Com. v. Robinson, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROBERT E. ROBINSON
Appellant No. 3515 EDA 2015
Appeal from the PCRA Order October 27, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0718101-1982
BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.
CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:FILED MARCH 30, 2017
I agree with the majority’s holding, in this appeal from an order
dismissing two PCRA petitions as untimely, that Appellant’s petition
advancing a Miller v. Alabama, 567 U.S. 460 (2012) claim fails to satisfy
any exception to the one-year time-bar. However, I do not agree that we
must remand for an evidentiary hearing to determine whether Appellant
satisfied any exception with respect to his second petition. Hence, I concur
and dissent from the majority’s disposition.
This case concerns the timeliness of Appellant’s eighth and ninth
attempts to secure PCRA relief. The eighth petition submitted that Appellant
was entitled to relief pursuant to Miller v. Alabama, 567 U.S. 460 (2012).
While that petition was still pending, Appellant filed another petition,
* Former Justice specially assigned to the Superior Court.
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docketed June 19, 2015, alleging new facts concerning trial counsel’s alleged
drug use. The PCRA court disposed of both petitions in the instant order. I
fully agree with my learned colleagues that the petition raising his Miller
claim failed to invoke the PCRA court’s jurisdiction since Appellant was over
eighteen at the time of the murder.
I depart from my colleagues with respect to its disposition of the
portion of the PCRA order dismissing the June 19, 2015 petition as untimely.
The basis for that petition was as follows. Appellant alleged that Bruce
Quarles, a fellow prisoner, overheard Appellant complaining about trial
counsel. Quarles stated he knew of trial counsel and supplied
documentation regarding trial counsel’s purchase of cocaine in the Caribbean
Islands in May of 1982. “Mr. Quarles told me he would bring the transcripts
and newspaper articles to the law library and I could make photo copies of
the newspaper articles and the transcripts. This is how I obtained the after
[d]iscovered [e]vidence on April 28, 2015.” PCRA Petition, 6/19/15, at 4-A.
That petition attached three exhibits: a newspaper article dated May 29,
1982, stating that Appellant’s trial counsel was fired from his job as an
Assistant District Attorney in Philadelphia due to an FBI informant alleging
trial counsel had purchased cocaine, a transcript of trial counsel’s plea to
possession of drugs in the Eastern District of Pennsylvania on April 29, 1994,
and a newspaper story reporting the 1994 conviction.
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Appellant’s PCRA petition submitted that these facts satisfied the
second of the three exceptions to the PCRA’s one-year time period. These
exceptions are:
(i) the 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;
(ii) 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; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply
retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii) (emphasis added). Additionally, any petition
seeking to invoke one of these three exceptions “shall be filed within 60 days
of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
The PCRA court’s rationale for finding that Appellant failed to satisfy these
requirements is set forth in its opinion:
[Appellant]’s claim does not constitute after-discovered
evidence, and his argument is not convincing. Trial counsel
represented [Appellant] in 1983. Counsel pled guilty to drug
trafficking offenses that occurred between 1991 and 1992.
[Appellant] cannot reasonably claim that trial counsel’s
subsequent legal problems impacted his decision to plead guilty
a decade earlier. Aside from allegations contained in an article,
[Appellant] has not provided any evidence to suggest that
counsel’s representation as it related to [Appellant]’s specific
case was improper. [Appellant] has failed to demonstrate that
any of the exceptions to the limitations of the PCRA apply to his
case.”
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Trial Court Opinion, 11/18/15, at 4.
As the majority recognizes, the inquiry applied to determine whether a
PCRA petitioner has satisfied the § 9545(b)(1)(ii) exception is wholly distinct
from the analysis applied to the merits of any claim which relies upon said
facts. Our Supreme Court recently described this section as providing a
gate-keeping function. “The function of a section 9545(b)(1)(ii) analysis is
that of a gatekeeper. Its inquiry, therefore, is limited to considering only the
existence of a previously unknown fact that would allow a petitioner to avoid
the strict one year time-bar.” Commonwealth v. Cox, 146 A.3d 221, 229,
n.11 (Pa. 2016). Thus, the legal inquiry for jurisdictional purposes is limited
to examining whether the facts were unknown, and, if so, whether the
subsequent uncovering of the facts was done with due diligence, which
“requires neither perfect vigilance nor punctilious care, but rather it requires
reasonable efforts by a petitioner, based on the particular circumstances, to
uncover facts that may support a claim for collateral relief.”
Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa.Super. 2015) (en
banc), appeal granted, 134 A.3d 446 (Pa. 2016). Provided the petitioner
has satisfied those two prongs, only then is a merits analysis proper.
I agree that the PCRA court’s disposition appears to conflate the two
inquiries. However, while I agree that the PCRA court erred, I disagree that
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this error requires a remand for an evidentiary hearing. For the following
reasons, I find that we must affirm the order denying relief.
First, § 9545(b)(1)(ii) requires the petitioner to establish due
diligence, and it is clear that Appellant cannot meet that requirement. The
lack of discussion by the PCRA court on this point does not require a
remand, since we conduct de novo review of legal questions. Since the
exercise of due diligence presents a question of law, Commonwealth v.
Selenski, 994 A.2d 1083 (Pa. 2010), we may affirm on that alternative
basis. Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa.Super. 2009)
(this Court may affirm the decision of PCRA court if decision is supported by
record, even if we rely on a different basis).
Indeed, Cox, supra, affirmed the denial of PCRA relief where the
order contained the same exact legal error at issue herein. The Court
concluded that Cox failed to demonstrate due diligence; hence, the PCRA
court lacked jurisdiction to entertain the claim. Cox therefore affirmed the
order.
Cox cannot, however, establish that he could not have
ascertained this fact through the exercise of due diligence. Due
diligence “does not require perfect vigilance and punctilious care,
but merely a showing the party has put forth reasonable effort”
to obtain the information upon which a claim is based.
Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d 339, 348
(2013). Cox's initial attempt to obtain the ballistics evidence was
made in his first PCRA petition, in connection with his claim that
trial counsel was ineffective for failing to seek independent
ballistics testing.
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Id. at 230. The same is true herein. Appellant has failed to establish that
he could not have ascertained the facts regarding trial counsel’s substance
abuse issues through the exercise of due diligence. The exhibits attached to
the PCRA petition were in the public domain, which is presumptively
accessible and available. See Commonwealth v. Taylor, 67 A.3d 1245,
1248-49 (Pa. 2013) (“This Court has found matters of public record are not
unknown.”). In Burton, supra, we modified this presumption where a pro
se defendant is incarcerated.
The general rule is reasonable when we may conclude that the
petitioner retains access to public information, such as when a
petitioner is represented by counsel. In such cases, public
records should be presumptively knowable. However, a pro se
petitioner does not have access to information otherwise readily
available to the public. That is elementary: A PCRA petitioner is
most often incarcerated, and thus, no longer a member of the
public. Without counsel's providing a conduit to publicly
available information, a presumption of access is cynical, and the
strength of the general rule falters. Thus, the Supreme Court has
expressly recognized the importance of access to the public
information.
Id. at 1072. On its face, Burton would appear to support the majority’s
determination to remand for an evidentiary hearing to permit Appellant an
opportunity to develop this claim. However, Appellant’s own brief reveals
that he was aware of trial counsel’s substance abuse issues no later than
October of 2014. “On or about October 20, 2014, [A]ppellant received a
computer print-out from his aunt, an article she found . . . This is when the
Appellant found out his attorney was involved with cocaine and was
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trafficking the drugs etc.” Appellant’s brief at 7. Hence, Appellant has failed
to explain why, assuming arguendo that he could not have discovered this
information prior to October 20, 2014, he did not file the PCRA petition
within sixty days of that date. 42 Pa.C.S. § 9545(b)(2).
While I would hold that the lack of due diligence is sufficient to resolve
the matter, I also note that Appellant does not set forth any facts that would
entitle him to relief, rendering any evidentiary hearing irrelevant. We could
affirm on this basis as well. In reaching this conclusion, I recognize that in
Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), our Supreme
Court stated that the (b)(1)(ii) exception merely requires the petitioner “to
allege and prove that there were ‘facts’ that were ‘unknown’ to him and that
he exercised ‘due diligence.’” Id. at 1270. In Bennett, the fact at issue
was PCRA counsel’s failure to file a brief on appeal of a timely PCRA petition.
