J-S53007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CHRISTOPHER SINGLETARY                   :
                                          :
                    Appellant             :   No. 3367 EDA 2018

           Appeal from the PCRA Order Entered October 24, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0729881-1993


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                        FILED FEBRUARY 27, 2020

      Appellant, Christopher Singletary, appeals pro se from the order entered

on October 24, 2018, dismissing as untimely his sixth petition filed pursuant

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

affirm.

      The PCRA court briefly summarized the facts and procedural history of

this case as follows:

      [Appellant], along with multiple confederates, were arrested and
      subsequently charged in connection with a forcible invasion of a
      Philadelphia home and gunpoint robbery of its occupants in 1993.
      On April 4, 1994, following a jury trial[, Appellant] was convicted
      of three counts of robbery, burglary, conspiracy, and [a] violation
      of the Firearms Act. On February 7, 1995, the trial court
      sentenced [Appellant] to an aggregate [term of] 47½ to 95 years’
      imprisonment. On January 19, 1996, following a direct appeal,
      [this] Court affirmed the judgment of sentence. [Appellant] did
      not seek an allowance of appeal in the Pennsylvania Supreme
      Court.
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       On September 13, 1996, [Appellant] timely filed his first pro se
       PCRA petition. Counsel was appointed and subsequently filed an
       amended petition. On September 3, 1998, the PCRA court
       dismissed his petition. On March 31, 2000, [this] Court affirmed
       the dismissal. The Pennsylvania Supreme Court denied allocatur
       on July 25, 2000.

       [Appellant] was subsequently unsuccessful in obtaining collateral
       relief through serial PCRA petitions filed in 2001, 2005, 2010, and
       2015.

       On December 15, 2016, [Appellant] filed the instant pro se PCRA
       petition, his sixth. Pursuant to Pennsylvania Rule of Criminal
       Procedure 907, [Appellant] was served notice of the PCRA court’s
       intention to dismiss his petition on September 19, 2017.
       [Appellant] submitted a response to the Rule 907 notice on
       October 3, 2017. On October 24, 2018, the PCRA court dismissed
       his petition as untimely without exception. On November 15,
       2018, [a] notice of appeal was timely filed [with this] Court.[1]

PCRA Court Opinion, 12/6/2018, at 1-2 (footnotes omitted).

       On appeal, Appellant presents the following issue, pro se, for our review:
____________________________________________


1  Upon review of the certified record, the PCRA court did not order Appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). The PCRA court filed an opinion pursuant to Pa.R.A.P.
1925(a) on December 6, 2018. Additionally, we note that the Commonwealth
applied for two extensions of time to file an appellate brief with this Court. On
August 6, 2019, by per curiam order, we granted a second extension for the
Commonwealth to file an appellate brief. Therein, this Court specifically stated
that the Commonwealth’s brief was due by August 26, 2019 and that this
Court would not grant further extensions absent extraordinary circumstances,
which did not include the Commonwealth’s busy schedule. To date, the
Commonwealth has not filed an appellate brief in this matter. “An appellee is
required to file a brief that at minimum must contain ‘a summary of argument
and the complete argument for appellee.’” Commonwealth v. Pappas, 845
A.2d 829, 835 (Pa. Super. 2004), citing Pa.R.A.P. 2112. In Pappas, our Court
referred to the Commonwealth's failure to file a proper appellee's brief as
“unacceptable.” Id.        The same holds true here and we remind the
Commonwealth of its responsibility to file an appellee's brief in future appeals,
especially where the Commonwealth specifically asks for, and is granted,
additional time to do so.



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       I.     Did the PCRA court err by failing to conduct an analysis
              under 42 Pa.C.S.A. § 9545(b)(1)(ii) so as to determine
              whether the after-discovered fact exception was satisfied?

Appellant’s Pro Se Brief at 4.

       Appellant claims:

       In December of 2009, Appellant received an affidavit from
       convicted coconspirator, Karim Smith, admitting his involvement
       in the crimes charged and completely exonerating Appellant.
       Subsequently, on January 4, 2010, Seyna Barnes executed a
       sworn affidavit explaining she had received a copy of Smith’s
       testimony [from his] trial and [setting forth the] date she
       delivered those transcripts to Appellant. Based on receipt of those
       documents, Appellant filed a pro se PCRA petition [in 20102].

Id. at 9.

       Appellant argues:

       During the pendency of [another] PCRA petition [filed on
       December 15, 2016,] the Pennsylvania Supreme Court decided
       [Commonwealth v.] Burton[, 158 A.3d 618 (Pa. 2017) on
       March 28, 2017]. Within the time period allotted by statute,
       Appellant filed a [s]upplemental PCRA [p]etition invoking the
       after-discovered fact exception. The PCRA court rejected that
       proposition[,] opining that Burton did not create a new
       constitutional right. The [PCRA c]ourt failed, entirely, however,
       to assess whether Burton constitutes a new fact [within the
       meaning of § 9545(b)(1)(ii), the so-called newly-discovered fact
       exception to the PCRA time bar]. Consequently, the record does
       not support the PCRA court’s legal conclusion.

Id. at 7-8 (citations omitted).


