Com. v. Walter, B.

J-S67003-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRYAN LEE WALTER, :
:
Appellant : No. 1764 WDA 2013
Appeal from the PCRA Order October 16, 2013,
Court of Common Pleas, Bedford County,
Criminal Division at No. CP-05-CR-0000310-1996
BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 12, 2014
Bryan Lee Walter (“Walter”) appeals from the order entered on
October 16, 2013 by the Bedford County Court of Common Pleas, Criminal
Division, dismissing his petition filed pursuant to the Post-Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46, as untimely. We affirm.
Because we resolve this case on procedural grounds, a recitation of
the facts underlying Walter’s criminal conviction is unnecessary. It suffices
to say that on December 16, 1997, the trial court sentenced Walter to life in
prison following his conviction for murder of the first degree.1 Our Court
affirmed his judgment of sentence on March 31, 1999 and the Supreme
Court of Pennsylvania denied his petition for allowance of appeal on March
27, 2000. The United States District Court for the Western District of
1
18 Pa.C.S.A. § 2502(a).
*Former Justice specially assigned to the Superior Court.
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Pennsylvania denied Walter’s petition for federal habeas corpus relief on July
31, 2003.
On October 10, 2012, Walter filed a pro se petition pursuant to the
PCRA. On October 24, 2012, the trial court appointed counsel to represent
Walter and afforded counsel 60 days to file an amended PCRA petition. On
March 8, 2013, Walter filed an amended PCRA petition.2 The trial court held
hearings on Walter’s PCRA petition on September 30 and October 15, 2013.
On October 16, 2013, the trial court denied Walter’s PCRA petition, finding
the petition untimely and that Walter did not fulfill the requirements of the
timeliness exception in section 9545(b)(1)(ii) of the PCRA.
On October 25, 2013, Walter filed a timely notice of appeal. On
October 30, 2013, the trial court ordered Walter to file a concise statement
of matters complained of on appeal pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure. On November 12, 2013, Walter
filed a timely Rule 1925(b) statement.
On appeal, Walter raises the following issue for our review:
Whether the trial court erred in holding Walters
failed to prove the newly discovered evidence
exception to the timeliness requirement of the
[PCRA] where Walter’s school records evidencing his
cognitive disabilities were unknown at the time of
trial and could not have been ascertained by the
exercise of due diligence?
2
The trial court granted Walter two extensions, one on December 7, 2012
and the other on January 31, 2013, to file an amended PCRA petition.
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Walter’s Brief at 4.
We review the denial of a PCRA petition on timeliness grounds
according to the following standard:
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. The PCRA
timeliness requirement, however, is mandatory and
jurisdictional in nature. The court cannot ignore a
petition’s untimeliness and reach the merits of the
petition. Section 9545(b)(1) requires a petitioner to
file a PCRA petition within one year of the date the
judgment [became] final.
Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (internal
citations and quotations omitted).
The newly discovered evidence exception to the PCRA’s timeliness rule
requires the petitioner to plead and prove “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).
Any petitioner invoking one of the exceptions to the PCRA’s timeliness
requirement must file his or her PCRA petition within 60 days of the
availability of the claim. 42 Pa.C.S.A. § 9545(b)(2).
Walter readily concedes that the PCRA petition at issue before us is
facially untimely. See N.T., 9/30/13, at 9; Walter’s Brief at 8. However,
Walter argues that he satisfies the newly discovered evidence exception to
the timeliness requirement contained in section 9545(b)(1)(ii) of the PCRA.
Walter’s Brief at 12-21. According to Walter, his case falls within the newly
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discovered evidence exception to the PCRA’s timeliness requirement because
he was unable to locate, prior to August 14, 2012, his school records, which
reflected that he had “learning disabilities, low verbal and performance I.Q.,
[and] symptoms of mild mental retardation[.]” Walter’s Brief at 14-19.
Walter claims that that he could not have acquired these records prior to
August 14, 2012 through the exercise of reasonable diligence because the
records were stored at a location different from where he attended school.
Id. Walter believes that these school records would establish that he did not
have the ability to form the requisite specific intent to commit first-degree
murder. See id. at 21.
We agree with the trial court’s conclusion that Walter failed to prove
that the facts upon which his claim is predicated were unknown to him and
could not have been ascertained by the exercise of due diligence. In his
appellate brief, Walter makes to no attempt to prove that he was unaware
that he had learning disabilities. See id. at 12-21. In fact, both his mother
and his sister testified that they knew that Walter had learning disabilities
while he was in school. N.T., 9/30/13, at 34, 58-59.
Moreover, the record supports the trial court’s conclusion that Walter
failed to prove that his school records could not have been acquired prior to
August 14, 2012 by the exercise of due diligence. Walter’s mother testified
that Walter asked her in June of 2012 to track down his school records. Id.
at 37. In June or July 2012, Walter’s mother and sister went to Claysburg-
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Kimmel High School, the school that Walter attended, in an attempt to
obtain Walter’s school records. Id. at 22, 56. While they did not have any
success getting Walter’s records from Claysburg-Kimmel High School,
Walter’s mother testified that an employee of that school suggested that she
look for the records at Roaring Spring High School because Walter had
attended special needs programs at that school. Id. at 22, 40, 42. Walter’s
mother recounted the following in regards to her trip to Roaring Spring High
School:
So whatever the date was in August [2012] was the
first time I went to Roaring Springs. I drove over to
Roaring Springs. And, um, the lady said: well Maybe
this Annetta Ritcher can help you. And I explained to
her at one time [Walter] was at their school. … And,
ah, she said -- well, she -- and I said well at one
time he was at East Freedom and he was in Roaring
Springs. And she said -- well, I have a -- and I said
he was in the IU-8 Program. And she said: well, I
have a friend that’s a head of the IU-8 Program.
And it is now at, um, the Foot of Ten. She said: I’ll
call her. You just wait here. So she called her on the
phone. And she hunted it up. And she had his
records. So, um, she said I found your son’s records.
They are here. She said they might be on microfilm.
You’ll have to give me a couple of minutes. They
weren’t. She said: We will fax you a permission. I
don’t need his permission just yours.
Id. at 40-41. On August 14, 2012, Walter’s mother received Walter’s school
records in the mail. Id. at 18.
Thus, the record reflects that Walter asked his mother and sister to
track down his school records in June 2012 and his mother was able to
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acquire them within six to eight weeks while only making two attempts to
find them. See id. at 37, 40-41, 44-45. Walter provides no explanation for
why he was unable to obtain his school records, prior to his mother and
sister’s endeavors during the summer of 2012, other than the fact that the
records were not located in the same building where he attended school.
Walter’s Brief at 20. Therefore, the record supports the trial court’s
conclusion that Walter failed to prove that his school records could not have
been acquired prior to August 14, 2012 by the exercise of due diligence.
See 42 Pa.C.S.A. § 9545(b)(2). Accordingly, because Walter failed to prove
the newly discovered evidence exception to the timeliness requirements of
the PCRA, the trial court properly dismissed Walter’s PCRA petition as
untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2014
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