conviction relief because he did not receive a copy of the fire

report until February 21, 2019. See Appellant’s Brief at 11. Appellant argues

that the Commonwealth failed to disclose a “complete copy” of the report

indicating the cause of the fire was “undetermined,” in contravention of Brady

v. Maryland.       Id. at 11-12; see also Brady v. Maryland, 373 U.S. 83

(1963) (holding that a defendant’s right to due process is violated when the

prosecution withholds evidence favorable to the accused).                 Appellant

references his counsel’s Turner/Finley letter3, correctly noting that his


____________________________________________


3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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counsel “could not determine if the report itself was disclosed.” Appellant’s

Brief at 11, n.1; see also Turner/Finley Letter, 10/24/19, at 6.4 Appellant

states:

       Without evidence that the fire was determined an arson, would
       the police have had probable cause to arrest Appellant? Or was
       the falsification of documents (affidavit of probable cause)
       necessary for the prosecution to bring charges, or else, Appellant
       could not have been charged with arson?

Appellant’s Brief at 14.

       Upon review, we find no merit to Appellant’s claim of government

interference and newly-discovered evidence. To meet the requirements of the

governmental interference exception to the PCRA’s time-bar, Appellant was

required to plead and prove that his “failure to raise the claim [or claims]

previously was the result of interference by government officials with the

presentation of the claim [or claims] in violation of the Constitution or laws of

this Commonwealth or the Constitution or laws of the United States....” 42

Pa.C.S.A. § 9545(b)(1)(i). See Commonwealth v. Chester, 895 A.2d 520,

523 (Pa. 2006).       With regard to newly-discovered evidence, our Supreme

Court has explained:

       When considering a claim seeking to invoke section
       9545(b)(1)(ii), the petitioner must establish only that (1) the facts
       upon which the claim was predicated were unknown and (2) they
       could not have been ascertained by the exercise of due diligence.
       Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1270–
____________________________________________


4 Counsel wrote: “While I could not determine if the report itself was
disclosed, the information known in the report certainly was known and
disclosed.” Turner/Finley Letter, 10/24/19, at 6.

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      72 (2007). We have unequivocally explained that “the exception
      set forth in subsection (b)(1)(ii) does not require any merits
      analysis of the underlying claim.” Commonwealth v. Abu–
      Jamal, 596 Pa. 219, 941 A.2d 1263, 1268 (2008). Rather, the
      exception only requires a petitioner to “prove that the facts
      were unknown to him and that he exercised due diligence in
      discovering those facts.” Bennett, 930 A.2d at 1270; see also
      Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 98
      (2001) (rejecting attempt to invoke section 9545(b)(1)(ii)
      because appellant failed to offer any evidence that he exercised
      due diligence in obtaining facts upon which his claim was based).

Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016) (emphasis added).

      Appellant argues that he did not learn until February 21, 2019 about the

fire report, which would have led to “a reasonable probability of a different

[trial] outcome.”   Appellant’s Brief at 11.      The record does not support

Appellant’s argument.

      As footnoted above, Appellant’s PCRA counsel advised Appellant:

      Generally, if a report of this nature had not been known to
      [Appellant] prior to or at the time of trial, it would constitute newly
      discovered evidence. However, while I could not determine if
      the report itself was disclosed, the information in the
      report certainly was known and disclosed. Through his
      testimony at trial, [Fire] Captain Zienkiewicz testified that he was
      unable to determine the cause of the fire.

Turner/Finley Letter, 10/24/19, at 6 (emphasis added).

      Likewise, the PCRA court cited Captain Zienkiewicz’s trial testimony that

he “labeled the cause of the fire ‘undetermined.’”         PCRA Court Opinion,

11/27/19, at 11 (citing N.T., 11/9/16, at 222-24). The PCRA court confirmed

that the indeterminate cause of the fire was “disclosed and presented at trial.”

Id. The court continued:



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                Even if the fire report constitutes newly-discovered
          evidence, the Commonwealth sustained its burden of proof
          beyond a reasonable doubt by means of ample circumstantial
          evidence. The Superior Court, on April 18, 2018, affirmed [the]
          judgment of sentence and found the Commonwealth sustained its
          burden of proof beyond a reasonable doubt for a conviction of
          arson[].


Id. at 11-12 (emphasis in original). In deciding Appellant’s direct appeal, this

Court concluded, “although no one actually saw [Appellant] start the fire, the

jury heard ample circumstantial evidence . . . that [Appellant] intended to

start the fire.     The jury found this evidence sufficient, and we will not

substitute our judgment for theirs.” Commonwealth v. Ibrahim, 450 MDA

2017 at 8.

          We have reviewed the record and our sufficiency of the evidence

analysis in Ibrahim, supra. This Court concluded that the evidence — which

included the fire captain’s statement that the cause of the fire was undermined

— was “amply” sufficient to support Appellant’s convictions.      See id.; see

also Commonwealth v. O'Bidos, 849 A.2d 243, 253 (Pa. Super. 2004) (law

of the case doctrine applied to preclude Superior Court from revisiting issue

of whether sufficient evidence supported conviction).

          For the above reasons, we find no merit to Appellant’s claim of

government interference and newly discovered evidence to qualify for an

exception to the PCRA’s time-bar.       We therefore affirm the order denying

relief.

          Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/08/2020




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