J-S78014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
              v.                                :
                                                :
                                                :
 HASSAN AUSTIN                                  :
                                                :
                      Appellant                 :   No. 3964 EDA 2017

              Appeal from the PCRA Order November 16, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0718951-1985


BEFORE:     LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.:                             FILED FEBRUARY 1, 2019

      Hassan Austin, pro se, appeals from the order, entered in the Court of

Common Pleas of Philadelphia County, dismissing his petition filed pursuant

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

careful review, we affirm.

      On October 20, 1986, following a jury trial, Austin was convicted of first-

degree murder and weapons charges in connection with the shooting death of

Walter Holloway in June 1985 in Philadelphia. On March 10, 1988, Austin was

sentenced to a mandatory term of life imprisonment without parole for first-

degree murder and the remaining charges were nolle prossed. This Court

affirmed Austin’s judgment of sentence on December 7, 1990, and the

Pennsylvania Supreme Court denied allocatur on August 10, 1992.

      On April 15, 1996, Austin filed his first pro se PCRA petition, which was

dismissed   on     April   8,   1997,   after   court-appointed   counsel   filed   a

____________________________________
* Former Justice specially assigned to the Superior Court.
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Turner/Finley1 “no-merit” letter. This Court quashed Austin’s appeal of that

order on January 26, 1998. Austin filed a second pro se PCRA petition on June

3, 2002, which was dismissed as untimely on October 9, 2003. That order

was affirmed by this Court on October 20, 2004. On January 10, 2006, Austin

filed his third pro se PCRA petition. Although the petition was facially untimely,

Austin attempted to overcome the jurisdictional time bar by asserting a claim

of newly-discovered facts pursuant to 42 Pa.C.S.A. § 9545(b)(1)(ii).

Specifically, Austin asserted that in November 2005, he discovered that, at

the time of trial, one of the Commonwealth’s witnesses, Russell Robinson, had

convictions for crimen falsi offenses; that the Commonwealth withheld this

information; that defense counsel could have used the information to impeach

Robinson; and that the evidence would have altered the outcome of his trial.

Concluding that, because Robinson’s criminal history was public record, it

could therefore not be deemed “unknown” to Austin, the PCRA court denied

relief on January 6, 2009. This Court affirmed the dismissal on March 12,

2012, and the Supreme Court denied allowance of appeal on October 22,

2012.

        Austin filed the instant pro se petition, his fourth, on May 25, 2017,

followed by a supplemental petition on June 30, 2017. In this petition, Austin

again invoked the timeliness exception under section 9545(b)(1)(ii),

concerning the “newly-discovered” information regarding Robinson’s crimen
____________________________________________


1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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falsi convictions, and added a claim under the exception contained in section

9545(b)(1)(iii), claiming that this Court’s decision in Commonwealth v.

Burton,     158    A.3d   618    (Pa..   2017),   announced   a   newly-recognized

constitutional right. In Burton, our Supreme Court held that the presumption

of access to public information does not apply where the petitioner is a pro se

prisoner. Austin asserted that the rule announced in Burton rendered his

petition timely because it undermined the rationale used to dismiss, and affirm

the dismissal of, his 2006 petition. The PCRA court disagreed, and dismissed

his petition on November 16, 2017. Austin filed a timely notice of appeal 2 and

raises the following claim for our review: “Did the PCRA [c]ourt commit error

by ignoring the plain language of 42 Pa.C.S. § 9545(b)(2) when it denied

[Austin’s] [p]etition as untimely?” Brief of Appellant, at 3.

       We begin by noting our well-settled standard of review.

       “On appeal from the denial of PCRA relief, our standard and scope
       of review is limited to determining whether the PCRA court’s
       findings are supported by the record and without legal error.”
       Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013)
       (citation omitted). “[Our] scope of review is limited to the findings
       of the PCRA court and the evidence of record, viewed in the light
       most favorable to the prevailing party at the PCRA court level.”
       Commonwealth v. Koehler, [] 36 A.3d 121, 131 ([Pa.] 2012)
       (citation omitted). “The PCRA court’s credibility determinations,
       when supported by the record, are binding on this Court.”
       Commonwealth v. Spotz, [] 18 A.3d 244, 259 ([Pa.] 2011)
       (citation omitted). “However, this Court applies a de novo
       standard of review to the PCRA court’s legal conclusions.” Id.


____________________________________________


2The PCRA court did not order Austin to file a statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b).

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     Additionally, courts “will not entertain a second or subsequent
     request for PCRA relief unless the petitioner makes a strong prima
     facie showing that a miscarriage of justice may have occurred.”
     Commonwealth v. Marshall, [] 947 A.2d 714, 719 ([Pa.] 2008)
     (citation omitted). “Appellant makes a prima facie showing of
     entitlement to relief only if he demonstrates either that the
     proceedings which resulted in his conviction were so unfair that a
     miscarriage of justice occurred which no civilized society could
     tolerate, or that he was innocent of the crimes for which he was
     charged.” Commonwealth v. Allen, [] 732 A.2d 582, 586 ([Pa.]
     1999).

Commonwealth v. Medina, 92 A.3d 1210, 1214–15 (Pa. Super. 2014).

