J-S60010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

LEE A. HORTON,

                         Appellant                   No. 3237 EDA 2014


                Appeal from the PCRA Order October 16, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0731772-1993


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

MEMORANDUM BY BENDER, P.J.E.:                   FILED NOVEMBER 17, 2015

      Lee A. Horton appeals pro se from the order entered October 16,

2014, dismissing as untimely his petition for relief filed pursuant to the Post

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

      In May 1993, along with two, armed co-conspirators, Appellant robbed

the patrons of Filito’s bar in Philadelphia. During the robbery, Appellant shot

three individuals, one of whom died. In September 1994, a jury convicted

Appellant of second-degree murder, three counts of robbery, four counts of

aggravated assault, conspiracy, and possession of an instrument of crime.

In March 1995, Appellant was sentenced to life imprisonment for second-

degree murder, and to an aggregate, consecutive term of 18½-61 years’

incarceration for the remaining offenses. This Court affirmed the judgment

of sentence on March 20, 1996. Commonwealth v. Horton, 678 A.2d 828
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(Pa. Super. 1996) (unpublished memorandum).              Appellant did not file a

petition for allowance of appeal.

         In October 1996, Appellant filed his first petition for collateral relief.

The PCRA court dismissed the petition in June 1997. This Court affirmed,

and the Supreme Court of Pennsylvania denied Appellant’s petition for

allowance of appeal. Commonwealth v. Horton, 736 A.2d 9 (Pa. Super.

1998) (unpublished memorandum), appeal denied, 738 A.2d 455 (Pa.

1999).

         Appellant filed a second PCRA petition in January 2006. In September

2010, the PCRA court dismissed that petition as untimely.              This Court

affirmed, and the Supreme Court of Pennsylvania denied Appellant’s petition

for allowance of appeal.       Commonwealth v. Horton, 48 A.3d 479 (Pa.

Super. 2012) (unpublished memorandum), appeal denied, 60 A.3d 535 (Pa.

2012).

         In November 2012, Appellant pro se filed the instant PCRA petition, his

third.    The PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to

dismiss Appellant’s petition in March 2014. Appellant pro se filed a timely

response thereto, as well as an amended petition for collateral relief. See

Amended Petition, 04/22/2014. In October 2014, the PCRA court dismissed

Appellant’s petition as untimely.




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       Appellant pro se appealed. The PCRA court did not direct Appellant to

file a Pa.R.A.P. 1925(b) statement but issued a memorandum opinion

explaining its decision.

       Appellant raises the following issues, restated for clarity:

       1. Whether the PCRA court erred by dismissing his newly-
       discovered Brady1 claims as untimely;

       2. Whether the PCRA court erred by dismissing the Brady
       claims without first conducting an evidentiary hearing;

       3. Whether Appellant is entitled to a new trial, or further
       proceedings on the merits, because the Commonwealth failed to
       disclose exculpatory and impeachment evidence in violation of
       Appellant’s due process rights; and

       4. Whether the PCRA court erred by finding that his Melendez-
       Diaz2 claim did not satisfy an exception to the PCRA’s time-bar.

See Appellant’s Brief at 2.

       We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of
____________________________________________


1
  See Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the United
States Supreme Court held that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” Id. at 87.
2
  Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). In Melendez-
Diaz, the Supreme Court determined that the admission at trial of the
results of forensic analysis performed on seized substances violated the
Sixth Amendment’s confrontation clause, where the results were admitted
without the testimony of the analyst who conducted the tests, and where
there was no showing that: 1) the analyst was unavailable to testify and 2)
the defendant had a prior opportunity to cross-examine the analyst. Id. at
311.



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record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record.      Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

      In this case, the PCRA court dismissed Appellant’s petition without a

hearing.     See PCRA Court Order, 10/16/2014, at 1 (citing in support

Pa.R.Crim.P. 907).     There is no absolute right to an evidentiary hearing.

See Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).

On appeal, we examine the issues raised in light of the record “to determine

whether the PCRA court erred in concluding that there were no genuine

issues of material fact and in denying relief without an evidentiary hearing.”

Id.

