J-S84010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KENNETH MILLER

                            Appellant                  No. 2650 EDA 2015


                  Appeal from the PCRA Order August 20, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0907901-1984


BEFORE: OLSON, SOLANO and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED FEBRUARY 07, 2017

       Appellant, Kenneth Miller, appeals from the order entered on August

20, 2015, dismissing as untimely his fourth petition pursuant to the Post

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

       We briefly summarize the facts and procedural history of this case as

follows. On August 26, 1984, Appellant shot and killed a man inside a bar in

Philadelphia.      On October 29, 1986, a jury convicted Appellant of

first-degree murder and possessing an instrument of crime.1 On September

22, 1987, the trial court sentenced him to life imprisonment for murder with

an additional concurrent term of one to two years of incarceration for

possessing an instrument of crime.             This Court affirmed Appellant’s

____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a) and 907, respectively.



* Former Justice specially assigned to the Superior Court.
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judgment of sentence on September 11, 1990.         See Commonwealth v.

Miller, 583 A.2d 833 (Pa. Super. 1990) (unpublished memorandum).

Appellant did not appeal that decision.

      Appellant filed his first PCRA petition on April 27, 1995.    After a

hearing, the PCRA court denied relief and, on August 28, 1997, we affirmed

the dismissal of Appellant’s first PCRA petition.   See Commonwealth v.

Miller, 704 A.2d 164 (Pa. Super. 1997) (unpublished memorandum). Our

Supreme Court denied further review. See Commonwealth v. Miller, 725

A.2d 180 (Pa. 1998). The United States Supreme Court denied Appellant’s

subsequent petition for certiorari.   See Miller v. Pennsylvania, 525 U.S.

985 (1998).

      On November 8, 2006, Appellant filed his second PCRA petition. The

PCRA court dismissed the petition as untimely and, on appeal, we affirmed

that decision. See Commonwealth v. Miller, 976 A.2d 1210 (Pa. Super.

2009) (unpublished memorandum).           Our Supreme Court denied further

review. See Commonwealth v. Miller, 983 A.2d 727 (Pa. 2009).

      On March 19, 2012, Appellant filed his third PCRA petition. The PCRA

court dismissed the petition as untimely and, on November 5, 2014, we

affirmed. See Commonwealth v. Miller, 113 A.3d 340 (Pa. Super. 2014)

(unpublished memorandum). Appellant did not appeal that determination to

the Pennsylvania Supreme Court.           However, Appellant filed a pro se

application for reargument before an en banc panel of this Court on




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November 14, 2014.         We denied relief by per curiam order on January 6,

2015.

        Currently, Appellant filed his most recent PCRA petition, pro se, on

February 26, 2015.         After giving Appellant requisite notice pursuant to

Pa.R.Crim.P. 907, the PCRA court dismissed the PCRA petition as untimely

without conducting a hearing. This timely, counseled appeal followed.2

        On appeal, Appellant raises the following issues for our review:

          I.    Did Appellant plead his eligibility for PCRA relief and
                was he eligible for PCRA relief?

          II.   Does Officer Pittman[’s failure] to disclose seeing
                Appellant intoxicated and confiscating drugs from
                Appellant comprise[] a Brady[3] violation?
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2
    Appellant filed a pro se notice of appeal on August 26, 2015. The PCRA
court did not order Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). On September 3, 2015,
Margeaux Kelly Cigainero, Esquire entered her appearance to represent
Appellant on appeal. Upon examination of the certified record, it is not
apparent whether Attorney Cigainero was appointed or privately retained.
The certified record does contain, however, an order entered by the PCRA
court on December 2, 2015 that “orders Atty. Margeaux Kelly withdrawn as
counsel [] and does not permit new counsel to be appointed.” Order,
12/2/2015, at 1. The PCRA court issued an opinion pursuant to Pa.R.A.P.
1925(a) on January 28, 2016.           Despite the order directing Attorney
Cigainero to withdraw as counsel, she filed an appellate brief on Appellant’s
behalf. Appellant did not respond or filed a pro se brief with this Court. We
accept the counseled brief for our review, but as explained in detail below,
lack jurisdiction to reach the merits of Appellant’s claims.
3
   Brady v. Maryland, 373 U.S. 83 (1963) (holding that the prosecution’s
suppression of evidence favorable to an accused violates due process where
the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution).



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         III.   Did [the PCRA court] mischaracterize the [timeliness]
                exception [advanced by Appellant] as “after-
                discovered facts” in [its] opinion, when the claim in
                the current PCRA petition was specifically limited to a
                government interference exception and a Brady
                violation?

         IV.    Should this Court remand for a hearing where Officer
                Pittman can testify about se[e]ing Appellant in a
                grossly intoxicated condition prior to the homicide?

Appellant’s Brief at 8 (complete capitalization omitted).