____________________________________________


2 The PCRA court denied relief on Appellant’s 2010 PCRA petition, concluding
that Appellant knew as early as 1996 that his conspirator claimed Appellant
was not involved in the crimes. This Court agreed with the PCRA court’s
determination that the purported facts were not newly discovered. See
Commonwealth v. Singletary, -- A.2d --, 3277 EDA 2010 (Pa. Super. 2012)
(unpublished memorandum) at 7.

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      Essentially, Appellant argues that he obtained exculpatory information

that his co-conspirator took sole responsibility for the crimes in 2009 and

2010. Appellant raised this claim in a prior 2010 PCRA petition, but was denied

relief because the information could have been ascertained earlier by due

diligence. Subsequently, however, our Supreme Court decided Burton, which

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

be deemed ‘unknown’ for purposes of subsection(b)(1)(ii) does not apply to

pro se prisoner petitioners[.]” Burton, 58 A.3d at 719 (emphasis in original).

Thus, Appellant claims that since Burton rejected the public information

presumption as it relates to pro se prisoners, he is now entitled to review even

though he obtained the facts underlying his current claim in 2009 and 2010

and this Court previously rejected a similar PCRA claim in 2012.

      The timeliness requirement for PCRA petitions “is mandatory and

jurisdictional in nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa.

2013) (citation omitted). A PCRA petition is timely if it is “filed within one year

of the date the judgment [of sentence] becomes final.” 42 Pa.C.S.A.

§ 9545(b)(1). “[A] judgment 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.A. §§ 9545(b)(3). Here, Appellant's judgment of

sentence became final on February 18, 1996. Hence, Appellant's current PCRA

petition is manifestly untimely. Therefore, unless one of the statutory




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J-S53007-19



exceptions to the time-bar applies, no court may exercise jurisdiction to

consider this petition.

       Pursuant to 42 Pa.C.S.A. § 9545(b), there are three statutory exceptions

to the timeliness provision that allow for very limited circumstances under

which the late filing of a PCRA petition will be excused. To invoke an exception,

a petitioner must allege and prove one of the following:

       (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)(i)-(iii). If an exception applies, a PCRA petition may

be considered if it is filed “within 60 days of the date the claim could have

been presented.” 42 Pa.C.S.A. § 9545(b)(2).3




____________________________________________


3 Effective December 24, 2018, the legislature amended § 9545(b)(2) to read:
“Any petition invoking an exception provided in paragraph (1) shall be filed
within one year of the date the claim could have been presented.” See 42
Pa.C.S.A. § 9545(b)(2) (effective December 24, 2018). However, the
amendment to § 9545(b)(2) only applies to “claims arising on [December] 24,
2017 or thereafter.” See id. at Comment. Appellant filed his current petition
on December 15, 2016; thus, the amended § 9545(b)(2) does not apply to
Appellant's claim.

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      In this case, Appellant argues that Burton triggers exceptions to the

PCRA’s   timeliness   requirements    pursuant   to   §   9545(b)(1)(ii)   (the

newly-discovered fact exception) and § 9545(b)(1)(iii) (the new constitutional

rights exception). We disagree.        This Court, in Commonwealth v.

Kretchmar, 189 A.3d 459, 464 (Pa. Super. 2018), held that Burton did not

establish a new constitutional right or a watershed rule of criminal procedure.

Thus, Burton does not afford Appellant relief under § 9545(b)(1)(iii).

Moreover, it is well established that a judicial opinion does not qualify as a

previously unknown “fact” capable of triggering the newly discovered fact

exception under the PCRA. Commonwealth v. Watts, 23 A.3d 980, 986-

987 (Pa. 2011). “[J]udicial determinations are not facts.” Id. at 986.

Accordingly, Appellant has failed to establish an exception to the PCRA

time-bar under § 9545(b)(1)(ii).

      Finally, we note that Appellant presents the same “unknown” facts as

he did on collateral appeal in his first PCRA petition and, again, in another

PCRA petition in 2012. See Commonwealth v. Singletary, -- A.2d --, 3277

EDA 2010 (Pa. Super. 2012) (unpublished memorandum) at 6-9. In 2012,

we rejected Appellant’s claim that the facts were unknown to him, stating:

      Initially, we note that 15 years ago, Appellant was aware that Mr.
      Smith stated that Appellant was not involved in the crime. The
      record supports this conclusion, because Appellant, in his first
      PCRA petition, argued that trial counsel was ineffective for not
      calling Mr. Smith as a defense witness at his 1994 trial. Thus, we
      agree with the PCRA court, that these ‘facts’ are not newly
      discovered.



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Id. at 7 (footnote omitted).           This Court previously rejected Appellant’s

collateral claims predicated on the same facts he presented in the instant

petition filed on December 15, 2016.4 Hence, Appellant is not entitled to relief

because the underlying facts he relies upon to support his current claim are

not newly-discovered and have been previously litigated. See 42 Pa.C.S.A.

§ 9544(a)(3) (“an issue has been previously litigated if … it has been raised

and decided in a proceeding collaterally attacking the conviction or

sentence.”).

       For all of the foregoing reasons, we conclude that the PCRA court

properly dismissed Appellant’s PCRA petition for lack of jurisdiction.

Appellant’s claim was previously litigated, he relies on facts that were known

to him more than two decades ago, and he did not establish an exception to

the PCRA’s timing requirements.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/20



____________________________________________


4 The factual predicate of Appellant’s claim is exculpatory testimony by Smith,
which was a subject of prior PCRA petitions.

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