J-S75023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT WASHINGTON                          :
                                               :
                       Appellant               :   No. 1423 EDA 2018

                    Appeal from the PCRA Order May 2, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0200121-2004,
                            CP-51-CR-0200131-2004


BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                                FILED MAY 29, 2019

        Appellant Robert Washington appeals from the order dismissing his

fourth Post Conviction Relief Act1 (PCRA) petition as untimely.        Appellant

claims he recently discovered that he was taken into custody without an arrest

warrant and affidavit of probable cause. Appellant asserts that without a valid

arrest warrant, the trial court lacked subject matter jurisdiction to accept his

guilty plea and sentence him. We affirm.

        In November 2003, Appellant was taken into custody, and the

Commonwealth filed criminal complaints charging Appellant with numerous

offenses, including homicide, in two cases.2 In February 2014, the Municipal

____________________________________________


1   42 Pa.C.S. §§ 9541-9546.

2Appellant, who was born on October 8, 1986, was seventeen years old when
he committed the offenses.
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Court held the matters for proceedings in the Court of Common Pleas. This

Court previously adopted the following summary of the procedural history of

Appellant’s conviction and the first two PCRA proceedings:

     On October 12, 2004, [Appellant] pled guilty to third-degree
     murder, robbery (two counts), aggravated assault and criminal
     conspiracy. Th[e trial] court deferred [Appellant’s] sentencing
     hearing until the completion of his accomplice’s trial.

     While awaiting sentencing, [Appellant] filed a motion to withdraw
     his guilty plea and requested the appointment of new counsel. On
     September 16, 2005, th[e trial] court held a hearing with regard
     to [Appellant’s] motions. [Appellant] ultimately withdrew his
     motions, and his case proceeded to sentencing. The court
     imposed concurrent prison terms of thirteen (13) to twenty-six
     (26) years on the murder bill and five (5) to ten (10)-year prison
     terms on each of the remaining bills. [Appellant] filed a motion
     for Reconsideration and/or Modification of Sentence. The court
     denied the motion on October 3, 2005. [Appellant] then filed an
     appeal in the Superior Court. On August 1, 2006, the Superior
     Court     affirmed    [Appellant’s]   judgment     of   sentence.
     Commonwealth v. Washington, 2969 EDA 2005 (Pa. Super.
     Aug. 1, 2006) (unpublished [mem.]). The Pennsylvania Supreme
     Court denied his Petition for Allowance of Appeal on January 18,
     2007. Commonwealth v. Washington, 918 A.2d 745 (Pa.
     2007) (per curiam).

     On October 30, 2007, [Appellant filed] a PCRA petition. The
     [PCRA] court appointed counsel on [Appellant’s] behalf. Counsel
     thereafter filed a brief pursuant to Commonwealth v. Finley,
     550 A.2d 213 (Pa. Super. 1988) [(en banc)], stating that the
     issues raised in the pro se petition were without merit and that no
     meritorious issues or defenses could be raised in an amended
     petition. On October 3, 2008, after reviewing [Appellant’s] pro se
     PCRA petition, counsel’s thorough and exhaustive Finley brief and
     the relevant notes of testimony, th[e PCRA] court dismissed the
     PCRA petition as frivolous [after issuing a Pa.R.Crim.P. 907
     notice].

                                 *    *    *

     [Appellant] appealed th[e PCRA] court’s ruling to the Superior
     Court. On February 5, 2009, the Superior Court dismissed the

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      appeal because [Appellant] failed to file an appellate brief.
      Commonwealth v. Washington, 3206 EDA 2008 (Pa. Super.
      Feb. 5, 2009) (per curiam). [Appellant] then filed a Petition for
      Review with the Supreme Court. The Supreme Court denied the
      petition on July 21, 2009. Commonwealth v. Washington, 977
      A.2d 1086 (Pa. 2009) (per curiam).