       On appeal, Appellant argues that he was voluntarily intoxicated at the

scene of the crime and that he did not remember, until recently, an

interaction wherein Officer Marvin Pittman allegedly confiscated marijuana

from Appellant one hour prior to the murder and his arrest.4         Currently,

Appellant avers:

         In the latter part of February 2012, [Darrell] Wallace, who
         was with [Appellant] at the time, informed [Appellant] that
         he was in the company of [Appellant] that evening and that
         [Appellant] had been stopped by Officer Pittman before the
         incident. [Wallace] also informed [Appellant] that Officer
         Pittman had confiscated drugs from [Appellant]. Officer


____________________________________________


4
    Some additional, background information is helpful. At trial, Officer
Pittman testified about the encounter with Appellant, but did not testify
about the alleged confiscation of drugs. Instead, Officer Pittman testified
that he asked Appellant to leave the area outside of the bar where the
murder occurred approximately one hour before the shooting. Later, Officer
Pittman responded to emergency telephone calls regarding the shooting. He
was able to identify Appellant from the previous encounter, which
subsequently led to Appellant’s arrest.




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         Pittman did not disclose this in his testimony at trial.
         [Appellant] has no recollection of these events.

Id. at 10. Appellant claims that his private investigator spoke with Officer

Pittman, on January 22, 2014, and that Officer Pittman purportedly agreed

to testify about the confiscation of drugs prior to the murder. Id.; see also

PCRA Petition, 2/26/2015, at 4a. Officer Pittman did not provide an affidavit

confirming his agreement to testify on Appellant’s behalf. Appellant’s Brief

at 10. Appellant maintains that “Officer Pittman did not testify to the entire

interaction that he had with Appellant, which would have produced evidence

that Appellant was highly intoxicated[,]” so that Appellant could have, in

turn, presented a voluntary intoxication defense to reduce the verdict “from

[f]irst[-]degree murder to third.”       Id. at 12-13. Thus, Appellant contends

that the prosecution withheld this allegedly exculpatory evidence from him in

violation   of    Brady.    Id.     at   12.    Appellant   therefore    invokes   the

governmental interference exception to the PCRA’s one-year, jurisdictional

time bar.        Id. at 11-12.    Appellant claims Officer Pittman’s statement,

acknowledging the confiscation of drugs from Appellant in August 1984 was

unknown to Appellant until February 21, 2014, when a prior PCRA petition

was pending on appeal. Id. at 12. Appellant avers he presented his claim,

in a new PCRA petition, within 60 days of the conclusion of the previous

petition. Id. He asserts the PCRA court erred by analyzing his claim under

the   “after-discovered    facts”    exception,   instead   of   the    “governmental

interference” exception, to the PCRA’s jurisdictional requirement. Id. at 17-



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23.   Appellant contends “he should be granted a hearing where he can

endeavor to prove his claims[.]” Id. at 24.

        Our standard of review over the denial of a PCRA petition is

well-settled:

          In reviewing the denial of PCRA relief, we examine whether
          the PCRA court's determination is supported by the record
          and free of legal error. A PCRA petition, including a second
          or subsequent petition, must be filed within one year of the
          date that the judgment of sentence becomes final. For
          purposes of the PCRA, a judgment becomes 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.

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016). “The

PCRA timeliness requirement [] is mandatory and jurisdictional in nature.”

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013).               “The court

cannot ignore a petition's untimeliness and reach the merits of the petition.”

Id.

        Here, Appellant’s judgment of sentence became final on October 10,

1990.     See 42 Pa.C.S.A § 9545(b)(3); Pa.R.A.P. 1113(a).           Appellant’s

current PCRA petition, filed on February 26, 2015, is patently untimely.

        “The time for filing a PCRA petition 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.” Mitchell, 141 A.3d at 1284

(citation omitted).     A petitioner must allege and prove one of three

exceptions:


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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)(i-iii).

      Further, there is a requirement that a petitioner file his claim “within

60 days of the date the claim could have been presented.”         42 Pa.C.S.A.

§ 9545(b)(2). Our Supreme Court “has made it clear that the 60–day rule

requires a petitioner to 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, 309–310 (Pa. 2008)

(citation omitted).   “[W]ith respect to both [the governmental interference

and newly discovered facts] exceptions, Appellant is required to show that

he could not have filed his claim earlier.”   Id. “[W]hen an appellant's PCRA

appeal is pending before a court, a subsequent PCRA petition cannot be filed

until the resolution of review of the pending PCRA petition by the highest

state court in which review is sought, or upon the expiration of the time for




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seeking such review.”     Commonwealth v. Lark, 746 A.2d 585, 588 (Pa.

2000).

