J-S10029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BERNARD JACKSON,

                            Appellant                No. 1097 EDA 2015


              Appeal from the PCRA Order Entered March 23, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0600971-1985


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED FEBRUARY 05, 2016

        Appellant, Bernard Jackson, appeals pro se from the post-conviction

court’s March 23, 2015 order dismissing, as untimely, his petition filed under

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

        This Court previously summarized the facts of Appellant’s case, as

follows:

        On November 20, 1984, [A]ppellant, … along with co-
        defendants, Gregory Campbell and Veleda Broaddus, forcibly
        entered the apartment of Alvin Gass, shot and murdered him.
        Appellant was not the actual triggerman.       Present in the
        apartment at the time of the shooting were the victim’s wife,
        Freda Dowling, their thirteen year old daughter, Lydia[,] and
        other children of the couple. Broaddus, known to the victim’s
        family as “Miss Marie,” was positioned outside the apartment
        door. Broaddus asked the victim’s daughter, Lydia[,] whether
        her parents were home. Lydia replied that they were not. Soon
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     thereafter, Broaddus was joined by Campbell, known by the
     victim’s family, and [Appellant], later identified, who were seen
     by the victim’s daughter conversing outside the apartment
     building moments earlier.

           Again, following a knock on the door, Lydia was asked
     from outside the apartment door whether her parents were
     home and again she stated that they were not. When Lydia
     refused to open the door to the apartment for the perpetrators,
     the door was kicked open. Appellant was identified as the male
     who entered the apartment and pushed Freda Dowling to the
     floor while his co-defendant, Campbell, fired on the victim, Alvin
     Gass[,] from the doorway.

            Appellant was identified by the victim’s wife, Freda
     Dowling, by photo array conducted four days after the shooting.
     … Appellant was again identified by Dowling at the time of the
     trial.

Commonwealth v. Jackson, No. 3216 Philadelphia 1986, unpublished

memorandum at 1-2 (Pa. Super. filed May 17, 1988).

     Following a jury trial alongside co-defendants Campbell and Broaddus,

Appellant was convicted of first-degree murder, burglary, and criminal

conspiracy.

     [Appellant] appealed from the judgment of sentence and on May
     17, 1988, the Superior Court affirmed the judgement of
     sentence. [] Jackson, [supra]. [Appellant] thereafter filed a
     pro se PCRA petition in August [of] 1988. On March 5, 1991, the
     lower court dismissed [Appellant’s] PCRA petition. The Superior
     Court subsequently affirmed the dismissal of [Appellant’s]
     petition. [Commonwealth v. Jackson, No. 00894 Philadelphia
     1991, unpublished memorandum (Pa. Super. filed October 8,
     1992)]. … On May 23, 2014, [Appellant] filed the current pro se
     PCRA petition.     Pursuant to Pennsylvania Rule of Criminal
     Procedure 907, [Appellant] was served with notice of the court’s
     intention to dismiss his PCRA petition on September 26, 2014.
     [Appellant] filed a [pro se] response to the court’s Rule 907
     notice on October 14, 2014.         The lower court dismissed
     [Appellant’s] petition as untimely on March 23, 2015.



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      [Appellant] filed the instant, pro se notice of appeal to the
      Superior Court on April 6, 2015.

PCRA Court Opinion (PCO), 4/24/15, at 1-2.

      The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, but the court did issue

a Rule 1925(a) opinion on April 24, 2015.         Herein, Appellant raises five

issues for our review:

      1. Did the []PCRA[] court commit reversible error by failing to
      properly consider the materail [sic] record/facts pertaining to
      Appellant’s submission of newly discovered evidence (affidavit)
      relevant to such claim?

      2. Did the PCRA court err and commit reversible error when it
      dismissed Appellant’s petition holding him to the strictures of an
      attorney?

      3. Did the PCRA court err and commit reversible error when it
      dismissed Appellant’s petition [and] failing to apply the standard
      set-forth [sic] in the PCRA form page 2 paragraph 4
      subparagraph (v)?

      4. Did the PCRA court err and commit reversible error when it
      omitted in its opinion page 4 the facts of record upon which
      Appellant’s claims are predicated and completely failed to
      mention that trial counsel did not file a notice of alibi claims that
      are properly preserved and presented to the court for review?

      5. Does the supporting discussion as to Appellant’s diligence to
      obtain the newly discovered evidence merit remand to the PCRA
      court for an evidentiary hearing?

