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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA            :           IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA

                 v.


    JOHN GRIFFIN

                      Appellant             :           No. 2849 EDA 2018

            Appeal from the PCRA Order Entered September 5, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0214273-1975

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

MEMORANDUM BY McLAUGHLIN, J.:                               FILED AUGUST 12, 2019

        John Griffin appeals from the order dismissing as untimely his petition

filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

        In 1974, Griffin was convicted by       a   jury of first -degree murder       and

criminal conspiracy for the strangulation of        a   fellow prison inmate. The court

sentenced Griffin to mandatory life imprisonment. This Court affirmed Griffin's

judgment of sentence     in 1979, and the Pennsylvania Supreme Court denied

his petition for allowance of appeal on April 1, 1980. Between 1985 and 2012,

Griffin filed    multiple unsuccessful   petitions         under the    PCRA     and    its

predecessor, the Post Conviction Hearing Act. See Trial Court Opinion, filed

11/21/18, at 1-2.

        Relevant to the instant appeal, Griffin filed his fourth petition on

September 4, 2003. In that petition, he asserted, inter alia, that at       a   discovery


      Former Justice specially assigned to the Superior Court.
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hearing prior to trial, the court had ordered the Commonwealth to provide

Griffin's attorney with the complete criminal record of         a    Commonwealth

witness, Calvin Hunter;' the Commonwealth had provided           a   criminal record

showing only one conviction for burglary. However, Hunter had                 a    more

extensive criminal record than the prosecution had disclosed during               trial-
including robbery, fraud, and additional burglary convictions. Griffin asserted

that on July 11, 2003, less than 60 days prior to the filing of the petition, two
investigators had uncovered the remainder of Hunter's criminal convictions.

Griffin argued that previous investigators and prior counsel had been unable

to obtain any additional information regarding Hunter's criminal record. Griffin

alleged that the Commonwealth had violated Brady v. Maryland, 373 U.S.

83 (1963), by suppressing Hunter's criminal history and misleading his trial

counsel. Griffin asserted his 2003 PCRA petition was timely under both the

governmental interference and newly discovered facts exceptions to the PCRA

time bar. See 42 Pa.C.S.A. §§ 9545(b)(1)(i) and (ii).

        The PCRA court dismissed the 2003 petition as untimely. The court

stated no timeliness exceptions applied, as    "[i]t   strains credulity to suggest

that [Griffin] could not have ascertained the full criminal record of Mr. Hunter
by the exercise of due diligence. Mr. Hunter's criminal history is      a    matter of

official record and would have been readily available to [Griffin] and/or his

counsel as   a   public record." PCRA Ct. Op., filed 4/14/05, at         3   (internal


1 Hunter died prior to Griffin's trial, but his preliminary hearing testimony was
introduced as evidence at trial.
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quotation marks and citation omitted). This Court affirmed the dismissal, and

the Pennsylvania Supreme Court denied allowance of appeal.

        Griffin filed the instant PCRA petition, his seventh, on October 13, 2015.

Griffin filed several supplements to the petition, which the PCRA court

accepted. See Tr. Ct. Op. at 2 (stating PCRA court reviewed supplements to

2015 petition along with initial petition). The PCRA court gave notice pursuant

to Pa.R.Crim.P. 907 of its intention to dismiss the petition as untimely, and

Griffin filed   a   response. The PCRA court dismissed the petition, and Griffin

appealed.

        Griffin raises the following issues:

        [1.] Whereas Commonwealth v. Burton, 121 A.3d 1063
        (Pa.Super. 2015)[(en banc), aff'd,] 158 A.3d 618 (Pa. 2017),
        stated, "We hold that the presumption of access to information
        available in the public domain does not apply where [the] untimely
        PCRA petitioner is [pro se,]" did the PCRA Court err in rejecting
        [Griffin]'s 2003 Petition pursuant to the public record rule, as his
        Petition raised genuine issues of material facts that warranted
        development that newly discovered evidence existed to satisfy the
        after discovered facts exception to the timeliness requirement
        under [42 Pa.C.S.A. § 9545(b)(1)(ii)]?
        [2.] Considering the limitation stated      in[Commonwealth        v.
        Starr, 664 A.2d 1326      (Pa.   1996)]-[w]here the general rule   is
        subject to at least three limitations that apply when there are
        exceptional circumstances, such as where there has been an
        intervening change in the controlling law, a substantial change in
        facts or evidence giving rise to the dispute in the matter[,] or
        where the prior holding was clearly erroneous and would create a
        manifest injustice if[ ]followed[-]should the PCRA court have
        reviewed the merits of [Griffin]'s claim in his present Petition and
        [g]ranted a [h]earing?




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        [3.] Was [Griffin] denied his right [under] the Equal Protection
        Clause[,] U.S. Const. Amend XIV, and Pa. Const. Art 1 [§] 26[,]
        which requires, "all persons similarly situated to be treated alike?"

Griffin's Br. at vi (reordered).

        "When reviewing the denial of       a PCRA   petition, this Court's standard of

review is limited 'to whether the PCRA court's determination is supported by

evidence of record and whether it is free of legal error." Commonwealth v.

Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (quoting Commonwealth                                v. Pew,

189 A.3d 486, 488 (Pa.Super. 2018)).

        As the PCRA's time restrictions are      jurisdictional          in   nature, we may not

address     the   substantive      claims   presented          in       an    untimely    petition.

Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super. 2017). Typically,                               a

PCRA    petition must be filed within one year of the date the petitioner's

judgement of sentence becomes final, which                is   at the conclusion of direct

review or the expiration of time for seeking such review. 42 Pa.C.S.A.                              §

9545(b)(1), (3). Here, Griffin's judgment of sentence became final                        in 1980,

after the Pennsylvania Supreme Court denied his petition for allowance of

appeal and the time for seeking review in the Supreme Court of the United

States expired. As the 2015 petition was filed over                 a   year later, it   is   facially

untimely.

