J-S07009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

LEON T. GARLAND,

                         Appellant                  No. 734 EDA 2017


           Appeal from the PCRA Order Entered February 3, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0907481-1973


BEFORE: BENDER, P.J.E. , PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                       FILED APRIL 23, 2018

     Appellant, Leon T. Garland, appeals from the post-conviction court’s

February 3, 2017 order denying, as untimely, his seventh petition under the

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

     On May 1, 1974, a jury convicted Appellant of first-degree murder and

criminal conspiracy, and he was subsequently sentenced to life incarceration,

without the possibility of parole. On December 1, 1977, our Supreme Court

affirmed Appellant’s judgment of sentence.    Commonwealth v. Garland,

380 A.2d 777 (Pa. 1977). In the Court’s published opinion in Garland, it

summarized the facts underlying Appellant’s convictions, as follows:

     According to [A]ppellant's confession, in the early evening of
     August 21, 1973, he was informed that Leroy Skinner, the victim,
     was standing outside [A]ppellant’s home in Philadelphia, flicking a
     knife. Appellant and his co-defendant, Tyrone Pearsall, went
     looking for the victim and found him standing on 24th Street near
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      Dickerson Street. The victim ran into a bar. As [A]ppellant and
      Pearsall entered the bar, [A]ppellant handed a gun to Pearsall,
      who fired one shot at the victim. As the victim ran out of the bar,
      both Pearsall and [A]ppellant gave chase. Pearsall continued
      firing at the victim. Appellant then took the gun and fired one
      shot. Skinner was subsequently pronounced dead at Graduate
      Hospital. An autopsy revealed that the cause of death was three
      gunshot wounds to the trunk.

Id. at 778.

      After our Supreme Court affirmed Appellant’s judgment of sentence in

Garland, Appellant did not file a petition for writ of certiorari with the United

States Supreme Court. Therefore, his judgment of sentence became final on

March 1, 1978, ninety days after the Court’s decision in Garland. See 42

Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes final at

the conclusion of direct review or the expiration of the time for seeking the

review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998)

(directing that under the PCRA, petitioner’s judgment of sentence becomes

final ninety days after our Supreme Court rejects his or her petition for

allowance of appeal since petitioner had ninety additional days to seek review

with the United States Supreme Court).

      Over the next three decades, Appellant filed six PCRA petitions, all of

which were denied. On March 29, 2013, he filed his seventh, pro se petition,

which underlies the present appeal.         Counsel was appointed and, on

September 2, 2016, an amended petition was filed. On January 3, 2017, the

PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s

petition. Appellant did not respond, and on February 3, 2017, the court issued



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an order, and an accompanying opinion, dismissing his petition as being

untimely-filed.

      Appellant filed a timely notice of appeal.   Herein, he presents three

questions for our review:

      [I.] Whether the [PCRA] [c]ourt’s dismissal of [] Appellant’s PCRA
      [p]etition[] was premature because he had requested discovery
      be conducted on the issues raised in his [p]etition[] and no
      opportunity was provided for discovery by the [PCRA] [c]ourt…[?]

      [II.] Whether the [PCRA] [c]ourt’s dismissal of [] Appellant’s PCRA
      [p]etition[] was premature or improper because Appellant was not
      given the opportunity to have an evidentiary hearing to present
      evidence in support of his PCRA [p]etition[], including witnesses
      and documentary evidence[?]

      [III.] Whether the [PCRA] [c]ourt’s dismissal of [] Appellant’s
      PCRA [p]etition[] was premature or improper because Appellant
      had raised three new issues in his PCRA [p]etition and [he] should
      have been given an opportunity to demonstrate at a hearing that
      the new information could not have been obtained at the time of
      trial by reasonable investigation and that it would have changed
      the outcome of the trial[?]

Appellant’s Brief at 5-6.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.     Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007). Under the PCRA, any petition for post-conviction relief, including a


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second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition alleges
         and the petitioner proves that:

            (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).    Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could have

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

      Here, as stated supra, Appellant’s judgment of sentence became final in

1978, and thus, his current petition, filed in 2013, is facially untimely. For

this Court to have jurisdiction to review the merits thereof, Appellant must

prove that he meets one of the exceptions to the timeliness requirements set




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forth in 42 Pa.C.S. § 9545(b). Appellant contends that he has satisfied the

‘newly discovered fact’ exception of section 9545(b)(1)(ii). This exception

           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.

Bennett, 930 A.2d at 1272 (internal quotation marks, citations, and emphasis

omitted).

      Appellant argues that he meets the exception of section 9545(b)(1)(ii)

based on “three instances in which there was newly discovered evidence.”

Appellant’s Brief at 9. Appellant explains these three, allegedly new facts as

follows:

            First, Appellant claimed [in his PCRA petition] that co-
      defendant, Tyrone Pearsall[,] had submitted an affidavit dated
      February 28, 2013 and notarized on March 6, 2013, which was
      attached to the PCRA [p]etition[] and incorporated therein by
      reference.

             In his affidavit, Tyrone Pearsall stated that, “during the time
      and day of the incident, I left [Appellant] on [the] 24 hundred
      block of Dickenson Street and the incident happen[ed] on the 23
      hundred block of Dickenson Street. I’m the one who had the gun
      that night which killed Mr. Skinner.” He goes on to state that
      “[Appellant] had nothing to do with the shooting on that day.
      [Appellant] was on 24th Street where I left him at [sic]. The next
      time I seen [sic] [Appellant] we both had been incarcerated.”
      Finally he states that[,] “I made this same statement on the day
      of my arrest.”

             Subsequent to his arrest, Tyrone Pearsall had signed a
      confession which made the same three points as his affidavit.
      First, that [Appellant] was not present when he shot Mr. Skinner.
      Second, that Mr. Pearsall was the one with the gun which killed

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      Mr. Skinner[.] Third, that [Appellant] had nothing to do with the
      shooting of Mr. Skinner.

