Com. v. Burton, F.

J-A09026-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FREDERICK BURTON :
:
Appellant : No. 1137 EDA 2021
Appeal from the PCRA Order Entered May 24, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1210041-1970
BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED SEPTEMBER 28, 2022
Frederick Burton (“Burton”) appeals from the order dismissing his serial
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
This Court previously summarized the factual and procedural history of
this case as follows:
On December 7, 1972, following a jury trial, Burton was
found guilty of first[-]degree murder [and related offenses]
stemming from [his] participation in the murder of Fairmount
Police Sergeant Francis R. Von Colln and the shooting of Officer
Joseph Harrington, in the Cobbs Creek section of Philadelphia on
August 29, 1970. Following the trial, on December 12, 1973, the
trial court sentenced Burton to a term of life imprisonment for the
murder conviction. [The trial court additionally sentenced Burton
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* Retired Senior Judge assigned to the Superior Court.
1 See 42 Pa.C.S.A. §§ 9541-9546.
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to, inter alia, a concurrent term of life imprisonment for
conspiracy.]
On October 16, 1974, the Supreme Court of Pennsylvania
affirmed Burton’s judgment of sentence. Commonwealth v.
Burton, [] 330 A.2d 833 ([Pa.] 1974). [The Court denied Burton’s
petition for a rehearing.]
Burton took no further action for over six years. However,
on September 30, 1981, Burton filed his first petition for post[-
]conviction relief under the former collateral relief act, the Post
Conviction Hearing Act (“PCHA”). A hearing was held on October
28, 1982 after which, the PCHA court denied Burton’s requested
relief by order dated January 9, 1984. This Court subsequently
affirmed the PCHA court’s order, and the Supreme Court of
Pennsylvania thereafter denied allocatur.
****
On November 19, 1991, Burton filed his second post[-
]conviction collateral petition, now governed by the PCRA. On
December 5, 1991, the PCRA court, without a hearing, denied the
relief requested. This Court affirmed the PCRA court’s order
denying relief on March 30, 1994, and the Supreme Court of
Pennsylvania again denied allocatur on August 17, 1994.
On September 28, 2004, Burton filed . . . his third post[-
]conviction collateral petition under Pennsylvania law. Burton’s
petition was subsequently amended by counsel on September 29,
2005. The PCRA court . . . issued a [] notice of intent to dismiss
for untimeliness pursuant to Rule 907 of the Pennsylvania Rules
of Criminal Procedure. Subsequent thereto, the PCRA court
dismissed Burton’s petition as untimely on August 11, 2006.
****
[On appeal from the dismissal of his third petition, Burton
claimed, inter alia, that he had discovered new and exculpatory
evidence which impugned the] credibility of a prosecution witness,
Marie Williams [(“Ms. Williams”)]. [T]he so called “new and
exculpatory evidence” [consisted of:] (1) the transcript of the
November 1970 hearing on the Commonwealth’s motion to grant
immunity to [Ms.] Williams [to compel her testimony at trial]; (2)
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[her] statements to the police [incriminating Burton] made prior
to the preliminary hearing; (3) and a letter [dated October 14,
1970, which she] allegedly drafted . . . to the Commonwealth prior
to the grant of immunity[, that was attached to her answer in
opposition to the immunity petition, and wherein she contested
the petition to grant immunity and claimed that the police coerced
her statements incriminating Burton].
Commonwealth v. Burton, 936 A.2d 521, 522–23, 525 (Pa. Super. 2007)
(some footnotes omitted; paragraphs re-ordered for clarity). This Court
affirmed the PCRA court’s order dismissing Burton’s third petition as untimely,
noting that Burton failed to properly plead in his petition an exception to the
timeliness requirement. See id. at 525, 528. This Court further observed
that, even if Burton had properly invoked the newly discovered fact exception
to the PCRA’s timeliness requirement, no relief would be due because the
claimed “newly discovered evidence” regarding Ms. Williams had been
available to Burton for over thirty years. Id. at 526. Our Supreme Court
denied Burton’s petition for allowance of appeal. See Commonwealth v.
Burton, 959 A.2d 927 (Pa. 2008).
Burton filed his fourth PCRA petition on July 31, 2018, in which he again
asserted claims relating to Commonwealth witness Ms. Williams.2 Specifically,
Burton alleged that he had recently discovered the Commonwealth’s immunity
petition and Ms. Williams’s answer to the immunity petition in which she
opposed the petition. See PCRA Petition, 7/31/18, at 11-12, 34. Burton
claimed that the Commonwealth committed a violation under Brady v.
