Com. v. Tyson, A. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
AARON EDMONDS TYSON
Appellant No. 2188 EDA 2016
Appeal from the PCRA Order entered June 29, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No: CP-45-CR-0000817-2003
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 22, 2017
Appellant, Aaron Edmonds Tyson, appeals pro se from the June 29,
2016, order entered in the Court of Common Pleas of Monroe County,
denying his petition for collateral relief pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
The underlying facts and procedural history were recounted in our
previous memorandum issued in connection with Appellant’s second PCRA
petition. See Commonwealth v. Tyson, No. 3176 EDA 2013, unpublished
memorandum 1-5 (Pa. Super. filed July 16, 2014). After this Court affirmed
the denial of his second PCRA petition, Appellant, on May 31, 2016, filed the
instant PCRA petition, his third. On June 29, 2016, the PCRA court denied
Appellant’s third PCRA petition without holding a hearing. This appeal
followed.
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On appeal, Appellant argues the PCRA court erred in denying his PCRA
petition without holding a hearing on the merits of the petition. We
disagree.
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). All PCRA
petitions, “including a second or subsequent petition, shall be filed within
one year of the date the judgment becomes final” unless an exception to
timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time
restrictions are jurisdictional in nature. Thus, [i]f a PCRA petition is
untimely, neither this Court nor the [PCRA] court has jurisdiction over the
petition. Without jurisdiction, we simply do not have the legal authority to
address the substantive claims.” Commonwealth v. Chester, 895 A.2d
520, 522 (Pa. 2006) (first alteration in original) (internal citations and
quotation marks omitted). As timeliness is separate and distinct from the
merits of Appellant’s underlying claims, we first determine whether this
PCRA petition is timely filed. See Commonwealth v. Stokes, 959 A.2d
306, 310 (Pa. 2008) (consideration of Brady v. Maryland, 373 U.S. 83
(1963) claim separate from consideration of its timeliness).
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Before we can address the merits of the instant appeal, 1 we must
determine whether we have jurisdiction to entertain it. Appellant recognizes
that the instant PCRA petition is facially untimely. However, Appellant
argues he met one of the exceptions to the general rule on timeliness.
Specifically, he alleges that the “cell phone logs that were obtained by
[Appellant]’s Private Investigator after years of extreme diligence” qualify for
the “Newly Discovered Evidence and After Discovered Evidence” exception.
Appellant’s Brief at 6. Appellant is entitled to no relief, for several reasons.
For purposes of the timeliness exception under 42 Pa.C.S.A.
§ 9545(b)(1)(ii), Appellant must plead and prove 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[.]” 42 Pa.C.S.A.
§ 9545(b)(1)(ii); Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa.
2007) (internal citations and quotations omitted).
Instantly, Appellant claims that the cell phone logs constitute “new
discovered evidence/after discovered evidence,” but failed to show that the
existence of the cell logs was unknown to him. Similarly, Appellant failed to
state why he could not have discovered them through the exercise of due
diligence. This is fatal to his claim.
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1
On the merits, Appellant seems to argue a Brady-sounding claim, claiming
that the “prosecution violated [his] federal and state due process rights, by
tampering with and withholding exculpatory evidence via redaction of his
cell-phone logs.” Appellant’s Brief at 8.
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Moreover, in his own PCRA petition, Appellant acknowledges that the
cell phone logs at issue here were in his discovery record, and that those
logs were available to him. Appellant’s Third PCRA Petition, 5/31/16, at 2
(unnumbered). Furthermore, in his direct appeal, Appellant argued his
counsel was ineffective for “failing to review Appellant’s cell phone records.”
See Commonwealth v. Tyson, 730 EDA 2007, unpublished memorandum
at 17 (Pa. Super. January 11, 2008). Our Court dismissed said claim
without prejudice to raise it in a PCRA petition. Id. It is unclear whether
Appellant raised that issue in his first PCRA petition. If he did, a review of
the appellate proceedings reveals that Appellant abandoned it on appeal.
See Appellant’s Brief at 3 (brief filed in connection with appeal from denial of
first PCRA petition). Finally, in his response to the notice of disposition
without a hearing in the instant matter, Appellant stated that he “raised the
claim pertaining to his cell phone logs as evidence as early as the initial pro
se petition and brief.” Response to Notice of Disposition Without Hearing, at
1 (citing PCRA Hearing, 10/4/11). It is clear, therefore, that Appellant knew
of the cell phone logs well before the filing of the instant petition.
Accordingly, Appellant failed to show that the “new facts” exception is
applicable here.
To the extent Appellant’s claim can be construed as alleging that the
“new fact” is the discovery of the redactions to the logs, Appellant’s claim is
similarly untimely for failing to establish that the redaction of the logs was
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unknown to him, or what he did to learn about it. Appellant’s allegation
that he became aware of the redaction only upon receiving the logs from his
private investigator, even if credible, is insufficient to prove the timeliness
exception. Indeed, as noted above, Appellant failed to explain why the
redaction could not have discovered earlier despite the fact the logs have
been an essential ground for his continued challenges since his direct appeal,
and that said logs were in his “discovery record” available to him and his
attorneys, presumably prior to his trial. See Notice of Disposition Without
Hearing, 6/2/16, at 1-2.
Because the instant PCRA petition is untimely, and Appellant failed to
plead and prove that one of the exceptions to the timeliness rule was
applicable, the PCRA court did not err in dismissing the petition without a
hearing. See Commonwealth v. Marshall, 947 A.2d 714, 723 (Pa. 2008)
(“As explained supra, we have concluded that [a]ppellant’s petition was
untimely, and accordingly the PCRA court properly determined that it had no
jurisdiction to entertain it. We therefore also must conclude that the PCRA
court did not err in dismissing [a]ppellant’s petition without a hearing.”).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2017
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