J-S03012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BABAESU BEY,

                            Appellant                  No. 129 EDA 2017


            Appeal from the PCRA Order Entered December 2, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0603821-1999


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED APRIL 06, 2018

        Appellant, Babaesu Bey, appeals pro se from the post-conviction

court’s December 2, 2016 order denying, as untimely, his petition under the

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

review, we affirm.

        The facts underlying Appellant’s convictions are not necessary to our

disposition of this appeal.         The PCRA court summarized the procedural

history of Appellant’s case, as follows:

              On February 13, 2004, [A]ppellant was convicted before
        this [c]ourt and a jury, of first[-]degree murder, attempted
        murder, aggravated assault, carrying a firearm without a license
        (VUFA), possessing an instrument of crime (PIC), and recklessly
        endangering another person (REAP), and [he was] sentenced to
        an aggregate sentence of life [imprisonment, without the
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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       possibility of parole,] and 10-20 years[’] incarceration.
       Appellant did not file a direct appeal, however his appellate
       rights were reinstated nunc pro tunc on June 14, 2005, after a
       successful PCRA petition. On September 21, 2007, the Superior
       Court affirmed the judgment of sentence and [A]ppellant’s
       petition for allowance of appeal to the Pennsylvania Supreme
       Court was denied on April 28, 2008. [Commonwealth v. Bey,
       938 A.2d 1108, unpublished memorandum (Pa. Super. filed
       Sept. 21, 2007), appeal denied, 948 A.2d 802 (Pa. 2008).] On
       October 31, 2008, [A]ppellant timely filed a first pro se PCRA
       [petition] and counsel was appointed. On December 17, 2009,
       PCRA counsel submitted a [Turner/]Finley letter,[1] detailing
       each of [A]ppellant’s claims in his pro se PCRA petition and
       stating that they had been either waived or previously litigated,
       and that he could not find any additional meritorious claims to
       raise. On February 9, 2010, following review and proper notice,
       the [c]ourt formally dismissed [A]ppellant’s PCRA petition.
       Dismissal was affirmed by the Superior Court on August 11,
       2011[, and] [t]he petition for allowance of appeal was denied on
       April 10, 2012.     [Commonwealth v. Bey, 32 A.3d 829,
       unpublished memorandum (Pa. Super. filed Aug. 11, 2011),
       appeal denied, 42 A.3d 290 (Pa. 2012).]

              On March 18, 2016, [A]ppellant filed the instant[,] second
       PCRA petition claiming that his facially untimely petition was
       timely based upon the after[-]discovered facts/evidence
       exception to the PCRA timeliness requirements.           Appellant
       asserts that on January 24, 2016, he came across an article
       written by an inmate in the Fall 2015 edition of Graterfriends, a
       publication of the Pennsylvania Prison Society, indicating that, on
       November 13, 2014, his former trial counsel had been
       suspended from the practice of law for two years, retroactive to
       February 16, 2013, for misconduct[] that occurred as a result of
       his several mental health concerns.       Appellant claims that,
       because counsel was suffering from “un-disclosed [sic], un-
       diagnosed [sic], and un-treated [sic] psychiatric disorders which
       directly affect the cognitive and executive functioning areas of
       the brain, it prevented trial counsel from providing him with the
____________________________________________


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




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      effective assistance of counsel envisioned by the state and
      federal constitutions.”   (Memorandum of Facts and Law in
      Support of PCRA Relief, pg. 2)[.] The [c]ourt reviewed the
      averments in the petition for relief and [A]ppellant’s response to
      the [Pa.R.Crim.P.] 907 notice of intent to dismiss without a
      hearing, and determined that [A]ppellant’s petition was untimely
      and did not properly invoke an exception to the PCRA timeliness
      requirements. Appellant’s petition was formally dismissed on
      December 2, 2016. This appeal followed.

PCRA Court Opinion (PCO), 3/20/17, at 1-3 (footnotes omitted).

      The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, but it issued a Rule

1925(a) opinion on March 20, 2017. Herein, Appellant presents two issues

for our review:

      I.    Did the PCRA court err in denying Appellant’s post-
            conviction petition as untimely filed when Appellant
            established that his after-discovered facts claim was within
            the plain language of the timeliness exception set forth at
            42 Pa.C.S.[] § 9545(b)(1)(ii) and section 9545(b)(2)?
      II.   Did the PCRA court err by denying [] [A]ppellant’s request
            for permission to file an amended petition in order to
            present his claims in a manner sufficient to avoid dismissal
            due to a correctable defect in claim pleading and
            presentation?

Appellant’s Brief at 4.

      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


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address the merits of a petition.    Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded to address the merits of

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

including a 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)(1)(i)-(iii) 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).




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     Here, Appellant’s judgment of sentence became final on July 27, 2008,

at the expiration of the 90-day time period for seeking review with the

United States Supreme Court. 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). Consequently, his present petition, filed in March of 2016,

is patently untimely and, 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 forth in 42 Pa.C.S. § 9545(b).

     Instantly, Appellant argues that he       meets the after-discovered

evidence exception of section 9545(b)(1)(ii) based on his discovering the

new fact “that he was represented at trial by an attorney who was suffering

from several psychiatric diseases, which directly affects the cognitive and

executive functioning areas of his brain….”        Appellant’s Brief at 11.

