J-S21019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ROBERT HALL                             :
                                         :
                   Appellant             :   No. 2201 EDA 2018

           Appeal from the PCRA Order Entered June 11, 2018
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0409511-1997


BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                              FILED MAY 06, 2019

     Robert Hall (Appellant) appeals from the dismissal of his sixth petition

seeking relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§

9541-9546. Upon review, we affirm.

     In April 1998, a jury convicted Appellant of second degree murder and

related crimes. The trial court—who also presided over the underlying PCRA

proceedings—sentenced Appellant to life in prison.    Appellant filed a direct

appeal and this Court affirmed his judgment of sentence; the Pennsylvania

Supreme Court denied Appellant’s petition for allowance of appeal. See

Commonwealth v. Hall, 750 A.2d 368 (Pa. Super. 1999), appeal denied,

759 A.2d 383 (Pa. 2000).

     In the past decade, Appellant has unsuccessfully sought relief under the

PCRA. With regard to Appellant’s most recent filing, the PCRA court explained:
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            On November 28, 2017, [Appellant] filed his sixth pro se
      Post Conviction Relief Act petition. The petition spanned 379
      pages and failed to present a discernible argument suggesting it
      is timely pursuant to 42 Pa.C.S.A. § 9545. As such, this court
      issued 907 Notice of Intent to Dismiss on January 3, 2018.

            [Appellant] filed objections to the 907 Notice on January 18,
      2018. Thereafter, he also hired an attorney, Jerome Brown,
      Esquire, to file objections on his behalf. Mr. Brown contacted this
      court and requested the court delay issuing an opinion until he
      could file an additional set of objections on [Appellant’s] behalf.
      The court granted the request, and Mr. Brown’s objections were
      filed on March 12, 2018, along with a discovery request for
      exculpatory evidence. A response from the Commonwealth was
      submitted on June 8, 2018, which request[ed] the petition be
      dismissed.

PCRA Court Opinion, 6/11/18, at 1.

      The PCRA court dismissed the petition on June 11, 2018, stating:

             [Appellant’s] pro se petition, and subsequent counseled
      petitions, rely upon civil rights complaints filed in Federal Court as
      well as the recent revelation that the Philadelphia District
      Attorney’s Office previously compiled a list of “problem officers”
      who it would not call to testify in criminal cases. Pet. Obj. pg. 2.
      He asserts this information amounts to newly discovered
      evidence; however, it does not.

Id. at 2.

      Appellant filed this timely appeal.     The PCRA court filed its opinion

contemporaneously with the dismissal of Appellant’s petition, and did not

order Appellant to comply with Pennsylvania Rule of Appellant Procedure

1925(b).

      Appellant presents two issues for appellate review:

      1. Where there was substantial newly discovered evidence which
         would compel the grant of a new trial and the lower Court


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          dismissed this petition without a hearing, did the lower Court
          err in dismissing this matter without holding said hearing?

       2. Where it was believed that there was police misconduct in the
          homicide division regarding, at least, the statement of critical
          witness Jose Miller, who it was submitted was coerced to sign
          a statement he could not read, did the lower Court err in
          denying the motion for exculpatory evidence?

Appellant’s Brief at 2.

       “On appeal from the denial of PCRA relief, our standard of review calls

for us to determine whether the ruling of the PCRA court is supported by the

record and free of legal error.” Commonwealth v. Williams, 196 A.3d 1021,

1026-27 (Pa. 2018) (quoting Commonwealth v. Washington, 927 A.2d

586, 593 (Pa. 2007)).       “The PCRA court’s credibility determinations, when

supported by the record, are binding on this Court; however, we apply a de

novo    standard   of     review   to   the   PCRA   court’s   legal   conclusions.”

Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013).

       We first address the timeliness of Appellant’s petition, because the

PCRA’s time limitations implicate our jurisdiction and may not be altered or

disregarded in order to address a petition’s merits; a petitioner seeking post-

conviction relief must file a petition within one year of the petitioner’s

judgment of sentence becoming final. See, e.g., Commonwealth v. Smith,

194 A.3d 126, 132 (Pa. Super. 2018); see also 42 Pa.C.S.A. § 9545(b)(1).

Section 9545 of the PCRA requires that “[a]ny petition under this subchapter,

including a second or subsequent petition, shall be filed within one year of the

date the judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). The timeliness

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requirement of the PCRA is “mandatory and jurisdictional in nature.”

Commonwealth v. McKeever, 947 A.2d 782, 784-85 (Pa. Super. 2008).

Therefore, “no court may disregard, alter, or create equitable exceptions to

the timeliness requirement in order to reach the substance of a petitioner’s

arguments.” Id. at 785.

