J-S38028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

CLARK HENDERSON,

                          Appellant                 No. 2945 EDA 2015


                 Appeal from the PCRA Order of August 17, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1035262-1991

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.

MEMORANDUM BY OLSON, J.:          FILED JUNE 29, 2016

      Appellant, Clark Henderson, appeals pro se from the order entered

August 17, 2015, dismissing his third petition filed pursuant to the Post-

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

      This Court previously summarized the factual background of this case

as follows:

      On September 15 and 16, 1990, [Appellant’s co-defendant
      George] Russell was involved in several arguments with his
      cousins, Ronald Bradley and Joseph Bradley.        One of the
      arguments culminated in a gunshot wound to Russell’s foot. This
      series of confrontations climaxed on the morning of September
      17, 1990, when [Russell, Kevin Cleveland, and Prince Hagwood]
      opened fire on Ronald and Joseph Bradley as they stood outside
      their mother’s house.

      Several people witnessed this shooting and testified at trial that
      [Russell, Cleveland, and Hagwood] assembled near the Bradleys’
      mother’s home at approximately 10:30 a.m. Aaron Hainey, who
      was also with [Russell, Cleveland, and Hagwood], confronted
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        Ronald and Joseph Bradley. While they were talking, [Appellant]
        drew a weapon and began shooting. [Russell, Cleveland, and
        Hagwood] then opened fire in the direction of the Bradleys; [35
        to 40] shots were fired.

        When the shooting concluded, [Russell, Cleveland, and
        Hagwood] assisted the wounded Aaron Hainey into a car and fled
        the scene. Ronald Bradley and Aaron Hainey died as a result of
        their injuries. Joseph Bradley was also wounded; he spent six
        weeks hospitalized in intensive care and eventually recovered.

Commonwealth v. Russell, 665 A.2d 1239, 1241 (Pa. Super. 1995),

appeal denied, 675 A.2d 1246 & 679 A.2d 227 (Pa. 1996) (footnote

omitted).

        The relevant procedural history is as follows.   On August 17, 1993,

Appellant was convicted of six offenses including, inter alia, first-degree

murder.1     On July 1, 1994, the trial court sentenced him to an aggregate

term of life imprisonment without the possibility of parole.      This Court

affirmed the judgment of sentence and our Supreme Court denied allowance

of appeal.    Commonwealth v. Henderson, 2655 Phila. 1994 (Pa. Super.

Aug. 21, 1995) (per curiam) (unpublished memorandum), appeal denied,

675 A.2d 1244 (Pa. 1996).      Appellant filed a timely pro se PCRA petition,

counsel was appointed and filed an amended petition, and the PCRA court

denied relief. This Court affirmed the denial of PCRA relief and our Supreme

Court denied allowance of appeal.      Commonwealth v. Henderson, 747

A.2d 412 (Pa. Super. 1999) (per curiam) (unpublished memorandum),

appeal denied, 751 A.2d 186 (Pa. 2000). In 2012, Appellant filed a second

1
    18 Pa.C.S.A. § 2502(a).


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pro se PCRA petition. The PCRA court dismissed the petition as untimely and

this Court affirmed.   Commonwealth v. Henderson, 105 A.3d 24, 2014

WL 10917004 (Pa. Super. 2014) (unpublished memorandum).

      On May 5, 2015, Appellant filed the instant pro se PCRA petition, his

third. On July 27, 2015, the PCRA court issued notice of its intent to dismiss

the petition without an evidentiary hearing.       See Pa.R.Crim.P. 907.   On

August 13, 2015, Appellant filed a response to the dismissal notice.       On

August 17, 2015, the PCRA court dismissed the petition and filed an opinion

in support thereof. This timely appeal followed.

      Appellant presents two issues for our review:

   1. [Whether Appellant satisfied the newly-discovered fact exception
      to the PCRA’s timeliness requirement?

   2. Whether Appellant satisfied the governmental          interference
      exception to the PCRA’s timeliness requirement?]

See Appellant’s Brief at 4.

      Both of Appellant’s issues address whether he established an exception

to the PCRA’s timeliness requirement. The timeliness requirement for PCRA

petitions “is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.” Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013) (citation omitted). “The

question of whether a petition is timely raises a question of law. Where the

petitioner raises questions of law, our standard of review is de novo and our




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scope of review plenary.”   Commonwealth v. Taylor, 65 A.3d 462, 468

(Pa. Super. 2013) (citations omitted).

     A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] becomes final.”     42 Pa.C.S.A. § 9545(b)(1).    “[A]

judgment [of sentence] 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.” 42 Pa.C.S.A. § 9545(b)(3). Appellant’s judgment of sentence

“became final on July 17, 1996, upon expiration of his time to seek direct

review in the [Supreme Court of the United States] by writ of certiorari.”

Henderson v. DiGuglielmo, 138 F. App’x 463, 466 (3d Cir. 2005).

Appellant’s petition was filed in May 2015. Thus, the petition was patently

untimely.

