Com. v. Rock, G.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1593 MDA 2015
Appeal from the PCRA Order September 3, 2015
In the Court of Common Pleas of Franklin County
Criminal Division at No(s):
CP-28-MD-0000283-1977
BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED APRIL 01, 2016
Gary Lee Rock appeals from the September 3, 2015 order dismissing
his PCRA petition as untimely. We affirm.
On July 2, 1977, Appellant, dressed in combat fatigues and armed with
a high-powered rifle, shot at people who were responding to a fire, which he
had set, on his property. He killed a neighbor and a firefighter, and injured
several other firefighters. On May 15, 1978, a jury convicted him of two
counts of first-degree murder, one count of arson, and several counts of
attempted murder.
In 1984, Appellant obtained habeas relief from the United States
District Court due to trial counsel’s ineffectiveness in failing to file a motion
*
Retired Senior Judge assigned to the Superior Court.
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to suppress items seized during a warrantless search and for failing to
introduce evidence of Appellant’s good character. Rock v. Zimmerman,
586 F. Supp. 1076 (M.D. Pa. 1984). On January 16, 1985, Appellant was
convicted at a new trial of the two counts of first-degree murder, four counts
of attempted murder, and two counts of aggravated assault, and was
thereafter sentenced to two consecutive terms of life imprisonment.
Judgment of sentence was affirmed on direct appeal, and allowance of
appeal was denied on July 8, 1988. Commonwealth v. Rock, 526 A.2d
1235 (Pa.Super. 1987) (unpublished memorandum), appeal denied, 546
A.2d 58 (Pa. 1988). Appellant sought, but was denied, habeas corpus relief.
Rock v. Zimmerman, 729 F. Supp. 398 (M.D. Pa. 1990), affirmed 959 F.2d
1237 (3d Cir. 1992) (en banc), cert. denied, Rock v. Preate, 112 S. Ct.
3036 (1992).
Appellant filed two subsequent PCRA petitions, both of which were
dismissed as untimely.1 The orders were affirmed on appeal, and the
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1
Appellant filed his first petition for post-conviction relief on or about May
15, 1997, in which he alleged that trial counsel was ineffective for failing to
file a pretrial motion asserting double jeopardy based on the
Commonwealth’s deliberate concealment of exculpatory evidence involving a
Pennsylvania State trooper’s allegedly false testimony during the first trial.
Appellant sought discovery in connection with that proceeding and the
Commonwealth agreed to provide the requested information. N.T. Post-
Conviction Relief Act Hearing, 2/5/98, at 7-8. That petition was found to be
untimely as it was not filed within the one-year grace period under the 1996
amendment to the PCRA, and none of the exceptions was proven.
(Footnote Continued Next Page)
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Supreme Court denied allowance of appeal. See Commonwealth v. Rock,
742 A.2d 210 (Pa.Super. 1999) (unpublished memorandum), appeal denied,
745 A.2d 1221 (Pa. 1999); Commonwealth v. Rock, 769 A.2d 1209
(Pa.Super. 2000) (unpublished memorandum), appeal denied, 781 A.2d 142
(Pa. 2001).
Appellant filed the instant pro se petition on June 8, 2015, and Mark F.
Bayley, Esquire, was appointed as counsel. Counsel filed a Turner/Finley2
no-merit letter and sought permission to withdraw, having concluded that
the petition was untimely and that no timeliness exception was applicable.
The PCRA court agreed, granted counsel’s petition to withdraw, and issued
Rule 907 notice of its intention to dismiss the petition. Although Appellant
objected, the court dismissed the petition on September 3, 2015. Appellant
filed the within appeal. He complied with the PCRA court’s order to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and
the court issued its Rule 1925(a) opinion.
Appellant raises three issues for our review:
(1) Whether it was legal error for the PCRA court to refuse to
consider whether misrepresentations by the
Commonwealth (that it had complied with Brady) and
Judge Eppinger (that the four police reports were not
beneficial to the defense) constitute “interference by
_______________________
(Footnote Continued)
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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government officials” within the scope of Pa.C.S.A. Section
9545(b)(1)(i)?
(2) Whether it was legal error for the PCRA court to refuse to
conduct an in camera inspection of the undisclosed and
inaccessible police reports?
(3) Whether Pa.R.Crim.P. 902(E)(1) violates due process since
it requires proof of “exceptional circumstances” to obtain
Brady evidence on PCRA review?
Appellant’s brief at 2.3
In reviewing the dismissal of a PCRA petition, our standard of review is
whether the determination of the PCRA court is supported by evidence of
record and free of legal error. Commonwealth v. Brandon, 51 A.3d 231,
233 (Pa.Super. 2012) (citation and quotation marks omitted). Our scope of
review “is limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing party at the trial
level." Commonwealth v. Freeland, 106 A.3d 768, 776 (Pa.Super. 2014).
In order to be timely, all PCRA petitions, even second and subsequent
petitions, must be filed within one year after the defendant's judgment of
sentence becomes final. 42 Pa.C.S. § 9545 (b)(1). “The PCRA's timeliness
requirements are jurisdictional; therefore, a court may not address the
merits of the issues raised if the petition was not timely filed.”
Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012); accord Brandon,
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3
The Commonwealth advised this Court that it did not intend to file a brief
in this matter.
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supra at 234 (citing Commonwealth v. Robinson, 837 A.2d 1157, 1161
(Pa. 2003) ("The timeliness requirements of the PCRA are jurisdictional in
nature and, accordingly, a PCRA court cannot hear untimely petitions.").
"There are three exceptions to this [one-year] time requirement: (1)
interference by government officials in the presentation of the claim; (2)
newly discovered facts; and (3) an after-recognized constitutional right."
Brandon, supra at 233-34; 42 Pa.C.S. § 9545(b)(1)(i-iii). “The PCRA
squarely places upon the petitioner the burden of proving an untimely
petition fits within one of the three exceptions.” Jones, supra at 17. In
addition, the exception must be asserted within sixty days of the date when
the claim could have been presented.
The instant petition, filed almost twenty-five years after the United
States Supreme Court, denied certiorari is untimely on its face. Appellant
contends, however, that his petition is timely under the governmental
interference exception to the one-year time bar. He claims that the court
and the prosecutor, by sealing four police reports at his first trial, prevented
him from accessing Brady material.4
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4
The certified record does not contain the transcript of Appellant’s first trial.
Appellant appended to his petition several pages of that transcript reflecting
the exchange in chambers where the trial court ruled that the police reports
contained nothing beneficial to the defense and ordered that the records be
sealed. We have no other information regarding the contents of those
documents.
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A petitioner who is availing himself of a timeliness exception is
required to file his petition within sixty days of the date he acquired the
information upon which his exception is based. 42 Pa.C.S. § 9545(b)(2).
He must plead and prove that the information could not have been obtained
earlier, despite the exercise of due diligence. Commonwealth v. Marshall,
947 A.2d 714, 720 (Pa. 2008).
The PCRA court concluded that Appellant failed to demonstrate that he
could not have filed his claim earlier with the exercise of due diligence.
Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001). We agree.
Appellant knew in 1978 that the court sealed the reports at the behest of the
prosecutor, after concluding that they did not contain any information
beneficial to the defense. Appellant did not challenge that ruling and did
nothing to gain access to the reports for more than thirty-five years.
Appellant attempts to excuse his lack of diligence by claiming that the
trial court and the Commonwealth misrepresented that there was no Brady
material contained in the reports and “misled him into forgoing direct and
collateral review.” Appellant’s brief at 7. In the same vein, Appellant argues
that the Commonwealth’s failure to notify him that the reports contained
Brady material, together with their inaccessibility, meets the sixty-day
requirement.
First, Appellant offers no evidence that the reports do contain Brady
material or that the representations made in 1978 were false. Second,
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Appellant did not file a direct appeal challenging the trial court’s order
sealing the documents. Nor did he raise this issue in his petition seeking
habeas corpus relief. Appellant made no effort to access what he now claims
was undisclosed Brady material prior to his second trial. Herein, Appellant
is relying upon the alleged Brady violation as the basis for the governmental
interference timeliness exception. As our High Court reiterated in
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008),
“[a]lthough a Brady violation may fall within the governmental interference
exception, the petitioner must plead and prove the failure to previously raise
the claim was the result of interference by government officials, and the
information could not have been obtained earlier with the exercise of due
diligence.” Appellant has not met this burden. His attempt to raise the
claim more than three decades after it could have been raised demonstrates
a lack of due diligence.
Finally, Appellant argues that whether governmental interference
exists can only be determined by examining what he characterizes as the
secret police reports to see if the court and the Commonwealth
misrepresented the content of the reports. He alleges that the PCRA court
erred in refusing to conduct an in camera inspection, and that, without the
reports, the record is inadequate for us to resolve the issue. According to
Appellant, remand is necessary to permit inspection of the police reports.
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The original trial court inspected the police reports and ruled that they
were not beneficial to the defense. In order to circumvent the PCRA time
bar, Appellant would have to prove that the sealing of the documents
prevented him from pursuing his Brady claim for more than three decades.
Appellant has not offered any satisfactory explanation as to why he could
not have timely challenged the court’s ruling. Nor has he demonstrated that
he exercised due diligence to seek access to the reports. Furthermore,
discovery is not permitted in PCRA proceedings except with leave of court
and proof of exceptional circumstances. Pa.R.Crim.P. 902(E)(1). Herein,
the discovery sought is relevant only to prove the underlying merit of an
untimely petition. Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008).
The trial court properly exercised its discretion in denying discovery.
In short, Appellant knew in 1978 that the trial court ruled that the
police reports did not contain Brady material. Defense counsel timely
objected to the sealing of the documents. Appellant did not challenge that
ruling on direct appeal or in previous collateral petitions. More than three
decades later, with no showing of due diligence, Appellant raises the issue
for the first time on collateral review. We agree with the PCRA court that
since Appellant failed to demonstrate that this issue could not have been
raised before with the exercise of due diligence, the petition is untimely.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2016
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