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2 Ms. Williams is now deceased. See PCRA Court Opinion, 7/29/21, at 20
n.15. She was the wife of Burton’s co-defendant Hugh Williams. See id. at
2 n.4.
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Maryland, 373 U.S. 83 (1963) by withholding Ms. Williams’s answer to the
immunity petition, in which she alleged her statements incriminating Burton
were coerced by police, and in which she opposed the immunity petition. See
PCRA Petition, 7/31/18, at 29. Burton additionally claimed the Commonwealth
violated his due process rights under the United States Constitution,
Fourteenth Amendment, by allegedly knowingly presenting at trial Ms.
Williams’s false testimony incriminating him. See id. at 52.3
In August 2019, the PCRA court scheduled an evidentiary hearing. The
PCRA court held an evidentiary hearing between August 17, 2020 and August
25, 2020. See PCRA Court Opinion, 7/29/21, at 7-8. The PCRA court
dismissed Burton’s petition as untimely, and meritless, on May 24, 2021. See
Order, 5/24/21. The court concluded, among other things, that Burton’s
petition was facially untimely by more than forty years and, because this Court
concluded in 2007 that Ms. Williams’s answer and letter were available to
Burton as far back as 1970, Burton failed to prove an applicable exception to
the PCRA’s timeliness requirement and thereby failed to invoke the court’s
jurisdiction. See PCRA Court Opinion, 7/29/21, at 22-24. Burton timely
appealed, and both he and the PCRA court complied with Pennsylvania Rule
of Appellate Procedure 1925.
Burton raises the following issues for our review:
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3 Burton also claimed ineffective assistance of trial counsel for failing to
impeach Ms. Williams with her immunity answer and letter. See id. at 58.
He does not pursue this issue in his brief on appeal.
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1 Whether the PCRA Court erred as a matter of law in applying
the law-of-the-case doctrine to its analysis of the timeliness of
Burton’s petition based on Burton’s 2007 Superior Court
Opinion?
2 Whether the PCRA Court erred as a matter of law by failing to
apply the analysis of Commonwealth v. Small, 238 A.3d
1267[, 1285-86] (Pa. 2020)[, in which our Supreme Court
disavowed the presumption that PCRA petitioners know facts
of public record] to Burton’s present petition?
3 Whether the PCRA Court erred as a matter of law by applying
the after-discovered evidence standard to Burton’s present
Brady claim?
4 Whether the PCRA Court erred as a matter of law by requiring
Burton to prove that the Commonwealth did not disclose the
immunity documents to establish the suppression prong of a
Brady violation?
5 Whether the PCRA Court erred as a matter of law in excluding
the Immunity Answer from its materiality analysis for the
purposes of establishing a Brady violation on the basis that it
would not be admissible?
Burton’s Brief at 5-6.
Our standard of review of an order dismissing a PCRA petition is well-
settled:
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the record in the light most favorable to the
prevailing party in the PCRA court. We are bound by any
credibility determinations made by the PCRA court where they are
supported by the record. However, we review the PCRA court’s
legal conclusions de novo.
Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (internal citation
and quotations omitted).
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Initially, we must determine whether Burton properly invoked the PCRA
court’s jurisdiction over his facially untimely PCRA petition. Under the PCRA,
any petition “including a second or subsequent petition, shall be filed within
one year of the date the judgment becomes final[.]” 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). The PCRA’s
timeliness requirements are jurisdictional in nature, and a court may not
address the merits of the issues raised if the PCRA petition was not timely
filed. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
As noted above, our Supreme Court affirmed Burton’s judgment of
sentence on October 16, 1974. However, the Court only denied Burton’s
petition for a rehearing on February 5, 1975. See Burton, 936 A.2d at 524.
Accordingly, his judgment of sentence became final on May 6, 1975, after his
time expired for filing a petition for writ of certiorari with the U.S. Supreme
Court, and thus Burton had until May 6, 1976 to file a timely PCRA petition.
See id. Accordingly, any petitions filed thereafter are facially untimely. Thus,
Burton’s latest PCRA petition, filed on July 31, 2018, is facially untimely.
