J-S29039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ALONZO GARWOOD                             :
                                               :
                      Appellant                :   No. 2752 EDA 2016

                  Appeal from the PCRA Order August 14, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0608053-1979


BEFORE:      LAZARUS, SOLANO, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED APRIL 19, 2017

        Appellant Alonzo Garwood appeals nunc pro tunc from the order

entered on August 14, 2014, denying his pro se petition for writ of habeas

corpus, which the lower court treated as his third PCRA1 petition.            We

affirm.2

        This Court previously summarized the relevant procedural history, in

part, as follows:



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
2
 This Court has been provided with a partial certified record for this matter.
However, since our review has not been hampered, we decline to remand for
completion of the record.
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            On June 13, 1979, the Philadelphia County Investigating
     Grand Jury of November 29, 1978[,] issued indictments charging
     each of six defendants, including [Appellant], with the following
     criminal offenses arising from two separate firebombing incidents
     of Philadelphia residences on December 3, 1977: three separate
     counts of murder, two separate counts of arson, endangering
     person and endangering property, causing a catastrophe and
     risking a catastrophe, and criminal conspiracy. A jury trial
     commenced on June 12, 1980[,]...and [Appellant] was found
     guilty of second degree murder and other offenses on June 27,
     1980. He was sentenced to three terms of life imprisonment on
     April 15, 1981.
           [Appellant] thereafter filed a direct appeal to [this Court],
     and his judgment of sentence was affirmed in an opinion filed on
     November 5, 1986. [Appellant’s] petition for reconsideration to
     [this Court] was granted, but his judgment of sentence was
     ultimately affirmed on January 14, 1987.         His petition for
     allowance of appeal, filed with the Supreme Court of
     Pennsylvania, was...denied on [September              15,] 1987.
     [Appellant did not file a petition for writ of certiorari with the
     United States Supreme Court.]
            Thereafter, a pro se [PCRA] petition was filed with the
     Court of Common Pleas, First Judicial District. Counsel was
     appointed for the petitioner and an amended PCRA petition was
     subsequently filed with the court. After a review of the evidence
     and the pleadings, the PCRA petition was denied by [the lower
     court] on March 9, 1989. [This Court] affirmed the denial of the
     PCRA petition for relief in a memorandum [decision] that was
     filed on January 3, 1990.
            [A] pro se “motion for post-conviction collateral relief”
     was...filed...on November 10, 2004[.]         The [PCRA] court
     reviewed the PCRA petition, the Quarter Sessions file, and the
     responses of the [Commonwealth], and formally notified the
     petitioner on June 21, 2005, that his petition was to be
     dismissed without a hearing. On June 21, 2005, [the PCRA]
     court formally dismissed the PCRA petition without a hearing[.]
     [Appellant appealed to this Court, and we affirmed the dismissal
     of his PCRA petition. Appellant filed a petition for allowance of
     appeal, which our Supreme Court denied on March 17, 2009.]

Commonwealth v. Garwood, No. 2426 EDA 2005, 1-2 (Pa.Super. filed

7/24/08) (unpublished memorandum) (citation to record omitted).

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       On or about February 5, 2010, Appellant filed in the lower court a pro

se petition entitled “Petition for [] Writ Habeas Corpus Relief Pursuant to

Acticle [sic] 1, Section 14 of the Pennsylvania Constitution.”   The petition

was forwarded to the Pennsylvania Supreme Court, which issued an order on

April 3, 2014, denying Appellant’s request for extraordinary relief, granting

mandamus relief, and directing the lower court to adjudicate Appellant’s

petition.

