Com. v. Burton, S. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN BURTON :
:
Appellant : No. 2163 EDA 2022
Appeal from the PCRA Order Entered August 9, 2022
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003894-2010
BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 7, 2023
Sean Burton, who is currently serving a life sentence for a murder
conviction, brings this appeal from the denial of his third petition filed under
the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We affirm.
Burton was arrested in June 2010 for the murder of James Stropas, the
paramour of Burton’s estranged wife. Stropas had been stabbed more than
seventy times. On March 25, 2011, a jury convicted Burton of murder of the
first degree and possession of an instrument of crime (“PIC”). On May 24,
2011, the trial court sentenced Burton to serve a term of life imprisonment
for the murder conviction and a consecutive term of incarceration of six to
twenty-three months for the PIC conviction.
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* Former Justice specially assigned to the Superior Court.
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On March 28, 2012, a panel of this Court affirmed the judgment of
sentence. See Commonwealth v. Burton, 1582 EDA 2011, 47 A.3d 1258(Pa. Super. filed March 28, 2012) (unpublished memorandum). Burton filed a
petition for allowance of appeal with the Pennsylvania Supreme Court, which
was denied on August 28, 2012. Burton did not file a petition for writ of
certiorari with the United States Supreme Court.
On February 23, 2021, Burton filed this, his third, PCRA petition. The
PCRA court dismissed the petition on August 9, 2022. This timely appeal
followed in which Burton raises claims challenging the PCRA court’s
determination that his PCRA petition was untimely filed.
Our standard of review for 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. See Commonwealth v. Phillips, 31 A.3d
317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record. See id.A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). 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.A. § 9545(b)(3). This time requirement is mandatory
and jurisdictional in nature and goes to a court’s right or competency to
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adjudicate a controversy. See Commonwealth v. Robinson, 837 A.2d 1157,
1161 (Pa. 2003) (citations omitted).
Our review of the record reflects that Burton’s judgment of sentence
became final on November 26, 2012, ninety days after the Pennsylvania
Supreme Court denied his petition for allowance of appeal and the time for
filing a petition for review with the United States Supreme Court expired. See
42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13. To be timely, Burton needed to
file the instant PCRA petition on or before November 26, 2013. Burton did not
file this PCRA petition until February 23, 2021. Accordingly, Burton’s PCRA
petition is patently untimely, and we lack jurisdiction to consider its merits
unless he pleaded and proved a timeliness exception.
Section 9545 of the PCRA provides 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. A PCRA petition invoking one of these statutory
exceptions must be filed within the time constraints set forth at 42 Pa.C.S.A.
§ 9545(b)(2). “The PCRA petitioner bears the burden of proving the
applicability of one of the exceptions.” Commonwealth v. Spotz, 171 A.3d
675, 678 (Pa. 2017) (citation omitted).
In his brief to this Court, Burton alleges that two of the timeliness
exceptions apply. See Appellant’s Brief at 26-31. Burton argues the timeliness
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exception under section 9545(b)(1)(ii), claiming he had newly discovered
evidence in the form of a mental health records belonging to Stropas, which
reflected a struggle with PTSD and an alleged propensity towards violence. In
addition, Burton attempted to invoke the governmental interference exception
under section 9545(b)(1)(i). Burton baldly alleges that somehow the
Commonwealth hid the records from him, which amounts to a Brady
violation.1
We cannot ignore that Burton was required to exercise due diligence in
obtaining the information that forms the basis for his PCRA petition. This issue
was addressed by our Supreme Court in Commonwealth v. Stokes, 959
A.2d 306 (Pa. 2008). In Stokes, the appellant was convicted of three counts
of first-degree murder and related charges in 1983. The appellant then filed a
timely direct appeal and a timely PCRA petition, which were unsuccessful.
In February of 2004, the appellant in Stokes initiated federal habeas
corpus proceedings and obtained files from the United States Postal Service
and the Philadelphia Police Department. He then filed a second PCRA petition
alleging a Brady violation, in that the Commonwealth failed to disclose
documents in the files, which contained exculpatory evidence. The appellant
in Stokes claimed that he satisfied the “newly discovered fact” and
“government interference” exceptions to the PCRA’s timeliness requirements.
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1 Brady v. Maryland, 373 U.S. 83 (1963).
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The PCRA court found the PCRA petition to be untimely and denied his petition
without a hearing, and our Supreme Court ultimately affirmed on appeal.
In reaching its decision, our Supreme Court held that both exceptions
mandate compliance with the time constraints set forth at 42 Pa.C.S.A. §
9545(b)(2), which “requires a petitioner to plead and prove that the
information on which he relies could not have been obtained earlier, despite
the exercise of due diligence.” Stokes, 959 A.2d at 310. Accordingly, the
proper questions with respect to timeliness in Stokes were “whether the
government interfered with [the a]ppellant’s access to the […] files, and
whether [the a]ppellant was duly diligent in seeking those files.” Id.
