J-S67042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                Appellee                 :
                                         :
                   v.                    :
                                         :
                                         :
JEROME SMALL,                            :
                                         :
               Appellant                 :    No. 1977 EDA 2018

            Appeal from the PCRA Order Entered May 23, 2018
             in the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0006376-2003

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

MEMORANDUM BY STRASSBURGER, J.:                  FILED DECEMBER 28, 2018

      Jerome Small (Appellant) appeals from the May 23, 2018 order

dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. We affirm.

      In November 2003, Appellant and his co-defendant, Michelle Henderson,

were arrested and charged with various offenses stemming from the murder

of Nathanial Rogers. Rogers was shot and killed after he “returned to his home

… and interrupted two individuals who were apparently burglarizing his home.”

Commonwealth v. Small, 915 A.2d 150 (Pa. Super. 2006) (unpublished

memorandum) (brackets in original omitted).

      Appellant proceeded to trial pro se and court-appointed counsel

assumed the role of stand-by counsel. Appellant’s first trial commenced in

July 2005 and ended with a mistrial on the majority of charges. A second trial


*Retired Senior Judge assigned to the Superior Court.
J-S67042-18

began on October 3, 2005. Prior to Appellant’s trial, Henderson pleaded guilty

to third-degree murder, criminal conspiracy to commit burglary and

possessing    an   instrument    of    a    crime,   and   “testified   during   the

Commonwealth’s case-in-chief at [Appellant’s] trial.”         Trial Court Opinion,

5/10/2006, at 2. Pertinent to this appeal, at trial, Appellant, inter alia, cross-

examined

      Henderson regarding the plea agreement she entered into with
      the Commonwealth. In fact, [Appellant] read portions of the
      agreement into the record and it was marked as a defense exhibit.
      The agreement provided that the Commonwealth would
      recommend Henderson’s sentencing be postponed until after
      [Appellant’s] trial and that at the time of sentencing, the
      Commonwealth would inform the court as to her cooperation and
      role in the investigation but that no further recommendations
      would be made. Obviously [Appellant] was in possession of the
      written plea agreement before trial as he used it to cross-examine
      Henderson in an effort to undermine her credibility.

Trial Court Opinion, 11/4/2009, at 5 (citations omitted).

      At the close of testimony, and after deliberation, Appellant was

convicted of, inter alia, second-degree murder, aggravated assault, and

criminal conspiracy.1 “On December 5, 2005, [Appellant] was sentenced to

life without parole for second-degree murder. Additionally, consecutive

sentences of 120 to 240 months incarceration for aggravated assault, 16 to

60 months incarceration for firearms not to be carried without a license and



1
 “Henderson was sentenced on October 18, 2005 for third[-]degree murder,
criminal conspiracy to commit burglary and possessing and instrument of [a]
crime. An aggregate sentence of [84] to 164 months[’] incarceration was
imposed and the remaining charges were nolle prossed.” Id.


                                      -2-
J-S67042-18

140 to 280 months for criminal conspiracy were imposed.” PCRA Court

Opinion, 7/12/2018, at 1.

        On November 16, 2006, this Court affirmed Appellant’s judgment of

sentence, Small, supra, and the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal. Commonwealth v. Small, 919

A.2d 956 (Pa. 2007). Since then, Appellant has filed several PCRA petitions,

all of which have resulted in no relief.

        Most recently, Appellant filed pro se a fifth PCRA petition on March 24,

2018.     Therein, Appellant alleged a Brady2 violation, contending “[t]he

Commonwealth committed [] misconduct when they failed to turn over

portions of [Henderson’s] plea agreement that the jury should of [sic] heard

about to learn of the witness[’] motives and biasness [sic].” Pro Se PCRA

Petition, 3/24/2018, at 4. Specifically, Appellant avers the Commonwealth

withheld a pertinent part of the plea deal, that the “more serious charges”

would be nolle prossed in exchange for Henderson pleading guilty. Appellant’s

Brief at 10.

        On May 5, 2018, the PCRA court filed a notice of intent to dismiss the

petition without a hearing pursuant to Pa.R.Crim.P. 907.          A final order

dismissing Appellant’s petition was filed on May 23, 2018.