       Treating Appellant’s petition as his third PCRA petition, on July 2,

2014, the lower court provided Appellant with notice of its intention to

dismiss Appellant’s petition on the basis it was untimely filed, and on July

22, 2014, Appellant filed a pro se response alleging that the lower court

erred in treating Appellant’s February 5, 2010, habeas corpus petition as one

filed under the auspices of the PCRA. By order entered on August 14, 2014,

the PCRA court dismissed Appellant’s petition.    This nunc pro tunc appeal

from the lower court’s August 14, 2014, order followed.3

____________________________________________


3
  On or about March 16, 2015, Appellant filed a pro se petition requesting
reinstatement of his right to appeal the lower court’s August 14, 2014,
order. Specifically, Appellant averred that he did not receive the lower
court’s August 14, 2014, order until approximately February 23, 2015.
Appellant attached as an exhibit the envelope from the trial court, which
contained a postage stamp of February 23, 2015. Properly treating
Appellant’s March 16, 2015, petition as a PCRA petition, and concluding
Appellant met a timeliness exception under the PCRA, the lower court
granted the March 16, 2015, petition and reinstated Appellant’s appeal rights
from the lower court’s August 14, 2014, order. See Commonwealth v.
Fairiror, 809 A.2d 396, 397 (Pa.Super. 2002) (holding a petition for
(Footnote Continued Next Page)


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        At the outset, contrary to Appellant’s argument, we conclude the lower

court properly treated Appellant’s instant petition, entitled “Petition for []

Writ Habeas Corpus Relief Pursuant to Acticle [sic] 1, Section 14 of the

Pennsylvania Constitution,” under the auspices of the PCRA.          The PCRA

provides: “The action established in this subchapter shall be the sole means

of obtaining collateral relief and encompasses all other common law and

statutory remedies for the same purpose that exist when this subchapter

takes effect, including habeas corpus and coram nobis.” 42 Pa.C.S.A. §

9542. Thus, where a petitioner’s claim is cognizable under the PCRA,

regardless of the title given to the petition, the court must analyze the

petition under the auspices of the PCRA. Commonwealth v. Taylor, 65

A.3d 462, 465-66 (Pa.Super. 2013).

        In the instant petition, Appellant alleged his conviction was the result

of a Brady4 violation in that the prosecutor failed to disclose that witnesses

offered testimony at Appellant’s trial in exchange for money from the police,

as well as the fact that a witness had psychological defects.        He further

alleged that all prior counsel were ineffective in failing to raise the Brady

issues.   Such claims are cognizable under the PCRA.       Commonwealth v.

Simpson, 620 Pa. 60, 79, 66 A.3d 253, 264 (2013) (“A Brady claim is
                       _______________________
(Footnote Continued)

reinstatement of PCRA appellate rights nunc pro tunc must be considered a
subsequent PCRA petition).
4
    Brady v. Maryland, 373 U.S. 83 (1963).



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cognizable on collateral appeal under the PCRA.”) (citation omitted));

Commonwealth ex rel. Dadario v. Goldberg, 565 Pa. 280, 773 A.2d 126

(2001) (holding ineffective assistance of counsel claim cognizable under

PCRA). Accordingly, the lower court properly treated Appellant’s petition for

a writ of habeas corpus as a PCRA petition.

      With regard to petitions filed under the PCRA, as this Court has

observed:

      The filing mandates of the PCRA are jurisdictional in nature and
      are strictly construed. The question of whether a petition is
      timely raises a question of law. Where the petitioner raises
      questions of law, our standard of review is de novo and our
      scope of review plenary. An untimely petition renders this Court
      without jurisdiction to afford relief.

Taylor, 65 A.3d at 468 (citations omitted). Thus, at this juncture, we must

determine whether Appellant’s February 5, 2010, petition was timely filed

under the PCRA.

      The most recent amendments to the PCRA, effective January 19, 1996,

provide that a PCRA petition, including a second or subsequent petition, shall

be filed within one year of the date the underlying judgment becomes final.

42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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

the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

      Three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

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will be excused. 42 Pa.C.S.A. § 9545(b)(1).        To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)       the failure to raise a claim previously was the result of
                interference    by    government     officials with    the
                presentation of the claim in violation of the Constitution
                or the law of this Commonwealth or the Constitution or
                law 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 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).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation

omitted).     Moreover, “the PCRA limits the reach of the exceptions by

providing that a petition invoking any of the exceptions must be filed within

60   days of the       date   the   claim first could have   been presented.”

