J-S71040-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                    v.

ROBERT E. ROBINSON

                         Appellant                 No. 3515 EDA 2015


               Appeal from the PCRA Order October 27, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0718101-1982


BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:FILED MARCH 30, 2017

      I agree with the majority’s holding, in this appeal from an order

dismissing two PCRA petitions as untimely, that Appellant’s petition

advancing a Miller v. Alabama, 567 U.S. 460 (2012) claim fails to satisfy

any exception to the one-year time-bar. However, I do not agree that we

must remand for an evidentiary hearing to determine whether Appellant

satisfied any exception with respect to his second petition. Hence, I concur

and dissent from the majority’s disposition.

      This case concerns the timeliness of Appellant’s eighth and ninth

attempts to secure PCRA relief. The eighth petition submitted that Appellant

was entitled to relief pursuant to Miller v. Alabama, 567 U.S. 460 (2012).

While that petition was still pending, Appellant filed another petition,


* Former Justice specially assigned to the Superior Court.
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docketed June 19, 2015, alleging new facts concerning trial counsel’s alleged

drug use. The PCRA court disposed of both petitions in the instant order. I

fully agree with my learned colleagues that the petition raising his Miller

claim failed to invoke the PCRA court’s jurisdiction since Appellant was over

eighteen at the time of the murder.

      I depart from my colleagues with respect to its disposition of the

portion of the PCRA order dismissing the June 19, 2015 petition as untimely.

The basis for that petition was as follows.       Appellant alleged that Bruce

Quarles, a fellow prisoner, overheard Appellant complaining about trial

counsel.    Quarles   stated   he     knew   of   trial   counsel   and   supplied

documentation regarding trial counsel’s purchase of cocaine in the Caribbean

Islands in May of 1982. “Mr. Quarles told me he would bring the transcripts

and newspaper articles to the law library and I could make photo copies of

the newspaper articles and the transcripts. This is how I obtained the after

[d]iscovered [e]vidence on April 28, 2015.” PCRA Petition, 6/19/15, at 4-A.

That petition attached three exhibits: a newspaper article dated May 29,

1982, stating that Appellant’s trial counsel was fired from his job as an

Assistant District Attorney in Philadelphia due to an FBI informant alleging

trial counsel had purchased cocaine, a transcript of trial counsel’s plea to

possession of drugs in the Eastern District of Pennsylvania on April 29, 1994,

and a newspaper story reporting the 1994 conviction.




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      Appellant’s PCRA petition submitted that these facts satisfied the

second of the three exceptions to the PCRA’s one-year time period. These

exceptions are:

      (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) (emphasis added). Additionally, any petition

seeking to invoke one of these three exceptions “shall be filed within 60 days

of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

The PCRA court’s rationale for finding that Appellant failed to satisfy these

requirements is set forth in its opinion:

      [Appellant]’s claim does not constitute after-discovered
      evidence, and his argument is not convincing. Trial counsel
      represented [Appellant] in 1983. Counsel pled guilty to drug
      trafficking offenses that occurred between 1991 and 1992.
      [Appellant] cannot reasonably claim that trial counsel’s
      subsequent legal problems impacted his decision to plead guilty
      a decade earlier. Aside from allegations contained in an article,
      [Appellant] has not provided any evidence to suggest that
      counsel’s representation as it related to [Appellant]’s specific
      case was improper. [Appellant] has failed to demonstrate that
      any of the exceptions to the limitations of the PCRA apply to his
      case.”

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Trial Court Opinion, 11/18/15, at 4.

         As the majority recognizes, the inquiry applied to determine whether a

PCRA petitioner has satisfied the § 9545(b)(1)(ii) exception is wholly distinct

from the analysis applied to the merits of any claim which relies upon said

facts.    Our Supreme Court recently described this section as providing a

gate-keeping function. “The function of a section 9545(b)(1)(ii) analysis is

that of a gatekeeper. Its inquiry, therefore, is limited to considering only the

existence of a previously unknown fact that would allow a petitioner to avoid

the strict one year time-bar.” Commonwealth v. Cox, 146 A.3d 221, 229,

n.11 (Pa. 2016). Thus, the legal inquiry for jurisdictional purposes is limited

to examining whether the facts were unknown, and, if so, whether the

subsequent uncovering of the facts was done with due diligence, which

“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.”

Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa.Super. 2015) (en

banc), appeal granted, 134 A.3d 446 (Pa. 2016).          Provided the petitioner

has satisfied those two prongs, only then is a merits analysis proper.

         I agree that the PCRA court’s disposition appears to conflate the two

inquiries. However, while I agree that the PCRA court erred, I disagree that




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this error requires a remand for an evidentiary hearing.        For the following

reasons, I find that we must affirm the order denying relief.

      First, § 9545(b)(1)(ii) requires the petitioner to establish due

diligence, and it is clear that Appellant cannot meet that requirement. The

lack of discussion by the PCRA court on this point does not require a

remand, since we conduct de novo review of legal questions.            Since the

exercise of due diligence presents a question of law, Commonwealth v.

Selenski, 994 A.2d 1083 (Pa. 2010), we may affirm on that alternative

basis. Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa.Super. 2009)

(this Court may affirm the decision of PCRA court if decision is supported by

record, even if we rely on a different basis).

      Indeed, Cox, supra, affirmed the denial of PCRA relief where the

order contained the same exact legal error at issue herein.           The Court

concluded that Cox failed to demonstrate due diligence; hence, the PCRA

court lacked jurisdiction to entertain the claim. Cox therefore affirmed the

order.

      Cox cannot, however, establish that he could not have
      ascertained this fact through the exercise of due diligence. Due
      diligence “does not require perfect vigilance and punctilious care,
      but merely a showing the party has put forth reasonable effort”
      to obtain the information upon which a claim is based.
      Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d 339, 348
      (2013). Cox's initial attempt to obtain the ballistics evidence was
      made in his first PCRA petition, in connection with his claim that
      trial counsel was ineffective for failing to seek independent
      ballistics testing.



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Id. at 230. The same is true herein. Appellant has failed to establish that

he could not have ascertained the facts regarding trial counsel’s substance

abuse issues through the exercise of due diligence. The exhibits attached to

the PCRA petition were in the public domain, which is presumptively

accessible and available.   See Commonwealth v. Taylor, 67 A.3d 1245,

1248-49 (Pa. 2013) (“This Court has found matters of public record are not

unknown.”). In Burton, supra, we modified this presumption where a pro

se defendant is incarcerated.

     The general rule is reasonable when we may conclude that the
     petitioner retains access to public information, such as when a
     petitioner is represented by counsel. In such cases, public
     records should be presumptively knowable. However, a pro se
     petitioner does not have access to information otherwise readily
     available to the public. That is elementary: A PCRA petitioner is
     most often incarcerated, and thus, no longer a member of the
     public.    Without counsel's providing a conduit to publicly
     available information, a presumption of access is cynical, and the
     strength of the general rule falters. Thus, the Supreme Court has
     expressly recognized the importance of access to the public
     information.

Id. at 1072.   On its face, Burton would appear to support the majority’s

determination to remand for an evidentiary hearing to permit Appellant an

opportunity to develop this claim. However, Appellant’s own brief reveals

that he was aware of trial counsel’s substance abuse issues no later than

October of 2014.   “On or about October 20, 2014, [A]ppellant received a

computer print-out from his aunt, an article she found . . . This is when the

Appellant found out his attorney was involved with cocaine and was



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trafficking the drugs etc.” Appellant’s brief at 7. Hence, Appellant has failed

to explain why, assuming arguendo that he could not have discovered this

information prior to October 20, 2014, he did not file the PCRA petition

within sixty days of that date. 42 Pa.C.S. § 9545(b)(2).

      While I would hold that the lack of due diligence is sufficient to resolve

the matter, I also note that Appellant does not set forth any facts that would

entitle him to relief, rendering any evidentiary hearing irrelevant. We could

affirm on this basis as well. In reaching this conclusion, I recognize that in

Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), our Supreme

Court stated that the (b)(1)(ii) exception merely requires the petitioner “to

allege and prove that there were ‘facts’ that were ‘unknown’ to him and that

he exercised ‘due diligence.’”   Id. at 1270.   In Bennett, the fact at issue

was PCRA counsel’s failure to file a brief on appeal of a timely PCRA petition.

