Com. v. Rock, G.

J-S09038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GARY LEE ROCK :
:
Appellant : No. 1605 MDA 2017
Appeal from the PCRA Order September 25, 2017
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-MD-0000283-1977
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED MAY 15, 2018
Appellant, Gary Lee Rock, appeals pro se from the order entered in the
Franklin County Court of Common Pleas, which dismissed as untimely his
serial petition for collateral relief (labeled a petition for writ of habeas
corpus), per the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. In May 1978, a jury convicted Appellant of six counts of attempted
murder and two counts of first-degree murder. The court sentenced
Appellant in September 1980, to life imprisonment, and our Supreme Court
affirmed the judgment of sentence in 1981. In 1984, Appellant obtained
habeas corpus relief in federal court. Following a new trial, a jury convicted
Appellant on January 22, 1985, of four counts of attempted murder and two
counts each of first-degree murder and aggravated assault. On March 26,
1986, the court again sentenced Appellant to life imprisonment. This Court
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S09038-18
affirmed the judgment of sentence on April 16, 1987, and our Supreme
Court denied allowance of appeal on July 8, 1988. See Commonwealth v.
Rock, 526 A.2d 1235 (Pa.Super. 1987) (unpublished memorandum), appeal
denied, 519 Pa. 653, 546 A.2d 58 (1988). Appellant sought no further direct
review, so the judgment of sentence became final sixty days later, on
September 6, 1988. See U.S.Sup.Ct.R. 20.1 (effective 1984 to 1990).
Between 1988 and 2001, Appellant unsuccessfully litigated a petition
for habeas corpus relief in federal court and two PCRA petitions. On June 8,
2015, Appellant filed his third pro se PCRA petition, arguing police records
sealed during his 1978 trial might contain exculpatory evidence. The PCRA
court dismissed the petition as untimely on September 3, 2015; this Court
affirmed on April 1, 2016, concluding Appellant failed to show he exercised
due diligence to obtain the sealed police records. See Commonwealth v.
Rock, 143 A.3d 770 (Pa.Super. 2016) (unpublished memorandum).
On June 16, 2017, Appellant filed the current pro se petition for writ of
habeas corpus, which the PCRA court deemed a fourth PCRA petition. In the
petition, Appellant recast the argument from his third PCRA petition in light
of Commonwealth v. Burton, 121 A.3d 1063 (Pa.Super. 2015) (en banc),
aff’d, 638 Pa. 687, 158 A.3d 618 (2017). The PCRA court issued Rule 907
notice on September 15, 2017; Appellant filed a pro se response on
September 22, 2017. On September 25, 2017, the PCRA court dismissed
the petition. Appellant filed a timely pro se notice of appeal and voluntary
-2-
J-S09038-18
Rule 1925(b) statement on October 13, 2017.
Preliminarily, any petition for post-conviction collateral relief will
generally be considered a PCRA petition, even if captioned as a request for
habeas corpus relief, if the petition raises issues for which the relief sought
is available under the PCRA. See Commonwealth v. Peterkin, 554 Pa.
547, 722 A.2d 638 (1998); 42 Pa.C.S.A. § 9542 (stating PCRA shall be sole
means of obtaining collateral relief and encompasses all other common law
and statutory remedies for same purpose). As well, the timeliness of a PCRA
petition is a jurisdictional requisite. Commonwealth v. Zeigler, 148 A.3d
849 (Pa.Super. 2016). A PCRA petition must be filed within one year of the
date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A
judgment is “final” at the conclusion of direct review or at the expiration of
time for seeking review. 42 Pa.C.S.A. § 9545(b)(3). The exceptions to the
PCRA time-bar allow for very limited circumstances under which the late
filing of a petition will be excused; a petitioner asserting an exception must
file a petition within 60 days of the date the claim could have been
presented. 42 Pa.C.S.A. § 9545(b)(1-2). The timeliness exception at
Section 9545(b)(1)(ii), known as the newly-discovered facts exception,
requires a petitioner to plead and prove he: (1) did not know the facts upon
which he based his petition; and (2) could not have learned those facts
earlier by the exercise of due diligence. Commonwealth v. Shiloh, 170
A.3d 553 (Pa.Super. 2017). Generally, Pennsylvania courts presume that
-3-
J-S09038-18
information of public record is not “unknown” for purposes of the Section
9545(b)(1)(ii) exception. Commonwealth v. Chester, 586 Pa. 468, 895
A.2d 520 (2006). Pennsylvania courts, however, do not apply a public
record presumption to pro se incarcerated PCRA petitioners; but, a pro se
incarcerated petitioner is still required to plead and prove the petitioner’s
due diligence. Burton, supra at ___, 158 A.3d at 638; Shiloh, supra at
559. Additionally, to be eligible for relief under the PCRA, a petitioner must
plead and prove, inter alia, his allegations of error were not previously
litigated. 42 Pa.C.S.A. § 9543(a)(3).
Instantly, Appellant claims police records sealed during his 1978 trial
might contain exculpatory evidence. As presented, Appellant’s claim is
cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(vi). Thus, the
PCRA court properly treated this most recent prayer for relief as a PCRA
petition. Nevertheless, Appellant’s judgment of sentence became final on
September 6, 1988, upon expiration of the time to file a petition for writ of
certiorari in the United States Supreme Court. See U.S.Sup.Ct.R. 20.1
(effective 1984 to 1990). Appellant filed the current PCRA petition on June
16, 2017, which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).
Appellant attempts to invoke the newly-discovered facts exception, insisting
police records sealed during his 1978 trial might contain exculpatory
evidence. In his third PCRA petition, Appellant litigated a substantially
identical claim based on the same exception, which failed for lack of due
-4-
J-S09038-18
diligence in seeking access to the same sealed records. Appellant cannot
now rely upon Burton to resurrect a claim previously decided against him in
his third PCRA petition. See 42 Pa.C.S.A. § 9543(a)(3). Thus, Appellant’s
petition remains time-barred, and the PCRA court lacked jurisdiction to
review it. See Zeigler, supra. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/18
-5-