The Court in Stokes concluded the record established that the appellant
had been aware of the existence of the files prior to seeking them, and he did
not claim that the Commonwealth prevented him from accessing the files
earlier. Since Stokes was aware of the existence of the files prior to filing his
PCRA petition, and he did not explain why he did not seek them earlier, he
failed to satisfy the due diligence requirement of the time constraints set forth
at 42 Pa.C.S.A. § 9545(b)(2). Stokes, 959 A.2d at 311.
In addressing Burton’s claim that these exceptions to the timeliness
requirement of the PCRA apply here, the PCRA court stated the following:
[Burton] claims the newly discovered fact is the January 21,
2021 “discovery” of the VA medical records of Victim Stropas. The
newly discovered facts exception requires a petitioner to allege
and prove there were facts unknown to the petitioner and they
could not have been ascertained through due diligence. The
timeliness exception under the PCRA is not satisfied when the
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facts are not actually new or newly discovered, and the
information could [] have been obtained earlier with the exercise
of due diligence. Commonwealth v. Graves, 197 A.3d 1182 (Pa.
Super. 2018); Commonwealth v. Stokes, 959 A.2d 306 (Pa.
2008). The PCRA’s newly discovered facts exception does not
apply in [Burton’s] case, and even if it does, [Burton] has not
shown the VA records he now possesses constitutes a newly
discovered fact. The parties knew about Victim’s VA records before
trial began; in fact, [Burton] before trial sought the records in an
effort to discern information concerning Victim Stropas’ potential
PTSD and treatment and considered using the records to promote
a claim of self-defense; [Burton] also stipulated the records should
not be used during trial and agreed to the submission and sealing
of the records. This court concluded there was [nothing] new
about the existence of the VA records and [Burton] did not satisfy
the newly discovered facts exception to the time limitation for
filing a petition under the PCRA.
Concerning an allegation of governmental interference as an
exception for a failure to timely file a PCRA petition, a petitioner
must show: the failure previously to raise this claim resulted from
interference by government officials. Commonwealth v. Stokes,
959 A.2d 306 (Pa. 2008). Petitioner makes the accusation the
Commonwealth improperly withheld the VA records in violation of
Brady v. Maryland, 373 U.S.83 (1963). The record absolutely
belies [Burton’s] allegations: the existence of the VA records were
known to [Burton] (and the Commonwealth and the Court) in
2011, and [Burton] agreed the records should be submitted to and
sealed by the trial court. [Burton] cannot and did not prove by any
evidence, let alone by a preponderance of the evidence, the
Commonwealth denied access to the records and he cannot show
he exercised due diligence in discovering the information before
2021.
Trial Court Opinion, 10/13/22, at 5-6.
Likewise, our review of the record reflects that Burton did not lack
knowledge of, nor was he obstructed in obtaining Stropas’s medical records
from the VA, which were the subject of a motion to compel production filed on
August 31, 2010, and attendant hearing held on September 14, 2010. On
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October 6, 2011, Burton filed a praecipe withdrawing his motion to compel
production of Stropas’s mental health records. Consequently, Burton has
failed to establish that the records amount to previously unknown facts.
Moreover, Burton does not offer an explanation why he did not
investigate or seek production of the records prior to the filing of the instant
PCRA petition. In his reply brief filed with this Court, Burton states: “Mr.
Burton’s claim speaks more of his trial attorney’s sloth or ignorance than a
careful assessment of the facts. … Mr. Stropas was dead, and he was in no
position to assert the privilege. Mr. Burton obtained the Stropas medical
records himself. Upon Mr. Burton’s request, the VA mailed Mr.
Stropas’[s] medical records to Mr. Burton.” Appellant’s Reply Brief, at 7-
8 (emphasis added). This admission by Burton establishes that the records
were readily available from the VA. Accordingly, we conclude that Burton has
failed to establish that he satisfied the time constraints set forth at 42
Pa.C.S.A. § 9545(b)(2), that the information he relied upon in filing his PCRA
petition could not have been obtained earlier by the exercise of due diligence.
See 42 Pa.C.S.A. § 9545(b)(2); Stokes, 959 A.2d at 310.
Burton has not carried his burden to properly plead and prove the
applicability of one of the exceptions. Consequently, the PCRA court did not
commit any error in dismissing Burton’s petition as untimely. Hence, this
Court has no jurisdiction to address the merits of Burton’s claims. See
Robinson, supra.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/07/2023
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