        A petition filed   after the one-year deadline         is   nonetheless timely if one

of three enumerated exceptions applies.          Id. at    §    9545(b)(1)(i-iii). First, the
"governmental interference" exception applies when "the failure to raise the

claim previously was the result of interference by government officials with

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the presentation of the claim in violation of the Constitution or laws of this

Commonwealth or the Constitution or laws of the United States."                        Id. at   §

9545(b)(1)(i). Second, the "newly discovered facts" exception applies when
"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."                   Id. at
§   9545(b)(1)(ii). Finally, under the third exception,         a   petition   is   timely when

"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."   Id. at   §       9545(b)(1)(iii). If any exception applies, the
petitioner must prove the petition was filed within 60 days of the earliest date

it might have been filed.   Id. at      §    9545(b)(2).2

        Griffin argues that his 2015 is timely under the third exception, because

he filed it within 60 days of this Court's decision in                Commonwealth v.
Burton.3 Griffin argues that the             PCRA   court held his 2003 petition did not

qualify under the first two timeliness exceptions because the court assumed



242 Pa.C.S.A. § 9545(b)(2) has since been amended to allow a petitioner one
year to file a petition from the date it first could have been filed. The
amendment applies to claims presented after December 24, 2017, and thus
does not apply to Griffin's petition.

3 Although Griffin filed his petition based on this Court's decision in Burton,

the Pennsylvania Supreme Court subsequently affirmed that decision. See
Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017). We acknowledge that
it is the date of the Supreme Court decision which is controlling for the
purposes of a PCRA timeliness analysis under the third exception.


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he had access to public information and could have discovered the full            extent

of Hunter's convictions at the time of trial. However, according to Griffin, the

information qualified as suppressed Brady material, which his attorney could

not have discovered during trial, because the trial court had ordered the

Commonwealth to disclose it and the Commonwealth offered             a   misleading and

false criminal history instead. And, Griffin argues, Burton subsequently held

that the public record rule does not preclude pro se petitioners from pleading
timeliness under the newly discovered facts exception based on facts that are

a   matter of public record.4 Griffin argues that the holding of Burton should

apply to the allegations in his 2003 petition.

        This issue merits no relief. Even assuming the allegations in the 2003

petition make    a   valid claim that      a    Brady violation occurred,    and even if

Burton would now apply to         a   petitioner's new discovery of suppressed crimen

falsi convictions-issues which we need not reach-Griffin's 2015 petition does

not qualify for the third timeliness exception on the basis of Burton, because

Burton    did not recognize   a   new constitutional right. See   Commonwealth v.
Kretchmar, 189 A.3d 459, 464, appeal denied, 198 A.3d 1046                  (Pa. 2018).

        Next, quoting Commonwealth v. Starr, Griffin argues that although

an appellate court generally may not alter the resolution decided by the same


4 In Burton, the Supreme Court held that if a petitioner pleads timeliness
based on the newly discovered facts exception, "the PCRA court must first
determine whether 'the facts upon which the claim is predicated were
unknown to the petitioner" and then consider whether "the facts could have
been ascertained by the exercise of due diligence, including an assessment of
the petitioner's access to public records." Burton, 158 A.3d at 638.

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court in   a   previous appeal, the coordinate jurisdiction rule does not bar

reconsideration of an earlier decision "where there has been an intervening

change in the controlling law,         a   substantial change in the facts or evidence

giving rise to the dispute in the matter, or where the prior holding was clearly

erroneous and would create         a   manifest injustice if followed." Starr, 664 A.2d

at 1332. Griffin argues that this Court may reconsider the dismissal of the

2003 petition based on the change in controlling law and because allowing the

dismissal of that petition to stand in light of Burton would "create            a   manifest

injustice."
        This argument is unavailing. In        Starr, the Pennsylvania Supreme Court
considered whether     a   judge of the court of common pleas erred            in   revoking

the defendant's right to represent himself after another judge on the same

court had accepted his waiver of counsel. Id. at 1331. Starr does not pertain

to the PCRA's time -based jurisdictional restrictions, and is inapplicable to the

instant case. Our consideration of Griffin's Brady claim            is   not barred by the

coordinate jurisdiction rule, but rather the jurisdictional requirement that

Griffin present his claim in   a   timely    PCRA      petition.

        Finally, Griffin argues that denying his 2003 petition the benefit of the

Burton holding violates the                Equal   Protection Clause, as he         is   at   a

disadvantage compared to those petitioners who presented PCRA claims

following the Burton decision.

        Griffin's argument amounts to              a    bald assertion that the PCRA's

timeliness requirements offend equal protection. However, "[t]he concept of

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equal protection requires that uniform treatment be given to similarly situated

parties." Commonwealth v. Grove, 170 A.3d 1127, 1145 (Pa.Super. 2017)

(quoting Commonwealth v. Kramer, 378 A.2d 824, 826 (Pa. 1977)), appeal

denied, 185 A.3d 967 (Pa. 2018). As the same PCRA timeliness requirements

apply to all petitioners, we fail to see how they violate equal protection. See

id. at 1145-46 (holding that    a   court's failure to retroactively apply   a   change

in law,   where the change applies equally to all persons similarly situated in

time, does not violate equal protection).

        As Griffin's petition does not qualify for any of the PCRA's timeliness

exceptions, we affirm the order of the PCRA court denying relief.

        Order affirmed.

        Judge Lazarus did not participate in the consideration or decision of this

case.

Judgment Entered.




  seph D. Seletyn,
Prothonotary



Date: 8/12/19




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