     An untimely PCRA petition may be considered if one of the following

three exceptions applies:

     (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.


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42 Pa.C.S.A. § 9545(b)(1)(i-iii).   If an exception applies, a PCRA petition

may be considered if it is filed “within 60 days of the date the claim could

have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

     Appellant argues that he satisfied the newly-discovered fact exception

and, therefore, the PCRA court possessed jurisdiction over the merits of his

petition. The newly-discovered fact exception

     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. 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) (internal

quotation marks and citations omitted; emphasis removed).

     Appellant argues that a March 2, 2015, Rolling Stone article about

Detective Frank Jastrzembski constitutes a newly-discovered fact.        That

article asserted that Detective Jastrzembski, who was involved in the

investigation of Appellant’s crime, concealed evidence in an unrelated case. 2

Our Supreme Court addressed a situation similar to the case sub judice in

Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014).              In Castro, the


2
   Although the United States District Court for the Eastern District of
Pennsylvania granted habeas relief in the case discussed in the article,
Dennis v. Wetzel, 966 F.Supp.2d 489 (E.D. Pa. 2013), a three-judge panel
of the United States Court of Appeals for the Third Circuit vacated the grant
of habeas relief. Dennis v. Sec’y, Pennsylvania Dep’t of Corr., 777 F.3d
642 (3d Cir. 2015). Thereafter, the Court of Appeals granted rehearing.
The en banc court has yet to issue an opinion in the case.


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petitioner relied upon a newspaper article to establish newly-discovered

evidence for use in a post-sentence motion.3 Our Supreme Court held that

while    a   newspaper   “article   [may]   contain   allegations   that    suggest

[exculpatory] evidence may exist, [] allegations in the media, whether true

or false, are no more evidence than allegations in any other out-of-court

situation.” Id. at 825. Although magazine and newspaper “articles can alert

a party to the possible existence of evidence, [] the party must do more

than attach the article [to establish] the evidence that will meet the [test for

newly-discovered facts. . . . A petition] must, at the very least, describe the

evidence that will be presented at the hearing.”        Id. at 837.        Thus, the

Rolling Stone article is not a newly-discovered fact.

        Appellant, however, argues that the Rolling Stone article led him to

discover evidence concealed by the Commonwealth at the time of trial.

Specifically, Appellant argues that he discovered the Commonwealth

suppressed a firearm found on Raymond Bradley and a photograph of the

lineup from which Yolanda Tate identified Appellant. As to the firearm found

on Raymond Bradley, trial testimony established that paramedics turned the

gun over to security at Thomas Jefferson University Hospital. N.T., 8/10/93,

at 34-35. At trial, Appellant’s counsel questioned the paramedic and police

officers as to the firearm’s location. N.T., 7/23/93, at 7-9; N.T., 8/10/93, at


3
  Castro has since been applied to the newly-discovered fact exception to
the PCRA. See Commonwealth v. Brown, 2016 WL 11783782016, *7
(Pa. Super. Mar. 24, 2016).


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36, 41. They testified that hospital security never turned the firearm over to

police.

      Appellant failed to plead and prove that police recovered the firearm

from the hospital and later concealed its existence from him.     Instead, he

merely argues that because Detective Jastrzembski was involved in the

investigation of this case, he must have concealed the firearm from

Appellant.    This is mere conjecture.     Appellant does not point to any

evidence to suggest that police recovered the firearm. The paramedic and

Detective William Wynn, the two individuals who testified at trial regarding

the firearm recovered from Raymond Bradley, were never implicated in the

Rolling Stone article.   Thus, Appellant failed to plead and prove that the

Commonwealth concealed the firearm. Accordingly, he failed to plead and

prove the existence of a newly-discovered fact.

      As to the lineup from which Yolanda Tate identified Appellant,

Detective Wynn testified at trial that there was no photograph taken of the

lineup.   N.T., 8/11/93, at 15.   Appellant argues that the Commonwealth’s

brief in Henderson v. DiGuglielmo, supra, proves that a photograph of

the lineup exists.   The portion of the brief cited by Appellant, however,

merely states that a lineup occurred. It does not state that a photograph of

the lineup exists. Appellant presents no evidence that a photograph of the

lineup exists. As such, he failed to plead and prove that the Commonwealth




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concealed a photograph of the lineup.        Accordingly, he failed to plead and

prove the existence of any newly-discovered fact.

      In   his   second   issue,   Appellant   asserts   that   he   satisfied   the

governmental interference exception.         This argument, however, is based

entirely on the same alleged evidentiary concealment issues discussed

above. As we have determined that Appellant failed to plead and prove that

the Commonwealth concealed any evidence, we further conclude that

Appellant failed to plead and prove the applicability of the governmental

interference exception.    As Appellant’s petition was patently untimely, and

he failed to plead and prove the applicability of any of the three statutory

timeliness exceptions, the PCRA court properly held that it lacked jurisdiction

to reach the merits of the petition.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/29/2016




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