J-S67028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    VANDER CLAYBORNE                           :
                                               :
                       Appellant               :   No. 1816 EDA 2018

              Appeal from the PCRA Order Entered May 29, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0009696-1990


BEFORE:      OTT, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                          FILED NOVEMBER 19, 2018

        Appellant Vander Clayborne appeals pro se from the order dismissing

his fifth Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, petition

seeking relief from his 1994 conviction for murder of the first degree.

Appellant claims that he is entitled to relief from the PCRA time bar because

of governmental interference and newly discovered facts.          Appellant also

asserts that he is being detained without a written sentencing order.       We

affirm.

        The PCRA court summarized the procedural history of this matter as

follows:

        On October 3, 1991, [Appellant] entered a guilty plea to murder
        generally for the killing of Jeffrey Savage and to aggravated
        assault for shooting Raymond Craig. The Honorable Judge Frank
        T. Hazel held a non-jury degree of guilt hearing from October 7,
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     1991-October 9, 1991 and found [Appellant] guilty of first degree
     murder. A jury was empaneled for the death penalty phase but
     was unable to reach a unanimous verdict. As a result, on
     September 14, 1992, [Appellant] was sentenced to a term of life
     imprisonment plus 78-240 months’ incarceration.

     [Appellant] filed a direct appeal and on August 9, 1993, the
     Pennsylvania Superior Court affirmed [Appellant]’s judgment of
     sentence by memorandum opinion. On December 15, 1994, the
     Pennsylvania Supreme Court denied [Appellant]’s petition for
     allowance of appeal. On April 18, 1995, [Appellant] filed a PCRA
     petition. Counsel was appointed and on May 22, 1995, filed an
     amended petition. An evidentiary hearing took place on June 12,
     1995[.] The PCRA court denied the petition.

     On July 28, 2011, [Appellant] filed a petition entitled “Petition for
     Writ of Habeas Corpus and Declaratory Judgment.” The court
     treated the petition as a second PCRA. On August 22, 2011, the
     PCRA court filed its notice of intent to dismiss without a hearing
     based upon its finding that the petition was untimely and that
     [Appellant] failed to satisfy any of the exceptions to the time bar.
     [Appellant] responded to the notice of intent to dismiss on
     September 28, 2011 and the petition was dismissed on September
     29, 2011. [Appellant] filed a notice of appeal on December 13,
     2011. The Pennsylvania Superior Court affirmed the dismissal on
     December 12, 2012. On January 17, 2013, [Appellant] filed an
     application for reconsideration, which was denied on March 14,
     2013.

     On July 25, 2014, [Appellant] filed a Petition, entitled “Petition for
     Writ of Habeas Corpus, with Motion to Vacate Waivers and
     Judgment of Conviction/Sentence.” The case was reassigned to
     th[e currently presiding PCRA judge]. [Appellant] raised claims of
     ineffective assistance of counsel as well as an illegal sentence
     claim; therefore, th[e PCRA c]ourt treated the motion as
     [Appellant]’s third PCRA Petition. On September 15, 2014, th[e
     PCRA c]ourt issued a notice of intent to dismiss without a hearing.
     [Appellant] responded on October 7, 2014. On October 8, 2014,
     th[e PCRA c]ourt issued an Order dismissing the Petition.
     [Appellant] filed a notice of appeal on November 6, 2014.

     On June 8, 2015, the Pennsylvania Superior Court affirmed th[e
     PCRA c]ourt’s dismissal of Appellant’s untimely third PCRA
     petition. On June 24, 2015, Appellant filed an Application for Re-
     argument/Reconsideration which was denied on August 6, 2015.


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      On August 17, 2015, a mere eleven days after the Superior Court’s
      denial of Appellant’s reconsideration application, Appellant filed a
      “Motion to Renew PCRA/Habeas Petition” which th[e PCRA c]ourt
      treated as his fourth PCRA Petition. Appellant raised the exact
      same issued that were in his third PCRA Petition but added that
      he was entitled to relief pursuant to Commonwealth v. Hopkins,
      117 A.3d 247 (Pa. 2015).

