J-S11004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JASON MCMASTER                             :
                                               :
                       Appellant               :   No. 3800 EDA 2017

                 Appeal from the PCRA Order October 19, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-1202641-2003


BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                                 FILED MAY 07, 2019

        Appellant, Jason McMaster, appeals pro se from the order entered on

October 19, 2017, denying his second petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After review, we

affirm.

        The relevant facts and procedural history of this matter were set forth

by the PCRA court as follows:

               [Appellant] was arrested and subsequently charged in
        connection with the 2003 fatal stabbing of twenty-year-old Joseph
        Briglia in a Philadelphia bar. On September 24, 2004, following a
        non-jury trial before the Honorable Benjamin Lerner, [Appellant]
        was convicted of first-degree murder and possession of an
        instrument of crime.[1] On the same date, the trial court sentenced
        [Appellant] to life imprisonment for the murder conviction and a
        lesser concurrent term of incarceration for the remaining
        conviction. On September 11, 2006, following a direct appeal, the
____________________________________________


1   18 Pa.C.S. §§ 2502, and 907, respectively.
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       Superior Court affirmed the judgment of sentence.2 The
       Pennsylvania Supreme Court denied allocatur on March 27, 2007.3

              2 Commonwealth v. McMaster, 911 A.2d 183 (Pa.
              Super. 2006) (unpublished memorandum).

              3 Commonwealth v. McMaster, 920 A.2d 832 (Pa.
              2007).

              On October 31, 2007, [Appellant] filed his first pro se PCRA
       petition. Counsel was appointed and subsequently filed an
       amended petition alleging that trial counsel had been ineffective.
       After conducting an evidentiary hearing, the PCRA court denied
       relief on December 15, 2014. On February 3, 2016, the Superior
       Court affirmed the PCRA court’s denial of post-conviction relief.4

              4 Commonwealth v. McMaster, 141 A.3d 585 (Pa.
              Super. 2016) (unpublished memorandum).

              On September 26, 2016, [Appellant] filed the instant pro se
       PCRA petition, his second[, and an amended petition on February
       1, 2017]. Pursuant to Pennsylvania Rule of Criminal Procedure
       907, [Appellant] was served notice of the PCRA court’s intention
       to dismiss his petition on July 17, 2017. [Appellant] submitted a
       response to the Rule 907 notice [and another amended PCRA
       petition] on July 27, 2017. On October 19, 2017, the PCRA court
       dismissed his PCRA petition as untimely. On November 13, 2017,
       the instant notice of appeal was timely filed to the Superior Court.

PCRA Court Opinion, 3/26/18, at 1-2.

       The record does not reflect the filing of an order directing Appellant to

comply with Pa.R.A.P. 1925(b). However, the PCRA court filed an opinion on

March 26, 2018, explaining its rationale for denying Appellant’s PCRA petition

as untimely.2 On appeal, Appellant avers that his second PCRA petition should

be considered timely pursuant to 42 Pa.C.S. § 9545(b)(1)(ii) and the newly


____________________________________________


2   We discuss the PCRA timing and filing requirements infra.

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discovered evidence exception to the PCRA timing requirements. Appellant’s

Brief at 2. After review, we disagree.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA court’s

determination is free of legal error. Commonwealth v. Staton, 184 A.3d

949, 954 (Pa. 2018). We consider the record in the light most favorable to

the prevailing party in the PCRA court. Commonwealth v. Mason, 130 A.3d

601, 617 (Pa. 2015). We grant great deference to the PCRA court’s findings

that are supported in the record and will not disturb them unless they have

no support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      The PCRA court concluded that Appellant’s second PCRA petition was

untimely.     Order, 10/19/17.        The timeliness of a PCRA petition is a

jurisdictional threshold that may not be disregarded in order to reach the

merits   of   the   claims   raised   in    a    PCRA   petition   that   is   untimely.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citing

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)). 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. § 9545(b)(3).




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       As the PCRA court noted in its opinion, this Court affirmed Appellant’s

judgment of sentence on September 11, 2006, and our Supreme Court denied

Appellant’s petition for allowance of appeal on March 27, 2007. PCRA Court

Opinion, 3/26/18, at 1 (citing McMaster, 911 A.2d 183, 2683 EDA 2004,

appeal denied, 920 A.2d 832 (Pa. 2007)). Therefore, Appellant’s judgment of

sentence became final ninety days later on June 25, 2007, when the time to

file a petition for a writ of certiorari in the Supreme Court of the United States

expired. 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13. Thereafter, Appellant

had one year, or until June 25, 2008, to file a timely PCRA petition. 42 Pa.C.S.

§ 9545(b)(1).      Appellant filed his second PCRA petition on September 26,

2016.3 Therefore, Appellant’s second PCRA petition was patently untimely.

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and

(iii), is met.4 A petition invoking one of these exceptions must be filed within


____________________________________________


3Appellant filed an amended petition on February 1, 2017, and a second
amended petition on July 27, 2017.

4   The exceptions to the timeliness requirement 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;




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sixty days from the date the claim could first have been presented. 42 Pa.C.S.

