Com. v. Gay, W. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WILBERT GAY, JR.,
Appellant No. 2654 EDA 2015
Appeal from the PCRA Order August 17, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0804412-1976
BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 10, 2016
Appellant, Wilbert Gay, Jr., appeals pro se from the dismissal of his
eighth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
We take the following facts and procedural background from the PCRA
court’s September 2, 2015 opinion and our independent review of the
certified record. In 1978, at the conclusion of Appellant’s bench trial, the
trial court convicted him of murder of the first degree, and related charges.
The charges arose from his July 26, 1976 murder of a male victim
underneath the Walt Whitman Bridge in Philadelphia. The court sentenced
Appellant to life in prison. On January 27, 1981, the Pennsylvania Supreme
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*
Retired Senior Judge assigned to the Superior Court.
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Court affirmed Appellant’s judgment of sentence. (See Commonwealth v.
Gay, 424 A.2d 495 (Pa. 1981)).
On December 15, 1982, Appellant filed his first petition for post-
conviction relief pro se. The court appointed counsel who, after “an
exhaustive review” of the record in Appellant’s case, informed the court that
his issues did not merit relief. (Commonwealth v. Gay, No. 1675 PHL
1984, unpublished memorandum, at *2 (Pa. Super. filed Mar. 15, 1985)).
The court dismissed the petition on May 9, 1984. Appellant appealed to this
Court, which affirmed the court’s order, and granted counsel’s petition to
withdraw pursuant to Anders.1 (See id. at *3).
Thereafter, Appellant filed a series of pro se PCRA petitions between
December 30, 1986, and February 13, 2012, the last of which was denied as
untimely on June 25, 2012. A panel of this Court affirmed the PCRA court’s
decision on December 19, 2012. (See Commonwealth v. Gay, 64 A.3d 27
(Pa. Super. 2012) (unpublished memorandum)).
Appellant filed the current pro se petition, his eighth, on June 21,
2013. On April 13, 2015, Appellant filed a pro se amended petition without
leave of court. The court provided Appellant notice of its intention to dismiss
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1
Anders v. California, 386 U.S. 738 (1967).
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the petition without a hearing on July 20, 2015. See Pa.R.Crim.P. 907(1).
It formally did so on August 17, 2015. Appellant timely appealed.2
Appellant raises one issue that he presents as two questions. (See
Appellant’s Brief, at 2). In effect, he claims that the PCRA court erred in
dismissing his current PCRA petition as untimely because it had committed
governmental interference when it “dismiss[ed] his initial [post-conviction]
petition as frivolous [without] independently reviewing the issues raised in
that petition[,] . . . causing Appellant to now be time[-]barred.” (Id.)
(unnecessary capitalization omitted). Appellant’s issue does not merit relief.
This Court examines PCRA appeals in the light most
favorable to the prevailing party at the PCRA level. Our review
is limited to the findings of the PCRA court and the evidence of
record[.] Additionally, [w]e 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. In this respect, we
will not disturb a PCRA court’s ruling if it is supported by
evidence of record and is free of legal error. However, we afford
no deference to its legal conclusions. [W]here the petitioner
raises questions of law, our standard of review is de novo and
our scope of review is plenary.
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014), appeal
denied, 101 A.3d 785 (Pa. 2014) (citations and quotation marks omitted).
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2
The PCRA court did not order Appellant to file a Rule 1925(b) statement; it
filed an opinion on September 2, 2015. See Pa.R.A.P. 1925.
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Here, the PCRA court found that Appellant’s petition was untimely and
that he failed to plead and prove any exception to the PCRA time-bar. (See
PCRA Court Opinion, 9/02/15, at 3). We agree.
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration
of the time for seeking such review. 42 Pa.C.S.[A.] §
9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional; therefore, a court may not address the merits of
the issues raised if the petition was not timely filed. The
timeliness requirements apply to all PCRA petitions, regardless of
the nature of the individual claims raised therein. 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, 16-17 (Pa. 2012) (case citations
and footnote omitted).
Section 9545 of the PCRA provides only three exceptions that allow for
review of an untimely PCRA petition: (1) the petitioner’s inability to raise a
claim because of governmental interference; (2) the discovery of previously
unknown facts that would have supported a claim; and (3) a newly-
recognized constitutional right. See id. at 16 n.2. When a petition is filed
outside the one-year time limit, “[p]etitioners must plead and prove the
applicability of one of the three exceptions to the PCRA timing
requirements.” Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa.
Super. 2012). “If the petition is determined to be untimely, and no
exception has been pled and proven, the petition must be dismissed without
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a hearing because Pennsylvania courts are without jurisdiction to consider
the merits of the petition.” Id. (citation omitted).
In the case sub judice, Appellant’s judgment of sentence became final
on March 30, 1981, when his time to file a petition for writ of certiorari with
the United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3);
former U.S. Sup. Ct. R. 20.1 (petition for writ of certiorari must be filed
within sixty days of order from which appealing). Therefore, Appellant’s
current petition, filed on June 21, 2013, is patently untimely and we are
precluded from reviewing its merits unless he pleads and proves a timeliness
exception to the PCRA time-bar.