Bennett then filed a second PCRA petition seeking reinstatement of his PCRA

appellate rights, invoking § 9545(b)(1)(ii).       Bennett determined that

“[Bennett]’s allegations bring his claim within the ambit of subsection

(b)(1)(ii) . . . he must also prove that the facts were ‘unknown’ to him and

that he could not uncover them with the exercise of ‘due diligence.’” Id. at

1274. Thus, the Court remanded for fact-finding on those questions.

      Then-Justice, now Chief Justice, Saylor authored a dissenting opinion,

stating that “a consistent plain-meaning approach to Section 9545(b)(1)(ii)

should also subsume an equally straightforward approach to the words that

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the statute employs, including the word ‘claim.’”   Id. at 1276. In his view,

the claim was not cognizable under the PCRA, “because [Bennett]'s

conviction and sentence did not result from such ineffectiveness, and

because the asserted prejudice does not go directly to the truth-determining

process, as the language of the PCRA contemplates.” Id. at 1276 (Saylor,

J., dissenting).   Thus, then-Justice Saylor would have held that the facts

could not provide relief.

        However, I do not read Bennett or Cox as requiring a PCRA court to

hold an evidentiary hearing whenever a litigant sets forth any fact

whatsoever. There must be room to consider whether the purported facts

could establish a viable legal claim.   As an absurd example, suppose an

incarcerated individual filed a PCRA petition claiming that he recently learned

that the Chicago Cubs won the World Series. No one would suggest that the

PCRA court must rigidly determine whether that fact was unknown and

whether it could have been learned through due diligence without any

consideration of whether that fact is relevant to any possible issue in the

case.    While 42 Pa.C.S. § 9545(b)(1)(ii) acts as a gatekeeper, that label

obviously contemplates that there is a reason to open the gate in the first




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place.1    To require an evidentiary hearing in all cases, as the majority

appears to require, clearly elevates form over substance.

       Thus, in my view, nothing prevents a reviewing court from affirming

the denial of PCRA relief on the basis that the claim could not possibly lead

to relief even assuming the untimely petition satisfied the exception.     The

Supreme Court discussed this point in Commonwealth v. Yarris, 731 A.2d

581 (Pa. 1999), stating:

       Moreover, even if Appellant were able to surmount the bar of
       untimeliness with respect to this claim, he would then face the
       additional hurdle of proving by a preponderance of the evidence
       that one or both of the affidavits constitute “exculpatory
       evidence that has subsequently become available and would
       have changed the outcome of the trial if it had been introduced.”
       42 Pa.C.S. § 9543(a)(2)(vi). On the record before us, Appellant
       could not satisfy such burden.

       ...

       We conclude that the evidence which purportedly reveals that
       someone other than Appellant committed the murder is hearsay,
       not within any exception, and so unreliable as to be
       inadmissible. A claim which rests exclusively upon inadmissible
       hearsay is not of a type that would implicate the after-
       discovered evidence exception to the timeliness requirement,
       nor would such a claim, even if timely, entitle Appellant to
       relief under the PCRA.




____________________________________________


1
     That point animated then-Justice Saylor’s dissent in Bennett. The
majority accepted that the facts, as a matter of law, would entitle Bennett to
relief. The case thus does not speak to a situation where the facts are
completely irrelevant.



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Id. at 591-92 (emphasis added).         Thus, in Yarris, the facts offered to

overcome the time-bar could not have resulted in a new trial, even if timely

presented. I do not read Cox to abandon this avenue of analysis.

      Applying this principle, it is clear that Appellant’s claim, even if timely,

would not entitle him to relief under the PCRA. Even if every allegation in

Appellant’s PCRA petition is completely true, none of the facts could possibly

demonstrate that trial counsel was ineffective.     It is the advice itself that

would ultimately be at issue in any properly-filed PCRA petition.         Hence,

whether or not trial counsel consumed drugs in general, or even whether he

was under the influence on the day of his plea, is irrelevant. See Bonin v.

Calderon, 59 F.3d 815 (9th Cir. 1995) (“Because we conclude . . . that

[counsel]’s performance did not fall below the standard of objective

reasonableness, it is irrelevant whether [counsel] used drugs.”). The time

for Appellant to timely attack the objective reasonableness of the supplied

advice has long since passed. Hence, these purported facts could not lead to

any grant of relief whatsoever.      Therefore, there is no need to hold an

evidentiary hearing, even if the record did not indicate whether or not

Appellant could demonstrate due diligence.       Thus, we could affirm on this

basis as well.

      Accordingly, for the foregoing reasons, I concur and dissent from the

majority’s disposition of the order denying PCRA relief.




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