J-S52043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

BUWLUS A. MUHAMMAD

                         Appellant                 No. 437 WDA 2015


              Appeal from the PCRA Order of February 25, 2015
                 In the Court of Common Pleas of Erie County
              Criminal Division at No.: CP-25-CR-0000232-2007


BEFORE: SHOGAN, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                        FILED OCTOBER 15, 2015

      Buwlus Muhammad, pro se, appeals the February 25, 2015 order in

which the court dismissed his petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

      A prior panel of this Court summarized the procedural history of this

case as follows:

      In August 2007, [Muhammad] was sentenced to an aggregate
      term of 92 to 184 months of incarceration following convictions
      for, inter alia, aggravated assault and harassment[, which
      stemmed from an incident in which Muhammad injured three
      correctional officers at the Erie County jail.     Muhammad’s]
      judgment of sentence was affirmed by this Court on December
      31, 2008, and his petition for allowance of appeal was denied on
      September 30, 2009. Commonwealth v. Muhammad, 970
      A.2d 474 (Pa. Super. 2008) (unpublished memorandum), appeal
      denied 980 A.2d 606 (Pa. 2009). [Muhammad] filed several
      PCRA petitions between 2009 and 2012, none of which resulted
      in relief.
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     On December 13, 2013, [Muhammad] filed [another PCRA
     petition]. Therein he alleged that prison officials involved in his
     case had “been exposed in a news article as corrupt and criminal
     individuals, and untrustworthy.” PCRA Petition, 12/23/2013, at
     3. On February 7, 2014, the PCRA court filed a [Pa.R.Crim.P.]
     907 notice, expressing its determination that [Muhammad’s]
     petition was filed untimely. [Muhammad] filed objections to the
     notice. The PCRA court dismissed [Muhammad’s] petition by
     order of March 14, 2014. [Muhammad] timely filed a notice of
     appeal.

Commonwealth v. Muhammad, 599 WDA 2014, slip op. at 1-2 (Pa.

Super. Oct. 7, 2014).   On October 7, 2014, this Court affirmed the PCRA

court, holding that Muhammad’s petition was untimely. Id.

     On January 22, 2015, Muhammad filed the PCRA petition at issue in

this appeal. Muhammad based his request for relief upon newspaper articles

that alleged that an assistant district attorney, Brian Krowicki, admitted to

withholding evidence in a separate, unrelated case. Attorney Krowicki also

was the assistant district attorney that prosecuted Muhammad’s case.

Muhammad alleges that these facts were unavailable at the time of trial

because the articles were published between October and December 2014.

     On January 28, 2015, the PCRA court filed an opinion and a notice of

its intent to dismiss the petition without a hearing pursuant to Rule 907. On

February 11, 2015, Muhammad filed a response to the Rule 907 notice. On

February 25, 2015, the PCRA court dismissed Muhammad’s petition.

     On March 11, 2015, Muhammad filed a notice of appeal and a concise

statement of errors complained of on appeal. On March 19, 2015, the PCRA




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court filed an opinion pursuant to Pa.R.A.P. 1925(a) in which it adopted its

January 28, 2015 opinion.

     Muhammad raises the following issues in this appeal:

     1. Whether the PCRA court’s opinion and notice of intent to
        dismiss PCRA [petition] without a hearing, viod; [sic] for want
        of jurisdiction?

     2. Whether the PCRA court erred when dismissing PCRA
        [petition] as not an exception pursuant to 42Pa.C.S.A.9545
        (b)(2)(ii), (b)(1)(ii)(2) [sic]?

     3. Whether the PCRA court erred when dismissing PCRA petition
        as meritless?

Muhammad’s Brief at iv.

