J-S42010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GREGORY CAMPBELL                           :
                                               :
                       Appellant               :   No. 3430 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-0104481-1985


BEFORE:      OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY OTT, J.:                             FILED SEPTEMBER 05, 2019

        Gregory Campbell appeals, pro se, from the order entered October 24,

2018, in the Philadelphia County Court of Common Pleas, dismissing as

untimely his serial petition for collateral relief filed pursuant to the Post

Conviction Relief Act (“PCRA”).1 Campbell seeks relief from the judgment of

sentence of life imprisonment, imposed on December 2, 1986, following his

jury conviction of murder in the first degree, burglary, possession of an

instrument of crime, and conspiracy.2 On appeal, he asserts the PCRA court

erred in dismissing the petition as untimely because he received ineffective


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.

2   18 Pa.C.S.A. §§ 2502(a), 3502, 907, and 903, respectively.
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assistance of counsel, there was a miscarriage of justice, and he has newly

discovered facts. For the reasons discussed below, we affirm.

      As we write primarily for the parties, a detailed factual and procedural

history is unnecessary. We briefly note, on November 20, 1984, Campbell,

along with co-defendants Veleda Broaddus and Bernard Jackson forcibly

entered the apartment of Alvin Gass, and shot and murdered him in front of

his wife and child. Gass and his family had a prior relationship with Campbell.

At trial, Gass’ daughter Lydia positively identified Campbell as the shooter.

Gass’ wife, Freda Dowling was unable to identify which of the two men was

the shooter but identified Campbell as one of the individuals involved. The

jury convicted Campbell of the aforementioned charges on December 21,

1985. On December 2, 1986, the trial court sentenced Campbell as noted

above.

      Following reinstatement of Campbell’s appellate rights, this Court

affirmed      the   judgment   of   sentence   on   August   28,   1991.   See

Commonwealth v. Campbell, No. 1993 Philadelphia 1990 (Pa. Super. filed

Aug. 28, 1991) (unpublished memorandum). Campbell did not seek leave to

appeal to the Pennsylvania Supreme Court.

      In January 1997, Campbell filed a PCRA petition, which the court

dismissed on November 13, 1998. Campbell did not appeal its dismissal to

this Court.




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       On August 25, 2016, Campbell filed the instant PCRA petition

accompanied by a memorandum of law. On May 16, 2017, Campbell filed a

supplemental amended PCRA petition.              On April 17, 2018, the PCRA court

issued notice of its intent to dismiss the petition pursuant to Pennsylvania Rule

of Criminal Procedure 907(1). The PCRA court granted Campbell’s request for

a continuance and he filed responses to the Rule 907 notice in the fall of 2018.

On October 24, 2018, the PCRA court dismissed the petition as untimely filed.

This timely appeal follows.3

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). Here, the PCRA court determined,

inter alia, Campbell’s petition was untimely. We agree. A petitioner must file

a PCRA within one year of the date the underlying judgment becomes final.

See 42 Pa.C.S.A. § 9545(b)(1).

       The PCRA timeliness requirement, however, is mandatory and
       jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
       1035, 1038 (Pa. Super.2007), appeal denied, 597 Pa. 715, 951
       A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
       753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
       untimeliness and reach the merits of the petition. Id.



____________________________________________


3The PCRA court did not order Campbell to file a concise statement of errors
complained of on appeal. On December 21, 2018, the PCRA court filed an
opinion.


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Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

572 U.S. 1151 (2014).

      Campbell’s judgment of sentence became final on September 27, 1991,

30 days after this Court affirmed the judgment of sentence and Campbell

failed to seek leave to appeal to the Pennsylvania Supreme Court. See 42

Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 113(a). Therefore, he had until September

27, 1992, to file a timely PCRA petition. His second petition, filed August 25,

2016, is patently untimely.

      Nevertheless, we may still consider an untimely PCRA petition if one of

the following three exceptions applies:

       (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).

