Com. v. Brockington, B. ( 2022 )

J-A27042-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BIRDELL BROCKINGTON :
:
Appellant : No. 2007 EDA 2020
Appeal from the PCRA Order Entered September 14, 2020
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002736-1997
BEFORE: PANELLA, P.J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 14, 2022
Appellant, Birdell Brockington, appeals pro se from the order dismissing
his petition for collateral review cognizable under the Post-Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.1 Because Appellant’s petition is
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1 While Appellant styles his petition as a “state habeas corpus” petition, it is
well-settled that the PCRA provides 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[.]” 42 Pa.C.S. § 9542. See also 42 Pa.C.S. § 6503(b) (“Where a
person is restrained by virtue of sentence after conviction for a criminal
offense, the writ of habeas corpus shall not be available if a remedy may be
had by post-conviction hearing proceedings authorized by law”);
Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007) (“the PCRA
subsumes all forms of collateral relief” available under the PCRA). A challenge
to a conviction based on alleged defects in the bill of information is cognizable
under the PCRA. See Commonwealth v. Chambers, 852 A.2d 1197, 1198-
99 (Pa. Super. 2004) (reviewing challenge to specificity underlying bill of
information under the PCRA).
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untimely, we are without jurisdiction to review the merits of his appeal.
Accordingly, we affirm the order of dismissal.
A detailed recitation of the underlying procedural and factual history is
unnecessary to our disposition. On May 22, 1998, Appellant was convicted of
various offenses including First Degree Murder, and, on May 26, 1998, he was
sentenced to life in prison. On July 31, 2000, this Court affirmed the judgment
of sentence. Commonwealth v. Brockington, 764 A.2d 1119 (Pa. Super.
2000) (unpublished memorandum). The Pennsylvania Supreme Court denied
Appellant’s petition for allocator on December 14, 2000. Commonwealth v.
Brockington, 764 A.2d 1064 (Pa. 2000). Appellant did not seek review at the
United States Supreme Court.
On December 14, 2001, Appellant timely filed his first PCRA petition,
alleging ineffective assistance of trial counsel. The court appointed PCRA
counsel, and, following a hearing, the PCRA court denied the petition on July
15, 2002. On May 20, 2003, this Court affirmed the PCRA court’s denial.
Commonwealth v. Brockington, 829 A.2d 353 (Pa. Super. 2003)
(unpublished memorandum). On June 22, 2004, the Pennsylvania Supreme
Court denied Appellee’s petition for review. Commonwealth v.
Brockington, 853 A.2d 359 (Pa. 2004). Appellee filed two additional PCRA
petitions in 2015 and 2018, which were dismissed as untimely.
Commonwealth v. Brockington, 159 A.3d 590 (Pa. Super. 2016)
(unpublished memorandum), appeal denied, 169 A.3d 568 (Pa. 2017);
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Commonwealth v. Brockington, 219 A.3d 232 (Pa. Super. 2019)
(unpublished memorandum).
On June 12, 2020, Appellant filed, pro se, a document entitled
“‘Defective Indictment’, i.e., ‘Defective “Bill of Criminal Information Sheet”’”
in the Court of Common Pleas of Lehigh County. In the filing, Appellant
challenged his First-Degree Murder conviction by arguing that the underlying
criminal information filed by the Commonwealth was defective because it did
not describe the charges against him in sufficient detail.
The court construed the document as a PCRA petition, and, on July 27,
2020, filed a Notice of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907. On
August 11, 2020, Appellant filed a response. On September 14, 2020, the
court dismissed the petition. This timely appeal followed.2 On October 20,
2020, the PCRA court entered an order directing Appellant to file a Concise
Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925.
Appellant served the court with a copy of his Rule 1925(b) Statement, but
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2 According to the PCRA court’s docket, Appellant filed his notice of appeal on
October 19, 2020, four days outside of the thirty-day deadline imposed by our
Rules of Appellate Procedure. Pa.R.A.P. 903(a). Based on this seemingly
untimely filing, this Court directed Appellant to show cause why the appeal
should not be dismissed as untimely filed. Order, 12/01/2020 and 3/04/2021.
Appellant filed his response, and this Court referred the issue to the panel.