Pennsylvania courts may nevertheless consider an untimely PCRA
petition if the petitioner can plead and prove one of three exceptions set forth
in section 9545(b)(1)(i)-(iii). See Commonwealth v. Taylor, 65 A.3d 462,
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468 (Pa. Super. 2013) (providing that a PCRA court must dismiss an untimely
petition if no exception is pleaded and proven). Relevant here, section
9545(b)(1)(ii) provides an exception to the jurisdictional time-bar if “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). The focus of this exception is on newly discovered facts, not
on a newly discovered or newly willing source for previously known facts. See
Commonwealth v. Lopez, 249 A.3d 993, 1000 (Pa. 2021). A “newly
identified source in further support for . . . previously known facts” is
insufficient to satisfy section 9545(b)(1)(ii). See id. at 1000. If the fact upon
which the claim is premised was previously known, it is of no moment that
the issue had never been “adequately ‘developed and/or adjudicated’ in either
the state or federal courts.” Id. Any PCRA petition invoking an exception
under section 9545(b)(1) “shall be filed within one year of the date the claim
could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
Burton does not contest that his petition is facially untimely, but he
argues that his petition satisfies section 9545(b)(1)(ii)’s newly discovered fact
exception to the time-bar. Specifically, Burton argues that he first received
in July 2018 certain immunity-related documents such as the
Commonwealth’s immunity petition and proposed order as well as Ms.
Williams’s answer. Burton’s Brief at 19. Burton specifies that the claims
asserted in his latest petition derive from Ms. Williams’s answer. See id. at
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20-21. Burton claims these documents show that the Commonwealth sought
immunity for Ms. Williams in order to compel her testimony against Burton,
and, further, that Ms. Williams opposed the immunity petition. See id. at 19-
20. According to Burton, Ms. Williams’s immunity answer “was replete with
material, exculpatory evidence hitherto unknown to [him] where, in no
uncertain terms, she disavows [prior] police statements” incriminating him.
Id. at 20. While Burton asserts that he first received the immunity answer in
2018, he concedes he had Ms. Williams’s letter—originally attached to the
answer, and which makes the same claims, i.e., that police coerced her
statements incriminating Burton—in 2003. See id. at 23-24. Burton
nevertheless argues the letter was “not of substantive evidentiary value until
Burton received the immunity answer [in] 2018, which authenticates it.” Id.
at 22-23; see also id. at 33, 35, 59 (presenting argument under section
9545(b)(1)(ii)).4
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4We note that Burton also attempted below to satisfy the timeliness exception
at section 9545(b)(1)(i). See PCRA Petition, 7/31/18, at 16-25. However, in
his appellate brief, apart from a single citation in his “preliminary statement,”
Burton has not asserted or developed any argument that section 9545(b)(1)(i)
applies, and he has therefore abandoned this issue. See Burton’s Brief at 4;
see also Commonwealth v. Pacheco, 263 A.3d 626, 649 n.23 (Pa. 2021)
(noting that appellate courts should not consider arguments raised below but
abandoned on appeal) (internal brackets, quotations, and citation omitted).
Burton presents argument about the Commonwealth’s alleged obstruction in
connection with the “due diligence” requirement under section 9545(b)(1)(ii).
See Burton’s Brief at 46-55.
(Footnote Continued Next Page)
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The PCRA court considered Burton’s newly discovered evidence
argument and rejected it. The court reasoned that Burton had raised the issue
of Ms. Williams’s opposition to the Commonwealth’s immunity petition in
connection with his third PCRA petition, and this Court found in 2007 that the
documents underlying this claim were available to Burton as far back as 1970.
Accordingly, Burton presently “failed to show that he did not know about these
facts [contained in the immunity answer] and could not have learned about
them with the exercise of due diligence.” PCRA Court Opinion, 7/29/21, at
22-23.
Based on our review, we agree with the PCRA court’s conclusion that
Burton failed to plead and prove his exception to the PCRA’s timeliness
requirement under section 9545(b)(1)(ii), although our reasoning differs.5
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We observe that Burton twice makes passing reference to section
9545(b)(1)(i) in his reply brief. See Burton’s Reply Brief at 6, 18. However,
assuming arguendo that Burton has not abandoned his section 9545(b)(1)(i)
claim, it is undeveloped and thereby waived. See Commonwealth v.
McMullen, 745 A.2d 683, 689 (Pa. Super. 2000) (stating that inadequately
developed arguments make preclude meaningful review) (internal citation
omitted); see also Commonwealth v. Wise, 171 A.3d 784, 791 (Pa. Super.
2017) (finding waiver on appeal of an undeveloped issue).
5 While PCRA court’s legal basis is not entirely clear, the court appeared to
consider itself bound, under the law of the case doctrine, by this Court’s 2007
opinion in which we concluded that Burton had access to the immunity hearing
transcripts, Ms. Williams’s police statements, and Ms. Williams’s letter as far
back as 1970. Compare PCRA Court Opinion, 7/29/21, at 21, 23-24 with
Commonwealth v. Gacobano, 65 A.3d 416, 419-20 (Pa. Super. 2013)
(noting that under the law of the case doctrine, which directs discretion, a
court should not reopen questions decided by a judge of the same court or a
(Footnote Continued Next Page)
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Burton concedes that Ms. Williams’s immunity answer—which he claims he
first discovered in 2018—contains the same information as was in Ms.