Commonwealth v. Walters, 135 A.3d 589, 592 (Pa.Super. 2016)

(citations omitted).

      Here, this Court affirmed Appellant’s judgment of sentence on January

14, 1987, and his petition for allowance of appeal was denied by the

Supreme Court on September 15, 1987. Appellant did not file a petition for

a writ of certiorari with the United States Supreme Court. Thus, his

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judgment of sentence became final on or about November 15, 1987, sixty

days after our Supreme Court denied review and the time for filing a petition

for a writ of certiorari expired. See 42 Pa.C.S.A. § 9545(b)(3); Former U.S.

Supreme Court Rule 20.1 (petition for writ of certiorari is deemed timely

when it is filed within 60 days after the denial of allocatur). Accordingly,

Appellant had until approximately November 15, 1988, to file a timely PCRA

petition. Appellant filed the instant PCRA petition on February 5, 2010, and

therefore, it is patently untimely.5

       On    appeal,     Appellant     attempts        to    invoke      the   governmental

interference exception under Section 9545(b)(1)(i) and the newly-discovered

fact exception under Section 9545(b)(1)(ii).                Specifically, he suggests he

met these timeliness exceptions by pleading and proving the prosecutor

failed to disclose that two witnesses accepted money in exchange for

testifying   against    Appellant,    as       well   as    the   fact   one   witness   had

psychological defects.


____________________________________________


5
  The PCRA provides that where a petitioner’s judgment of sentence became
final on or before the effective date of the amendments (January 16, 1996),
a special grace proviso allows first PCRA petitions to be filed by January 16,
1997. See Commonwealth v. Alcorn, 703 A.2d 1054, 1056–1057
(Pa.Super. 1997) (explaining application of PCRA timeliness proviso). Here,
as discussed infra, Appellant’s judgment of sentence became final before the
effective date of the amendments, however, Appellant did not file his instant
petition by January 16, 1997. Moreover, the proviso does not apply to
“second or subsequent petitions[,]” and thus, Appellant does not meet the
requirements of the proviso on this basis as well. Fairiror, 809 A.2d at 398.



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       However, inasmuch as the basis of Appellant’s argument is his

“discovery” of notes of testimony from one of the witnesses’ 1979 trial, we

conclude Appellant has failed to meet the initial threshold of demonstrating

that he raised his claim within 60 days of the date the claim first could have

been presented.       Simply put, the information related to Appellant’s claim

was easily discoverable and in the public record for longer than 60 days

before the instant petition was filed.6, 7

       Based on the aforementioned, we conclude Appellant’s third PCRA

petition was untimely filed, and Appellant failed to demonstrate his

entitlement to one of the timeliness exceptions. Therefore, the lower court

properly denied Appellant’s petition.

       Affirmed.
____________________________________________


6
  In his appeal of the denial of his second PCRA petition, Appellant averred
that he improperly received differential treatment as compared to his co-
defendants under Commonwealth v. Cruz, 578 Pa. 263, 851 A.2d 870
(2004). The basis of his claim was, inter alia, that he was convicted based
on the prosecutor withholding information concerning the payment of money
by police to witnesses in exchange for their testimony, as well as other
evidence concerning the veracity of the witnesses. See Commonwealth v.
Garwood, No. 2426 EDA 2005 (Pa.Super. filed 7/24/08) (unpublished
memorandum). Thus, at least as of the time of the appeal of his second
PCRA petition, Appellant was aware of the alleged facts upon which his
current claims are based.
7
  To the extent Appellant avers previous counsel was ineffective, we note
that a claim for ineffective assistance of counsel does not save an otherwise
untimely petition for review on the merits. Commonwealth v. Gamboa-
Taylor, 562 Pa. 70, 753 A.2d 780 (2000).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2017




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