Appellant is attempting to claim the applicability of the governmental
interference exception.3 (See Appellant’s Brief, at 4-5, 8); see also 42
Pa.C.S.A. § 9545(b)(1)(i). Specifically, he maintains that he brought a
timely Brady4 claim in his first post-conviction petition,5 but that the court
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3
Appellant also refers to the newly recognized constitutional right exception,
(see Appellant’s Brief, at 4-5); see also 42 Pa.C.S.A. § 9545(b)(1)(iii).
However, not only has Appellant failed to develop any argument in support
of this timeliness exception, he failed to raise it in the PCRA court, and
therefore it is waived for our review. (See PCRA Petition, 6/21/13, at 3-4);
see also Pa.R.A.P. 2119(a)-(b).
4
Brady v. Maryland, 373 U.S. 83 (1963).
5
Appellant claims that the Commonwealth committed a Brady violation
when it failed to disclose that one of its witnesses, Philadelphia Police
Detective William Jones, was a convicted felon; and it allowed him to perjure
himself by testifying in his official capacity. (See Appellant’s Brief, at 6-8).
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committed governmental interference when it dismissed that petition as
frivolous, and every petition thereafter as untimely, without ever fully
reviewing the merits of his claim.6 (See Appellant’s Brief, at 4-5, 8; see
also PCRA Petition, 6/21/13, at 4).7 However, this issue is unavailing
because Appellant has failed to plead and prove the applicability of Section
9545(b)(1)(i).
In order to meet the statutory requirements of the
“governmental interference” exception to the PCRA’s one year
jurisdictional time-bar, Appellant was required to plead and
prove that his “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. . . .” 42 Pa.C.S.[A.] § 9545(b)(1)(i) (emphasis
added).
Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006) (emphasis
omitted).
We first observe that, after “[h]aving reviewed the record of all
relevant proceedings to make an independent judgment,” this Court
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6
Appellant has failed to provide any evidence to support his claim that the
court did not conduct a full review of the merits of his first post-conviction
petition. (See Appellant’s Brief, at 9-11).
7
We note that two previous panels of this Court rejected Appellant’s
attempts to avail himself of the PCRA’s timeliness exceptions in an effort to
raise his Brady claim. (See Commonwealth v. Gay, No. 1857 EDA 2012,
unpublished memorandum, at *5-*6 (Pa. Super. filed Dec. 19, 2012)
(rejecting Appellant’s attempt to claim newly discovered facts exception));
(Commonwealth v. Gay, No. 2132 EDA 2008, unpublished memorandum,
at *8-*9 (Pa. Super. filed Apr. 15, 2009) (rejecting Appellant’s attempt to
claim governmental interference and newly discovered facts exceptions)).
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affirmed the court’s decision to deny Appellant’s first post-conviction petition
as frivolous. (Commonwealth v. Gay, No. 1675 PHL 1984, at *3). “[A]
proper court order can[not], in any fashion, be perceived as governmental
interference.” Commonwealth v. Howard, 788 A.2d 351, 354 (Pa. 2002).
Therefore, Appellant’s attempt to claim the benefit of the governmental
interference timeliness exception on the basis of the court’s dismissal of his
first PCRA fails. See id.
We also note that, even if the court’s order could form the proper basis
of the governmental interference exception, Appellant’s claim still would not
merit relief. Appellant himself concedes that he raised the underlying Brady
claim as far back as his first post-conviction petition in 1982. (See
Appellant’s Brief, at 6, 8). Therefore, he cannot, at the same time, maintain
his burden of proving that governmental interference rendered him unable to
raise the Brady allegation in the first place. See Chester, supra at 523.
Also, it is well-settled that:
[T]here is the requirement that [a petitioner] file[] his claims
within 60 days of the date the claim could have been presented.
[See] 42 Pa.C.S.[A.] § 9545(b)(2). We have established that
this 60–day rule requires a petitioner to plead and prove that the
information on which his claims are based could not have been
obtained earlier despite the exercise of due diligence.
Commonwealth v. Edmiston, 65 A.3d 339, 345-46 (Pa. 2013), cert.
denied, 134 S. Ct. 639 (2013) (case citations omitted).
Here, the court denied Appellant’s first petition on May 9, 1984.
Appellant has utterly failed to establish why he could not have obtained this
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information about the alleged “governmental interference” until over thirty
years’ later. See id. Hence, Appellant violated his duty to exercise due
diligence, and he has failed to prove the governmental interference
exception to the PCRA’s one-year time-bar on this basis as well.8 See 42
Pa.C.S.A. § 9545(b)(2). Accordingly, the PCRA court properly dismissed his
petition as untimely. See Jones, supra at 17. Appellant’s claim does not
merit relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2016
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8
Even if we were to exercise extreme lenity by considering Appellant’s claim
as somehow based on the PCRA court’s dismissal of his seventh petition on
June 25, 2012, Appellant still would have failed to plead and prove that he
exercised due diligence where he did not file his eighth PCRA petition within
sixty days of this Court affirming that decision. See 42 Pa.C.S.A. §
9545(b)(2); Edmiston, supra at 345-46.
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