Com. v. Robertson, P. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
PORTIE A. ROBERTSON,
Appellant No. 2606 EDA 2014
Appeal from the PCRA Order August 13, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1111151-1982
BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 09, 2015
Appellant, Portie A. Robertson, appeals pro se from the order entered
on August 13, 2014, that denied his fourth petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
On August 26, 1982, Appellant and two cohorts fired numerous rounds
of gunfire into a crowd of people resulting in two deaths and multiple
injuries. On May 19, 1983, Appellant was found guilty of two counts of first-
degree murder and six counts of aggravated assault. Appellant filed timely
post-verdict motions that were denied on June 22, 1987. On that same day,
the trial court imposed sentences of life imprisonment for each of the
murders followed by six consecutive five-to-ten-year terms of incarceration
on the aggravated assault convictions. Since that time, Appellant has filed
numerous appeals and PCRA petitions. Most recently, on April 22, 2014,
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Appellant filed his fourth PCRA petition. On July 2, 2014, the PCRA court
informed Appellant of its intention to dismiss the PCRA petition without a
hearing pursuant to Pa.R.Crim.P. 907, and on August 13, 2014, the PCRA
court dismissed Appellant’s petition as untimely. This appeal followed.
On appeal, Appellant raised the following issues, which we have
reproduced verbatim:
I. WHETHER THE PCRA COURT DECISION ABUSED ITS
DISCRETION OR COMMITTED AN ERROR OF LAW AMOUNTS TO
GOVERNMENTAL INTERFERNCE AS AN RESULT OF THE MANNER
IN WHICH THE COURT HANDLED JUROR MISCONDUCT
ALLEGATIONS AND IT WAS NOT A REQUIREMENT OF DUE
DILIGENCE FOR THE DEFENDANT TO OBTAIN EVIDENCE OF
JUROR MISCONDUCT ONCE ALLEGATION WAS BROUGHT TO THE
COURT’S ATTENTION.
II. WHETHER PCRA COURT DECISION ABUSED ITS DISCRETION
OR COMMITTED AN ERROR OF LAW WHEN THE COURT FAILED
TO RECUSE AND/OR DISQUALIFY HIMSELF FROM PRESIDING IN
THE CASE WHEN THE RECORD DISCLOSES THAT THE JUDGE’S
PRIOR JUDGMENTS EXERCISED WAS MANIFESTLY
UNREASONABLE,PREJUDICIAL AND/OR BIAS.
Appellant’s Brief at 4.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
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Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time
requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of the petition. Commonwealth v.
Murray, 753 A.2d 201, 203 (Pa. 2000). A judgment of sentence “becomes
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.
§ 9545(b)(3).
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), is met.1 A petition invoking one of these exceptions must be filed
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1
The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States;
(ii) 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; or
(Footnote Continued Next Page)
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within sixty days of the date the claim could first have been presented. 42
Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
PCRA’s one-year filing deadline, “the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.
Here, the trial court imposed sentence on June 22, 1987. This Court
affirmed Appellant’s judgment of sentence on August 8, 1989. On March 20,
1990, the Supreme Court of Pennsylvania denied Appellant’s petition for
allowance of appeal. Therefore, Appellant’s judgment of sentence became
final on June 18, 1990, ninety days after the time for filing a petition for a
writ of certiorari with the United States Supreme Court expired. 42 Pa.C.S.
§ 9545(b)(3); U.S. Sup. Ct. R.13. Appellant did not file the instant PCRA
petition until April 22, 2014. Thus, the instant PCRA petition is patently
untimely.
As previously stated, if a petitioner does not file a timely PCRA
petition, his petition may nevertheless be received under any of the three
limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.
_______________________
(Footnote Continued)
(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.
42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
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§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file
his petition within sixty days of the date that the exception could be
asserted. 42 Pa.C.S. § 9545(b)(2).
In the case at bar, Appellant baldly claims that government
interference prevented him from asserting claims of alleged juror
misconduct. Appellant’s Brief at 30, 34. While interference with the
presentation of a claim by government officials can provide an exception to
the PCRA timing requirements pursuant to 42 Pa.C.S. § 9545(b)(1)(i),
Appellant has fallen woefully short in this regard as this issue was found
lacking in merit in prior PCRA petitions. As the PCRA court noted,
Appellant’s PCRA petition and brief constitute a “lengthy and disingenuous
regurgitation of the alleged juror misconduct which has already been found
to be completely devoid of merit [and devoid of] any new allegations of facts
or evidence of [facts] with which to reassess either its merits or timeliness.”
PCRA Court Opinion, 10/10/14, at 2-3. Moreover, while Appellant mentions
government interference, he fails to provide any support for this claim or
even detail how the government interfered with his claim. Accordingly, we
agree with the PCRA court that Appellant’s fourth PCRA was untimely and no
exceptions apply.
Because the PCRA petition was untimely, the PCRA court lacked
jurisdiction to address the claims presented and grant relief. See
Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding
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that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we
lack the authority to address the merits of any substantive claims raised in
the PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007) (“[J]urisdictional time limits go to a court’s right or competency
to adjudicate a controversy.”). Therefore, we affirm the order denying
Appellant’s fourth PCRA petition.2
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/2015
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2
Appellant purports to raise an additional issue concerning prosecutorial
misconduct in his supplemental appellate brief. However, nothing in
Appellant’s supplemental brief alters our conclusion that Appellant’s
underlying PCRA petition was untimely. Thus, we need not further address
Appellant’s supplemental brief.
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