J-S18010-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

GARY LEE ROCK,

                          Appellant                   No. 1593 MDA 2015


               Appeal from the PCRA Order September 3, 2015
               In the Court of Common Pleas of Franklin County
                          Criminal Division at No(s):
                          CP-28-MD-0000283-1977


BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                               FILED APRIL 01, 2016

       Gary Lee Rock appeals from the September 3, 2015 order dismissing

his PCRA petition as untimely. We affirm.

       On July 2, 1977, Appellant, dressed in combat fatigues and armed with

a high-powered rifle, shot at people who were responding to a fire, which he

had set, on his property. He killed a neighbor and a firefighter, and injured

several other firefighters.   On May 15, 1978, a jury convicted him of two

counts of first-degree murder, one count of arson, and several counts of

attempted murder.

       In 1984, Appellant obtained habeas relief from the United States

District Court due to trial counsel’s ineffectiveness in failing to file a motion


*
    Retired Senior Judge assigned to the Superior Court.
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to suppress items seized during a warrantless search and for failing to

introduce evidence of Appellant’s good character.          Rock v. Zimmerman,

586 F.Supp. 1076 (M.D. Pa. 1984).              On January 16, 1985, Appellant was

convicted at a new trial of the two counts of first-degree murder, four counts

of attempted murder, and two counts of aggravated assault, and was

thereafter sentenced to two consecutive terms of life imprisonment.

Judgment of sentence was affirmed on direct appeal, and allowance of

appeal was denied on July 8, 1988.             Commonwealth v. Rock, 526 A.2d

1235 (Pa.Super. 1987) (unpublished memorandum), appeal denied, 546

A.2d 58 (Pa. 1988). Appellant sought, but was denied, habeas corpus relief.

Rock v. Zimmerman, 729 F.Supp. 398 (M.D. Pa. 1990), affirmed 959 F.2d

1237 (3d Cir. 1992) (en banc), cert. denied, Rock v. Preate, 112 S.Ct.

3036 (1992).

       Appellant filed two subsequent PCRA petitions, both of which were

dismissed as untimely.1          The orders were affirmed on appeal, and the

____________________________________________


1
   Appellant filed his first petition for post-conviction relief on or about May
15, 1997, in which he alleged that trial counsel was ineffective for failing to
file a pretrial motion asserting double jeopardy based on the
Commonwealth’s deliberate concealment of exculpatory evidence involving a
Pennsylvania State trooper’s allegedly false testimony during the first trial.
Appellant sought discovery in connection with that proceeding and the
Commonwealth agreed to provide the requested information. N.T. Post-
Conviction Relief Act Hearing, 2/5/98, at 7-8. That petition was found to be
untimely as it was not filed within the one-year grace period under the 1996
amendment to the PCRA, and none of the exceptions was proven.
(Footnote Continued Next Page)


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Supreme Court denied allowance of appeal. See Commonwealth v. Rock,

742 A.2d 210 (Pa.Super. 1999) (unpublished memorandum), appeal denied,

745 A.2d 1221 (Pa. 1999); Commonwealth v. Rock, 769 A.2d 1209

(Pa.Super. 2000) (unpublished memorandum), appeal denied, 781 A.2d 142

(Pa. 2001).

      Appellant filed the instant pro se petition on June 8, 2015, and Mark F.

Bayley, Esquire, was appointed as counsel. Counsel filed a Turner/Finley2

no-merit letter and sought permission to withdraw, having concluded that

the petition was untimely and that no timeliness exception was applicable.

The PCRA court agreed, granted counsel’s petition to withdraw, and issued

Rule 907 notice of its intention to dismiss the petition. Although Appellant

objected, the court dismissed the petition on September 3, 2015. Appellant

filed the within appeal.       He complied with the PCRA court’s order to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and

the court issued its Rule 1925(a) opinion.

      Appellant raises three issues for our review:

      (1)     Whether it was legal error for the PCRA court to refuse to
              consider     whether     misrepresentations     by     the
              Commonwealth (that it had complied with Brady) and
              Judge Eppinger (that the four police reports were not
              beneficial to the defense) constitute “interference by
                       _______________________
(Footnote Continued)


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



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              government officials” within the scope of Pa.C.S.A. Section
              9545(b)(1)(i)?

       (2)    Whether it was legal error for the PCRA court to refuse to
              conduct an in camera inspection of the undisclosed and
              inaccessible police reports?

       (3)    Whether Pa.R.Crim.P. 902(E)(1) violates due process since
              it requires proof of “exceptional circumstances” to obtain
              Brady evidence on PCRA review?

Appellant’s brief at 2.3

       In reviewing the dismissal of a PCRA petition, our standard of review is

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

record and free of legal error. Commonwealth v. Brandon, 51 A.3d 231,

233 (Pa.Super. 2012) (citation and quotation marks omitted). Our scope of

review “is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level." Commonwealth v. Freeland, 106 A.3d 768, 776 (Pa.Super. 2014).

