J-S38027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                       v.

JEROME EVANS,

                             Appellant                No. 3484 EDA 2016


                  Appeal from the PCRA Order October 4, 2016
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0000642-2011


BEFORE: GANTMAN, P.J., SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED AUGUST 25, 2017

        Appellant, Jerome Evans, appeals pro se from the order denying his

fourth petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

        Following a jury trial, Appellant was convicted on October 6, 2011, of

unlawful possession of a controlled substance with the intent to deliver

(heroin) (“PWID”).1         On December 2, 2011, Appellant was sentenced to a

period of state incarceration for a minimum of seven years to a maximum of

fifteen years. Appellant timely filed a direct appeal, and on May 17, 2013,

this Court affirmed Appellant’s judgment of sentence. Commonwealth v.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).



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Evans, 81 A.3d 998, 378 EDA 2012 (Pa. Super. filed May 17, 2013)

(unpublished memorandum). Appellant did not file a petition for allowance

of appeal to our Supreme Court.

     Appellant filed his first PCRA petition on July 1, 2013, and counsel was

appointed.    The petition was denied by order entered August 27, 2013.

Appellant filed an appeal from the order denying his first PCRA petition. The

order was affirmed by this Court on July 21, 2014.      Commonwealth v.

Evans, 105 A.3d 796, 2825 EDA 2013 (Pa. Super. filed July 21, 2014)

(unpublished memorandum).

     Appellant filed a second PCRA petition on January 5, 2015. Appellant

filed a motion to amend his PCRA petition on March 17, 2015.         By order

entered March 20, 2015, the PCRA court dismissed Appellant’s second PCRA

petition and denied Appellant’s motion to amend his PCRA petition.

     On May 5, 2015, Appellant filed a motion challenging the legality of his

sentence, which the PCRA court treated as a third PCRA petition.         The

petition was denied by order of the PCRA court on January 6, 2016.        On

January 29, 2016, Appellant filed an appeal, and on June 22, 2016, this

Court dismissed the appeal because Appellant failed to file a brief.

Commonwealth v. Evans, 368 EDA 2016 (Order) (Pa. Super. filed June,

22, 2016).

     On June 17, 2016, while his appeal from the denial of his third PCRA

petition was still pending in the Superior Court, Appellant filed his fourth


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PCRA petition. On June 28, 2016, the PCRA court issued a notice of intent to

dismiss Appellant’s fourth PCRA petition without a hearing.       On July 14,

2016, Appellant filed a notice of intention to file a response to the court’s

Pa.R.Crim.P. 907(1) notice. On July 21, 2016, Appellant filed a response to

the PCRA court’s notice of intent to dismiss. On August 26, 2016, the PCRA

court issued another notice of intent to dismiss Appellant’s fourth PCRA

petition without a hearing. On October 4, 2016, the PCRA court dismissed

Appellant’s fourth PCRA petition.

      On November 3, 2016, Appellant timely appealed the PCRA court’s

October 4, 2016 order.        Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      1.    Did the trial court err and abuse [its discretion] by failing
      to grant relief based on the Commonwealth’s violation of Rule
      573(A) pertaining to pretrial discovery[?]

      2.   Whether [Appellant] was entitled to a new trial given the
      Commonwealth violated the mandate announced in Brady v.
      Maryland[?]

      3.    Whether the trial court erred by dismissing [Appellant’s]
      properly filed petition for [PCRA] relief without an evidentiary
      hearing[?]

Appellant’s Brief at 4 (full capitalization omitted).

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31


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A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).       The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

     We first note that Appellant’s fourth PCRA petition was filed on June

17, 2016, while his appeal from the denial of his third PCRA petition was

pending in this Court.      In Commonwealth v. Lark, 746 A.2d 585 (Pa.

2000), our Supreme Court held that “when an appellant’s PCRA appeal is

pending before a court, a subsequent PCRA petition cannot be filed until the

resolution of review of the pending PCRA petition by the highest state court

in which review is sought, or upon the expiration of the time for seeking

such review.” Id. at 588. Here, this Court dismissed Appellant’s third PCRA

petition on June 22, 2016, due to Appellant’s failure to file a brief, and on

June 28, 2016, the PCRA court filed a notice of intent to dismiss Appellant’s

fourth PCRA petition.      In its notice of intent to dismiss the fourth PCRA

petition, the PCRA court cited Lark, noted that the Superior Court dismissed

Appellant’s appeal of the third PCRA petition on June 22, 2016, but

concluded that because the period for review of this Court’s decision had not

yet expired, the fourth PCRA petition must therefore be denied. Notice of

Intent, 6/28/16, at 1-2.