     We begin with our standard of review of a challenge to a PCRA court’s

dismissal of a PCRA petition without a hearing:

     In reviewing the propriety of a PCRA court’s order dismissing a
     PCRA petition, we are limited to determining whether the PCRA
     court’s findings are supported by the record and whether the
     order in question is free of legal error. Commonwealth v.
     Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s
     findings will not be disturbed unless there is no support for the
     findings in the certified record. Commonwealth v. Spencer,
     892 A.2d 840, 841 (Pa. Super. 2006) (citation omitted).
     Moreover, “[t]here is no absolute right to an evidentiary hearing
     on a PCRA petition, and if the PCRA court can determine from
     the record that no genuine issues of material fact exist, then a
     hearing is not necessary.”          Commonwealth v. Jones,
     942 A.2d 903, 906 (Pa. Super. 2008), appeal denied,
     956 A.2d 433 (Pa. 2008) (citing Commonwealth v. Barbosa,
     819 A.2d 81 (Pa. Super. 2003)); Pa.R.Crim.P. 907(2).            A
     reviewing court must examine the issues raised in the PCRA
     petition in light of the record in order to determine whether the
     PCRA court erred in concluding that there were no genuine
     issues of material fact and in denying relief without an
     evidentiary hearing. Commonwealth v. Jordan, 772 A.2d
     1011, 1014 (Pa. Super. 2001) (citation omitted).

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Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008)

(citations modified).

      Muhammad first contends that the PCRA court did not have jurisdiction

to dismiss his PCRA petition because this Court had not yet remanded the

record from Muhammad’s prior appeal. Muhammad’s Brief at 4-5.

      In Lark, our Supreme Court held that “when an appellant’s PCRA

appeal is pending before a court, a subsequent PCRA petition cannot be filed

until the resolution of review of the pending PCRA petition by the highest

state court in which review is sought, or upon the expiration of the time for

seeking such review.”    Commonwealth v. Lark, 746 A.2d 585, 588 (Pa.

2000). Here, we disposed of Muhammad’s prior appeal on October 7, 2014.

Muhammad then filed a petition for reargument, which was denied in this

Court on December 22, 2014.        Muhammad then had thirty days to file a

petition for allowance of appeal. See Pa.R.A.P. 1113(a)(1). He did not do

so and, when the time to do so expired on January 21, 2015, nothing

precluded him from filing a new PCRA petition with the PCRA court.        See

Lark, supra.   Muhammad’s instant PCRA petition was filed on January 22,

2015. Lark does not mandate that the location of the actual physical record

has any bearing whatsoever on a court’s jurisdiction or the time limits to act.

Therefore, the location of the certified record is immaterial, and the PCRA

court had jurisdiction to consider the petition.

      Muhammad next asserts that his petition was timely.           It is well-

established that the PCRA time limits are jurisdictional, and are meant to be

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both mandatory and applied literally by Pennsylvania courts to all PCRA

petitions,   regardless   of   the   potential   merit   of   the   claims   asserted.

Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011).

“[T]he PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the merits of a petition.”

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014).

      In Commonwealth v. Hernandez, 79 A.3d 649 (Pa. Super. 2013),

we discussed the PCRA’s timeliness requirements, as follows:

         It is undisputed that a PCRA petition must be filed within
         one year of the date that the judgment of sentence
         becomes final. 42 Pa.C.S.A. § 9545(b)(1). This time
         requirement is mandatory and jurisdictional in nature, and
         the court may not ignore it in order to reach the merits of
         the petition. A judgment of sentence “becomes final at the
         conclusion of direct review, including discretionary review
         in the Supreme Court of the United States and the
         Supreme Court of Pennsylvania, or at the expiration of
         time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

         However, an untimely petition may be received when the
         petition alleges, and the petitioner proves, that any of the
         three limited exceptions to the time for filing the petition,
         set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is
         met. A petition invoking one of these exceptions must be
         filed within sixty days of the date the claim could first have
         been presented. 42 Pa.C.S.A. § 9545(b)(2). In order to
         be entitled to the exceptions to the PCRA’s one-year filing
         deadline, “the petitioner must plead and prove specific
         facts that demonstrate his claim was raised within the
         sixty-day time frame” under section 9545(b)(2).