Appellant’s Brief at 3.

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

under the PCRA 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). We must begin by addressing the


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timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.    Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded to address the merits of

the petition).   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 set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) 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.




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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 June 16,

1988, 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) (directing

that 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)

(stating, “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’s May 23,

2014 PCRA petition is patently untimely and, 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 in 42 Pa.C.S.

§ 9545(b).

     Instantly, Appellant argues that he        meets the after-discovered

evidence exception of Section 9545(b)(1)(ii) based on an affidavit he

received from Veleda Broaddus.       In that affidavit, notorized on May 19,

2014, Ms. Broaddus presents an alibi for Appellant (as well as herself),

claiming that she and Appellant were both in her home, with her three

children, at the time of the murder of Alvin Gass. She further maintains that

her attorney failed to proffer her alibi defense, and that Appellant’s trial

counsel never contacted her or her children about providing an alibi for

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Appellant. Finally, she stated that she is willing to testify as an alibi witness

for Appellant if he is afforded a new trial.

       In Commonwealth v. Marshall, 947 A.2d 714 (Pa. 2008), our

Supreme Court explained that,

      [e]xception (b)(1)(ii) “requires petitioner to allege and prove
      that there were ‘facts' that were ‘unknown’ to him” and that he
      could not have ascertained those facts by the exercise of “due
      diligence.” [] Bennett, … 930 A.2d [at] 1270–72 … (emphasis
      added). The focus of the exception is “on [the] newly discovered
      facts, not on a newly discovered or newly willing source for
      previously known facts.” Commonwealth v. Johnson, 580 Pa.
      594, 863 A.2d 423, 427 (2004) (emphasis in original). In
      Johnson, this Court rejected the petitioner's argument that a
      witness's subsequent admission of alleged facts brought a claim
      within the scope of exception (b)(1)(ii) even though the facts
      had been available to the petitioner beforehand. Relying on
      Johnson, this Court more recently held that an affidavit alleging
      perjury did not bring a petitioner's claim of fabricated testimony
      within the scope of exception (b)(1)(ii) because the only “new”
      aspect of the claim was that a new witness had come forward to
      testify regarding the previously raised claim. [Commonwealth
      v.] Abu–Jamal, [941 A.2d 1263,] 1267 [Pa. 2008)].
      Specifically, we held that the fact that the petitioner “discovered
      yet another conduit for the same claim of perjury does not
      transform his latest source into evidence falling within the ambit
      of [Section] 9545(b)(1)(ii).” Id. at 1269.

Marshall, 947 A.2d at 720 (footnote omitted).

      In this case, even if we presume that Ms. Broaddus’ alibi is credible,

Appellant obviously became aware of the ‘fact’ of this alibi defense on the

day he was arrested and informed that he was charged with the November

20, 1984 murder of Alvin Gass. Therefore, Ms. Broaddus’ admission of this

alibi in her affidavit is merely a new source of a fact that Appellant

previously knew. See Johnson, 863 A.2s at 602. Likewise, Ms. Broaddus’


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statement in her affidavit that Appellant’s counsel never ‘summoned’ her or

her children to provide alibi testimony is also a ‘fact’ that was known to

Appellant at the time of trial.       While Appellant now contends that his trial

counsel acted ineffectively by not pursing this alibi defense, “it is well settled

that allegations of ineffective assistance of counsel will not overcome the

jurisdictional timeliness requirements of the PCRA.”         Commonwealth v.

Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (citations omitted).             We also

stress that Appellant could have raised counsel’s alleged ineffectiveness on

direct appeal,1 or in his first PCRA petition, yet he failed to do so.

       In sum, Appellant has not proven that Ms. Broaddus’ affidavit satisfies

the timeliness exception of Section 9545(b)(1)(ii).         Accordingly, we are

without jurisdiction to assess the merits of his claims, and the PCRA court

did not err in dismissing his untimely petition.

       Order affirmed.




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1
  Appellant’s direct appeal was filed prior to Commonwealth v. Grant, 813
A.2d 726 (Pa. 2002), in which our Supreme Court held that “as a general
rule, a petitioner should wait to raise claims of ineffective assistance of trial
counsel until collateral review.” Id. at 738 (footnote omitted). Therefore,
Appellant could have asserted, on direct appeal, that his trial counsel
ineffectively failed to pursue, and/or present, the alibi testimony of Ms.
Broaddus and her children.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2016




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