     Here, the PCRA court dismissed Austin’s petition as untimely.        The

timeliness of a PCRA petition implicates the jurisdiction of the PCRA court.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa. Super. 2011). No court

has jurisdiction to hear an untimely PCRA petition. Id.

     A PCRA petition, including a second or subsequent petition, must be filed

within one year of the date the underlying judgment of sentence becomes

final. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v. Bretz,

830 A.2d 1273, 1275 (Pa. Super. 2003). A judgment is deemed 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 review.” 42 Pa.C.S.A. § 9545(b)(3); see also

Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006). Here,

Austin’s judgment of sentence became final on or about November 9, 1992,

90 days after our Supreme Court denied his petition for allowance of appeal.

See 42 Pa.C.S.A. § 9545(b)(3) (judgment of sentence becomes final at

conclusion of direct review or expiration of period for seeking such review);

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Sup. Ct. R. 13. Thus, Austin had one year from that date, or until November

9, 1993, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b). Austin

did not file the instant petition, his fourth, until May 25, 2017, more than 24

years after his judgment of sentence became final. Accordingly, the PCRA

court had no jurisdiction to entertain Austin’s patently untimely petition unless

he pleaded and proved one of the three statutory exceptions to the time bar.3

See 42 Pa.C.S.A. § 9545(b)(1). A petition invoking one of the exceptions

must be filed within sixty days of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).4

____________________________________________


3   The statutory exceptions to the time bar are as follows:

        (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).

4 In 2018, the legislature amended the PCRA to extend the previous 60-day
limitation for time-bar exceptions to one year. See 2018, Oct. 24, P.L. 894,
No. 146, § 2, effective in 60 days (Dec. 24, 2018). This extension only applies
to claims arising after December 24, 2017. Thus, because Austin filed his
petition on May 25, 2017, and his claim arose before then, the 60-day time
limit applies to his claim.

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      Austin attempts to circumvent the time bar by asserting the “newly-

discovered facts” and “newly recognized constitutional right” exceptions under

subsections 9545(b)(1)(ii) and (iii). He is entitled to no relief.

      As discussed above, the “newly-discovered facts” upon which Austin

bases his claim are the crimen falsi convictions of Commonwealth witness

Russell Robinson. However, Austin relied upon these same “newly-discovered

facts” in his January 2006 PCRA petition and acknowledges that he learned of

Robinson’s convictions in November 2005. Accordingly, these facts are not

“newly-discovered” at all.     The PCRA court considered those facts and

concluded that they did not entitle Austin to relief in 2009, and this Court

affirmed that decision in 2012.

      Austin argues that he is nevertheless entitled to relief because Burton,

decided in 2017, altered the law with respect to the presumption of access to

public information by pro se prisoners. In light of Burton, Austin claims he is

entitled to have his claim revisited. He is not.

      Burton did not create a new constitutional right, nor a watershed rule

of criminal procedure, necessary to establish an exception to the PCRA

timeliness rule pursuant to section 9545(b)(2)(iii). In Commonwealth v.

Kretchmar, 189 A.3d 459 (Pa. Super. 2018), we addressed a claim identical

to Austin’s and concluded as follows:

      Nowhere in the Burton decision did our Supreme Court suggest
      the creation of a new constitutional right, nor did the Court engage
      in any form of constitutional analysis in reaching that decision. To
      the contrary, Burton is a case of statutory construction or, more
      specifically, it limits the scope of a prior interpretation of the text

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       of [s]ection 9545(b)(1)(ii). In narrowing that prior interpretation,
       the Burton Court did not invoke any provisions or rights set forth
       in the Pennsylvania or Federal Constitutions. Indeed, there is not
       a single reference to either Constitution in the opinion.

       Instead, the Burton Court grounded its decision on two precepts.
       First, the Burton Court determined that “the application of the
       public record presumption to pro se prisoners is contrary to the
       plain language of subsection 9545(b)(1)(ii)[.]” [Burton, 158
       A.3d at 638] (emphasis added). Second, the Court found that the
       prior interpretation “was imposed without any apparent
       consideration of a pro se prisoner’s actual access to information
       of public record.” Id. Thus, the Burton decision was based on
       the plain text of [s]ection 9545(b)(1)(ii), and a common sense
       understanding that incarcerated PCRA petition[er]s do not have
       carte blanche access to information in the public domain.

Id. at 463.

       In light of our holding in Kretchmar, Austin’s claim must fail.

Accordingly, because Austin failed to plead and prove an exception to the

jurisdictional time bar, the PCRA court properly dismissed his facially untimely

petition.5

       Order affirmed.




____________________________________________


5 Even if Austin had successfully overcome the PCRA time bar, he would not
be entitled to relief on his underlying after-discovered evidence claim. To
obtain relief on a substantive after-discovered-evidence claim under the PCRA,
a petitioner must demonstrate: (1) the evidence has been discovered after
trial and it could not have been obtained at or prior to trial through reasonable
diligence; (2) the evidence is not cumulative; (3) it is not being used solely to
impeach credibility; and (4) it would likely compel a different verdict. See,
e.g., Commonwealth v. Washington, 927 A.2d 586 (Pa. 2007);
Commonwealth v. D’Amato, 856 A.2d 806 (Pa. 2004) (emphasis added).
Here, Austin seeks to utilize evidence of Robinson’s crimen falsi convictions
solely to impeach his credibility.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/1/19




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