      Th[e PCRA c]ourt issued a notice of intent to dismiss on August
      18, 2015. [Appellant] wrote to th[e PCRA c]ourt and asked for
      additional time to file a response, which th[e PCRA c]ourt granted.
      Appellant filed a response on September 8, 2015. On October 22,
      2015, th[e PCRA c]ourt dismissed the Petition. On November 6,
      2015, Appellant filed a notice of appeal. On August 19, 2016, the
      Superior Court affirmed the dismissal of Appellant’s Petition.

      On July 28, 2017, [while Appellant’s appeal from the dismissal of
      his fourth petition was pending,] Appellant filed a “Notice of
      Appeal-Habeas Corpus” Petition with the Delaware County Office
      of Judicial Support. As such, the Petition was docketed as a Notice
      of Appeal. Th[e PCRA c]ourt could not ascertain what order
      Appellant was seeking to appeal. In addition, th[e PCRA c]ourt
      noted that Appellant insisted that his arguments need to be heard
      by the Pennsylvania Supreme Court; however, the Supreme Court
      denied his petition for appeal in 1994 and nothing about
      Appellant’s case, legally or factually, has changed since then.
      Appellant simply continued to raise the exact same issues that
      have been consistently denied since 1993. The P[ennsylvania]
      Superior Court quashed the appeal for the reasons stated above.
      While [that decision was] pending, [Appellant] filed a “Motion to
      Renew PCRA Briefs” twice on the Superior Court docket, which the
      Superior Court denied as Moot.

PCRA Ct. Op., 6/20/18, at 2-4.

      On April 20, 2018, the PCRA court docketed Appellant’s instant pro se

“petition for motion to renew PCRA brief to show cause.” Appellant asserted

that he was “detained illegally and against his will in violation of the

Pennsylvania Constitution,” that the trial court lacked jurisdiction to convict

him, and that all prior counsel abandoned him. Appellant’s Pet., 4/20/18, at


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2. Additionally, Appellant requested the “release of public records, right to

know law office of open records B9, 10, 25 pursuant to unconstitutional

authority” and the recusal of the PCRA judge.          Id. at 3.   The PCRA court

regarded the instant filing as Appellant’s fifth PCRA petition.

       On April 30, 2018, the PCRA court issued a notice of intent to dismiss

Appellant’s petition without a hearing. See Pa.R.Crim.P. 907(1). Appellant

responded by submitting a petition for a “right to know” request, which the

court docketed on May 9, 2018, and an objection to the PCRA court’s intent

to dismiss, which the PCRA court docketed on May 24, 2018.1 On May 29,

2018, the PCRA court dismissed Appellant’s fifth PCRA petition.

       Appellant timely appealed. The PCRA court did not order a Pa.R.A.P.

1925(b) statement.

       Appellant presents the following questions in his pro se brief:

       [1.] Did the [PCRA] court, the district attorney non-disclosure of
       discovery and lack of access to the records violated their
       obligation under the United States Fifth and Fourteenth
       Amendments Constitution, and Article 1 Section 9 of Pennsylvania
       Constitution?

       [2.] Did [Appellant]’s writ of habeas corpus charge that 18 Pa.C.S.
       section 1102(a) is unconstitutional and void under the vagueness
       doctrine and did his layered abandonment of counsels’ were
       deficients in their duties for failure to investigate, present, protect,
       and preserve [Appellant’s] requests to challenging 18 Pa.C.S.A.
____________________________________________


1 In his objection to the PCRA court’s Rule 907 notice, Appellant asserted that
he discovered a news article discussing controversial police interrogation
techniques and that he was being denied “his constitutional rights to access
to . . . records/discovery.” Appellant’s Obj. to Notice of Intent to Dismiss,
5/24/18, at 1-2. Appellant has not developed a claim based on the news
article regarding police interrogation techniques.

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       1102(a)-104(3)(4), an illegal sentencing statutes during both
       direct appeal and PCRA appeal by not including in their 1925(b)
       statement thus, entitled petitioner the exception to the PCRA
       timeliness requirement under 9543(a)(2)(viii)(1-4)?

       [3.] Did layered abandonment of counsels of records created and
       caused absolute prejudice to [Appellant’s] absolute right to
       effective assistance of counsel protected to him by the United
       States 5th, 6th, and 14th Amendments Constitution, and Article 1
       Section 9, and v.section 9 of Pennsylvania Constitution when
       [Appellant] requested layered abandonment of counsel of records
       to file various motions, 1925(b) statement, brief and file
       ineffectiveness against each other, and not explaining the one-
       year PCRA to be filed in one year?