      Here, Campbell first claims he received ineffective assistance of all prior

counsel.   However, this claim does not fall within any of the statutory

exceptions.   First, the PCRA provides, “for purposes of this subchapter,

‘government officials’ shall not include defense counsel, whether appointed or

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retained.” 42 Pa.C.S.A. § 9545(b)(4). Therefore, Campbell’s claim does not

fall within the “governmental interference” exception.          42 Pa.C.S.A. §

9454(b)(1)(i).    Second, our Supreme Court has held “a conclusion that

previous counsel was ineffective is not a newly discovered ‘fact’ entitling

Appellant to the benefit of the exception for [newly-discovered facts].”

Commonwealth v. Gamboa–Taylor, 753 A.2d 780, 785 (Pa. 2000).

Therefore, Campbell’s claim does not satisfy the newly discovered fact

exception. 42 Pa.C.S.A. § 9545(b)(1)(ii). Finally, Campbell’s ineffectiveness

claim does not implicate the PCRA’s exception for a newly recognized

constitutional right that applies retroactively. 42 Pa.C.S.A. § 9545(b)(1)(iii).

      Campbell also argues his conviction resulted from a fundamental

miscarriage of justice.     However, this assertion of “manifest injustice” and

“miscarriage     of   justice”   fails   to   overcome   the   PCRA   time   bar.

Commonwealth v. Fahy, 737 A.2d 214, 222-223 (Pa. 1999) (rejecting

petitioner’s assertion that miscarriage of justice standard permitted court to

reach merits of untimely PCRA petition).

      Lastly, Campbell attempts to invoke the previously unknown facts

exception set forth in Subsection 9545(b)(1)(ii). Until recently, a petitioner




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invoking an exception had to file his petition within 60 days of the date he or

she could have presented the claim.4

       This Court has previously explained the interplay between the newly

discovered facts exception to the timeliness requirements and a substantive

collateral claim of after-discovered evidence as follows:

       The timeliness exception set forth in Section 9545(b)(1)(ii)
       requires a petitioner to demonstrate he did not know the facts
       upon which he based his petition and could not have learned those
       facts earlier by the exercise of due diligence. 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. Additionally, the focus of this
       exception is on the newly discovered facts, not on a newly
       discovered or newly willing source for previously known facts.

       The timeliness exception set forth at Section 9545(b)(1)(ii) has
       often mistakenly been referred to as the “after-discovered
       evidence” exception. This shorthand reference was a misnomer,
       since the plain language of subsection (b)(1)(ii) does not require
       the petitioner to allege and prove a claim of “after-discovered
       evidence.” Rather, as an initial jurisdictional threshold, Section
       9545(b)(1)(ii) requires a petitioner to allege and prove that there
       were facts unknown to him and that he exercised due diligence in
       discovering those facts. Once jurisdiction is established, a PCRA
       petitioner can present a substantive after-discovered-evidence
       claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be
       eligible for relief under PCRA, petitioner must plead and prove by
       preponderance of evidence that conviction or sentence resulted
       from, inter alia, unavailability at time of trial of exculpatory
       evidence that has subsequently become available and would have
____________________________________________


4 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), and now provides that a PCRA petitioner invoking a timeliness
exception must file the petition within one year of the date the claim could
have been presented, for all claims arising after December 24, 2017. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.


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      changed outcome of trial if it had been introduced).       In other
      words, the “new facts” exception at:

            [S]ubsection (b)(1)(ii) has two components, which
            must be alleged and proved. Namely, the 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. If the petitioner alleges and proves these
            two components, then the PCRA court has jurisdiction
            over the claim under this subsection.

      Thus, the “new facts” exception at Section 9545(b)(1)(ii) does not
      require any merits analysis of an underlying after-discovered-
      evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015) (some

citations and quotation marks omitted, emphases in original), appeal denied,

125 A.3d 1197 (Pa. 2015).      Accordingly, before we may consider whether

Campbell’s substantive claim of after-discovered evidence merits relief, we

must first determine whether he has established “there were facts unknown

to him and that he exercised due diligence in discovering those facts.” Id. at

176. Here, Campbell has failed to do so.

      Campbell may be asserting appellate counsel’s failure to file for

permission for leave to appeal to the Pennsylvania Supreme Court constituted

a newly discovered fact. In Commonwealth v. Bennett, 930 A.2d 1264 (Pa.