2
    Brady v. Maryland, 373 U.S. 83 (1963).



                                   -3-
J-S67042-18

      Appellant timely filed a notice of appeal. 3      Appellant presents one

question to this Court on appeal: “Whether Appellant is entitled to a new trial

because the prosecution withheld” the aforementioned information concerning

the particulars of Henderson’s guilty plea. Appellant’s Brief at 4, 10.

      Before we can examine the substantive claim Appellant raises on appeal,

we must determine whether the filing of his PCRA petition was timely. See,

e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f

a PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition. Without jurisdiction, we simply do not have the

legal authority to address the substantive claims.”).

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final unless the petition alleges, and the petitioner proves, that

an exception to the time for filing the petition is met, and that the claim was




3  The PCRA court did not order Appellant to file a statement of errors
complained of on appeal; it did file an opinion pursuant to Pa.R.A.P. 1925(a).
However, in its opinion, the court does not address the issue before us, but
instead addresses a sentencing issue Appellant presented in his fourth PCRA
petition. Pro Se PCRA Petition, 3/24/2016; PCRA Court Opinion, 7/12/2018.
Irrespective of this apparent confusion on the part of the PCRA court, in light
of our disposition and because this Court may affirm the PCRA court’s order
on any basis, we need not remand this case for a corrected 1925(a) opinion.
See Commonwealth v. Clouser, 998 A.2d 656, 661, n.3 (Pa. Super. 2010)
(“It is well-settled that this Court may affirm on any basis.”).


                                   -4-
J-S67042-18

raised within 60 days of the date on which it became available. 42 Pa.C.S.

§ 9545(b).

      It is clear that Appellant’s 2018 petition is facially untimely: his

judgment of sentence became final in 2007. However, Appellant alleges his

claim is reviewable because the following timeliness exception applies: “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)(iii).   In support of this averment,

Appellant alleges that his petition is based upon a change in the law,

referencing Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017).

Appellant’s Brief at 9.

      At the outset, we note that the issue Appellant presents for our review

was raised previously in a prior appeal, a fact Appellant concedes.        See

Commonwealth v. Small, 4 A.3d 670 (Pa. Super. 2010) (unpublished

memorandum); Appellant’s Brief at 9. In this prior appeal, this Court affirmed

the PCRA court’s order dismissing Appellant’s petition based on the PCRA

court’s opinion.     In its opinion, the PCRA court found, inter alia, that

Appellant’s June 29, 2009 petition was untimely filed and did not meet an

exception to the timeliness requirement because the circumstances attendant

to Henderson’s guilty plea “became a matter of public record on October 18,

2005.” Trial Court Opinion, 11/4/2009, at 7.



                                    -5-
J-S67042-18

      It is well-settled that previously litigated claims are not cognizable

under the PCRA. Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011).

However, Appellant avers that our Supreme Court’s decision in Burton, which

held “that the presumption that information which is of public record cannot

be deemed “unknown” for purposes of subsection 9545(b)(1)(ii) does not

apply to pro se prisoner petitioners[,]” presents a new constitutional right

which allows this Court to review this claim once again. Appellant’s Brief at

8-10; Burton, 158 A.3d at 638 (emphasis in original).

      Contrary to this position, this Court has held that our Supreme Court’s

decision   in   Burton   did   not    establish   a   new   constitutional   right.

Commonwealth v. Kretchmar, 189 A.3d 459, 462-64 (Pa. Super. 2018)

(holding that Burton established neither a new constitutional right nor a

watershed rule of criminal procedure). Thus, Appellant cannot use Burton

“as a jurisdictional hook by which to relitigate his previous” PCRA petition. 4

Id. at 466.




4
  Additionally, any attempt to invoke the newly-discovered facts exception
pursuant to Section 9545(b)(1)(ii), is likewise unavailing. See Kretchmar,
189 A.3d at 467 (“Appellant’s current PCRA petition presents no new
documents, no new evidence, and, most critically, no new facts. Accordingly,
his claims fail[] to meet the requirements of Section 9545(b)(1)(ii) on its face.
The only circumstance that has changed since Appellant’s previous PCRA
petition is our Supreme Court’s issuance of the Burton decision. However,
judicial decisions do not constitute new ‘facts’ for purposes of the newly-
discovered evidence exception set forth in Section 9545(b)(1)(ii).”).


                                     -6-
J-S67042-18

      In light of the foregoing, Appellant is not entitled to relief. Accordingly,

the PCRA court correctly dismissed Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/18




                                   -7-