§ 9545(b)(2).5        The PCRA petitioner bears the burden of proving the

applicability of one of the exceptions. Commonwealth v. Edmiston, 65 A.3d

339, 346 (Pa. 2013).

       Appellant argues that his second PCRA petition should be deemed timely

pursuant to the newly discovered facts exception to the PCRA’s filing

requirements under 42 Pa.C.S. § 9545(b)(1)(ii).           Appellant’s Brief at 8.

Specifically, Appellant asserts that Detective Dennis Dusak, the lead

investigator in Appellant’s criminal case, was sued in federal court. One of

the claims made against Detective Dusak in federal court was that in some

separate and unrelated criminal cases, Detective Dusak allegedly drafted

statements for criminal defendants and had defendants sign the statements


____________________________________________


       (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), (ii), and (iii).

5  On October 24, 2018, Section 9545(b)(2) was amended and extended the
time for filing a petition from 60 days to one year from the date the claim
could have been presented. See 2018 Pa.Legis.Serv.Act 2018-146 (S.B.
915), effective December 24, 2018. However, this amendment applies only
to claims arising on December 24, 2017, or thereafter. Appellant filed his
petition on September 26, 2016, and an amended petition on July 27, 2017.
Therefore, the 2018 amendment does not apply to Appellant’s petition.

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adopting the language therein as their own. Detective Dusak then allegedly

surreptitiously substituted his version of events for that of the defendants.

PCRA Petition, 9/26/16, at 3. Appellant states that he filed his second petition

September 26, 2016, within sixty days of July 28, 2016, when he learned that

Detective Dusak had been sued. Appellant’s Brief at 14.

      The PCRA court addressed Appellant’s claim as follows:

             In an attempt to satisfy the governmental-interference
      exception, §9545(b)(1)(i)5 and/or the previously-unknown fact
      exception to the PCRA’s time-bar, §9545(b)(1)(ii),6 [Appellant]
      claimed that he received unsolicited correspondence indicating
      that Detective Dennis Dusak, who investigated his case, is a
      named party in pending 2016 civil rights lawsuits.7 The civil
      complaints allege, inter alia, that Dusak used illicit tactics to
      procure witness statements in unrelated cases. See Amended
      petition, 9/27/17 at 8.

            5    The “governmental interference” exception,
            §9545(b)(1)(i) requires a petitioner to plead and
            prove: (1) the failure to previously raise the claim was
            the result of interference by government officials and
            (2) the information on which he relies could not have
            been obtained earlier with the exercise of due
            diligence. Commonwealth v. Williams, 105 A.3d 1234,
            1240 (Pa. 2014) (citing Commonwealth v. Abu-Jamal,
            941 A.2d 1263, 1268 (Pa. 2008)).

            6   The timeliness exception set forth in Section
            9545(b)(1)(ii) requires a petitioner to demonstrate he
            did not know the facts upon which he based his
            petition and could not have learned those facts earlier
            by the exercise of due diligence. Commonwealth v.
            Bennett, 930 A.2d 1264, 1271 (Pa. 2007). Due
            diligence demands that the petitioner take reasonable
            steps to protect his own interests. Commonwealth v.
            Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001).

            7 See Amended petition, 9/27/17 at 8 (citing Wright
            v. City of Philadelphia, et al., 16 CV 5020 (E.D. Pa.

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              2016) and Gilyard et al. v. Dusak, et al., 16 CV 2986
              (E.D. Pa. 2016)).

             At the outset, the sole value of the evidence is to support a
       claim that Dusak fabricated [Appellant’s] pre-trial statement. The
       alleged facts simply support a previously known fact, and
       therefore do not satisfy an exception to the time-bar. See
       Commonwealth v. McMaster, 141 A.3d 585 (Pa. Super. 2016),
       unpublished memorandum at [4] (detailing [Appellant’s] prior
       knowledge of Dusak’s alleged fabrication).[6]
____________________________________________


6 In this Court’s disposition of Appellant’s appeal from the denial of his first
PCRA petition, a panel of this Court discussed Appellant’s statement to police,
Detective Dusak’s alleged fabrication, and defense counsel’s reliance on the
statement in formulating a defense of Appellant’s diminished capacity as
follows:

       [Appellant] next asserts that counsel was ineffective for failing to
       request a mistrial after the court admitted [Appellant’s] written
       statement to Detective Dennis Dusak. [Appellant] argues that
       Detective Dusak knew that [Appellant] had difficulty reading and
       writing, and that the detective intentionally misled [Appellant] into
       believing that he had written down [Appellant’s] statement
       verbatim, when in fact, [Detective Dusak] had written down a
       version that made [Appellant] appear guilty. McMaster fails to
       note that counsel relied on [Appellant’s] statement to Detective
       Dusak, and the circumstances surrounding the statement, to
       support a defense that [Appellant] was incapacitated and was
       unable to form an intent to kill at the time of the murder.

             At trial, [Appellant] attempted to prove that he could not
       formulate the specific intent to kill because he was bipolar and
       intoxicated at the time of the stabbing. Counsel relied on
       [Appellant’s] statement to Detective Dusak to support his
       diminished capacity defense.