Id. at 651-52.

      In his petition, Muhammad concedes that it is facially untimely, but

asserts that the newly-discovered fact exception applies. See 42 Pa.C.S.A.

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§ 9545(b)(1)(ii) (“[T]he facts upon which the claim is predicated were

unknown to the petitioner and could not have been ascertained by the

exercise of due diligence.”).      Muhammad argues that the newspaper articles

support a claim that Attorney Krowicki withheld an August 17, 2006

videotape in his case. PCRA Petition, 1/22/2015, at 3. Muhammad alleges

that he requested the videotape at an April 24, 2007 pre-trial hearing, but

Attorney Krowicki attested that there was no videotape. Muhammad further

alleges that after providing proof that the incident in question was

videotaped, Attorney Krowicki stated that the tape was lost.         Id. at 4.

Muhammad made additional charges of prosecutorial misconduct, none of

which were newly discovered.              Muhammed asserts that, had Attorney

Krowicki’s admission been known at the time of his pre-trial hearing, the

trial judge would have ruled in favor of a suppression motion he filed. 1 Id.

at 5-6.

       In its Rule 907 notice, the PCRA court concluded that no court had

found yet that Attorney Krowicki had ever intentionally withheld material

evidence and that Muhammad had not demonstrated that he was unaware of

any of the facts he plead, except for those in the newspaper articles.

Opinion, 1/28/2015, at 1.          Because the PCRA court determined that the


____________________________________________


1
      Muhammad sought to suppress the testimony of two of the injured
correctional officers because a videotape of the incident was not produced in
discovery.



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information in the articles did not change any facts related to Muhammad’s

case, the PCRA court found that Muhammad had not proven that an

exception to the PCRA time bar applied and indicated its intent to dismiss

the PCRA as untimely. Id. at 1-2.

     Regarding the newly-discovered fact exception, our Supreme Court

has said:

     [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.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
     added).     If the petitioner alleges and proves these two
     components, then the PCRA court has jurisdiction over the claim
     under this subsection.

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007). However,

the Court has also cautioned that:

     The focus of the exception is “on [the] newly discovered facts,
     not on a newly discovered or newly willing source for previously
     known facts.” Commonwealth v. Johnson, 863 A.2d 423, 427
     (Pa. 2004) (emphasis in original). In Johnson, this Court
     rejected the petitioner’s argument that a witness’s subsequent
     admission of alleged facts brought a claim within the scope of
     exception (b)(1)(ii) even though the facts had been available to
     the petitioner beforehand. Relying on Johnson, this Court more
     recently held that an affidavit alleging perjury did not bring a
     petitioner’s claim of fabricated testimony within the scope of
     exception (b)(1)(ii) because the only “new” aspect of the claim
     was that a new witness had come forward to testify regarding
     the previously raised claim. Commonwealth v. Abu–Jamal,
     941 A.2d 1263, 1267 (Pa. 2008). Specifically, we held that the
     fact that the petitioner “discovered yet another conduit for the
     same claim of perjury does not transform his latest source into
     evidence falling within the ambit of [Section] 9545(b)(1)(ii).”
     Id. at 1269.


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Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (footnote

omitted; citations modified).

      Commonwealth v. Lambert, 57 A.3d 645 (Pa. Super. 2012), is

instructive. In Lambert, we rejected a claim of newly discovered facts. Id.

at 649-50.    In that case, the appellant, who was serving a life sentence,

came into contact with a former client of the attorney who prosecuted the

case against the appellant. The former client provided the appellant with an

affidavit in which the client alleged that the prosecutor admitted that he hid

and altered evidence in the appellant’s case.   The appellant submitted the

affidavit as a newly discovered fact, seeking to meet the exception to the

PCRA time bar. Id. at 647.

