Com. v. Murray, C. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
v. :
:
CLIFFORD MURRAY, :
:
Appellant : No. 1140 EDA 2016
Appeal from the PCRA Order March 14, 2016
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0826351-1981
BEFORE: PANELLA, RANSOM and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 28, 2017
Clifford Murray (“Murray”), pro se, appeals from the Order dismissing
his Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 We affirm.
On December 17, 1984, Murray was sentenced to life in prison,
following his conviction of first-degree murder.2 The trial court additionally
sentenced Murray to concurrent 5-10 year prison terms for his conviction of
criminal conspiracy and possession of an instrument of crime.3 Murray filed
no direct appeal from his judgment of sentence.
On December 16, 1996, Murray filed a pro se PCRA Petition seeking
the reinstatement of his direct appeal rights, nunc pro tunc. The PCRA court
1
42 Pa.C.S.A. §§ 9541-9546.
2
18 Pa.C.S.A. § 2502(a).
3
18 Pa.C.S.A. §§ 903, 907.
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granted Murray’s Petition. On February 14, 2005, this Court affirmed
Murray’s judgment of sentence, but reserved to Murray the right to raise his
claim of ineffective assistance of counsel in a subsequent PCRA Petition.
Commonwealth v. Murray, 873 A.2d 770 (Pa. Super. 2005) (unpublished
memorandum). On November 30, 2005, the Pennsylvania Supreme Court
denied Murray’s Petition for allowance of appeal, but likewise reserved to
Murray the right to raise his claim of ineffective assistance of counsel in a
subsequent PCRA Petition. Commonwealth v. Murray, 889 A.2d 1214 (Pa.
2005).
On February 27, 2007, Murray filed his first Petition for relief under the
PCRA. On October 19, 2009, after an evidentiary hearing, the PCRA court
denied Murray’s Petition. Following procedural matters not related to this
appeal, this Court affirmed the PCRA court’s Order, after which our Supreme
Court denied allowance of appeal. Commonwealth v. Murray, 38 A.3d
910 (Pa. Super. 2011) (unpublished memorandum), appeal denied, 49
A.3d 443 (Pa. 2012).
Murray, pro se, filed the instant PCRA Petition on February 1, 2016.
After appropriate Notice, on March 14, 2016, the PCRA court dismissed
Murray’s Petition as untimely filed. Thereafter, Murray filed the instant
timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal.
Murray presents the following claims for our review:
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(1) Did the [PCRA] court err, as a matter of law, in finding that
the PCRA [P]etition was untimely[,] and that the [P]etition did
not properly invoke a timeliness exception to the [PCRA’s] time
bar?
(2) Did the [PCRA] court err by not holding an evidentiary
hearing[,] given that a valid timeliness exception had been
invoked[,] and the claim raised in the [P]etition was meritorious?
Brief for Appellant at 5.
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and
internal quotation marks omitted).
This Court’s scope of review is limited to the findings of the PCRA
court and the evidence on the record of the PCRA court’s
hearing, viewed in the light most favorable to the prevailing
party, in this case, the Commonwealth. See, e.g.,
Commonwealth v. Duffey, 585 Pa. 493, 889 A.2d 56, 61 (Pa.
2005); Commonwealth v. Meadius, 582 Pa. 174, 870 A.2d
802 (Pa. 2005). In addition, “[t]he level of deference to the
hearing judge may vary depending upon whether the decision
involved matters of credibility or matters of applying the
governing law to the facts as so determined.” Commonwealth
v. Reaves, 592 Pa. 134, 923 A.2d 1119, 1124 (Pa. 2007)
(citations omitted).
Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008).
Murray first challenges the PCRA court’s dismissal of his Petition as
untimely filed. The timeliness of a PCRA petition is a jurisdictional requisite
for seeking relief under the PCRA. Commonwealth v. Zeigler, 148 A.3d
849, 853 (Pa. Super. 2016). Under the PCRA, all petitions seeking collateral
relief must be filed within one year of the date the judgment of sentence
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becomes final. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.
2007); 42 Pa.C.S.A. § 9545(b)(1). The three exceptions to the one-year
filing requirement are for newly-discovered facts, interference by a
government official, and a newly-recognized constitutional right. 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA petitioner asserting one of the three
exceptions also must present his claim within sixty days of the date the
claim first could have been presented. 42 Pa.C.S.A. § 9545(b)(2).
As such, when a PCRA petition is not filed within one year of the
expiration of direct review, or not eligible for one of the three
limited exceptions, or entitled to one of the exceptions, but not
filed within 60 days of the date that the claim could have been
first brought, the [PCRA] court has no power to address the
substantive merits of a petitioner’s PCRA claims.
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
Here, Murray’s judgment of sentence became final on February 28,
2006, ninety days after the Pennsylvania Supreme Court denied his Petition
for allowance of appeal. See Sup. Ct. R. 13 (requiring a petition for
certiorari to be filed within 90 days of judgment entered by a state court of
last resort); see also Commonwealth v. Callahan, 101 A.3d 118, 122
(Pa. Super. 2014) (stating that when a PCRA petitioner’s direct appeal rights
are reinstated nunc pro tunc, “a subsequent PCRA petition will be considered
a first PCRA petition for timeliness purposes.”). Murray filed the instant
Petition on February 1, 2016, and consequently, Murray’s PCRA Petition is
facially untimely.
