J-S60014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JAMES SAUNDERS,

                         Appellant                  No. 790 EDA 2015


          Appeal from the PCRA Order Entered February 23, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0827441-1988


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED OCTOBER 20, 2015

      Appellant, James Saunders, appeals pro se from the post conviction

court’s February 23, 2015 order denying, as untimely, his petition for relief

filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

After careful review, we affirm.

      In October of 1989, Appellant was convicted by a jury of first-degree

murder, criminal conspiracy, and possessing an instrument of crime.       His

convictions stemmed from the following facts, as set forth by this Court in

our disposition of Appellant’s direct appeal:

            On July 15, 1988, at approximately 1:00 a.m., [Appellant]
      and three other men were walking back and forth on Walnut
      Street between 50th and 51st Streets in the City of Philadelphia.
      [Appellant] and an individual named “Maleek” then began
      walking on the north side of Walnut Street toward 51st Street,
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       while co-defendant Stanley Scott and another male walked in the
       opposite direction.[1]

             Shortly thereafter, [Appellant] and “Maleek” turned around
       and were heading towards 51st Street, when Stanley Scott
       shouted, “Yo, there they go.” Barron Bracy, the decedent, and
       a companion were standing between [Appellant] and Stanley
       Scott. [Appellant] then fired a shot in the direction of Barron
       Bracy, who was unarmed. Immediately thereafter, Bracy began
       hopping and shouting that somebody had shot him and that he
       needed help.

              Bracy's companion ran around the corner, and was chased
       by [Appellant], Stanley Scott, Maleek, and another male, who
       were all firing handguns. At approximately 1:15 a.m., police
       officers arrived at the scene and found Barron Bracy lying face
       down on Walnut Street.         The victim was transported to
       Misericordia Hospital by emergency personnel, but died shortly
       thereafter.

             An autopsy was conducted which revealed that the
       decedent suffered a single gunshot wound to the lower left
       abdomen.    The medical examiner testified that this bullet
       entered the decedent's abdominal and pelvic cavities, causing
       him to bleed to death. The medical examiner testified that the
       cause of death was the gunshot wound to the decedent's
       abdomen.

Commonwealth           v.   Saunders,          No.   02140   PHL   1991,   unpublished

memorandum at 1-2 (Pa. Super. filed April 13, 1992) (quoting Trial Court

Opinion, 10/17/91, at 2-3) (citations to the record omitted).

       On June 3, 1991, Appellant was sentenced to an aggregate term of life

imprisonment.       He filed a timely direct appeal with this Court, and we



____________________________________________


1
  While Scott is referred to as Appellant’s co-defendant, the two men were
ultimately tried separately.



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affirmed his judgment of sentence. See id. Appellant did not file a petition

for permission to appeal to our Supreme Court.

      On October 16, 1998, Appellant filed his first PCRA petition, which was

dismissed by the PCRA court on May 3, 1999. Appellant filed a timely appeal

with this Court, and we affirmed the order dismissing his petition on

September 5, 2000.     Commonwealth v. Saunders, 766 A.2d 891 (Pa.

Super. 2000) (unpublished memorandum). Again, Appellant did not petition

for permission to appeal to our Supreme Court.

      On November 5, 2012, Appellant filed the pro se PCRA petition

underlying the instant appeal. Therein, Appellant alleged, inter alia, that he

recently discovered the transcripts from Stanley Scott’s trial, which revealed

exculpatory evidence that was withheld by the Commonwealth in Appellant’s

prosecution.   On January 13, 2015, the PCRA court issued a Pa.R.Crim.P.

907 notice of its intent to deny Appellant’s petition as untimely. Appellant

filed a response to the Rule 907 notice; however, on February 23, 2015, the

PCRA court issued an order denying his petition.

      Appellant timely filed a notice of appeal and a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.         The PCRA court

subsequently filed a Rule 1925(a) opinion. Herein, Appellant presents five

issues for our review, which we reproduce verbatim:

      1) Did the (PCRA) court err, and commit reversible error when it
      dismissed appellant’s petition without the benefit of properly
      conducted hearing to determine the creditability of the presented
      statement(s) that led to the filing of the said petition, and
      therefore being able to render a fully informed legal opinion?

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        2) Did (PCRA) court err, and commit reversible error when it
        failed to recognize a timely presented motion to the court, that
        was pertinent to the due process of the law within regards to
        final disposition of (PCRA) petition?