      It is well settled that a court does not have jurisdiction to entertain a

petition filed after the one-year time bar unless the petitioner pleads and

proves one of the time-bar exceptions. The exceptions include:

      (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).

      Until recently, a petition invoking an exception had to be filed within 60

days of the date the claim could have been presented. However, effective

December 2017, Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2), and

now provides that a PCRA petition invoking a timeliness exception must be

filed within one year of the date the claim could have been presented. See


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Act 2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3. Although we note the

change in the law from 60 days to one year, the change does not impact

Appellant, who filed his petition on November 28, 2017.

      Appellant acknowledges that his PCRA petition is untimely, but claims

that he satisfied the newly discovered facts exception to the PCRA’s time bar.

Under 42 Pa.C.S.A. § 9545(b)(1)(ii), Appellant must prove that (1) the fact

was unknown to him, and (2) that he could not have ascertained the fact

previously by the exercise of due diligence. Commonwealth v. Bennett,

930 A.2d 1264, 1270–72 (Pa. 2007).           Due diligence requires that the

petitioner   make   reasonable    steps    to   protect   his   own   interest.

Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001).

      Appellant states that he filed the underlying petition “upon learning

about improper police misconduct by some of his homicide detectives in the

case of Commonwealth v. Anthony Wright, CP-51-CR-1131582-1991.”

See Appellant’s Brief at 3.   However, Appellant never specifies when he

learned about the police conduct.         Appellant references several other

unrelated Philadelphia cases and claims that evidence of police impropriety in

those cases “would have compelled a different verdict [in Appellant’s case] as

it was not character evidence.” Id. at 16. In addition, Appellant states that

he “recently discovered” – again without specifying a time – that one witness,

“Kaciena Anderson, his friend, who implicated him in the case, was testifying

under a grant of immunity,” and another witness, “Mary Graham, had been


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coerced to testify about certain admissions made by [Appellant’s] co-

defendant, which implicated [Appellant].” Id. at 6. Appellant asserts “this

evidence would have demonstrated that this prosecution was flawed; based

on unreliable witness statements; and the police misconduct was so pervasive

that it infected the proceedings to the point that the trial was structurally

unfair and a denial of due process.” Id. at 16.

      Upon review, we are not persuaded that Appellant has met the

requirements prescribed by § 9545(b)(1)(ii). Appellant had to prove that he

filed for PCRA relief within 60 days of learning facts that were unknown to

him, and which he could not have ascertained previously by the exercise of

due diligence. Appellant contends that “this case turns on evidence that was

manipulated by the police.” Appellant’s Brief at 19. However, Appellant has

not provided any timeframe or dates to explain when he discovered the new

evidence, and why it could not have been previously ascertained by the

exercise of due diligence. Appellant generally claims:

             [Appellant], who is incarcerated, timely uncovered
      significant evidence of police misconduct as described above.
      Furthermore, he recently learned that Kaciena Anderson was
      testifying under a grant of immunity. There is no evidence that
      [Appellant] could have known any of this evidence sooner, and he
      learned about this police misconduct after a civil rights complaint
      was filed on Mr. Wright’s behalf. He filed this petition within 60
      days of learning of that filing. Indeed, the Court below did not
      find that [Appellant] failed to meet this prong of the test nor did
      the Commonwealth so suggest. Hence, this prong is not at issue,
      and it is respectfully submitted that [Appellant] met this prong of
      the test.

Id. at 22.

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      We disagree that “this prong is not at issue.” We have stated:

      A petitioner must explain why he could not have learned the new
      fact(s)   earlier   with    the   exercise    of  due    diligence.
      Commonwealth v. Breakiron, 566 Pa. 323, 330–31, 781 A.2d
      94, 98 (2001); Commonwealth v. Monaco, 996 A.2d 1076,
      1080 (Pa.Super.2010), appeal denied, 610 Pa. 607, 20 A.3d 1210
      (2011). This rule is strictly enforced. Id. 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.” Commonwealth v. Marshall, 596 Pa. 587, 596, 947 A.2d
      714, 720 (2008) (emphasis in original).

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

added).

      In sum, Appellant claims that his petition meets the newly discovered

facts exception based upon Appellant’s discovery of police wrongdoing in other

cases which Appellant imputes to wrongdoing in his case; however, Appellant

fails to articulate specifics as to his dates of discovery and due diligence. As

noted, the “rule is strictly enforced.” Brown, supra. Accordingly, we find

that Appellant has failed to plead and prove an exception to the PCRA’s time

bar, and is not entitled to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/19


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