       In order to be timely, all PCRA petitions, even second and subsequent

petitions, must be filed within one year after the defendant's judgment of

sentence becomes final. 42 Pa.C.S. § 9545 (b)(1). “The PCRA's timeliness

requirements are jurisdictional; therefore, a court may not address the

merits   of   the   issues    raised    if     the   petition   was   not   timely   filed.”

Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012); accord Brandon,
____________________________________________


3
   The Commonwealth advised this Court that it did not intend to file a brief
in this matter.



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supra at 234 (citing Commonwealth v. Robinson, 837 A.2d 1157, 1161

(Pa. 2003) ("The timeliness requirements of the PCRA are jurisdictional in

nature and, accordingly, a PCRA court cannot hear untimely petitions.").

       "There are three exceptions to this [one-year] time requirement: (1)

interference by government officials in the presentation of the claim; (2)

newly discovered facts; and (3) an after-recognized constitutional right."

Brandon, supra at 233-34; 42 Pa.C.S. § 9545(b)(1)(i-iii).             “The PCRA

squarely places upon the petitioner the burden of proving an untimely

petition fits within one of the three exceptions.”    Jones, supra at 17. In

addition, the exception must be asserted within sixty days of the date when

the claim could have been presented.

       The instant petition, filed almost twenty-five years after the United

States Supreme Court, denied certiorari is untimely on its face.        Appellant

contends, however, that his petition is timely under the governmental

interference exception to the one-year time bar. He claims that the court

and the prosecutor, by sealing four police reports at his first trial, prevented

him from accessing Brady material.4

____________________________________________


4
  The certified record does not contain the transcript of Appellant’s first trial.
Appellant appended to his petition several pages of that transcript reflecting
the exchange in chambers where the trial court ruled that the police reports
contained nothing beneficial to the defense and ordered that the records be
sealed. We have no other information regarding the contents of those
documents.



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      A petitioner who is availing himself of a timeliness exception is

required to file his petition within sixty days of the date he acquired the

information upon which his exception is based.      42 Pa.C.S. § 9545(b)(2).

He must plead and prove that the information could not have been obtained

earlier, despite the exercise of due diligence. Commonwealth v. Marshall,

947 A.2d 714, 720 (Pa. 2008).

      The PCRA court concluded that Appellant failed to demonstrate that he

could not have filed his claim earlier with the exercise of due diligence.

Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001).              We agree.

Appellant knew in 1978 that the court sealed the reports at the behest of the

prosecutor, after concluding that they did not contain any information

beneficial to the defense.   Appellant did not challenge that ruling and did

nothing to gain access to the reports for more than thirty-five years.

      Appellant attempts to excuse his lack of diligence by claiming that the

trial court and the Commonwealth misrepresented that there was no Brady

material contained in the reports and “misled him into forgoing direct and

collateral review.” Appellant’s brief at 7. In the same vein, Appellant argues

that the Commonwealth’s failure to notify him that the reports contained

Brady material, together with their inaccessibility, meets the sixty-day

requirement.

      First, Appellant offers no evidence that the reports do contain Brady

material or that the representations made in 1978 were false.            Second,

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Appellant did not file a direct appeal challenging the trial court’s order

sealing the documents.       Nor did he raise this issue in his petition seeking

habeas corpus relief. Appellant made no effort to access what he now claims

was undisclosed Brady material prior to his second trial. Herein, Appellant

is relying upon the alleged Brady violation as the basis for the governmental

interference      timeliness exception.        As our       High Court reiterated in

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

“[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.”    Appellant has not met this burden.            His attempt to raise the

claim more than three decades after it could have been raised demonstrates

a lack of due diligence.

      Finally, Appellant argues that whether governmental interference

exists can only be determined by examining what he characterizes as the

secret   police    reports   to   see   if    the   court   and   the   Commonwealth

misrepresented the content of the reports. He alleges that the PCRA court

erred in refusing to conduct an in camera inspection, and that, without the

reports, the record is inadequate for us to resolve the issue. According to

Appellant, remand is necessary to permit inspection of the police reports.




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      The original trial court inspected the police reports and ruled that they

were not beneficial to the defense. In order to circumvent the PCRA time

bar, Appellant would have to prove that the sealing of the documents

prevented him from pursuing his Brady claim for more than three decades.

Appellant has not offered any satisfactory explanation as to why he could

not have timely challenged the court’s ruling. Nor has he demonstrated that

he exercised due diligence to seek access to the reports.         Furthermore,

discovery is not permitted in PCRA proceedings except with leave of court

and proof of exceptional circumstances.      Pa.R.Crim.P. 902(E)(1).      Herein,

the discovery sought is relevant only to prove the underlying merit of an

untimely petition.   Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008).

The trial court properly exercised its discretion in denying discovery.

      In short, Appellant knew in 1978 that the trial court ruled that the

police reports did not contain Brady material.        Defense counsel timely

objected to the sealing of the documents. Appellant did not challenge that

ruling on direct appeal or in previous collateral petitions. More than three

decades later, with no showing of due diligence, Appellant raises the issue

for the first time on collateral review. We agree with the PCRA court that

since Appellant failed to demonstrate that this issue could not have been

raised before with the exercise of due diligence, the petition is untimely.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2016




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