     Initially, we note that the PCRA court determined that Appellant failed

to file his current PCRA petition within 60 days of the date Appellant could

have first presented his claim.    See PCRA Opinion, 1/28/2016, at 3.         The

PCRA court determined that this Court decided Appellant’s prior PCRA appeal

on November 5, 2014, but Appellant did not file his current petition until

February 26, 2015, or 54 days past the 60-day deadline under 42 Pa.C.S.A.

§ 9545(b)(2). Id. at 3-4.

     We disagree with the PCRA court’s analysis.         Under Pa.R.A.P. 1701,

after Appellant appealed the dismissal of this prior petition for collateral

relief, the PCRA court no longer retained jurisdiction. See Pa.R.A.P. 1701.

Following our denial of relief on November 5, 2014, Appellant filed a pro se

application for reargument en banc before this Court on November 14, 2014.

“The pendency of an application for reargument […] shall stay the remand of

the record until the disposition thereof, and until after 30 days after the

entry of a final order in the appellate court possessed of the record.”

Pa.R.A.P. 2572.    The PCRA court regains jurisdiction upon remand.           See

Pa.R.A.P. 2591.    Here, because Appellant applied for en banc reargument,

appellate review of his PCRA petition did not conclude until this Court

entered   its   order   denying   Appellant’s   application   for   relief.   See

Commonwealth v. Breakiron, 781 A.2d 94, 99 (Pa. 2001) (review of

appellant’s PCRA petition “by the highest state court” concluded when the

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Supreme Court decided his first PCRA appeal and reargument was denied

and,   thus,   60-day   time   period   for   asserting   Brady   claims,   under

governmental interference exception to PCRA's one-year filing restriction,

began to run from that time). We denied reargument on Appellant’s prior

PCRA petition on January 6, 2015.         Thus, Appellant had 60 days from

January 6, 2015, or until March 7, 2015, to file a PCRA petition raising his

current claims. Because the instant PCRA petition was filed on February 26,

2015, it was timely under Section 9545(b)(2).

       In addition to rejecting Appellant’s petition for non-conformity with

Section 9545(b)(2), however, the PCRA court also concluded that Appellant

failed to validly invoke PCRA timeliness exceptions for governmental

interference and newly-discovered facts. The PCRA court determined that it

was neither clear, nor did Appellant contend, that the Commonwealth had

exclusive control over the information regarding the confiscation of drugs,

and, therefore, Appellant had not proven governmental interference.          See

PCRA Opinion, 1/28/2016, at 4. The PCRA court further noted that Appellant

did not exercise due diligence in bringing his claim because Appellant’s

intoxication and/or use of narcotics was already known to him. Id. Finally,

the PCRA court recognized that, in Appellant’s third PCRA petition filed on

March 19, 2012 (the one filed prior to the PCRA petition currently at issue),

Appellant attempted to introduce a purported eyewitness to testify that

Appellant was intoxicated on the evening in question. Id. at 5.        The PCRA

court concluded that the issue of Appellant’s alleged intoxication was known

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to him and previously litigated. Id. Accordingly, the PCRA Court concluded

that Appellant could not now introduce a new source of evidence for a claim

that was already decided. Id.

     Although Appellant filed his current PCRA petition within 60 days of the

date he could have first presented it, we agree with the PCRA court that

Appellant failed to exercise due diligence in bringing forth his claims.    In

fact, Appellant concedes that another purported witness informed him as

early as February 2012 that he was intoxicated and that Officer Pittman

confiscated drugs from him.     Appellant’s Brief at 10.   This Court already

determined that Appellant did not exercise due diligence in bringing forth

that other witness to testify regarding his purported intoxication.        See

Miller, 113 A.3d 340, at *6.      Hence, Appellant’s newly-discovered facts

timeliness exception was previously litigated. We see no reason to order a

different result where Appellant invokes the governmental interference

exception based upon the same common core of operative facts. Moreover,

Appellant did not provide an affidavit from Officer Pittman in support of his

PCRA petition and Appellant has not pled or proven that the Commonwealth

withheld, let alone knew about, the currently alleged evidence to qualify as

governmental interference under Brady.         See Appellant’s Brief at 19

(“Assuming Officer Pittman would have testified to the locating and

destroying narcotics at the stop of [Appellant], if the Commonwealth

discovered these facts, the ultimate question of the extent of Appellant’s

inebriation was for the jury[.]”). Appellant has not met his burden to plead

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and prove an exception to the PCRA’s jurisdictional timing requirement. 42

Pa.C.S.A. § 9545(b)(1).

     Finally, the PCRA court may dismiss a PCRA petition without an

evidentiary hearing if there are no genuine issues of material fact and the

petitioner is not entitled to relief. See Mitchell, 141 A.3d at 1284. Here,

Appellant’s PCRA petition was untimely on its face and Appellant failed to

validly invoke one of the PCRA’s timeliness exceptions.    Accordingly, we

discern no error in the dismissal of Appellant’s PCRA petition without a

hearing.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/7/2017




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