Com. v. Green, F. ( 2023 )

J-S43011-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FREDRICK GREEN :
:
Appellant : No. 2230 EDA 2021
Appeal from the PCRA Order Entered September 27, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011490-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FREDRICK GREEN :
:
Appellant : No. 2231 EDA 2021
Appeal from the PCRA Order Entered September 27, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011494-2010
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 27, 2023
Appellant, Fredrick Green, appeals from the order entered on September
27, 2021, in the Court of Common Pleas of Philadelphia County, dismissing
his first petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-46. The PCRA court found that Appellant failed to invoke its
jurisdiction because Appellant filed his petition in an untimely manner and
J-S43011-22
failed to plead and prove that the facts of his case fell within an exception to
the PCRA’s jurisdictional time-bar. We agree and, thus, affirm.
On June 4, 2010, Appellant fired a handgun at a police officer on a street
in Philadelphia. On May 18, 2011, a jury convicted Appellant of multiple crimes
including Assault of a Law Enforcement Officer with a Firearm. On November
15, 2011, the court sentenced Appellant to an aggregate term of 22½ to 45
years’ incarceration.
This Court affirmed Appellant’s judgment of sentence and, on November
27, 2013, our Supreme Court denied Appellant’s petition for allowance of
appeal. Commonwealth v. Green, 82 A.3d 1074 (Pa. Super. filed July 23,
2013) (unpublished memorandum), appeal denied, 80 A.3d 775 (Pa. 2013).
Appellant did not petition the U.S. Supreme Court for a writ of certiorari and,
thus, his judgment of sentence became final on February 26, 2014.1
On March 8, 2019, Appellant pro se filed the instant PCRA Petition, his
first. The PCRA court appointed counsel and, on September 10, 2019, PCRA
counsel filed an amended petition. The amended petition alleged, inter alia,
that Appellant’s trial counsel was ineffective for failing to obtain video
surveillance footage from cameras in the area of the incident to show that he
did not shoot at the police officer. Appellant asserted that the cameras’
existence was a newly discovered fact sufficient to overcome the PCRA’s one-
year time-bar. In direct contradiction, however, Appellant also claimed to have
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1 See U.S. Sup.Ct.R. 13(1); 42 Pa.C.S. § 9545(b)(3).
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“requested [surveillance camera footage] prior to trial and none [was] turned
over to [Appellant] by the Commonwealth[.]”2
On August 13, 2021, the PCRA court issued a Rule 907 Notice of its
intent to dismiss Appellant’s petition without a hearing. Appellant did not
respond to the notice. On September 28, 2021, the PCRA court dismissed the
petition. Appellant timely filed a Notice of Appeal and a Pa.R.A.P. 1925(b)
Statement nunc pro tunc. The PCRA court authored a comprehensive Rule
1925(a) Opinion.
Appellant raises a single issue for our review:
Did the Appellant suffer ineffective assistance of counsel when his
attorney failed to hire a private investigator prior to trial, which
would have enabled that investigator to locate video cameras that
were situated in the vicinity of this incident and would have shown
that the Appellant never fired his handgun at any police officer,
and also after undersigned counsel provided newly discovered
evidence in the form of a recently hired investigator’s photographs
and conclusions to the Court which showed that numerous video
cameras currently existed in the vicinity of the shooting and that
had such an investigative finding been conducted prior to trial,
exculpatory evidence would probably have been uncovered
entitling the Appellant to relief.
Appellant’s Br. at 3.
As an initial matter, we must determine whether the instant PCRA
petition was timely filed.3 It is well-established that “the PCRA’s timeliness
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2 Amended PCRA Petition, 9/10/19, at ¶ 11(a).
3 “Our standard of review of a PCRA court’s dismissal of a PCRA petition is
limited to examining whether the PCRA court’s determination is supported by
the evidence of record and free of legal error.” Commonwealth v. Wilson,
824 A.2d 331, 333 (Pa. Super. 2003) (en banc).
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requirements are jurisdictional in nature and must be strictly construed;
courts may not address the merits of the issues raised in a petition if it is not
timely filed.” Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super.
2016) (citation omitted).
Generally, a PCRA petition “including a second or subsequent petition,
shall be filed within one year of the date the judgment of sentence becomes
final.” 42 Pa.C.S. § 9545(b)(1). Here, Appellant’s judgment of sentence
became final on February 26, 2014. Thus, Appellant’s petition, filed on March
8, 2019, is patently untimely.
Pennsylvania courts may consider an untimely PCRA Petition if the
petitioner pleads and proves one of the three exceptions enumerated in 42
Pa.C.S. § 9545(b)(1)(i)-(iii). In the instant case, Appellant alleges the
applicability of the newly discovered fact exception, which requires proof that
“the facts upon which the claim is predicated were unknown to the petitioner
and could not have been ascertained by the exercise of due diligence[.]” Id.
at § 9545(b)(1)(ii). Due diligence requires that the petitioner “take reasonable
steps to protect his own interests.” Commonwealth v. Monaco, 996 A.2d
1076, 1080 (Pa. Super. 2010). “A petitioner must explain why he could not
have obtained the new fact(s) earlier with the exercise of due diligence.” Id.Appellant alleges that the existence of cameras in the area where he
shot at police is a “new fact” sufficient to endow the PCRA court with
jurisdiction. Appellant’s Br. at 10-13. The PCRA court disagreed, focusing on
Appellant’s assertion that he requested the camera footage before his 2011
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trial. PCRA Ct. Op., 2/4/22, at 10. See also Amended PCRA Petition, 9/10/19,
at ¶ 1(a). It explained that Appellant could not have both known about and
requested camera footage pre-trial and have discovered the cameras post-
trial. PCRA Ct. Op. at 10.
Appellant contradicts his use of the [newly-discovered fact
exception] to the PCRA time-bar. . . . Appellant alleges that
surveillance tapes that he knew about and requested prior to trial
now constitute [newly]-discovered [facts]. This alleged
surveillance footage cannot be both requested prior to trial and
[an] after-discovered [fact]. As a result, any surveillance footage,
if it existed, cannot qualify as [a newly] discovered [fact] to
overcome the PCRA time-bar.
Id. The PCRA court, thus, found itself without jurisdiction to address
Appellant’s claim. Id.We agree. Appellant cannot have both requested the camera footage
before his trial in 2011 and discovered it within one year of filing his PCRA
Petition in March 2019.4 Moreover, even if Appellant did not know of the
location of the cameras until recently, he has failed to explain how, with the
exercise of due diligence, he could not have discovered them sooner.
The PCRA court properly concluded that it lacked jurisdiction to consider
the merits of Appellant’s untimely PCRA Petition because Appellant failed to
plead and prove an exception to the PCRA time-bar. Accordingly, we affirm
the PCRA court’s order dismissing the petition.
Order affirmed.
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442 Pa.C.S. § 9545(b)(1) (“Any petition invoking an exception provided in
paragraph (1) shall be filed within one year of the date the claim could have
been presented.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2023
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