J-S82008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    REUBEN BROWN                               :
                                               :
                       Appellant               :   No. 133 EDA 2018

                Appeal from the PCRA Order November 28, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0207261-1995


BEFORE:      LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                            FILED JANUARY 24, 2019

       Reuben Brown appeals, pro se, from the order, entered in the Court of

Common Pleas of Philadelphia County, denying his fifth petition filed pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After

our careful review, we affirm.1

       On October 28, 1996, a jury convicted Brown of first-degree murder,

two counts of robbery, possession of an instrument of crime (PIC), and

criminal conspiracy. The court sentenced Brown that same day to life

imprisonment for first-degree murder, five-to-ten years’ imprisonment for

each of the two counts of robbery, five-to-ten years’ imprisonment for criminal

conspiracy, and six-to-sixty months’ imprisonment for PIC.            This Court

affirmed the judgment of sentence on July 27, 1999, and our Supreme Court
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1The Commonwealth, despite this Court’s grant of two extension requests,
has not filed a brief.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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denied review on January 5, 2000. See Commonwealth v. Brown, 742 A.2d

1140 (Pa. Super. 1999) (unpublished memorandum), appeal denied, 749 A.2d

465 (Pa. 2000).

       Brown filed a pro se PCRA petition on January 27, 2000, his first. On

June 1, 2000, the court appointed Attorney David Rudenstein to represent

Brown. On July 19, 2000, Attorney Rudenstein filed an amended petition, in

which he raised an issue regarding a recanting witness. The PCRA court

allowed Attorney Rudenstein time to locate the recanting witness in order to

hold a hearing. Ultimately, Attorney Rudenstein was unable to locate the

recanting witness, and, on February 28, 2001, the PCRA court dismissed

Brown’s first PCRA petition.

       On September 5, 2003, Brown filed his second PCRA petition, which the

court dismissed as untimely. Brown filed a third PCRA petition on June 15,

2009, which was also dismissed as untimely.

       On March 19, 2012, Brown filed a fourth PCRA petition, alleging that his

facially untimely petition satisfied the newly recognized constitutional right

exception to the PCRS’s timeliness requirements.          See 42 Pa.C.S.A. §

9545(b)(1)(iii).2      On March 24, 2014, the PCRA court dismissed Brown’s



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2   Section 9545(b)(1) provides:

       (1) Any petition under this subchapter, including a second or
       subsequent petition, shall be filed within one year of the date the



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fourth PCRA petition as untimely, and this Court affirmed.      Commonwealth

v. Brown, 935 EDA 2014 (Pa. Super. filed Feb. 10, 2015) (unpublished

memorandum). We concluded that the case on which Brown relied, Maples

v. Thomas, 565 U.S. 266 (2012), which held petitioner’s abandonment of

counsel claim was an extraordinary circumstance that enabled him to bypass


____________________________________________


       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.

42 Pa.C.S.A. § 9545(b)(1)(iii). Additionally, a PCRA petition invoking one of
these statutory exceptions must “be filed within 60 days of the date the claim
could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). Brown’s judgment
of sentence became final on April 4, 2000, when the ninety-day period for
filing a writ of certiorari with the United States Supreme Court expired. See
Sup.Ct.R. 13; 42 Pa.C.S.A. § 9545(b)(3). Therefore, Brown had to file any
and all PCRA petitions by April 4, 2001. The instant petition, filed on October
9, 2015, is patently untimely and will be addressed only if he has satisfied his
burden of pleading and proving that one of the enumerated exceptions
applies. See Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2008);
Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).




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the state procedural ban to his federal habeas corpus petition, did not create

a new constitutional right applicable to him. Brown, supra at *3. Further,

we stated that even had the Maples holding provided Brown with a new

constitutional right, neither the Pennsylvania Supreme Court nor the United

States Supreme Court has ever held that Maples applies retroactively. Id.,

citing 42 Pa.C.S.A. § 9545(b)(1)(iii) (“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.”).   See

Commonwealth v. Abdul–Salaam, 812 A.2d 497, 501 (Pa. 2002).

      In this, his fifth petition, Brown alleged that he recently discovered that

retired Detective Frank Jastrzembski (Jastrzembski), who investigated the

murder, had engaged in misconduct in unrelated cases.          In support of his

claim that Jastrzembski had a pattern of fabrication and misplacement of

evidence, Brown attached to his petition various newspaper articles as well as

an article published on March 2, 2015 by Rolling Stone Magazine. That article

asserted that Detective Jastrzembski concealed evidence in an unrelated case.

The PCRA court, pursuant to Pa.R.Crim.P. 907, advised Brown on October 11,

2017 of its intent to dismiss the petition without a hearing. Brown filed a

response on November 1, 2017 and, on November 28, 2017, the PCRA court

dismissed Brown’s petition as untimely. On appeal, Brown argues the newly-

discovered fact exception, 42 Pa.C.S.A. § 9545(b)(1)(ii), and/or the




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governmental interference exception, 42 Pa.C.S.A. § 9545(b)(1)(i), save his

petition from the statutory time-bar.

      This Court’s standard of review regarding a PCRA court’s order is
      whether the determination of the PCRA court is supported by the
      evidence of record and is free of legal error. Great deference is
      granted to the findings of the PCRA court, and these findings will
      not be disturbed unless they have no support in the certified
      record. Moreover, a PCRA court may decline to hold a hearing on
      the petition if the PCRA court determines that a petitioner’s claim
      is patently frivolous and is without a trace of support in either the
      record or from other evidence.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted).

      Our Supreme Court addressed a similar situation in Commonwealth v.

Castro, 93 A.3d 818 (Pa. 2014).         In Castro, the petitioner relied upon a

newspaper article to establish after-discovered evidence for use in a post-

sentence motion. Our Supreme Court held that while a newspaper “article

[may] contain allegations that suggest [exculpatory] evidence may exist, [ ]

allegations in the media, whether true or false, are no more evidence than

allegations in any other out-of-court situation.”      Id. at 825.     Although

magazine and newspaper “articles can alert a party to the possible existence

of evidence, [ ] the party must do more than attach the article [to establish]

the evidence that will meet the [test for newly-discovered facts . . . . A

petition] must, at the very least, describe the evidence that will be presented

at the hearing.” Id. at 837. We note that Castro has since been applied to

the newly-discovered fact exception to the PCRA. See Commonwealth v.


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Jamie Brown, 141 A.3d 491 (Pa. Super. 2016).                  Thus, we conclude the

Rolling   Stone    article   is   not   a      newly-discovered   fact   under   section

9545(b)(1)(ii).3

       Because Brown’s petition is facially untimely, and because he has not

established that any exceptions to the timeliness requirements apply, the

PCRA court did not err in dismissing his petition without a hearing.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/19




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3 In his October 9, 2015 petition, Brown checked all three exceptions to the
statutory time bar. See PCRA Petition, 10/9/15, at 2; 42 Pa.C.S.A. §
9545(b)(1)(i-iii). In his brief on appeal, however, Brown invokes only the
newly-discovered facts exception. See Appellant’s Brief, at 9. Therefore, we
do not address the interference by governmental officials exception, 42
Pa.C.S.A. § 9545(b)(1)(i), or the newly recognized constitutional right
exception, 42 Pa.C.S.A. § 9545(b)(1)(iii).

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