      On or about August 13, 2012, [Appellant] filed [his second pro se]
      PCRA petition. [Appellant] claimed that his guilty plea was not
      valid and that both trial and PCRA counsel rendered ineffective
      assistance. On March 25, 2013, after reviewing [Appellant’s] pro
      se PCRA petition and the record, th[e PCRA c]ourt dismissed the
      PCRA petition as untimely [after issuing a Rule 907 notice].

Commonwealth v. Washington, 1278 EDA 2013 (Pa. Super. filed Feb. 20,

2014) (unpublished mem.) (internal alterations and footnotes omitted). This

Court affirmed the dismissal of Appellant second PCRA petition, id. at 1, and

the Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal, Commonwealth v. Washington, 180 EAL 2014 (Pa. filed Aug. 20,

2014).

      Appellant filed a third pro se PCRA petition, which the PCRA court

received on September 19, 2014. After issuing a Pa.R.Crim.P. 907 notice, the

PCRA court dismissed that petition on April 28, 2015.      Appellant did not

appeal.

      On April 15, 2016, the PCRA court docketed Appellant’s fourth pro se

PCRA petition, which gives rise to this appeal. On March 2, 2017, the PCRA

court issued a Rule 907 notice indicating that the petition was untimely and

that Appellant failed to invoke a timeliness exception.

      In response, Appellant filed a motion to amend his PCRA petition on

March 16, 2017. Appellant alleged that he recently discovered evidence that

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he was taken into custody without an arrest warrant. Specifically, he asserted

that he first discovered the absence of an arrest warrant on November 10,

2016. Appellant attached to his response a Right to Know Law3 (RTKL) request

dated September 24, 2016, and a copy of his administrative appeal dated

October 6, 2016. Appellant also suggested that the Commonwealth violated

Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose that it

proceeded with an illegal prosecution without a valid arrest. Lastly, Appellant

asserted that all prior counsel were ineffective for failing to raise this issue.

        On May 2, 2018, the PCRA court dismissed Appellant’s petition as

untimely. On May 11, 2018, Appellant mailed timely notices of appeal, which

were docketed and filed in each of the above captioned case. The court did

not order a Pa.R.A.P. 1925(b) statement.

        On appeal, Appellant presents seven questions, which we have

reordered as follows:

        [1.] Whether . . . there’s newly-discovered evidence (relating to
        the lack of arrest warrant issued)[]?

        [2.] Whether . . . there [was] prosecutorial misconduct?

        [3.] Whether . . . there were ineffective counsel?

        [4.] Whether . . . there [was an] arrest warrant?

        [5.] Whether . . . there w[as an] affidavit of probable cause for
        the issuance of an arrest warrant?


____________________________________________


3   63 P.S. §§ 67.101-67.3104.




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       [6.] Whether the [trial c]ourt had subject-matter jurisdiction?

       [7.] Whether . . . the plea was knowing[,] intelligent[,] and
       voluntary?

Appellant’s Brief, 6/15/18, at 3.4

       Appellant’s first two arguments suggest that the PCRA court erred in

dismissing his petition as untimely.           Appellant asserts that he recently

discovered that he was taken into custody without an arrest warrant or

accompanying affidavit of probable cause.             Id. at 11.    He relies on

Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017), for the

proposition that he could not have been presumed to know information in a

public record.     Id. at 9.     Moreover, he suggests that the Commonwealth

suppressed the information. Id. at 11.

       Our review of the denial of PCRA relief is limited to “whether the record

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

decision is free of legal error.” Commonwealth v. Lawson, 90 A.3d 1, 4

(Pa. Super. 2014) (citation omitted).




____________________________________________


4 Appellant filed two briefs in this appeal, a typed brief filed in this Court on
June 15, 2018, and a handwritten brief filed August 3, 2018. The handwritten
brief only addresses the underlying merits of Appellant’s claim that his guilty
plea was involuntarily entered and does not argue that the instant petition
was timely filed. For the reasons set forth below, we do not address the issues
and arguments presented in Appellant’s handwritten brief.