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      Appellant filed a response in which he acknowledged the holding in

Lark as set forth by the PCRA court, but further asserted that by failing to

file a brief, and this Court’s related dismissal of his appeal, Appellant’s

appeal from the third PCRA petition had been abandoned.              Appellant’s

Response to the PCRA Court’s 907(1) Statement, 7/21/16, at 1-2.                In

support of his position, Appellant cited to Lark’s language indicating that if a

previous appeal had been abandoned, or was so defective that it could not

be regarded as pending, then review of a second proceeding is not

prohibited. Id. As a result, Appellant maintained that the PCRA court had

jurisdiction to entertain his fourth PCRA petition. Id. at 2.

      In its subsequent notice of intent to dismiss Appellant’s fourth PCRA

petition filed August 26, 2016, the PCRA court recognized that “at present,

[Appellant’s] appeal from this [c]ourt’s dismissal of his Third PCRA Petition is

no longer pending in the Superior Court, and the time for [Appellant] to seek

review in the Supreme Court of Pennsylvania has expired.”              Notice of

Intention to Dismiss [Appellant’s] Fourth Petition for Post-Conviction

Collateral Relief Without a Hearing, 8/26/16, at 3. The PCRA court stated

that although Appellant’s fourth PCRA petition could be dismissed on the

basis of Lark, in the interest of judicial economy, it would address

Appellant’s   fourth   PCRA   petition,   which   it   dismissed   following   its

determination that it was untimely and furthermore, lacked merit. Id. at 3-

4.


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       Our review of the record reflects that even if not disposed of pursuant

to Lark, the PCRA court properly dismissed Appellant’s fourth PCRA petition

as untimely filed. A PCRA petition must be filed within one year of the date

that the judgment of sentence becomes final.        42 Pa.C.S. § 9545(b)(1).

This time requirement is mandatory and jurisdictional in nature, and the

court may not ignore it in order to reach the merits of the petition.

Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).                  A

judgment of sentence “becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.” 42 Pa.C.S. § 9545(b)(3).

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.2 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42




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2
    The exceptions to the timeliness requirement are:

       (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;

(Footnote Continued Next Page)


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Pa.C.S. § 9545(b)(2).          In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

      As noted, Appellant was sentenced on December 2, 2011. This Court

affirmed Appellant’s judgment of sentence on May 17, 2013. Appellant did

not file a petition for allowance of appeal. Accordingly, Appellant’s judgment

of sentence became final on June 17, 2013,3 when the time for filing a

petition for allowance of appeal with the Pennsylvania State Supreme Court

expired. See 42 Pa.C.S. § 9545(b)(3) (providing that “a judgment becomes

final at the conclusion of direct review, including discretionary review in the

                       _______________________
(Footnote Continued)

      (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), (ii), and (iii).
3
  We note that because the thirtieth day of the appeal period, June 16, 2013,
fell on a Sunday, Appellant had until Monday, June 17, 2013, to file a
petition for allowance of appeal with our Supreme Court. See 1 Pa.C.S. §
1908 (stating that, for computations of time, whenever the last day of any
such period shall fall on Saturday or Sunday, or a legal holiday, such day
shall be omitted from the computation); Commonwealth v. Green, 862
A.2d 613, 618 (Pa. Super. 2004).



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Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review.”); Pa.R.A.P. 1113(a) (“a

petition for allowance of appeal shall be filed with the Prothonotary of the

Supreme Court within 30 days after the entry of the order of the Superior

Court . . . sought to be reviewed.”).          Therefore, Appellant had to file the

current PCRA petition by June 17, 2014, in order for it to be timely.

Appellant filed the instant PCRA petition, his fourth, on June 17, 2016.

Accordingly, Appellant’s instant PCRA petition is patently untimely.

        As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file

his petition within sixty days of the date that the exception could be

asserted. 42 Pa.C.S. § 9545(b)(2).

        Appellant argues that “[o]n April 14, 2016, [he] discovered that the

[C]ommonwealth had withheld discovery during the time of trial.                The

undisclosed discovery was Brady4 material.”               Appellant’s Brief at 6.

Additionally, Appellant’s claims involve the Commonwealth’s alleged failure

to produce the “Investigative Main Narrative of prosecuting Police Officer

Thomas Beiser.”         Id. at 5.        Appellant asserts this report contained

____________________________________________


4
    Brady v. Maryland, 373 U.S. 83 (1963).



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impeachment information and “if used effectively during pretrial challenges

to the affidavit, the outcome of the proceedings would have been different.”

Id. Thus, Appellant contends, the PCRA court erred by dismissing his PCRA

petition without affording him an evidentiary hearing “so that [A]ppellant

would be able to fully develop the claims advanced within the petition.” Id.