      Preliminarily, however, we must address the timeliness of Appellant’s

petition, as it implicates our jurisdiction. Commonwealth v. Bennett, 930

A.2d 1264, 1267 (Pa. 2007). Under the PCRA, all petitions seeking collateral

relief must be filed within one year of the date the judgment of sentence

becomes final. Id. There are three statutory exceptions:

      (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

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              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).         Additionally, 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 does not dispute that his petition is untimely; rather,

Appellant acknowledges that he must avail himself of one of the exceptions

set forth in section 9545(b)(1)(i)-(iii) in order for this Court to have

jurisdiction to reach the merits of his claims.3

       Relevant to his first three issues, Appellant contends that the

Commonwealth failed to disclose certain exculpatory evidence: (1) a police

document entitled, “Complaint Fact Record,” and (2) an internal affairs


____________________________________________


3
  Appellant’s current petition is patently untimely. His judgment of sentence
became final on Friday, April 19, 1996, upon expiration of the thirty-day
period to petition the Supreme Court of Pennsylvania for allocator. See
Pa.R.A.P. 1113(a). Thus, Appellant had until Monday, April 21, 1997, to
timely file a PCRA petition. Appellant filed his current petition on November
2, 2012.




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investigation involving an officer associated with his case, Officer Sharon

Brambrinck. See Amended Petition, Exhibits “A” & “B.” Appellant asserts

that these documents were withheld from him by the Commonwealth in a

manner that constitutes governmental interference as provided in section

9545(b)(1)(i) and that the documents constitute after-discovered facts that

satisfy section 9545(b)(1)(ii).

      We disagree.      A Brady claim may fall within the governmental

interference exception.   Commonwealth v. Abu-Jamal, 941 A.2d 1263,

1268 (Pa. 2008). However,

      the petitioner must plead and prove [1] the failure to previously
      raise the claim was the result of interference by government
      officials, and [2] the information could not have been obtained
      earlier with the exercise of due diligence.

Id.; see also Commonwealth v. Chester, 895 A.2d 520, 523-24 (Pa.

2006).

      Here, the documents were matters of public record. Appellant cannot

establish that the Commonwealth had exclusive control over the purportedly

exculpatory evidence or that the Commonwealth denied him access to this

evidence. See Chester, 895 A.2d at 524. Accordingly, the governmental

interference exception set forth in Section 9545(b)(1)(i) is inapplicable.

      Moreover, “publicly available information cannot predicate a timeliness

exception, beyond the 60-day grace period defined in Section 9545(b)(2),”

absent limited exceptions not relevant here.     Commonwealth v. Burton,

2015 PA Super 176, --- A.3d ---, at *6 (Pa. Super. 2015) (citing

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Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013)).                       The

documents cited by Appellant have long been publicly available.               For

example, the document entitled, “Complaint Fact Record,” appears to be the

initial criminal complaint in this matter and is dated May 31, 1993.          See

Amended Petition, Exhibit “A,” at 1.           Similarly, Appellant also submits a

memorandum opinion filed in federal court in November 1994, disposing of a

class action brought under 42 U.S.C. § 1983. See Amended Petition, Exhibit

“B,” at 1.4 Appellant offers no persuasive explanation why these documents

could not have been discovered, with due diligence, long before he filed this

petition in November 2012. Accordingly, these documents do not satisfy the

after-discovered facts exception provided in Section 9545(b)(1)(ii).

       In his fourth issue, Appellant contends that he is entitled to a new trial

because the Supreme Court of the United States has newly recognized a

constitutional right enabling a criminal defendant to confront a forensic

analyst whose lab report is admitted to establish guilt, citing in support

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). Thus, according

to Appellant, his petition satisfies the exception provided in Section

9545(b)(1)(iii).



____________________________________________


4
  According to Appellant, this civil case led to his discovery that Officer
Sharon Brambrinck had been under investigation by police internal affairs for
possible criminal activity. See Appellant’s Brief at 11.



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      The PCRA statute requires that a newly-recognized, constitutional right

be further recognized to apply retroactively by the Supreme Court of the

United States or the Supreme Court of Pennsylvania.       Commonwealth v.

Brandon, 51 A.3d 231, 236 (Pa. Super. 2010) (discussing Section

9545(b)(1)(iii)).   However, “the U.S. Supreme Court has directed lower

courts to apply Melendez-Diaz to cases pending final review on direct, but

not collateral, appeal.” Id. at 236 n.7 (citing Commonwealth v. Leggett,

16 A.3d 1144, 1147 n.8 (Pa. Super. 2011)). Accordingly, Appellant’s claim

is without merit.

      In summary, Appellant’s petition was patently untimely, and he failed

to establish an exception to the timeliness requirements of the PCRA.

Accordingly, the PCRA court did not have jurisdiction to review the merits of

Appellant’s claims and properly dismissed his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2015




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