Bennett then filed a second PCRA petition seeking reinstatement of his PCRA
appellate rights, invoking § 9545(b)(1)(ii). Bennett determined that
“[Bennett]’s allegations bring his claim within the ambit of subsection
(b)(1)(ii) . . . he must also prove that the facts were ‘unknown’ to him and
that he could not uncover them with the exercise of ‘due diligence.’” Id. at
1274. Thus, the Court remanded for fact-finding on those questions.
Then-Justice, now Chief Justice, Saylor authored a dissenting opinion,
stating that “a consistent plain-meaning approach to Section 9545(b)(1)(ii)
should also subsume an equally straightforward approach to the words that
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the statute employs, including the word ‘claim.’” Id. at 1276. In his view,
the claim was not cognizable under the PCRA, “because [Bennett]'s
conviction and sentence did not result from such ineffectiveness, and
because the asserted prejudice does not go directly to the truth-determining
process, as the language of the PCRA contemplates.” Id. at 1276 (Saylor,
J., dissenting). Thus, then-Justice Saylor would have held that the facts
could not provide relief.
However, I do not read Bennett or Cox as requiring a PCRA court to
hold an evidentiary hearing whenever a litigant sets forth any fact
whatsoever. There must be room to consider whether the purported facts
could establish a viable legal claim. As an absurd example, suppose an
incarcerated individual filed a PCRA petition claiming that he recently learned
that the Chicago Cubs won the World Series. No one would suggest that the
PCRA court must rigidly determine whether that fact was unknown and
whether it could have been learned through due diligence without any
consideration of whether that fact is relevant to any possible issue in the
case. While 42 Pa.C.S. § 9545(b)(1)(ii) acts as a gatekeeper, that label
obviously contemplates that there is a reason to open the gate in the first
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place.1 To require an evidentiary hearing in all cases, as the majority
appears to require, clearly elevates form over substance.
Thus, in my view, nothing prevents a reviewing court from affirming
the denial of PCRA relief on the basis that the claim could not possibly lead
to relief even assuming the untimely petition satisfied the exception. The
Supreme Court discussed this point in Commonwealth v. Yarris, 731 A.2d
581 (Pa. 1999), stating:
Moreover, even if Appellant were able to surmount the bar of
untimeliness with respect to this claim, he would then face the
additional hurdle of proving by a preponderance of the evidence
that one or both of the affidavits constitute “exculpatory
evidence that has subsequently become available and would
have changed the outcome of the trial if it had been introduced.”
42 Pa.C.S. § 9543(a)(2)(vi). On the record before us, Appellant
could not satisfy such burden.
...
We conclude that the evidence which purportedly reveals that
someone other than Appellant committed the murder is hearsay,
not within any exception, and so unreliable as to be
inadmissible. A claim which rests exclusively upon inadmissible
hearsay is not of a type that would implicate the after-
discovered evidence exception to the timeliness requirement,
nor would such a claim, even if timely, entitle Appellant to
relief under the PCRA.
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1
That point animated then-Justice Saylor’s dissent in Bennett. The
majority accepted that the facts, as a matter of law, would entitle Bennett to
relief. The case thus does not speak to a situation where the facts are
completely irrelevant.
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Id. at 591-92 (emphasis added). Thus, in Yarris, the facts offered to
overcome the time-bar could not have resulted in a new trial, even if timely
presented. I do not read Cox to abandon this avenue of analysis.
Applying this principle, it is clear that Appellant’s claim, even if timely,
would not entitle him to relief under the PCRA. Even if every allegation in
Appellant’s PCRA petition is completely true, none of the facts could possibly
demonstrate that trial counsel was ineffective. It is the advice itself that
would ultimately be at issue in any properly-filed PCRA petition. Hence,
whether or not trial counsel consumed drugs in general, or even whether he
was under the influence on the day of his plea, is irrelevant. See Bonin v.
Calderon, 59 F.3d 815 (9th Cir. 1995) (“Because we conclude . . . that
[counsel]’s performance did not fall below the standard of objective
reasonableness, it is irrelevant whether [counsel] used drugs.”). The time
for Appellant to timely attack the objective reasonableness of the supplied
advice has long since passed. Hence, these purported facts could not lead to
any grant of relief whatsoever. Therefore, there is no need to hold an
evidentiary hearing, even if the record did not indicate whether or not
Appellant could demonstrate due diligence. Thus, we could affirm on this
basis as well.
Accordingly, for the foregoing reasons, I concur and dissent from the
majority’s disposition of the order denying PCRA relief.
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