      In order to sustain an untimely PCRA petition under the newly-

discovered facts exception pursuant to section 9545(b)(1)(ii), a petitioner

must establish that:

      1) the facts upon which the claim was predicated were unknown
      and 2) could not have been ascertained by the exercise of due
      diligence. 42 Pa.C.S. § 9545(b)(1)(ii). If the petitioner alleges
      and proves these two components, then the PCRA court has
      jurisdiction over the claim under this subsection.

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (internal

citations and quotations omitted).       “Due diligence demands that the

petitioner take reasonable steps to protect his own interests.     A petitioner

must explain why he could not have learned the new fact(s) earlier with the

exercise of due diligence. This rule is strictly enforced.” Commonwealth

v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011) (internal citations omitted).

Additionally, the sixty-day time limit related to Section 9545(b)(ii) runs from

the date the petitioner first learned of the alleged after-discovered facts. Id.

A petitioner must explain when he first learned of the facts underlying his

PCRA claims and show that he brought his claim within sixty days thereafter.

See Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010)


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(holding petitioner failed to demonstrate his PCRA petition was timely where

he did not explain when he first learned of facts underlying his PCRA

petition). All of the time limits set forth in the PCRA are jurisdictional and

must be strictly construed. Commonwealth v. Fahy, 959 A.2d 312, 315

(Pa. 2008).

       Although Appellant baldly asserts that he discovered these alleged

newly-discovered facts on April 14, 2016, Appellant’s Brief at 6, he does not

explain what occurred to alert him to this evidence. He asserts “the non-

disclosed evidence . . . triggered the inquiry,” Appellant’s Brief at 8, but fails

to explain how he came to learn of the “non-disclosed” evidence.

       Furthermore, Appellant fails to establish that this information was

previously unknown to him.              Specifically, Appellant contends that the

undisclosed facts are favorable to Appellant because it disproves sworn

statements in Detective Beiser’s affidavit. Appellant’s Brief at 10. However,

in his brief, Appellant maintains that during a Franks5 hearing, Detective

Beiser revealed that information included in the affidavit was false.



____________________________________________


5
  Franks v. Delaware, 438 U.S. 154 (1978) (holding where a defendant
makes a substantial preliminary showing that a false statement was
knowingly and deliberately, or with reckless disregard for the truth, included
by an affiant in his application for a search warrant and where the alleged
false statement was necessary to a finding of probable cause, the Fourth
Amendment requires that a hearing be held at defendant’s request so that
he might challenge the veracity and integrity of the warrant.).



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Appellant’s Brief at 9.        Thus, this information was previously known to

Appellant.

       Moreover, Appellant does not offer an explanation as to why he could

not have discovered these facts with due diligence, other than asserting that

he did not make assumptions that the Commonwealth would commit a

discovery/Brady violation.         Appellant’s Brief at 8.   As noted, Appellant’s

claim is that the Commonwealth failed to turn over evidence that was

available pretrial. Appellant, however, has failed to establish that the facts

upon which this claim is predicated could not have been ascertained by the

exercise of due diligence.         42 Pa.C.S. § 9545(b)(1)(ii).     As addressed,

Appellant was aware of false statements being included in Detective Beiser’s

affidavit at the time of the Franks hearing. Appellant’s claim that he is now

aware of additional false statements included in Detective Beiser’s affidavit

does not constitute grounds for relief for reasons stated previously.

Accordingly, Appellant has failed to establish the exception to the time bar

pursuant to 42 Pa.C.S. § 9545(b)(1)(ii).6

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6
  To the extent Appellant’s claim could be considered an invocation of the
governmental interference exception to the PCRA time-bar pursuant to
Section 9545(b)(1)(i), we note that for the same reasons set forth above,
Appellant has failed to establish that the facts upon which his claim is
predicated were not previously known to him or that those facts could not
have been ascertained through due diligence. See Commonwealth v.
Abu–Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (concluding that not only
must a petitioner assert that “the facts upon which the Brady claim is
predicated were not previously known to the petitioner,” but also that they
(Footnote Continued Next Page)


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      We further note that Appellant claims the PCRA court erred in denying

his petition absent an evidentiary hearing. However, it is well settled that

the right to an evidentiary hearing on a PCRA petition is not absolute, and

the PCRA court may decline to hold a hearing if the petitioner’s claims are

patently frivolous with no support in either the record or other evidence.

Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010). Here, we

find no error.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2017




                       _______________________
(Footnote Continued)

“could not have been ascertained through due diligence”); Commonwealth
v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2006) (“Although a Brady violation
may fall within the governmental interference exception, the petitioner must
plead and prove that the failure to previously raise these claims was the
result of interference by government officials, and that the information could
not have been obtained earlier with the exercise of due diligence.”) (citation
omitted).



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