Com. v. Jackson, N. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
NATHANIEL JACKSON :
:
Appellant : No. 2716 EDA 2017
Appeal from the PCRA Order July 31, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1300127-2006,
CP-51-CR-1300175-2006
BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 17, 2018
Nathaniel Jackson appeals pro se from the order entered July 31, 2017,
in the Court of Common Pleas of Philadelphia County, dismissing as untimely
his second petition filed pursuant to the Pennsylvania Post Conviction Relief
Act, 42 Pa.C.S. §§ 9541-9546.1 Jackson seeks relief from the judgment of
sentence of life imprisonment and a consecutive term of seven to 20 years,
after he was convicted by a jury of first degree murder, robbery, possession
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 Retired Senior Judge assigned to the Superior Court.
1 On June 28, 2018, the Commonwealth filed a notice pursuant to Rule of
Professional Conduct 1.12(c)(2), informing this Court and Jackson that First
Assistant District Attorney Carolyn Temin had previously participated as the
trial judge in this case. The notice also states that First Assistant District
Attorney Carolyn Temin “has disqualified and screened herself from any
participation in this matter.” See Pa. R. Prof. Conduct 1.12(c)(2).
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of an instrument of crime, conspiracy, and carrying a firearm without a
license.2 Jackson claims (1) he is entitled to an evidentiary hearing on his
claim of newly discovered evidence, (2) he is entitled to a new trial based
upon his claim of newly discovered evidence, and (3) he is entitled to a
resentencing hearing based upon the United States Supreme Court decision
in Miller v. Alabama, 567 U.S. 460 (2012). Based upon the following, we
affirm.
The facts underlying Jackson’s conviction have been succinctly
summarized by the PCRA court:
[Jackson] was arrested and subsequently charged in connection
with the shooting death of Kenna Carey on December 5, 2005, in
the city and county of Philadelphia. [Jackson] was also charged
with an incident occurring earlier in the day, in which a shotgun
was fired into the residence of Ronald Long, also in the city and
county of Philadelphia.
PCRA Court Opinion, 9/14/2017, at 1.
On October 10, 2007, a jury convicted Jackson of the above stated
charges and the trial court sentenced him on December 18, 2007, to an
aggregate term life imprisonment plus 7 to 20 years. On July 20, 2009, this
Court affirmed the judgment of sentence, and the Pennsylvania Supreme
Court denied Jackson’s petition for allowance of appeal on December 31, 2009.
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2 18 Pa.C.S. §§ 2502(a), 3701(a)(1)(i), 907(a), 903, 6106(a)(1), respectively.
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Commonwealth v. Jackson, 981 A.2d 923 (Pa. Super. 2009), appeal
denied, 989 A.2d 8 (Pa. 2009).
On July 26, 2010, Jackson filed his first PCRA petition, which was
unsuccessful. Commonwealth v. Jackson, 82 A.3d 455 (Pa. Super. 2013),
appeal denied, 86 A.3d 232 (Pa. 2014).
On July 16, 2015, Jackson filed the present PCRA petition. Jackson also
submitted numerous supplemental filings, which the PCRA court reviewed
jointly with the 2015 petition. See PCRA Court Opinion, 9/14/2017, at 2. On
June 19, 2017, the PCRA court issued Pa.R.Crim.P. 907 notice of intent to
dismiss the petition. On July 31, 2017, the PCRA court dismissed the PCRA
petition as untimely. This appeal followed.3
“Our review of a PCRA court’s decision is limited to examining whether
the PCRA court's findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Cox, 636
Pa. 603, 146 A.3d 221, 226 n.9 (Pa. 2016) (citation omitted).
We first address Jackson’s claim that he is entitled to an evidentiary
hearing based upon his claim of newly discovered evidence.
A PCRA petition must be filed within one year of the date the underlying
judgment becomes final. 42 Pa.C.S. § 9545(b)(1). The judgment becomes
final at the conclusion of direct review, including discretionary review in the
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3The PCRA court did not order Jackson to file a statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b).
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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. § 9545(b)(3).
Here, Jackson’s judgment of sentence became final on March 31, 2010, 90
days after the Pennsylvania Supreme Court denied his petition for allowance
of appeal from his direct appeal, and he failed to petition for a writ of certiorari
in the United States Supreme Court. See U.S. Sup. Ct. Rule 13. Therefore,
Jackson had until March 31, 2011, to file a timely petition. As such, Jackson’s
present petition, filed July 16, 2015, is patently untimely.
Nevertheless, an untimely PCRA petition may still be considered if any
of the three time-for-filing exceptions applies. See 42 Pa.C.S. § 9545(b)(1)(i)-
(iii). Any petition raising a statutory exception must be filed “within 60 days
of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(3).
Here, Jackson’s claim of newly discovered evidence implicates the unknown
facts exception to the PCRA’s one-year time bar. See 42 Pa.C.S. §
9545(b)(1)(ii).
With regard to Section 9545(b)(1)(ii), our Court has explained:
The timeliness exception set forth in Section 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the facts
upon which he based his petition and could not have learned those
facts earlier by the exercise of due diligence. Commonwealth v.
Bennett, 930 A.2d 1264, 1271 (Pa. 2007). Due diligence
demands that the petitioner take reasonable steps to protect his
own interests. Commonwealth v. Carr, 768 A.2d 1164, 1168
(Pa. Super. 2001). A petitioner must explain why he could not
have learned the new fact(s) earlier with the exercise of due
diligence. Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa.
2001); Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.
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Super. 2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011).
This rule is strictly enforced. Id. …
Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015).
