Com. v. Alexander, K. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KEITH ALEXANDER :
:
Appellant : No. 2216 EDA 2016
Appeal from the PCRA Order June 21, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0702301-2002
BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED JULY 25, 2017
Appellant, Keith Alexander, appeals pro se from the order of the
Philadelphia County Court of Common Pleas, which dismissed as untimely his
third petition filed under the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. Appellant’s first jury trial ended in a mistrial on
June 11, 2004. On April 1, 2005, after his second trial, a jury convicted
Appellant of attempted murder, aggravated assault, conspiracy, and
firearms not to be carried without a license. The court sentenced Appellant
on May 20, 2005, to an aggregate term of 26½ to 56 years’ imprisonment.
This Court affirmed the judgment of sentence on March 20, 2007, and our
Supreme Court denied allowance of appeal on October 24, 2007. See
Commonwealth v. Alexander, 928 A.2d 1117 (Pa.Super. 2007), appeal
denied, 594 Pa. 693, 934 A.2d 1275 (2007). Appellant sought no further
___________________________
*Former Justice specially assigned to the Superior Court.
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direct review. Between 2007 and 2013, Appellant unsuccessfully litigated
two PCRA petitions.
Appellant filed the current pro se PCRA petition on October 22, 2015,
and an amended pro se petition on November 2, 2015, seeking relief under
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The PCRA court issued Pa.R.Crim.P. 907 notice on April 19, 2016. Appellant
responded pro se on May 5, 2016, and the PCRA court denied relief on June
21, 2016. Appellant timely filed a pro se notice of appeal on June 29, 2016.
No Pa.R.A.P. 1925(b) statement was ordered or filed.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA
petition, including a second or subsequent petition, shall be filed within one
year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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 time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The
statutory exceptions to the PCRA time-bar allow for very limited
circumstances which excuse the late filing of a petition; a petitioner
asserting a timeliness exception must file a petition within 60 days of when
the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).
To invoke the “governmental interference” statutory exception at
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Section 9545(b)(1)(i), the petitioner must plead and prove “the failure to
previously raise the claim was the result of interference by government
officials, and the information could not have been obtained earlier with the
exercise of due diligence.” Commonwealth v. Abu-Jamal, 596 Pa. 219,
227, 941 A.2d 1263, 1268 (2008), cert. denied, 555 U.S. 916, 129 S.Ct.
271, 172 L.Ed.2d 201 (2008). To invoke the “new facts” statutory
exception, the petitioner must plead and prove: “[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[.]” 42 Pa.C.S.A. §
9545(b)(1)(ii).
Instantly, Appellant’s judgment of sentence became final on or about
January 22, 2008, following expiration of the 90-days for filing a petition for
certiorari with the U.S. Supreme Court. See U.S.Sup.Ct. Rule 13. Appellant
filed the current pro se PCRA petition on October 22, 2015, more than seven
years after his judgment of sentence became final, which is patently
untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the
“governmental interference” exception to the statutory time-bar per Section
9545(b)(1)(i), claiming the prosecution withheld exculpatory evidence from
Appellant at his second trial in violation of Brady. Specifically, Appellant
avers the prosecution withheld a police officer memorandum, investigative
report, and two eyewitness statements, one of which exonerates Appellant.
The record belies Appellant’s contentions. Appellant’s trial counsel received
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the evidence at issue prior to Appellant’s second trial, specifically referenced
the “withheld” evidence at trial, and discussed the eyewitness statement at
length. (See N.T. Trial, 3/31/05, at 145-54.)1 To the extent Appellant
attempts to invoke the “new facts” exception, this claim also fails because
the “withheld” evidence was known to Appellant at the time of trial. See 42
Pa.C.S.A. § 9545(b)(1)(ii).2 Therefore, Appellant’s third PCRA petition
remains time-barred, and the PCRA court lacked jurisdiction to review it.
Accordingly, we affirm.
Ordered affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2017
____________________________________________
1
Detective Puente was the assigned detective of this case. Prior to
Appellant’s first trial, detective Puente misplaced his case file, which he
thought had been destroyed. After Appellant’s mistrial, but before his
second trial, detective Puente located the case file, which contained the
evidence at issue, and provided it to trial counsel.
2
For this reason, Appellant also failed to satisfy the 60-day rule. See 42
Pa.C.S.A. § 9545(b)(2). Further, Appellant’s ineffective assistance of trial
counsel claim does not qualify as an exception to the statutory timeliness
requirement. See Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753
A.2d 780 (2000) (holding that ineffectiveness of counsel claims generally do
not constitute exceptions to PCRA time requirements).
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