            The confession of Mr. Pearsall was not admitted at trial and
      therefore was not heard by the jury. Had the jury been aware
      that the actual perpetrator of the murder had confessed and told
      police that he did the act alone, [Appellant] would not have been
      convicted of murder or conspiracy.

            Secondly, Appellant argued in his PCRA [p]etition[] that it
      has been discovered by [] Appellant that Commonwealth witness,
      Michael Hill, had been admitted to Pennsylvania Hospital
      immediately prior to the incident after ingesting a hallucinogenic
      drug and that on the date of his testimony, his memory and
      mental faculties were still compromised by the after effects of this
      drug. In fact, to this day, Mr. Hill has not recovered from the
      effects of ingesting this drug. He has been mentally disabled since
      that date.

            Had the Commonwealth disclosed the mental impairment of
      Mr. Hill, it would have given the jury a basis to discredit and
      disregard his testimony. Mr. Hill’s testimony was vital to the
      prosecution’s case against [Appellant]. Mr. Hill testified that
      [Appellant] handed him the gun after the murder. Had the jury
      been aware of Mr. Hill’s mental disability, [Appellant] would not
      have been convicted of murder or conspiracy.

            Thirdly, Appellant argued that Commonwealth witness,
      Clarence Barnes, had prior convictions which were not disclosed
      to the attorney for [Appellant]. The convictions could not have
      been obtained by the defense with due diligence because they
      occurred while Mr. Barnes was a minor and his juvenile records
      were sealed.

            Had the Commonwealth disclosed the prior convictions of
      Mr. Barnes, it would have given the jury a basis to discredit and
      disregard his testimony. Mr. Barnes’ testimony was vital to the
      prosecution’s case against [Appellant]. Mr. Barnes originally gave
      a statement to police indicating that [Appellant] had given him the
      gun after the murder. At trial[,] Mr. Barnes testified that
      [Appellant] told him about the murder. Had the jury been aware
      of Mr. Barnes’ prior convictions, [Appellant] would not have been
      convicted of murder or conspiracy.

Appellant’s Brief at 9-11.


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      In rejecting that any of these three ‘new facts’ satisfied a timeliness

exception, the PCRA court reasoned as follows:

      Tyrone Pearsall’s testimony does not satisfy the “newly discovered
      fact” exception, as [Appellant] admits in his petition that the same
      information was provided to police on the day of Pearsall’s arrest
      [] decades ago. Further, the averments contained in [Appellant’s]
      petition related to Clarence Barnes and Michael Hill are devoid of
      key information.      There are no documents supporting the
      averments, no affidavits, and no information as to how or when
      [Appellant] learned of this information or why it could not have
      been discovered earlier with reasonable diligence.

PCRA Court Opinion, 2/3/17, at 2 (unnumbered).

      We ascertain no abuse of discretion in the PCRA court’s decision.

Appellant admits that over 40 years ago, Pearsall signed a written confession

containing the same information as set forth in his 2013 affidavit. However,

Appellant argues that “the affidavit of [] Pearsall was unknown to” him until

recently. Appellant’s Brief at 19 (emphasis added). As our Supreme Court

has made clear, “a petitioner must allege and prove previously unknown

‘facts,’ not merely a ‘newly discovered or newly willing source for previously

known facts.’” Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013)

(citations omitted).   Because here, Appellant is attempting to meet the

exception of section 9545(b)(1)(ii) with only a new source (Pearsall’s affidavit)

of a previously known fact (that Pearsall claimed Appellant had no involvement

in the shooting), his argument does not satisfy the timeliness exception.

      Likewise, Appellant’s claims based on Hill’s mental impairment and

Barnes’ prior convictions also do not satisfy the ‘newly-discovered fact’

exception. As the PCRA court points out, Appellant offers no discussion of

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when or how he discovered these allegedly new facts. For instance, in regard

to Hill’s mental condition, Appellant simply states that “[t]he prosecution

never disclosed this fact to the defense and [Appellant] did not become aware

of this fact until less than 60 days before he filed his PCRA [p]etition.”

Appellant’s Brief at 20.    Similarly, in regard to Barnes’ juvenile record,

Appellant only declares that “[s]ince the record of a juvenile is sealed in

Pennsylvania, [Appellant] would have no opportunity to discover this fact with

due diligence at the time of trial.” Id. Because Appellant does not clarify

when or how he came upon the information regarding Hill’s mental condition,

or Barnes’ juvenile record, he has failed to demonstrate that he acted with

due diligence in discovering and raising these allegedly new facts.

      For these reasons, we conclude that the PCRA court did not err in

determining that none of Appellant’s claims satisfy the timeliness exception of

section 9545(b)(1)(ii).    Additionally, we ascertain no error or abuse of

discretion by the court in not permitting discovery and/or conducting an

evidentiary hearing regarding these claims.       Appellant did not set forth

sufficient information in his petition to demonstrate any issue of material fact

warranting a hearing, nor any ‘exceptional circumstance’ necessitating

discovery. See Pa.R.Crim.P. 907(1) (stating that the PCRA court may deny a

petition without a hearing where “there are no genuine issues concerning any

material fact[,] … the defendant is not entitled to post-conviction collateral

relief, and no purpose would be served by any further proceedings”);

Pa.R.Crim.P. 902(E)(1) (“Except as provided in paragraph (E)(2) [(regarding

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the first counseled petition in a death penalty case)], no discovery shall be

permitted at any stage of the proceedings, except upon leave of court after a

showing of exceptional circumstances.”).    Accordingly, we affirm the PCRA

court’s order denying Appellant’s petition without a hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/18




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