In support of his claim of newly discovered evidence, Jackson submitted
an affidavit from Lynn Chamberlin, dated June 30, 2015, which he contends
satisfies Section 9545(b)(1)(ii). The affidavit reads:
I, Lynn Chamberlin, am willing and available to appear in a court
of law, and testify on behalf of my claim that on the morning of
December 5, 2005, Nathaniel Jackson did not own a shotgun and
did not shoot at my grandfather, Ronald Long, through the
window. I was present that morning inside of my grandfather’s
house.
After Nathaniel’s trial in 2007, my grandfather told me that he lied
on Nathaniel to get out of going to jail himself. He was not fond
of Nathaniel being my boyfriend and that he would get rid of
Nathaniel by filing a false police report, if I did not end our
relationship. At the time, my grandfather owed money to other
guys for buying crack cocaine and would not pay them. Those
guys are the ones that shot at my grandfather’s front window.
I, Lynn Chamberlin, do hereby verify that the facts set forth in the
above statement are true and correct to the best of my
knowledge, information and belief, and that any false statements
made herein are made subject to the penalties of section 4904 of
the Crimes Code (18 Pa.C.S. [§] 4904) relating to unsworn
falsification to authorities.
Jackson’s PCRA Petition, 7/16/2015, Exhibit "A".
In assessing import of the affidavit on Jackson’s trial, the PCRA court
explained:
[Jackson’s] trial consolidated two separate incidents, both
occurring on December 5, 2005. The first involved a shotgun
being discharged into Mr. Long’s residence that morning. The
second, involved the killing of Mr. Carrey with the use of a shotgun
later that day. They were consolidated as it was used to prove
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[Jackson] was in possession of a shotgun on that day. The
affidavit relates solely to the first incident, though [Jackson]
contends that these allegations will call into question the
determination of guilt in [the] second incident as well.
PCRA Court Opinion, 9/14/2017, at 5 n.8. Furthermore, the PCRA court
analyzed the affidavit as follows:
[E]ven if Long’s statement to Chamberlin constituted a previously-
unknown fact, [Jackson] failed to demonstrate that the
information could not have been discovered earlier through the
exercise of due diligence. Assuming that Chamberlin’s statement
is true, [Jackson] failed to demonstrate that this could not have
been addressed earlier through the exercise of due diligence.
[Jackson] indicated that he learned of Chamberlin’s statement
regarding Long through his brother, immediately obtained an
affidavit and subsequently filed a pro se PCRA Petition, though he
does not provide a date on which this statement was relayed to
him. See [Jackson’s] Response to [Rule] 907 Notice, 7/25/17 at
exhibit “A.” He presents this as evidence of his exercise of due
diligence. Beginning in 2007, [Jackson] has known Long testified
Chamberlin was present during the incident. However, there is no
explanation as to why efforts were not made to investigate
Chamberlin’s version of the events, beginning in 2007. Assuming
this recanted version is true, an exercise of due diligence would
have resulted in Chamberlin presenting exculpatory evidence
nearly a decade ago. While it may not have been possible to
obtain the alleged recantation earlier with the exercise of due
diligence, much stronger evidence in the form of Chamberlin’s
eye-witness testimony would have been obtainable since 2007.
Thus, [Jackson’s] failure to demonstrate due diligence between
2007 and 2015 was fatal to his attempt to satisfy subsection
9545(b)(1)(ii),
Id. at 5-6.
Based on our review of the record, the parties’ briefs, and the relevant
statutory and case law, we agree with the PCRA court’s assessment.
Chamberlin was Jackson’s girlfriend, and Jackson was aware of Long’s
testimony, and he has failed to show why he could not have obtained the
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information from Ms. Chamberlin sooner with the exercise of due diligence.
See Brown, supra.4 Therefore, Jackson’s petition does not fall within
Section 9545(b)(1)(ii)’s timeliness exception.
In his final issue, Jackson contends that based upon the recent United
States Supreme Court decisions in Miller, supra, and Montgomery v.
Louisiana, 136 S. Ct. 718 (2016), he is entitled to review pursuant to the
PCRA’s exception for a newly recognized constitutional right, set forth at 42
Pa.C.S. § 9545(b)(1)(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”).
In Miller, supra, the United States Supreme Court held that
“mandatory life without parole for those under the age of 18 at the time of
their crimes violates the Eighth Amendment's prohibition on cruel and unusual
punishments.” Miller, 567 U.S. at 465 (emphasis added). Subsequently, in
Montgomery, supra, the United States Supreme Court decided the Miller
holding was a new substantive right that, under the United States
Constitution, must be applied retroactively in cases on state collateral review.
Montgomery, 136 S.Ct. at 736.
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4 Because Jackson failed to satisfy the unknown facts exception, 42 Pa.C.S. §
9545(b)(1)(ii), we need not address his second issue wherein he contends he
is entitled to a new trial based on the newly discovered evidence of Ms.
Chamberlin.
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Jackson’s reliance on these decisions is misplaced. Jackson was 20
years old when he committed the murder and therefore Miller, and by
extension Montgomery, do not apply to him. See Commonwealth v.
Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (relying on the holding in
Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) “that
petitioners who were older than 18 at the time they committed murder are
not within the ambit of the Miller decision and therefore may not rely on that
decision to bring themselves within the time-bar exception in Section
9545(b)(1)(iii).”). Accordingly, Jackson’s petition does not fall within Section
9545(b)(1)(iii)’s timeliness exception.
In sum, because Jackson has failed to satisfy any exception to the
PCRA’s time bar, his petition is untimely and there is no jurisdiction to review
this petition on the merits. Accordingly, we affirm the PCRA court’s dismissal
of Jackson’s second PCRA petition without an evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/18
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