Com. v. Gallman, B. ( 2016 )

J-S28035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRIAN S. GALLMAN,
Appellant No. 885 EDA 2015
Appeal from the PCRA Order February 26, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0205651-1993
BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 12, 2016
Appellant, Brian S. Gallman, appeals pro se from the order denying
and dismissing his fifth petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In an earlier appeal, a panel of this Court summarized the factual and
procedural history of this case as follows:
On October 10, 1992, the victim [Eric McKill] .
. . stop[ped] his jeep and approached [Appellant]
and [his co-defendant] Vann. Words were
exchanged for a few minutes, then the victim turned
to walk back to his jeep. At that point Vann directed
[Appellant] to “give it to him,” whereupon
[Appellant] drew a gun from his jacket pocket and
fired several shots at the victim.
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*
Retired Senior Judge assigned to the Superior Court.
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. . . The victim was then transported to the hospital
where he subsequently died.
. . . [Appellant] admitted that he knew the victim
was unarmed when he shot him.
Commonwealth v. Gallman, 838 A.2d 768, 770 (Pa. Super.
2003) (citation omitted), appeal denied, 848 A.2d 928 (Pa.
2004).
On March 11, 1996, a jury convicted [Appellant] of murder
of the first degree and possessing an instrument of crime (PIC).1
On July 10, 1996, the trial court sentenced [Appellant] to life in
prison for murder of the first degree and to a concurrent
sentence of [eleven and one-half] months to [sixty] months of
incarceration for PIC. [On September 11, 1997,] this Court
affirmed the judgment of sentence, and the Pennsylvania
Supreme Court denied allowance of appeal [on September 8,
1998]. Commonwealth v. Gallman, 704 A.2d 161 (Pa. Super.
1997) (unpublished memorandum), appeal denied, 727 A.2d
1117 (Pa. 1998). [Appellant] did not seek review in the United
States Supreme Court.
On February 28, 2001, [Appellant] filed his first PCRA
petition, and the PCRA court appointed counsel, who filed an
amended petition. The PCRA court concluded the petition was
untimely and dismissed it. This Court affirmed, and the
Pennsylvania Supreme Court denied [Appellant’s] petition for
allowance of appeal. Commonwealth v. Gallman, 838 A.2d
768 (Pa. Super. 2003), appeal denied, 848 A.2d 928 (Pa. 2004).
On May 26, 2004, [Appellant] filed a second petition,
which the PCRA court dismissed as untimely, and this Court, on
October 26, 2005, affirmed the dismissal. Commonwealth v.
Gallman, 889 A.2d 112 (Pa. Super. 2005) (unpublished
memorandum).
On November 24, 2008, [Appellant] filed a third PCRA
petition, and amended it on April 14, 2009, following the PCRA
court’s notice of intent to dismiss without a hearing. On July 13,
2009, the PCRA court dismissed the petition as untimely.
[Appellant] appealed, and this Court, on March 15, 2011,
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1
18 Pa.C.S.[A.] §§ 2502(a), 907(a), respectively.
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affirmed, and the Pennsylvania Supreme Court, on September
19, 2011, denied allowance of appeal. Commonwealth v.
Gallman, 26 A.3d 1192 (Pa. Super. 2011) (unpublished
memorandum), appeal denied, 29 A.3d 795 (Pa. 2011).
(Commonwealth v. Gallman, 3343 EDA 2011, unpublished memorandum
at *1-3 (Pa. Super. filed May 15, 2012)).
On September 30, 2011, Appellant filed his fourth petition, which the
PCRA court dismissed as untimely on December 8, 2011. On May 15, 2012,
this Court affirmed the dismissal. (See Commonwealth v. Gallman, 50
A.3d 242 (Pa. Super. 2012) (unpublished memorandum)).
On May 22, 2012, Appellant filed the instant fifth PCRA petition pro se.
On August 24, 2012, Appellant filed a supplemental petition. On November
3, 2014, the PCRA court issued a Rule 907 notice of its intent to dismiss
without a hearing. See Pa.R.Crim.P. 907(1). On February 26, 2015, the
PCRA court dismissed the petition as untimely. This timely appeal followed. 2
Appellant raises three questions on appeal:
I. Did the PCRA court abuse its discretion, when dismissing
Appellant’s fifth petition for post conviction collateral relief as
untimely?
II. Did the PCRA court abuse its discretion in not holding a
hearing in Appellant’s fifth petition for newly discovered [facts]?
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2
Appellant filed his notice of appeal on March 19, 2015. The PCRA court did
not order him to file a concise statement of errors complained of on appeal.
See Pa.R.A.P. 1925(b). The PCRA court did not file a Rule 1925(a) opinion.
See Pa.R.A.P. 1925(a).
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III. Did Appellant plead and prove a layer[ed] ineffective
assistance of all prior counsel?
