J-S85038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
             v.                           :
                                          :
CLIFFORD MURRAY,                          :
                                          :
                   Appellant              :           No. 1140 EDA 2016

                  Appeal from the PCRA Order March 14, 2016
             in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0826351-1981

BEFORE: PANELLA, RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED FEBRUARY 28, 2017

        Clifford Murray (“Murray”), pro se, appeals from the Order dismissing

his Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm.

        On December 17, 1984, Murray was sentenced to life in prison,

following his conviction of first-degree murder.2 The trial court additionally

sentenced Murray to concurrent 5-10 year prison terms for his conviction of

criminal conspiracy and possession of an instrument of crime.3 Murray filed

no direct appeal from his judgment of sentence.

        On December 16, 1996, Murray filed a pro se PCRA Petition seeking

the reinstatement of his direct appeal rights, nunc pro tunc. The PCRA court



1
    42 Pa.C.S.A. §§ 9541-9546.
2
    18 Pa.C.S.A. § 2502(a).
3
    18 Pa.C.S.A. §§ 903, 907.
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granted Murray’s Petition.     On February 14, 2005, this Court affirmed

Murray’s judgment of sentence, but reserved to Murray the right to raise his

claim of ineffective assistance of counsel in a subsequent PCRA Petition.

Commonwealth v. Murray, 873 A.2d 770 (Pa. Super. 2005) (unpublished

memorandum).     On November 30, 2005, the Pennsylvania Supreme Court

denied Murray’s Petition for allowance of appeal, but likewise reserved to

Murray the right to raise his claim of ineffective assistance of counsel in a

subsequent PCRA Petition. Commonwealth v. Murray, 889 A.2d 1214 (Pa.

2005).

     On February 27, 2007, Murray filed his first Petition for relief under the

PCRA. On October 19, 2009, after an evidentiary hearing, the PCRA court

denied Murray’s Petition.    Following procedural matters not related to this

appeal, this Court affirmed the PCRA court’s Order, after which our Supreme

Court denied allowance of appeal.      Commonwealth v. Murray, 38 A.3d

910 (Pa. Super. 2011) (unpublished memorandum), appeal denied, 49

A.3d 443 (Pa. 2012).

     Murray, pro se, filed the instant PCRA Petition on February 1, 2016.

After appropriate Notice, on March 14, 2016, the PCRA court dismissed

Murray’s Petition as untimely filed.    Thereafter, Murray filed the instant

timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.

     Murray presents the following claims for our review:



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      (1) Did the [PCRA] court err, as a matter of law, in finding that
      the PCRA [P]etition was untimely[,] and that the [P]etition did
      not properly invoke a timeliness exception to the [PCRA’s] time
      bar?

      (2) Did the [PCRA] court err by not holding an evidentiary
      hearing[,] given that a valid timeliness exception had been
      invoked[,] and the claim raised in the [P]etition was meritorious?

Brief for Appellant at 5.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and

internal quotation marks omitted).

      This Court’s scope of review is limited to the findings of the PCRA
      court and the evidence on the record of the PCRA court’s
      hearing, viewed in the light most favorable to the prevailing
      party, in this case, the Commonwealth.                  See, e.g.,
      Commonwealth v. Duffey, 585 Pa. 493, 889 A.2d 56, 61 (Pa.
      2005); Commonwealth v. Meadius, 582 Pa. 174, 870 A.2d
      802 (Pa. 2005). In addition, “[t]he level of deference to the
      hearing judge may vary depending upon whether the decision
      involved matters of credibility or matters of applying the
      governing law to the facts as so determined.” Commonwealth
      v. Reaves, 592 Pa. 134, 923 A.2d 1119, 1124 (Pa. 2007)
      (citations omitted).

Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008).

       Murray first challenges the PCRA court’s dismissal of his Petition as

untimely filed. The timeliness of a PCRA petition is a jurisdictional requisite

for seeking relief under the PCRA.    Commonwealth v. Zeigler, 148 A.3d

849, 853 (Pa. Super. 2016). Under the PCRA, all petitions seeking collateral

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



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becomes final.       Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007); 42 Pa.C.S.A. § 9545(b)(1).           The three exceptions to the one-year

filing   requirement    are   for   newly-discovered facts,   interference   by a

government official, and a newly-recognized constitutional right.              42

Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA petitioner asserting one of the three

exceptions also must present his claim within sixty days of the date the

claim first could have been presented. 42 Pa.C.S.A. § 9545(b)(2).

         As such, when a PCRA petition is not filed within one year of the
         expiration of direct review, or not eligible for one of the three
         limited exceptions, or entitled to one of the exceptions, but not
         filed within 60 days of the date that the claim could have been
         first brought, the [PCRA] court has no power to address the
         substantive merits of a petitioner’s PCRA claims.