        3) Did the Commonwealth’s attorney perpetrate a knowing fraud
        upon the court when they failed to disclose discoverable material
        to the defense, that it presented to the court at suppression and
        at trial, and knew was inherently false in nature?

        3) Did the Commonwealth’s prosecuting attorney err, and
        commit reversible error, when it permitted knowing false
        testimony to remain on the record uncorrected, when it was
        presented at a criminal suppression hearing and trial, as well as
        during appellate post collateral proceedings, impeding justice
        and perpetrating a knowing fraud upon the judiciary?

        4) Did the (PCRA) court err, and commit reversible error when it
        omitted facts of record upon which appellants claims are
        predicated and completely failed to address claims of appellant
        that are properly preserved and presented to the court for
        review?

Appellant’s Brief at 4 (unnumbered).2

        This Court’s standard of review regarding an order denying a PCRA

petition is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error.          Commonwealth v. Ragan,

923 A.2d 1169, 1170 (Pa. 2007).                The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

        We must begin by addressing the timeliness of Appellant’s petition, as

the PCRA time limitation implicates our jurisdiction and may not be altered


____________________________________________


2
    We note that the Commonwealth did not file a brief in this case.



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or disregarded in order to address the merits of a petition.              See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for post-conviction relief, including a second or

subsequent one, must be filed within one year of the date the judgment of

sentence becomes final, unless one of the following exceptions applies:

     (b) Time for filing petition.--

        (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:

           (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. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

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

     Here, Appellant’s judgment of sentence became final on May 13, 1992,

at the expiration of the thirty-day time period for seeking review with the

Pennsylvania Supreme Court.     See 42 Pa.C.S. § 9545(b)(3) (stating that



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judgment of sentence becomes final at the conclusion of direct review or the

expiration of the time for seeking the review); Pa.R.A.P. 1113(a) (directing

that “a petition for allowance of appeal shall be filed with the Prothonotary of

the Supreme Court within 30 days of the entry of the order of the Superior

Court sought to be reviewed”). Thus, Appellant had until May 13, 1993, to

file a timely petition, making his November 5, 2012 petition patently

untimely.    Consequently, for this Court to have jurisdiction to review the

merits thereof, Appellant must prove that he meets one of the exceptions to

the timeliness requirements set forth above.

        In his pro se brief, Appellant argues that he meets the “newly

discovered fact” exception of section 9545(b)(1)(ii) based on his discovery of

evidence purportedly withheld by the Commonwealth in violation of Brady

v. Maryland, 373 U.S. 83 (1963).3              Specifically, Appellant maintains that
____________________________________________



3
    Our Supreme Court has explained:

        Under Brady, the prosecution's failure to divulge exculpatory
        evidence is a violation of a defendant's Fourteenth Amendment
        due process rights. “[T]o establish a Brady violation, a
        defendant is required to demonstrate that exculpatory or
        impeaching evidence, favorable to the defense, was suppressed
        by the prosecution, to the prejudice of the defendant.”
        Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1126
        (2008).

Commonwealth v. Cam Ly, 980 A.2d 61, 75 (Pa. 2009). Additionally,
“[t]he burden of proof is on the defendant to demonstrate that the
Commonwealth    withheld   or  suppressed   evidence.”   Id.    (citing
Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890, 898 (1999)).



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“on or about October 2012,” an individual named Claude Saunders, “being

suspicious of the circumstances leading up to [A]ppellant’s conviction, …

researched [A]ppellant’s case,” and found (and mailed to Appellant) the

transcripts of the trial of Stanley Scott, Appellant’s cohort in the shootings.

Appellant claims that those transcripts reveal that a witness, William Holden,

testified at Scott’s trial that Appellant was not the shooter, and was not even

present on the street at the time of the shooting. Appellant contends that

he was unaware of Holden’s testimony at Scott’s July 1989 trial because the

transcripts of that proceeding were withheld by the Commonwealth prior to

Appellant’s October 1989 trial.

      Appellant further claims that, included with Scott’s trial transcripts,

were transcripts of 911 calls made by two witnesses who testified at

Appellant’s trial, Jesse Hambright and Hillary Williams.         According to

Appellant, the 911-call transcripts indicate that Hambright and Williams were

inside their homes when the shooting occurred. Thus, Appellant avers that

he could have used that evidence to impeach Hambright’s and Williams’

testimony that they saw Appellant participate in the shooting.       However,

Appellant was purportedly unaware of these 911-call transcripts because the

Commonwealth did not turn them over to Appellant prior to his trial.