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Murray claims an exception to the PCRA’s timeliness requirement
based upon his discovery that at the time of trial, his counsel, Nino Tinari,
Esquire (“Attorney Tinari”), represented the Philadelphia Police Department
in defending claims of police brutality. Brief for Appellant at 8. According to
Murray, Attorney Tinari had a direct conflict of interest, and should have
requested permission to withdraw as counsel to Murray, or as counsel to the
Philadelphia Police Department. Id. Murray argues that “[t]his newly
discovered evidence of counsel ineffectiveness clearly satisfied the
requirements of 42 Pa.[C.S.A.] § 9545(b)(1)(ii).” Brief for Appellant at 9
(internal quotation marks omitted). Citing this Court’s decision in
Commonwealth v. Burton, 121 A.3d 1063 (Pa. Super. 2015) (en banc),
appeal granted, 134 A.3d 446 (Pa. 2016), Murray contends that exercising
due diligence, he could not have discovered this information because he
“does not have access to information that is readily available to the public.”
Brief for Appellant at 14 (emphasis omitted).
Generally, matters of public record ordinarily do not support the
newly-discovered facts exception found at Section 9545(b)(1)(ii).
Commonwealth v. Lopez, 51 A.3d 195, 199 (Pa. 2012); Commonwealth
v. Chester, 895 A.2d 520, 523 (Pa. 2006). In Burton, an en banc panel of
this Court addressed the question of “the appropriate level of diligence
required of an untimely PCRA petitioner[.]” Burton, 121 A.3d at 1070. Our
Court explained that “[d]ue diligence demands that the petitioner take
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reasonable steps to protect his own interests[.]” Id. (citations omitted).
Regarding publically accessible information, this Court opined that
[t]he general rule is reasonable when we may conclude that the
petitioner retains access to public information, such as when a
petitioner is represented by counsel. See, e.g.,
[Commonwealth v.] Taylor, 67 A.3d [1245,] 1247 [(Pa.
2013)] (stating that each of the petitioner’s three petitions for
collateral relief were prepared by counsel); [Commonwealth
v.] Chester, 895 A.2d [520,] 522 [Pa. 2006)] (stating that
petitioner was represented by counsel during pendency of his
second petition); Commonwealth v. Whitney, 817 A.2d 473,
474, 572 Pa. 468 (Pa. 2003) (noting that petitioner had the
benefit of counsel). In such cases, public records should be
presumptively knowable.
However, a pro se petitioner does not have access to information
otherwise readily available to the public. That is elementary: A
PCRA petitioner is most often incarcerated, and thus, no longer a
member of the public. See 42 Pa.C.S.[A.] § 9543(a)(1).
Without counsel’s providing a conduit to publicly available
information, a presumption of access is cynical, and the strength
of the general rule falters. Thus, the Supreme Court has
expressly recognized the importance of access to the public
information.
Burton, 121 A.3d at 1072 (emphasis in original). As a result, the court’s
due diligence inquiry is fact-sensitive and dependent upon the circumstances
presented. Id. at 1070.
In his Petition, Murray alleged that the Philadelphia Police unlawfully
coerced a statement from him by subjecting him to “physical and emotional
torture[.]” PCRA Petition, 2/1/16, at 20. Murray asserts that Attorney Tinari
advised him not to raise this issue because, “if presented to the jury, [it]
would only be considered as the rantings of a criminal defendant who was
seeking refuge under the umbrella of racially motivated prejudice ….” Id. at
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21. Murray claims that he discovered Attorney Tinari’s conflict from another
inmate, and filed his Petition within 60 days thereafter. Id. at 23. Murray
attached to his Petition, an August 15, 1989 petition for post-conviction
collateral relief filed by his fellow inmate, Daniel H. Greene (“Greene”).
Our review discloses that Murray failed to plead and prove how, with
the exercise of due diligence, he was unable to discover Attorney Tinari’s
alleged conflict within one year following the date upon which his judgment
of sentence became final. As alleged by Murray, Attorney Tinari’s
representation of the Philadelphia Police Department was known to Greene
in 1989. The record reflects that Murray was represented by counsel
throughout the litigation of his first, timely PCRA Petition. In accordance
with Burton, we can presume that Murray, through his counsel, retained
access to this public information. See Burton, 121 A.3d at 1072. Thus,
Murray failed to establish an exception to the PCRA’s timeliness requirement.
Because Murray failed to establish an exception to the PCRA’s
timeliness requirement, we conclude that the PCRA court properly dismissed
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his Petition as untimely filed.4 Accordingly, we affirm the Order of the PCRA
court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2017
4
Based upon our conclusion that Murray’s PCRA Petition is untimely, and not
subject to any exception to the PCRA’s timeliness requirement, we need not
address Murray’s remaining claim.
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