2007), the Pennsylvania Supreme Court determined counsel’s failure to file an

appellate brief and perfect the appeal, which resulted in this Court’s dismissal

of the appeal, constituted abandonment as it was “the functional equivalent




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of having no counsel at all.”    Id. at 1273.    Our Supreme Court further

concluded counsel’s abandonment could serve as a newly discovered fact, as

      allowing such claims to go forward would not eviscerate the time
      requirements crafted by the Legislature [in the PCRA]. Rather,
      subsection (b)(1)(ii) is a limited extension of the one-year time
      requirement under circumstances when a petitioner has not had
      the review to which he was entitled due to a circumstance that
      was beyond his control.

Id.   In so holding, the Court distinguished Bennett’s claim of counsel’s

abandonment from those claims of ineffectiveness that “narrowed the ambit

of appellate review,” and could not fall within the purview of Section

9545(b)(1)(ii). Id. at 1273.

      Here, however, Campbell has not demonstrated he acted with due

diligence. We affirmed the judgment of sentence in 1991. Campbell filed a

PCRA petition in 1997. Thus, presumably, in 1997, he was aware of when his

judgment of sentence became final. He has failed to explain why he did not

raise the claim at that juncture. Moreover, even if Campbell was somehow

unaware counsel had not sought leave to appeal to the Pennsylvania Supreme

Court, he has utterly failed to explain why he waited over twenty years to

investigate the matter. “A petitioner must . . . explain why his asserted facts

could not have been ascertained earlier with the exercise of due diligence.”

Commonwealth v. Taylor, 933 A.2d 1035, 1041 (Pa. Super. 2007), appeal

denied, 951 A.2d 1163 (Pa. 2008) (citation omitted).      Here, Campbell has

failed to show he complied with the due diligence requirement of 42 Pa.C.S.A.




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§ 9545(b)(1)(ii). See Taylor, supra at 1041. Thus, this claim does not merit

relief.

          Campbell also claimed in the memorandum of law, filed with his PCRA

petition:

          he has obtained new and reliable evidence that will absolutely
          clear him of a crime he did not commit; further, he can
          demonstrate that [the] [C]ommonwealth’s witnesses, Lydia and
          Freida [sic] Dowling “who framed [defendant]” of a crime,
          [defendant] can show and bring forth evidence and new witnesses
          and/or expert testimony that will exonerate him.

Memorandum of Law, 8/25/2016, at 9. However, Campbell did not attach any

witness statements to his PCRA petition and did not elaborate on this

contention. Nor did Campbell offer proof of when he discovered the “facts”

underlying this contention or explain why he could not have ascertained them

earlier with the exercise of due diligence.

          On appeal, for the first time, Campbell contends that, within sixty days

of the date he filed his PCRA petition, he received information from an

unnamed intermediary that his co-defendant Valeda Broaddus told the

intermediary she lied about Campbell’s participation in the murder to the

police. Campbell’s Brief, at 10, 24. We have long held an appellant waives

PCRA issues on appeal that he did not raise in the PCRA petition.            See

Commonwealth v. Lauro, 819 A.2d 100, 103-04 (Pa. Super. 2003), appeal

denied, 830 A.2d 975 (Pa. 2003) (waiving five issues not in original or

amended PCRA petition). This includes claims of exceptions to the time-bar.

Commonwealth v. Lewis, 63 A.3d 1274, 1280 n.3 (Pa. Super. 2013)

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(argument on appeal, including those seeking exception from PCRA time-bar,

must be raised and presented to PCRA court). Further, an appellant cannot

raise a subject for the first time on appeal. See Commonwealth v. Hanford,

937 A.2d 1094, 1098 n.3 (Pa. Super. 2007), appeal denied, 956 A.2d 432 (Pa.

2008) (new legal theories cannot be raised for first time on appeal); Pa.R.A.P.

302(a). Here, Campbell raised his claim about Broaddus’ alleged recantation

for the first time on appeal, thus, he waived his contention. See Lewis, supra

at 1280 n.3; Handford, supra at 1098 n.3; Lauro, supra at 103-04.

      Accordingly, because we agree with the ruling of the PCRA court that

Campbell did not timely file his PCRA petition and he failed to establish the

applicability of any of the time-for-filing exceptions, we affirm the order

dismissing his petition without first conducting an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/19




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