             In the statement, [Appellant] averred that he had been
       drinking earlier on the night of the stabbing. During cross-
       examination, Detective Dusak admitted that he smelled alcohol on
       [Appellant] during the interview. Defense counsel also got
       Detective Dusak to admit that [Appellant] told him that he could
       not write and “could only read a little.” N.T. Trial, 9/22/04, at 206.



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              Furthermore, even if [Appellant] was able to satisfy an
       exception to the statutory time-bar based upon the fact that
       Dusak is a named defendant in civil rights lawsuits, no relief would
       be due. [Appellant] argued that the newly-discovered evidence
       would be used not solely to impeach Dusak, but also to support a
       motion to suppress his statement to Dusak. See PCRA petition,
       9/26/16 at 5. Despite [Appellant’s] characterization of the civil
       complaints as “concrete evidence,” he failed to demonstrate that
       the pending lawsuits could successfully have formed the basis of
       a motion to suppress or, if admissible, would have changed the
       outcome at trial. See Commonwealth v. Griffin, 137 A.3d 605, 609
       (Pa. Super. 2016) (stating that a federal civil rights complaint is a
       pleading asserting allegations or accusations and does not meet
       the definition of admissible, relevant evidence). Specifically, the
       trial court addressed the import of [Appellant’s] statement to
       Dusak:

              [Appellant’s] statement was not material to this
              court’s determination of guilt. This was neither a
              “statement case” nor a “whodunit.” Multiple witnesses
              identified [Appellant] as the assailant and gave
              consistent versions of the relevant facts. [Appellant]
              had a verbal altercation with the victim and his
              friends. [Appellant] fatally stabbed the victim. He then
              fled the scene, disposed of the murder weapon and
              changed clothes—all signs of consciousness of guilt.
              When he was arrested, he asked the arresting officer
              about the victim’s condition and made an
____________________________________________


       Counsel argued that [Appellant’s] signature on the statement,
       which was misspelled and written on several lines, demonstrated
       that he was unable to form the specific intent to kill because he
       was a bipolar individual of limited cognitive skills who was drunk
       when the killing occurred.

             Because counsel used [Appellant’s] statement to support a
       diminished capacity defense, he had a reasonable basis for not
       objecting to the admission of the statement. Accordingly,
       [Appellant’s] claim of ineffective assistance must fail.

Commonwealth v. McMaster, 141 A.3d 585, 156 EDA 2015 (Pa. Super.
filed February 3, 2016) (unpublished memorandum at *4).

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            incriminating statement. [Appellant] never denied
            that he stabbed the decedent. Instead, he attempted
            to raise a reasonable doubt about his complete or
            partial justification for the use of deadly force. The
            trial court credited the testimony of the eye-witness
            in finding that [Appellant] acted with premeditation
            and a specific intent to kill, and that he acted
            completely without any fear for his own safety.
            [Appellant’s] statement played no significant role in
            this case.

      Trial court opinion, 7/6/15 at 5. Because [Appellant’s] statement
      to Dusak did not meaningfully factor into the court’s verdict, the
      advancement of allegations challenging its reliability would not
      have changed the outcome at trial.

PCRA Court Opinion, 3/26/18, at 3-5.

      After review, we discern no error in the PCRA court’s analysis and

conclusion. As discussed above, in his first PCRA petition, Appellant asserted

that Detective Dusak adulterated Appellant’s statement to police. Therefore,

this claim was known to Appellant in 2007 and raised in his first PCRA petition.

Thus, this claim is arguably previously litigated.   42 Pa.C.S. § 9543(a)(3).

Additionally, because Appellant previously claimed that Detective Dusak

fabricated Appellant’s statement, it was not newly discovered evidence.

      Regardless, we are cognizant that in his second PCRA petition Appellant

added a new layer to his claim that Detective Dusak altered his statement:

lawsuits against the detective in federal court. However, we conclude that

Appellant has failed to establish how allegations made in federal proceedings,

which involved separate criminal defendants and unrelated cases, have any

bearing on Appellant’s case or would have changed the outcome of Appellant’s


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trial. As noted above, Appellant’s statement to Detective Dusak was used by

defense counsel in Appellant’s favor to bolster a claim of diminished capacity

at trial, McMaster, 156 EDA 2015, at *4, and the statement was ultimately

not a factor in Appellant’s conviction. PCRA Court Opinion, 3/26/18, at 4-5.

We conclude that the PCRA court correctly concluded that Appellant failed to

prove that his after-discovered evidence would have resulted in a different

outcome at trial. Accordingly, we discern no error or abuse of discretion in

the PCRA court dismissing Appellant’s second PCRA petition as untimely.

      Because Appellant’s PCRA petition was untimely and no exceptions

apply, the PCRA court lacked jurisdiction to address the issues presented and

grant relief. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super.

2002) (holding that PCRA court lacks jurisdiction to hear untimely petition).

Likewise, we lack the authority to address the merits of any substantive claims

raised in the PCRA petition.   See Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to a court’s right or

competency to adjudicate a controversy.”). Therefore, we affirm the order

denying Appellant’s second PCRA petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/19




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