Order, 6/28/2021. Because Appellant is incarcerated, and the envelope
containing his pro se notice of appeal is postmarked October 14, 2020,
Appellant timely filed his notice of appeal. Commonwealth v. Wilson, 911
A.2d 942, 944 n.2 (Pa. Super. 2006) (“Pursuant to the ‘prisoner mailbox rule,’
a document is deemed filed when placed in the hands of prison authorities for
mailing”).
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failed to file a copy of the statement on the docket. Nevertheless, the PCRA
court filed its Rule 1925(a) Opinion on December 10, 2020.
Appellant seeks review of the following issue:
Whether the lower courts erred in denying Appellant’s State
Habeas Corpus [Petition], and not allowing an evidentiary hearing,
as well as refusing to recognize it as a State Habeas Corpus
[Petition] and calling it a PCRA [Petition], and untimely filed, as
well as not meeting the thre[e] prongs of the PCRA.
Appellant’s Br. at 6. (unnecessary capitalization and punctuation omitted).
We review the denial of a PCRA petition to determine whether the record
supports the PCRA court's findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). Before
addressing the merits of Appellant’s claims, however, we must first determine
we have jurisdiction to entertain the PCRA Petition. Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
“It is well-settled that the PCRA's time restrictions are jurisdictional in
nature.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016)
(citation omitted). Therefore, if a petition is untimely, the PCRA court lacks
jurisdiction to address the petitioner’s issues on the merits, and this Court
accordingly lacks jurisdiction to review them on appeal. Commonwealth v.
Lambert, 884 A.2d 848, 851 (Pa. 2005). A petitioner who seeks to bring
claims that are cognizable under the PCRA “cannot escape the PCRA time-bar
by titling his petition or motion as a writ of habeas corpus.” Commonwealth
v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013).
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A PCRA petitioner must file any petition, “including a second or
subsequent petition,” within one year of the date that the judgment of
sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment becomes final
at the conclusion of direct review or when the time for seeking direct review
expires, which occurs 90 days after the Pennsylvania Supreme Court denies
the appeal. Id. at § 9545(b)(3); Commonwealth v. Feliciano, 69 A.3d
1270, 1275 (Pa. Super. 2013).
A petitioner who files a facially untimely petition may overcome the
PCRA’s timeliness requirements by explicitly pleading and proving that one of
three statutory exceptions to the PCRA’s timeliness requirements applies. See
42 Pa.C.S. § 9545(b)(1)(i)-(iii); Commonwealth v. Hernandez, 79 A.3d
649, 651 (Pa. Super. 2013). Those are, briefly, (1) that the delay was the
result of unlawful or unconstitutional interference by government officials, (2)
that the facts of the claim were previously unknown to the petitioner and could
not have been ascertained though due diligence, and (3) that the claim is
based in a newly recognized constitutional right that the Supreme Court of
Pennsylvania or the United States has likewise recognized to apply
retroactively. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). If a PCRA petitioner fails to
plead that any of these exceptions apply in a facially untimely petition, the
PCRA court must dismiss the petition for want of jurisdiction. Commonwealth
v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002)
In the instant case, the PCRA court dismissed Appellant’s petition
because Appellant’s petition was facially untimely and Appellant failed to plead
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any of the statutory exceptions to the PCRA’s time bar apply. PCRA Ct. Op.,
12/10/2020, at 5.
We reach the same conclusion. Appellant’s judgment of sentence
became final on March 14, 2001, 90 days after the Pennsylvania Supreme
Court denied review. Thus, his deadline to raise any claim for collateral relief
was one year later: March 14, 2002. He filed the instant petition on April 10,
2020, nearly twenty years after his conviction became final. Despite the facial
untimeliness of his petition, Appellant did not plead that any of the PCRA’s
timeliness exceptions apply; rather, he attempted to evade the PCRA’s
timeliness requirements by styling his petition as a “state habeas corpus”
petition. Thus, he cannot overcome the timeliness requirements of the PCRA.
Because Appellant’s petition was facially untimely, and he failed to plead
that any of the statutory exceptions to the PCRA’s timeliness requirements
apply, the PCRA court lacked jurisdiction to review Appellant’s claim and
properly dismissed the petition. Because this Court is likewise without
jurisdiction, we affirm the order dismissing Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2022
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