Com. v. Coley, C. ( 2018 )

J-S29028-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES COLEY, :
:
Appellant : No. 726 EDA 2017
Appeal from the PCRA Order February 10, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1217311-1973
BEFORE: PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED MAY 30, 2018
Charles Coley (Appellant) appeals pro se from the order denying as
untimely his ninth petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the pertinent facts as follows:
On August 19, 1974, [Appellant] was tried and convicted by a
jur[y] of murder in the first degree, attempted robbery, and
criminal conspiracy, before the Honorable Theodore B. Smith. The
trial court granted [Appellant] a [new trial] following post-verdict
motions. However, on appeal, the Pennsylvania Supreme Court
reversed and remanded for sentencing. [Appellant] was
sentenced to life imprisonment on April 21, 1976. No direct
appeal was filed.
PCRA Court Opinion, 4/19/17, at 1 (footnote omitted).
Over the course of the next 35 years, Appellant filed nine petitions for
PCRA relief and two federal petitions for habeas corpus, all of which were
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S29028-18
denied. See Commonwealth v. Coley, 1029 EDA 2010 at * 1-3 (Pa. Super.
Nov. 8, 2010) (unpublished memorandum) (detailing the procedural history).
On February 23, 2015, Appellant filed the instant pro se PCRA petition
seeking a new trial on the basis of newly discovered exculpatory evidence and
governmental interference. On August 24, 2016, the PCRA court issued notice
of its intent to dismiss the petition pursuant to Rule 907 of the Pennsylvania
Rules of Criminal Procedure and Appellant filed a pro se response. On
February 10, 2017, the PCRA court dismissed Appellant’s petition as untimely.
Appellant filed a timely pro se notice of appeal. Although it did not order
Appellant to file a concise statement of errors complained of on appeal
pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure,
the PCRA court filed a Rule 1925(a) opinion in which it set forth and discussed
the governmental interference and newly discovered fact claims that Appellant
raised in his PCRA petition.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Roney, 79 A.3d 595, 603 (Pa. 2013) (citation omitted). The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record. Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super.
2016) (citation omitted).
It is well-settled that the timeliness of a post-conviction relief petition is
jurisdictional. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010)
-2-
J-S29028-18
(citation omitted). Thus, if a PCRA petition is untimely, neither an appellate
court nor the PCRA court has jurisdiction over the petition. Id. “Without
jurisdiction, we simply do not have the legal authority to address the
substantive claims” raised in an untimely petition. Id.Generally, a petition for relief under the PCRA must be filed within one
year of the date the judgment of sentence becomes final unless the petitioner
pleads and proves an exception to the timeliness requirements. 42 Pa.C.S.A.
§ 9545(b)(1). Under these exceptions, the petitioner must plead and prove:
(1) interference by government officials in the presentation of the claim; (2)
newly discovered facts; and (3) an after-recognized constitutional right.
Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012) (citing
42 Pa.C.S.A. § 9545(b)(1)). A PCRA petition invoking one of these statutory
exceptions must be filed within 60 days of the date the claim could have been
presented. 42 Pa.C.S.A. § 9545(b)(2).
Appellant was sentenced to life imprisonment in 1976 and did not pursue
a direct appeal from his judgment of sentence. Accordingly, the instant
petition, which Appellant filed nearly 40 years after his judgment of sentence
became final, is untimely on its face. See 42 Pa.C.S.A. § 9545(b)(1).
Appellant has failed to prove the applicability of any of the exceptions
to the PCRA’s time restrictions. Appellant argues that his claims satisfy both
the governmental interference and newly discovered facts exceptions to the
PCRA’s time-bar. 42 Pa.C.S.A. § 9545(b)(1)(i)-(ii). In its Rule 1925(a)
opinion, the PCRA court aptly summarized and resolved Appellant’s claims
-3-
J-S29028-18
relating to the timeliness exception to the PCRA’s time limitation. The PCRA
court explained:
[Appellant] unsuccessfully attempted to invoke the
interference by government official exception as codified in
Section 9545(b)(1)(i). [Appellant’s] claim concerned the
immunity agreement that Commonwealth witness, Andre
Anderson, entered with the Commonwealth and Pennsylvania
Attorney General’s Office. [Appellant] alleged that the trial court
interfered with his right to impeach Anderson by concealing the
immunity petition from the jury. PCRA Petition, 2/23/15, at 6.
[Appellant] also claimed that the Commonwealth refused to
provide him with a copy of the immunity petition which allowed
the Commonwealth to withhold critical evidence about the firearm
that Anderson testified about. [Id.] at 13.
To plead and prove the governmental interference
exception, [Appellant] must show that his failure to raise the claim
previously was a result of government interference. [42
Pa.C.S.A.] § 9545(b)(1)(i). Here, [Appellant] did not allege that
the trial court interfered with his right to raise this issue either on
direct appeal or collaterally. In fact, the record revealed that both
[Appellant] and trial counsel were aware of the immunity petition
and had previously raised it in a [federal] petition for writ of
habeas corpus . . . and in a previous [state petition for post-
conviction relief]. Additionally, even if raised in a timely fashion,
as this claim has been previously raised, [Appellant] was not
eligible for relief. 42 Pa.[C.S.A.] § 9543(a).
[Appellant also] attempted to invoke the “newly discovered
facts” exception enumerated in 42 Pa.[C.S.A.] § (b)(1)(ii) by
claiming the Commonwealth withheld information about the
firearm used in the homicide. Although it was unclear what
argument [Appellant] was attempting to advance, it appeared that
he was alleging [the] Commonwealth falsely categorized the
changed appearance of the firearm used in the homicide as rusted
and corroded. In support of [Appellant’s] assertions, he submitted
an affidavit by Dr. Joseph Betz, dated January 13, 2015,
purporting to disprove Commonwealth’s theory that the firearm
was corroded.
Upon review, [Appellant] has failed to state what due
diligence, if any, he took to secure the alleged newly discovered
-4-
J-S29028-18
evidence. Furthermore, he does not explain why he could not
have discovered this information at an earlier time, specifically
since [Appellant] fully admitted he knew of the prosecution’s
theory at trial. To raise this claim in a timely manner, [Appellant]
needed to plead and prove that he raised it within 60 days of when
it was discoverable. Here, [Appellant] does not demonstrate when
the testimony disput[ing] the appearance of the gun was
available, that he raised it within 60 days, and/or a reason
demonstrated why it was timely under and exception. Therefore,
[Appellant] has utterly failed to raise this claim in a timely
manner, and this court is without jurisdiction to review the merits
of his claim.
PCRA Court Opinion, 4/19/17, at 3-5 (footnotes omitted).
Our review supports the PCRA court’s conclusion that Appellant failed to
meet his burden in proving an exception to the timeliness requirements of the
PCRA. Having determined that it lacked jurisdiction to address Appellant’s
claims, the PCRA court properly dismissed Appellant’s petition for post-
conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/18
-5-