Appellant explains that he discovered this new fact on January 24, 2016,

when he “was provided an opportunity to read a ‘Graterfriends’ newsletter,

wherein … [A]ppellant came across an article written by Mr. Eric Cathell who

asserted that Attorney James S. Bruno, [Appellant’s] trial counsel, had been

suspended for 2 years due to numerous violations of the Rules of

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Professional Conduct, violations which were directly attributed to several

psychiatric disorders [from which] Mr. Bruno suffers….” Id. at 8. Attached

to his petition, Appellant included a copy of the article, which was contained

in the Fall 2015 edition of the Graterfriends newsletter.

        In rejecting Appellant’s assertion that he met the newly-discovered-

fact exception of section 9545(b)(1)(ii), the PCRA court concluded that the

Graterfriends newsletter was a public record that was available to Appellant

in the fall of 2015; therefore, in the court’s view, Appellant’s not discovering

the newsletter containing the information about Mr. Bruno until January of

2016 demonstrated a lack of due diligence by Appellant. In support of this

position, the PCRA court relied on Commonwealth v. Edmiston, 65 A.3d

339 (Pa. 2013), in which our Supreme Court declared that “to constitute

facts which were unknown to a petitioner and could not have been

ascertained by the exercise of due diligence, the information must not be of

public record….” Id. at 352.

        Appellant now challenges the PCRA court’s application of the ‘public

records rule,’ relying on this Court’s decision in Commonwealth v. Burton,

121 A.3d 1063 (Pa. Super. 2015) (en banc) (Burton I). There, this Court

held “that the presumption of access to information available in the public

domain does not apply where the untimely PCRA petitioner is pro se.” Id. at

1073.    Notably, our Supreme Court affirmed Burton, reiterating “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

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prisoner petitioners.” Commonwealth v. Burton, 158 A.3d 618, 638 (Pa.

2017) (emphasis in original) (Burton II). Under the rationale of this Court

in Burton I, and our Supreme Court in Burton II, we agree with Appellant

that the PCRA court erred by presuming that the Graterfriends newsletter

was ‘knowable’ to him, in the exercise of due diligence.

      Nevertheless, we conclude that the PCRA court properly deemed

Appellant’s petition as untimely, based on the alternative conclusion that

“allegations of ineffective assistance of counsel will not overcome the

jurisdictional timeliness requirements of the PCRA.”         PCO at 4 (citation

omitted).     “Our   Supreme   Court   has   made    clear    that   the   section

9545(b)(1)(ii) exception will not apply to alleged ineffective assistance of

counsel claims, even if the claims were not knowable until advised of their

existence by present counsel.” Commonwealth v. Perrin, 947 A.2d 1284,

1287 (Pa. Super. 2008) (citing Commonwealth v. Bronstein, 752 A.2d

868 (Pa. 2000); Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000);

Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999)). Here, the essence of

Appellant’s claim is that his trial counsel must have been ineffective because

of his mental health issues, and Appellant could not have discovered that

ineffectiveness until he read the Graterfriends article detailing counsel’s

suspension due to those issues. We conclude that this ineffectiveness claim

is the type of issue that, according to our Supreme Court, cannot satisfy the

exception of section 9545(b)(1)(ii). Thus, we ascertain no error in the PCRA

court’s conclusion that Appellant failed to meet that timeliness exception.

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      In Appellant’s second issue, he maintains that the PCRA court erred by

“assert[ing] one reason for the dismissal of his PCRA [p]etition within its

[n]otice [p]ursuant to [Rule] 907, and then later alleg[ing] a different reason

for its decision to dismiss within its Pa.R.A.P. 1925(a) [o]pinion.” Appellant’s

Brief at 18. More specifically, Appellant claims that in the Rule 907 notice,

the PCRA court stated that his petition was untimely and that he failed to

satisfy any timeliness exception; however, in the court’s subsequent Rule

1925(a) opinion, it applied the ‘public records rule’ to conclude that

Appellant had failed to act with due diligence in raising his newly-discovered-

fact claim.   Id.   Appellant contends that this change in decision “deprived

[him] of the opportunity to present his claims to the PCRA court in a manner

sufficient to avoid dismissal due to a correctable defect in claim pleading or

presentation, as contemplated by Pa.R.Crim.P. 905, [and] also denied

[Appellant] the opportunity to alert the PCRA court to its erroneous

application of the ‘public records rule’ in this case and to likewise clarify the

PCRA [c]ourt’s misunderstanding of the ‘newly discovered fact’ that was

being asserted by [Appellant].” Id.

      Appellant’s argument is unconvincing. As the Commonwealth avers,

      [i]n its notice, the court informed [Appellant] that his claim to
      have discovered evidence regarding prior counsel’s mental
      health did not satisfy the requirements for a time-bar exception.
      This was the same ground set forth in the court’s opinion. That
      the court expounded upon its reasoning in its opinion is neither
      remarkable nor improper.




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Commonwealth’s      Brief   at   14.   We    agree   with   the   Commonwealth.

Additionally, we note that even if Appellant had raised, in response to the

court’s Rule 907 notice, his correct argument that the ‘public records rule’ is

inapplicable, and further clarified the nature of his claim, we would still see

no error in the PCRA court’s denial of his petition. Again, the exception of

section 9545(b)(1)(ii) cannot be satisfied with an ineffective-assistance-of-

counsel claim, such as that raised by Appellant herein.

      Order affirmed.

      Judge Panella joins the memorandum.

      President Judge Emeritus Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/18




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