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

         Here, Murray’s judgment of sentence became final on February 28,

2006, ninety days after the Pennsylvania Supreme Court denied his Petition

for allowance of appeal.        See Sup. Ct. R. 13 (requiring a petition for

certiorari to be filed within 90 days of judgment entered by a state court of

last resort); see also Commonwealth v. Callahan, 101 A.3d 118, 122

(Pa. Super. 2014) (stating that when a PCRA petitioner’s direct appeal rights

are reinstated nunc pro tunc, “a subsequent PCRA petition will be considered

a first PCRA petition for timeliness purposes.”).        Murray filed the instant

Petition on February 1, 2016, and consequently, Murray’s PCRA Petition is

facially untimely.




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      Murray claims an exception to the PCRA’s timeliness requirement

based upon his discovery that at the time of trial, his counsel, Nino Tinari,

Esquire (“Attorney Tinari”), represented the Philadelphia Police Department

in defending claims of police brutality. Brief for Appellant at 8. According to

Murray, Attorney Tinari had a direct conflict of interest, and should have

requested permission to withdraw as counsel to Murray, or as counsel to the

Philadelphia Police Department.         Id.    Murray argues that “[t]his newly

discovered    evidence   of   counsel     ineffectiveness    clearly    satisfied   the

requirements of 42 Pa.[C.S.A.] § 9545(b)(1)(ii).”           Brief for Appellant at 9

(internal quotation marks omitted).              Citing this Court’s decision in

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

appeal granted, 134 A.3d 446 (Pa. 2016), Murray contends that exercising

due diligence, he could not have discovered this information because he

“does not have access to information that is readily available to the public.”

Brief for Appellant at 14 (emphasis omitted).

      Generally, matters of public record ordinarily do not support the

newly-discovered    facts     exception       found   at   Section     9545(b)(1)(ii).

Commonwealth v. Lopez, 51 A.3d 195, 199 (Pa. 2012); Commonwealth

v. Chester, 895 A.2d 520, 523 (Pa. 2006). In Burton, an en banc panel of

this Court addressed the question of “the appropriate level of diligence

required of an untimely PCRA petitioner[.]” Burton, 121 A.3d at 1070. Our

Court explained that “[d]ue diligence demands that the petitioner take



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reasonable steps to protect his own interests[.]” Id. (citations omitted).

Regarding publically accessible information, this Court opined that

      [t]he 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.     See,    e.g.,
      [Commonwealth v.] Taylor, 67 A.3d [1245,] 1247 [(Pa.
      2013)] (stating that each of the petitioner’s three petitions for
      collateral relief were prepared by counsel); [Commonwealth
      v.] Chester, 895 A.2d [520,] 522 [Pa. 2006)] (stating that
      petitioner was represented by counsel during pendency of his
      second petition); Commonwealth v. Whitney, 817 A.2d 473,
      474, 572 Pa. 468 (Pa. 2003) (noting that petitioner had the
      benefit of 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.       See 42 Pa.C.S.[A.] § 9543(a)(1).
      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.

Burton, 121 A.3d at 1072 (emphasis in original). As a result, the court’s

due diligence inquiry is fact-sensitive and dependent upon the circumstances

presented. Id. at 1070.

      In his Petition, Murray alleged that the Philadelphia Police unlawfully

coerced a statement from him by subjecting him to “physical and emotional

torture[.]” PCRA Petition, 2/1/16, at 20. Murray asserts that Attorney Tinari

advised him not to raise this issue because, “if presented to the jury, [it]

would only be considered as the rantings of a criminal defendant who was

seeking refuge under the umbrella of racially motivated prejudice ….” Id. at


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21. Murray claims that he discovered Attorney Tinari’s conflict from another

inmate, and filed his Petition within 60 days thereafter. Id. at 23. Murray

attached to his Petition, an August 15, 1989 petition for post-conviction

collateral relief filed by his fellow inmate, Daniel H. Greene (“Greene”).

      Our review discloses that Murray failed to plead and prove how, with

the exercise of due diligence, he was unable to discover Attorney Tinari’s

alleged conflict within one year following the date upon which his judgment

of sentence became final.         As alleged by Murray, Attorney Tinari’s

representation of the Philadelphia Police Department was known to Greene

in 1989.    The record reflects that Murray was represented by counsel

throughout the litigation of his first, timely PCRA Petition.    In accordance

with Burton, we can presume that Murray, through his counsel, retained

access to this public information.   See Burton, 121 A.3d at 1072.           Thus,

Murray failed to establish an exception to the PCRA’s timeliness requirement.

      Because Murray failed to establish an exception to the PCRA’s

timeliness requirement, we conclude that the PCRA court properly dismissed




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his Petition as untimely filed.4 Accordingly, we affirm the Order of the PCRA

court.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/28/2017




4
 Based upon our conclusion that Murray’s PCRA Petition is untimely, and not
subject to any exception to the PCRA’s timeliness requirement, we need not
address Murray’s remaining claim.


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