Com. v. Brand, T. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYRONE BRAND :
:
Appellant : No. 1089 EDA 2017
Appeal from the PCRA Order March 21, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1229711-1986
BEFORE: PANELLA, J., STABILE, J., and PLATT*, J.
JUDGMENT ORDER BY PANELLA, J. FILED MARCH 12, 2018
Pro se Appellant, Tyrone Brand’s petition pursuant to the Post
Conviction Relief Act (“PCRA”) was dismissed as untimely by the PCRA court.
On appeal, Brand argues the PCRA court erred in concluding he had not
established the newly-discovered evidence exception to the PCRA’s time-bar.
After careful review, we affirm.
After Brand waived his right to a jury trial, the trial court found him
guilty of, among other charges, the first-degree murder of Robin Harris. The
court sentenced Brand to life in prison. This Court affirmed his judgment of
sentence, and the Supreme Court of Pennsylvania denied his request for
allocatur on May 14, 1991.
Brand filed the current PCRA petition, his second, on August 20, 2012,
asserting his sentence was unconstitutional under Miller v. Alabama, 567
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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U.S. 460 (2012). Brand filed a timely appeal after the PCRA court dismissed
his petition as untimely.
There is no doubt Brand’s petition, filed over 21 years after his
judgment of sentence became final, is untimely under the PCRA. See
Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (“A PCRA petition,
including a second or subsequent one, must be filed within one year of the
date the petitioner’s judgment of sentence became final[.]”) If a PCRA
petition is facially untimely, the petitioner must plead and prove the
applicability of one of three timeliness exceptions in order to invoke the
jurisdiction of the PCRA. See Commonwealth v. Hernandez, 79 A.3d 649,
651 (Pa. Super. 2013).
Initially, Brand contends his discovery of newspaper articles describing
Miller and Montgomery v. Louisiana, 136 S. Ct. 718 (2016), establishes
the newly-discovered fact exception to the PCRA’s time-bar under 42
Pa.C.S.A. § 9545(b)(1)(ii). New case law does not constitute a newly-
discovered fact under section 9545(b)(1)(ii). See Commonwealth v.
Whitehawk, 146 A.3d 266, 270-71 (Pa. Super. 2016). Even if it did, Brand
would not qualify, as the record indicates he was thirty-eight years old when
he murdered Robin Harris. Thus, Brand’s first argument merits no relief on
appeal.
Next, Brand argues he recently discovered he did not waive his right to
a sentencing jury in writing, in violation of 42 Pa.C.S.A. § 9711(b). Clearly,
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Brand was aware that he was not sentenced by a jury when he received his
sentence. Giving his argument the most favorable possible interpretation, he
is arguing he was unaware his waiver of his right to a jury was required to
be in writing.
This does not constitute a newly-discovered fact. Rather, it is an
allegation of ineffectiveness of trial and/or sentencing counsel. Such an
allegation cannot form the basis of a section 9545(b)(1)(ii) exception. See
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000).
In his final argument on appeal, Brand contends the sentencing court
lacked subject matter jurisdiction to sentence him, as his file with the
Department of Corrections does not contain a copy of the court’s sentencing
order. Ultimately, however, the only link between Brand’s legal theory, lack
of subject matter jurisdiction, and his factual assertion, the absence of the
sentencing order, is his contention that there is no evidence he waived his
right to a sentencing jury. We have already concluded that this contention
cannot satisfy section 9545(b)(1)(ii)’s demands. As such, Brand’s final
argument merits no relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/12/18
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