      Citing Marshall, we determined that the appellant had asserted claims

that her conviction resulted from prosecutorial misconduct in her post-trial

motions and in prior PCRA petitions. We concluded that, instead of offering

newly discovered facts, the appellant merely was attempting to support her

prior claims with a newly discovered source.     Id. at 649.   Therefore, the

affidavit did not suffice to avoid the PCRA time bar. Id. at 649-50.

      Similarly, Muhammad has repeatedly raised the claim that a videotape

of the incident has been withheld. Muhammad raised allegations related to

the videotape in his December 23, 2013 PCRA petition. In that petition, he

alleged that the jail officials had withheld that tape, citing to newspaper




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reports of misconduct by correctional officers at the jail. 2 Muhammad also

raised the absence of the videotape in his October 28, 2009 PCRA petition,

in his direct appeal, and in his post-sentence motions.

       Now, Muhammad attempts to raise the same claim again based upon

two newspaper articles related to Attorney Krowicki. The first article reports

that, in July 2014, Attorney Krowicki told a judge, who presided in a case

unrelated to Muhammad, that Attorney Krowicki withheld audio recordings of

the victims. In the same article, of which pieces are missing in the copy that

Muhammad appended to his petition, the district attorney asserted that the

tapes were not material and that Attorney Krowicki had not intentionally

withheld the tapes.       The second article, which is mostly illegibly copied,

reports on a hearing that yielded evidence that Attorney Krowicki did not

intentionally withhold evidence, but was suffering from mental health issues

when he made his admission to the trial judge.

       First, it is unclear that these articles would even be relevant to

Muhammad’s case.3 Unproven representations of misconduct that occurred
____________________________________________


2
       We rejected Muhammad’s claim that the newly discovered facts
exception permitted the untimely PCRA petition because the newspaper
articles upon which he relied were available more than a year before he filed
his petition. Muhammad, 599 WDA 2014, slip op. at 4.
3
       See Commonwealth v. Lopez, 51 A.3d 195, 197 (Pa. 2012) (J.
Castille, concurring) (“The petition here is premised upon a more than far-
fetched claim of “newly-discovered evidence” that does not even relate to
the trial facts. . . . In my view, the “new” “facts” that appellant forwards
have nothing whatsoever to do with trial counsel’s representation of him, but
(Footnote Continued Next Page)


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seven years after Muhammad’s case would be tangentially related at best.4

For all practical purposes, Muhammad is attempting to use Attorney

Krowicki’s purported admission as proof that he withheld the videotape, a

claim that repeatedly has been rejected. As in Lambert, these articles are

merely    a   new       source    for   Muhammad’s   old   claims.   See   also

Commonwealth v. Abu-Jamal, 833 A.2d 719, 726-27 (Pa. 2003) (holding

that an affidavit from a court reporter who overhead the trial judge make a

racist remark at the time of the trial did not constitute newly discovered

facts when judicial bias had been “previously litigated” and the appellant

would not be “permitted to resurrect it by asserting a new theory under the

guise of” newly discovered facts).

      Because Muhammad has only provided a new source for a prior claim,

he has not met the newly-discovered fact exception to the PCRA time bar.

Therefore, neither the PCRA court nor this Court has jurisdiction to reach the

merits of Muhammad’s claims and we do not reach his final issue on appeal.

      Order affirmed.

                       _______________________
(Footnote Continued)

arise instead from mere speculation as to trial counsel’s personal
circumstances at the time of trial. As a matter of law, these “facts” cannot
support a cognizable claim . . . .”).
4
      See Commonwealth v. Castro, 93 A.3d 818, 825 (Pa. 2014)
(holding that, in a motion for a new trial, “[a newspaper] article contains
allegations that suggest such evidence may exist, but allegations in the
media, whether true or false, are no more evidence than allegations in any
other out-of-court situation. Nothing in these allegations, even read in the
broadest sense, can be described as “evidence,” . . . .”).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2015




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