(Appellant’s Brief, at 3) (emphases and unnecessary capitalization
omitted).3,4
Our standard and scope of review for the denial of PCRA relief are
well-settled.
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of record. We will not disturb a PCRA court’s
ruling if it is supported by evidence of record and is free of legal
error. This Court may affirm a PCRA court’s decision on any
grounds if the record supports it. We grant great deference to
the factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Further, where
the petitioner raises questions of law, our standard of review is
de novo and our scope of review is plenary.
Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation
omitted).
Before we are able to consider the merits of Appellant’s claim on
appeal, “[w]e must first address whether Appellant satisfied the timeliness
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3
The Commonwealth did not file a brief in this matter.
4
On December 11, 2015 this Court entered a Per Curiam order granting
Appellant’s request to file a supplemental brief. (See Order, 12/11/15). On
December 30, 2015, Appellant filed a supplemental brief, which attempts to
challenge the PCRA court’s dismissal of his third PCRA petition. (See
Supplemental Brief, at 3-8). Because Appellant’s supplemental brief does
not address his current petition on appeal, we do not consider the issues
raised therein because they are not properly before this Court.
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requirements of the PCRA.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.
Super. 2014). “The timeliness of a PCRA petition is a jurisdictional threshold
and may not be disregarded in order to reach the merits of the claims raised
in a PCRA petition that is untimely.” Id. (citation omitted).
The PCRA provides, in pertinent part, that:
(1) Any petition under this [PCRA] subchapter, including a
second or subsequent petition, shall be filed within one year of
the date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(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
(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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the claim
could have been presented.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii), (2).
“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.” Lawson, supra at 5 (citation and internal
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quotation marks omitted); see 42 Pa.C.S.A. § 9545(b)(3). “The PCRA
squarely places upon the petitioner the burden of proving an untimely
petition fits within one of the three exceptions.” Commonwealth v. Jones,
54 A.3d 14, 17 (Pa. 2012) (citation omitted).
Appellant’s judgment of sentence became final on December 7, 1998,
ninety days after the Pennsylvania Supreme Court affirmed his sentence,
when the time for filing a petition for writ of certiorari with the United States
Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup. Ct. R.
13(1). Therefore, he had one year from that date to file a petition for
collateral relief unless he pleaded and proved that a timing exception
applied. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Hence, Appellant’s current
petition, filed on May 22, 2012, is untimely on its face and we will only
review its merits if he pleads and proves one of the statutory exceptions to
the time-bar.
Appellant’s petition attempts to claim the application of both the newly
recognized constitutional right exception, 42 Pa.C.S.A. § 9545(b)(1)(iii), and
the newly-discovered facts exception, 42 Pa.C.S.A. § 9545(b)(1)(ii). (See
Petition, 5/22/12, at 1-4). The PCRA court dismissed Appellant’s petition as
untimely, finding that he did not adequately prove the existence of a newly
recognized constitutional right.5
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5
Although the PCRA court did not address Appellant’s argument that he was
also entitled to review pursuant to the newly-discovered facts exception,
(Footnote Continued Next Page)
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Appellant first asserts that his petition should not be dismissed as
untimely because he has pleaded and proven the newly-discovered facts
exception to the PCRA time-bar. (See Appellant’s Brief, at 6-8).
Specifically, he argues that his diagnosis of post-traumatic stress disorder
(PTSD) is a newly discovered fact, which constitutes an exception to the
time-bar. We disagree.
“[S]ubsection (b)(1)(ii) has two components, which must be alleged
and proved. Namely, the petitioner must establish that: 1) the facts upon
which the claim was predicated were unknown and 2) could not have been
ascertained by the exercise of due diligence.” Commonwealth v. Brown,
111 A.3d 171, 176-77 (Pa. Super. 2015), appeal denied, 125 A.3d 1197 (Pa.
2015) (emphases and citation omitted).
The timeliness exception set forth in Section 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the facts
upon which he based his petition and could not have learned
those facts earlier by the exercise of due diligence. Due
diligence demands that the petitioner take reasonable steps to
protect his own interests. A petitioner must explain why he
could not have obtained the new fact(s) earlier with the exercise
of due diligence.
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010),
appeal denied, 20 A.3d 1210 (Pa. 2011) (citations omitted).
_______________________
(Footnote Continued)
“this Court may affirm a PCRA court’s decision on any grounds if the record
supports it.” Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super.
2012), appeal denied, 64 A.3d 631 (Pa. 2013) (citation omitted).
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Here, Appellant has failed to prove either component of subsection
(b)(1)(ii). See Brown, supra at 176-77. His petition merely alleges that,
in 2012, he was diagnosed with PTSD and that he did not know that he had
PTSD prior to this.6 (See Petition, 5/22/12, at 4). He fails to allege that he
exercised due diligence in discovery of this fact. (See id.); see also
Monaco, supra at 1083 (holding that petitioner’s diagnosis of PTSD did not
satisfy newly discovered facts exception where Petitioner had not exercised
due diligence in obtaining diagnosis after he suspected that he suffered from
condition).