Williams’s letter, which he possessed at least as early as 2003. See Burton’s
Brief at 20-24; see also Burton, 936 A.2d at 526-27.6 Both the answer and
the letter state: that Ms. Williams disavowed her statements to police
implicating, inter alia, Burton; that police had threatened her and her husband
to obtain the incriminating statements against Burton; and that Ms. Williams
was unwilling to testify for the Commonwealth. Thus, Burton’s proffered
immunity answer contains no new facts; it is rather simply a newly discovered
source for previously known facts. As noted above, our Supreme Court has
reiterated that the newly discovered fact exception in section 9545(b)(1)(ii)
requires “newly discovered facts, not [] a newly discovered or newly
willing source for previously known facts.” Lopez, 249 A.3d at 999
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higher court). This was error because this Court’s conclusion that Burton
possessed the transcripts, statement, and letter, was dictum and therefore
non-binding. Commonwealth v. Wallace, 870 A.2d 838, 842 (Pa. 2005)
(concluding that prior dicta is non-binding). For the same reason, the PCRA
court erred to the extent it relied on this Court’s dictum for its conclusion that
the claims have been previously litigated for purposes of section 9543(a)(3).
See, e.g., PCRA Court Opinion, 7/29/21, at 25. While the PCRA court erred
in these respects, we may affirm on any legal basis. See Commonwealth v.
Thompson, 199 A.3d 889, 892 n.4 (Pa. Super. 2018) (internal citations,
quotations, and brackets omitted).
6 We also observe that Burton raised the issue of Ms. Williams’s letter in a
2009 petition for habeas corpus in federal court. The district court denied the
petition and the Third Circuit Court of Appeals affirmed. See, e.g., Burton
v. Horn, 617 F.App’x. 196, 198–99 (3d Cir. 2015) (unpublished).
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(quoting Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008))
(emphasis in Lopez). Burton knew the facts contained in the immunity
answer at least as far back as 2003, which, he concedes, is when he received
Ms. Williams’s letter opposing immunity, originally attached to the immunity
answer. Burton further presented this fact to this Court, which addressed it
in 2007. Presently, Burton has merely alleged discovery of a new source for
the same facts in the letter, i.e., the immunity answer itself.7 Accordingly,
Ms. Williams’s immunity answer cannot satisfy the newly discovered facts
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7 Burton devotes considerable time to discussing our Supreme Court’s Small
decision, in which the Court disavowed the “public records presumption,”
under which PCRA petitioners could be presumed to know facts of public
record. See, e.g., Burton’s Brief at 33-35; see also Small, 238 A.3d at 1271,
1282, 1284. As we conclude Burton had actual knowledge of the facts
contained in the immunity answer well before his 2018 PCRA petition and has
accordingly failed to show his claim is predicated on a newly discovered fact,
his arguments premised on Small are not germane to our disposition.
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exception under section 9545(b)(1)(ii).8 The PCRA court thus lacked
jurisdiction to consider the merits of Burton’s claims.9
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2022
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8 We further reiterate that when a PCRA court determines a petition is
untimely, it lacks jurisdiction to reach the merits of the petition. See, e.g.,
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (stating the
PCRA court has no jurisdiction over an untimely petition and has no legal
authority to address the substantive merits). Once the PCRA court concluded
Burton’s petition was untimely, it had no jurisdiction to entertain the
substantive merits of his petition, including his Brady and due process claims.
Cf. PCRA Court Opinion, 7/29/21, at 25-29. We likewise have no jurisdiction
to consider the substantive claims. Accord Albrecht, 994 A.2d at 1093
(stating that neither the PCRA court nor appellate courts have jurisdiction over
an untimely petition).
9 We note that Burton filed a post-submission communication pursuant to
Pa.R.A.P. 2501(b). See Post-Submission Communication, 7/11/22. Burton
failed, however, to file an application to make the post-submission
communication pursuant to Pa.R.A.P. 2501(a). Accordingly, we decline to
consider the communication. We observe, however, that the communication
is a federal opinion issued in Bracey v. Superintendent Rockview SCI, 986
F.3d 274 (3d Cir. 2021). Bracey addresses the due diligence required to
collaterally attack a conviction under federal law and is not germane to the
issue of whether Burton established that the facts underlying his claim were
newly discovered under 42 Pa.C.S.A. § 9545(b)(1)(ii).
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