Appellant also filed a handwritten application for relief seeking the dismissal
of his convictions based on the Commonwealth’s failure to file a brief in this
appeal. See Application for Relief, 11/26/18. We deny that application.

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      “[T]he timeliness of a PCRA petition is a jurisdictional requisite.”

Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015). A PCRA

petition, “including a second or subsequent petition, shall be filed within one

year of the date the judgment becomes final” unless the petitioner pleads and

proves one of three statutory exceptions. 42 Pa.C.S. § 9545(b)(1). The three

statutory exceptions include 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. § 9545(b)(1)(i)-(iii).     To invoke one of these exceptions, a

petitioner must also file his petition within sixty days of the date the claim

could have been presented.       See 42 Pa.C.S. § 9545(b)(2) (subsequently

amended effective December 24, 2017).

      The Pennsylvania Supreme Court has noted that

      [a]lthough a Brady violation may fall within the governmental
      interference exception, the petitioner must plead and prove the
      failure to previously raise the claim was the result of interference
      by government officials, and the information could not have been
      obtained earlier with the exercise of due diligence. Section
      9545(b)(1)(ii)’s exception requires the facts upon which the
      Brady claim is predicated were not previously known to the
      petitioner and could not have been ascertained through due
      diligence. In [Commonwealth v. Bennett, 930 A.2d 1264, 1271

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      (Pa. 2007)], we clarified that § 9454(b)(1)(ii)’s exception does not
      contain the same requirements as a Brady claim, noting “we
      made clear the exception set forth in subsection (b)(1)(ii) does
      not require any merits analysis of the underlying claim. Rather,
      the exception merely requires that the ‘facts’ upon which such a
      claim is predicated must not have been known to appellant, nor
      could they have been ascertained by due diligence.”

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (citations

omitted).

      In Burton, the Pennsylvania Supreme Court held “that the presumption

that information which is of public record cannot be deemed ‘unknown’ for

purposes of subsection 9545(b)(1)(ii) does not apply to pro se prisoner

petitioners.” Burton, 158 A.3d at 638 (emphasis in original). The Burton

Court, however, did not relieve a petitioner from establishing the exercise of

due diligence. See id.

      Instantly, Appellant failed to demonstrate the exercise of due diligence.

According to Appellant, it was not until 2016 that he discovered the

information indicating that he was taken into custody without an arrest

warrant in November 2003.       In support, Appellant attached a 2016 RTKL

request to his response to the PCRA court’s Rule 907 notice.          Appellant

presented no other evidence that he could not have discovered this

information earlier with the exercise of reasonable diligence.

      Accordingly, the PCRA court properly concluded that Appellant failed to

establish an exception to the PCRA’s timeliness requirements. See Burton,

158 A.3d at 638; Abu-Jamal, 941 A.2d at 1268. Because Appellant failed to

establish a time-bar exception, we do not consider Appellant’s remaining

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arguments that the trial court lacked jurisdiction, that all prior counsel were

ineffective for raising this claim, or that his plea was invalid.5

       Order affirmed. Application for relief denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/19




____________________________________________


5 We add that the apparent absence of an arrest warrant in the record does
not affect a trial court’s subject-matter jurisdiction to accept a defendant’s
plea and impose sentence for violations of the Crimes Code.               See
Commonwealth v. Jones, 929 A.2d 205, 211-12 (Pa. 2007);
Commonwealth v. Little, 314 A.2d 270, 272-73 (Pa. 1974);
Commonwealth v. Kazior, 410 A.2d 822, 823 (Pa Super. 1979);
Commonwealth v. Walker, 365 A.2d 1279, 1282 (Pa. Super. 1976) (citation
omitted). Additionally, a claim based on prior counsels’ failure to litigate a
claim in a timely manner does not permit a petitioner to avoid the PCRA time-
bar. See Commonwealth v. Edmiston, 65 A.3d 339, 349 (Pa. 2013).

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