Furthermore, although Appellant claims that he “never knew he had
PTSD or suspected [he] suffered from PTSD,” (see Petition, 5/22/12, at 4),
he nevertheless argues that the fact he had PTSD would have been “readily
available had [trial] counsel interviewed [his] family and friends[,]”
(Appellant’s Brief, at 10).
Accordingly, Appellant has failed to satisfy the requirements of the
newly-discovered facts exception and the PCRA court properly dismissed his
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6
Notably, the documentation that Appellant attached to his petition in
support of his diagnosis states that “[Appellant] screened positive for PTSD
based on the PCL,” a screening administered in March 2012 which
considered “self-report measure of PTSD symptoms . . . in relation to
‘stressful experiences’ over the past month.” (Appellant’s Brief, at Exhibit
A). This diagnosis would not prove whether Appellant suffered from PTSD
when he shot and killed Mr. McKill in 1993.
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petition as untimely. See Brown, supra at 176-77; Reed, supra at 140;
Monaco, supra at 1080.
Next, Appellant claims that his petition should not have been
dismissed as untimely because the newly recognized constitutional right
exception to the PCRA time-bar should apply. (See Petition, 5/22/12, at 1-
3). We note that Appellant failed to address this argument in his brief, (see
Appellant’s Brief, at 6-8), and accordingly it is waived. Moreover, even if not
waived, Appellant would not be entitled to application of the exception.
In his petition, Appellant alleges that he is entitled to review because
Missouri v. Frye,7 and Lafler v. Cooper,8 announced newly recognized
constitutional rights, which he argues should retroactively apply to his case.
(See Petition, 5/22/12, at 1-3). In his supplemental petition, he similarly
claims that Miller v. Alabama,9 announced a new constitutional right under
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7
Missouri v. Frye, 132 S. Ct. 1399 (2012) (holding that “as a general rule,
defense counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be favorable
to the accused.”).
8
Lafler v. Cooper, 132 S. Ct. 1376 (2012) (holding that in order to show
he was prejudiced by counsel’s deficient performance in advising him to
reject a plea offer, appellant must show that but for such ineffective
assistance, he would have accepted the offer, trial court court would have
accepted its terms, and conviction or sentence would have been less
severe).
9
Miller v. Alabama, 132 S. Ct. 2455 (2012) (holding that “mandatory life-
without-parole sentences for juveniles violate the Eighth Amendment.”).
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which he is entitled to relief. (See Supplemental Petition, 8/24/12).
However, Appellant did not seek, nor was he given leave of court to file a
supplemental petition.10
Appellant has failed to plead and prove the applicability of Section
9545(b)(1)(iii).
When a petition is otherwise untimely, to obtain PCRA
relief under the exception for a newly recognized constitutional
right, a petitioner has the burden to plead and prove that 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.
Reed, supra at 141 (emphasis, citation, and quotation marks omitted).
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10
It is well-settled that a PCRA petitioner must seek leave of court to
supplement a PCRA petition, and claims raised in an unauthorized
supplemental petition are waived. See Commonwealth v. Mason ___
A.3d ___, 2015 WL 9485173, at *12-13 (Pa. filed December 29, 2015).
Because Appellant did not have leave of court to file his supplemental
petition, he has waived that claim.
Moreover, our review of the record confirms, and Appellant, who was
born October 29, 1973, concedes that he was eighteen years old when he
shot and killed Mr. McKrill on October 10, 1992. (See Appellant’s Brief, at
4; Arrest Report, 10/24/92). Therefore, because Appellant was not a
juvenile offender, the holding in Miller would not apply. See Miller, supra
at 2460; see also Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.
Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013) (refusing to extend
Miller to individuals eighteen years of age and older at time of commission
of crimes). Accordingly, even if not waived, Appellant would not have met
his burden of pleading and proving an exception to the PCRA time-bar. See
Lawson, supra at 5; (PCRA Ct. Op., at 1, 2 n.1).
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This Court has held that “neither Frye nor Lafler created a new
constitutional right.” Commonwealth v. Feliciano 69 A.3d 1270, 1277
(Pa. Super. 2013) (footnote omitted). Rather, they “simply applied the Sixth
Amendment right to counsel, and the Strickland[11] test for demonstrating
counsel’s ineffectiveness, to the particular circumstances at hand[.]” Id.Accordingly, Appellant has failed to prove that the newly recognized
constitutional right exception applies. See Reed, supra at 141.
Appellant’s fifth PCRA petition does not plead or prove any exception
to the PCRA time-bar; therefore the PCRA court properly dismissed it as
untimely. Neither the PCRA court nor this Court has jurisdiction to address
the substantive claims raised. See Lawson, supra at 4; Rykard, supra at
1183.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2016
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11
Strickland v. Washington, 466 U.S. 668 (1984).
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