Appellant’s Brief at iv (unpaginated) (full capitalization omitted).2

       We summarize Appellant’s arguments as follows. First, Appellant argues

that he has not been able to obtain access to records, which constitutes

governmental interference and a violation of the Commonwealth’s duties to

disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963).

Id. at 7-8. Second, Appellant argues he was abandoned by all counsel. Id.

at 16. He also contends prior counsel should have preserved a claim that 18

Pa.C.S § 1102(a) is unconstitutionally vague and asserted the ineffectiveness

of each preceding counsel. Id. at 16, 18. Third, for the first time in his brief,

Appellant argues that he is unlawfully confined because the Department of

Corrections does not have a copy of a written sentencing order. Id. at 11.

We address each argument below.


____________________________________________


2 We exclude the cover sheet, table of contents, and table of authorities when
referring to the page number of the introductory portion of Appellant’s brief.
Appellant’s own pagination of his brief begins with the “statement of the case.”

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       Our standard of review is well-settled. The dismissal of a PCRA petition

is limited to “whether the record supports the PCRA court’s determination and

whether the PCRA court’s decision is free of legal error.” Commonwealth v.

Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citation omitted).

       “[T]he timeliness of a PCRA petition is a jurisdictional [pre]requisite.”

Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015). A PCRA

petition “including a second or subsequent petition, shall be filed within one

year of the date the judgment becomes final.”          42 Pa.C.S. § 9545(b)(1).

However, courts may consider a PCRA petition filed more than one year after

a judgment of sentence becomes final if the petitioner pleads and proves one

of the following three statutory exceptions:


       (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).3


____________________________________________


3 Moreover, a petitioner must file his petition within sixty days of the date the
claim could have been presented. See 42 Pa.C.S. § 9545(b)(2).


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      Appellant does not dispute that the instant fifth PCRA petition was not

filed within one year of his conviction becoming final and that he must satisfy

one of the exceptions to the PCRA time bar.        Therefore, we consider his

arguments that he established an exception to the time bar.

      As to Appellant’s assertion that he was denied access to public records,

it is well settled that to meet the governmental interference exception, a

petitioner must plead and prove that (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.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008)

(citation omitted). To successfully raise the newly discovered facts exception

to the PCRA time bar, a petitioner must show that (1) “the facts upon which

the claim was predicated were unknown” and (2) the facts “could not have

been ascertained by the exercise of due diligence.”             42 Pa.C.S. §

9545(b)(1)(ii).

      The Pennsylvania Supreme Court has acknowledged that a Brady claim

may fall between a claim of governmental interference under Section

9545(b)(1)(i) and of the discovery of a previously unknown fact under Section

9545(b)(1)(ii). See Abu-Jamal, 941 A.2d at 1268.

      Although a Brady violation may fall within the governmental
      interference exception, the petitioner must plead and prove the
      failure to previously raise the claim was the result of interference
      by government officials, and the information could not have been
      obtained earlier with the exercise of due diligence. Section
      9545(b)(1)(ii)’s exception requires the facts upon which the
      Brady claim is predicated were not previously known to the

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      petitioner and could not have been ascertained through due
      diligence. . . . [W]e clarified that § 9454(b)(1)(ii)’s exception does
      not contain the same requirements as a Brady claim, noting “we
      made clear the exception set forth in subsection (b)(1)(ii) does
      not require any merits analysis of the underlying claim. Rather,
      the exception merely requires that the ‘facts’ upon which such a
      claim is predicated must not have been known to appellant, nor
      could they have been ascertained by due diligence.”

Id. (citations omitted).

      Pennsylvania Rule of Criminal Procedure 902 states that “no discovery

shall be permitted at any stage of the proceedings, except upon leave of court

after a showing of exceptional circumstances.”          Pa.R.Crim.P. 902(E)(1).

Further, “[d]iscovery in PCRA proceedings cannot be used as an excuse for

engaging in a ‘fishing expedition.’” See Commonwealth v. Edmiston, 65

A.3d 339, 353 (Pa. 2013) (citation omitted).