      After assessing Appellant’s claims, the PCRA court concluded that

Appellant “failed to establish that the Commonwealth withheld or suppressed

any evidence[]” in violation of Brady. PCRA Court Opinion, 2/23/15, at 4.

The court additionally found that Appellant “failed to demonstrate that the

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alleged Brady violation so undermined the truth-determining process that

no reliable adjudication of guilt or innocence could have taken place.”    Id.

(citing Cam Ly, 980 A.2d at 75). Consequently, the PCRA court concluded

that Appellant did not satisfy any exception to the PCRA’s one-year time-bar.

      The PCRA court’s legal analysis is technically flawed.     Our Supreme

Court clarified, in Commonwealth v. Lambert, 884 A.2d 848 (Pa. 2005),

that a PCRA petitioner can satisfy the timeliness exception set forth in

section 9545(b)(1)(ii) by alleging a Brady violation and, to do so, the

petitioner need not prove the underlying merits of his Brady claim(s). Id.

at 851-852. Instead, “[t]he exception merely requires that the ‘facts’ upon

which such a claim is predicated must not have been known to [the

petitioner], nor could they have been ascertained by due diligence.”       Id.

Pursuant to Lambert, we conclude that the PCRA court erred by assessing

the merits of Appellant’s Brady claims in rejecting his petition as untimely.

      While the PCRA court erred by examining the merits of Appellant’s

Brady claims, we agree with the court’s ultimate conclusion that Appellant

failed to prove the timeliness exception of section 9545(b)(1)(ii).        The

evidence presented at Scott’s trial, i.e., Holden’s testimony and the

transcripts of the 911 phone calls by Hambright and Williams, became public

in July of 1989, when Scott’s trial was conducted. See Appellant’s Brief at 7

(stating Scott’s trial occurred on or about July 20, 1989).      At that time,

Appellant was awaiting his own trial (which took place in October of 1989),

and was represented by counsel. Therefore, it is reasonable to presume that

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Appellant had access to the public information revealed during Scott’s trial,

and the evidence presented during that proceeding was not ‘unknown’ to

him for purposes of proving the exception in section 9545(b)(1)(ii).          See

Commonwealth v. Burton, --- A.3d ---, 2015 WL 5076284, *6-7 (Pa.

Super. 2015) (en banc) (stating that the general rule that matters of public

record are not ‘unknown’ for purposes of proving a timeliness exception “is

reasonable when we may conclude that the petitioner retains access to

public information, such as when a petitioner is represented by counsel[;]”

however, such a presumption does not apply when the petitioner is pro se at

the time the information becomes public).

      Certainly, Appellant could rebut the presumption that the evidence

revealed during Scott’s public trial was accessible and known to him. Id. at

*6. However, Appellant offers no discussion of what reasonable efforts he

took to uncover that evidence, or state how or why the particular

circumstances of his case precluded him from accessing sooner the

transcripts that Claude Saunders uncovered in 2012. See Burton, 2015 WL

5076284, at *6 (holding “that due diligence requires neither perfect

vigilance nor punctilious care, but rather it requires reasonable efforts by a

petitioner, based on the particular circumstances, to uncover facts that may

support a claim for collateral relief”).

      For these reasons, we conclude that Appellant has not proven the

applicability   of   the   ‘newly   discovered   facts’   exception   of   section




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9545(b)(1)(ii).4 Therefore, the PCRA court did not err in denying his petition

as untimely.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2015




____________________________________________


4
  We note that Appellant also presents ineffective assistance of counsel (IAC)
claims, and challenges the legality of his sentence. However, “[i]t is well
settled that allegations of ineffective assistance of counsel will not overcome
the jurisdictional timeliness requirements of the PCRA.”                    See
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (citations
omitted). Likewise, in Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999),
our Supreme Court held that claims challenging the legality of sentence are
subject to review within PCRA, but must first satisfy the PCRA’s time limits.
Id. at 223. Appellant does not attempt to argue that a timeliness exception
applies to either his IAC argument or his legality of sentencing claims.
Consequently, we do not have jurisdiction to address the merits of those
issues.




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