      Instantly, the sole “fact” on which Appellant relies is his inability to

obtain “public records.”   Appellant’s claim fails for several reasons.        First,

Appellant fails to refer to any extraordinary circumstances warranting

discovery under Pa.R.Crim.P. 902(E)(1). Second, Appellant does not explain

why the records would be necessary to present a claim for PCRA relief, let

alone assert some fact in those records were previously unknown and could

not have been obtained through the exercise of reasonable diligence. Third,

Appellant does not establish why he could not have sought the records earlier.

Accordingly, we conclude that Appellant failed to establish a PCRA time-bar

exception based on the alleged limitations placed on his access to public

records.


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      As to Appellant’s argument that he was abandoned by all prior counsel,

we note that in Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), the

Pennsylvania Supreme Court held that the abandonment of a client by counsel

constitutes a “fact” within the meaning of Section 9545(b)(1)(ii). Bennett,

930 A.2d at 1274.      For purposes of Section 9545(b)(1)(ii), abandonment

means the complete deprivation of the petitioner’s right to review by a court.

See Commonwealth v. Peterson, 192 A.3d 1123, 1131 (Pa. 2018) (citation

omitted). A “partial deprivation of review,” such as the failure to preserve a

specific   issue,   does   not   constitute   abandonment.     See    id.   (citing

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000) (holding

that prior PCRA counsel’s failure to develop an issue was not a previously

unknown fact under Section 9545(b)(1)(ii)). Furthermore, Bennett does not

relieve a petitioner from exercising due diligence when discovering the fact of

counsel’s abandonment. See Bennett, 930 A.2d at 1274.

      Instantly, Appellant has failed to establish that he exercised any due

diligence in discovering prior counsel’s ineffectiveness. Moreover, the record

belies his claim of abandonment.       For example, in Appellant’s direct appeal,

this Court addressed the merits of Appellant’s claims that the evidence was

insufficient to sustain his conviction, that Appellant was acting under a

diminished capacity, and that trial counsel was ineffective for failing to raise a

defense of intoxication.         See Commonwealth v. Clayborne, 3321

Philadelphia 1992 (Pa. Super. filed Aug. 9, 1993) (unpublished mem.).

Appellant’s petition for allowance of appeal was denied. Commonwealth v.

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Clayborne, 655 A.2d 510 (Pa. 1994). Additionally, in his first PCRA petition,

this Court again affirmed on the merits of his appeal. Commonwealth v.

Clayborne, 3468 Philadelphia 1996 (Pa. Super. filed May 8, 1997). Again,

the    Pennsylvania       Supreme       Court      denied   allowance   of   appeal.

Commonwealth v. Clayborne, 704 A.2d 1380 (Pa. 1997). Therefore, it is

apparent that Appellant cannot claim that prior counsels’ actions or inactions

resulted in a complete deprivation of his right to review.              Accordingly,

Appellant’s assertions of abandonment do not constitute a basis to invoke

Section 9545(b)(1)(ii).4 See Peterson, 192 A.3d at 1131; accord Gamboa-

Taylor, 753 A.2d at 785.

       Lastly, Appellant asserts that he is being held by the Department of

Corrections without a proper written sentencing order.5 However, Appellant

has waived this claim by failing to present it to the trial court. See Pa.R.A.P.

302(a). Even if we were to address this claim, however, we would find it

meritless, as the record contains a written sentencing order signed by the trial

judge. To the extent Appellant alleges that the Department of Correction is
____________________________________________


4 We note that Appellant also asserts that the sentencing provision for murder
is unconstitutional. However, because Appellant failed to assert a time-bar
exception, neither the PCRA court nor this Court has jurisdiction to address
the merits of that claim.      See Brown, 111 A.3d at 175; see also
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although legality
of sentence is always subject to review within the PCRA, claims must still first
satisfy the PCRA’s time limits or one of the exceptions thereto.” (citation
omitted)).

5 We note that a claim that a petitioner is being held without a written
sentencing order has been considered under the habeas corpus statute and
not the PCRA. See Joseph v. Glunt, 96 A.3d 365, 369 (Pa. Super. 2014).

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unable to produce a written sentencing order, that claim would not merit relief.

See Joseph v. Glunt, 96 A.3d 365, 369, 372 (Pa. Super. 2014).

      Order affirmed.



      Judge Ott joins the memorandum.

      Judge Strassburger concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/18




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