Com. v. Alexander, K.

J-S12030-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH ALEXANDER :
:
Appellant : No. 1954 EDA 2021
Appeal from the PCRA Order Entered September 7, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0702301-2002
BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.
MEMORANDUM BY BOWES, J.: FILED MAY 19, 2022
Keith Alexander appeals from the September 7, 2021 order dismissing
his petition pursuant to the Post-Conviction Relief Act (“PCRA”). We affirm.
Due to the nature of our holding in this case, we will review the factual
history of this case only briefly, as follows:
Appellant was arrested and . . . charged in connection with the
2002 non-fatal shooting of Maurice Stuart in Philadelphia. On April
1, 2005, following a jury trial presided over by the [trial court],
Appellant was convicted of attempted murder, aggravated
assault, conspiracy, and violations of the Uniform Firearms Act.
On May 20, 2005, the trial court sentenced Appellant to an
aggregate term of twenty-six and one-half to fifty-six years of
incarceration.
Commonwealth v. Alexander, 224 A.3d 366 (Pa.Super. 2019) (unpublished
memorandum at 1) (“Alexander V”) (affirming dismissal of Appellant’s fourth
PCRA petition). On direct appeal, this Court affirmed Appellant’s judgment of
sentence and the Supreme Court of Pennsylvania denied his application for
J-S12030-22
allowance of appeal on October 24, 2007. Appellant did not seek a writ of
certiorari in the United States Supreme Court. From 2008 through 2020,
Appellant filed a succession of four unsuccessful PCRA petitions.1
While Appellant’s petition for allowance of appeal in our Supreme Court
was pending in Alexander V but prior to it being denied, he filed a fifth, pro
se PCRA petition. The PCRA court took no action in response to this
submission, ostensibly recognizing that no subsequent PCRA petition could be
filed while a prior PCRA petition remained under active appellate review. See
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (“[W]hen an
appellant’s PCRA appeal is pending before a court, a subsequent PCRA petition
cannot be filed until the resolution of review of the pending PCRA petition by
the highest state court in which review is sought, or upon the expiration of
____________________________________________
1 For the sake of legal posterity and in anticipation of future filings from
Appellant, we note the chronology of these proceedings in this footnote. See
Commonwealth v. Alexander, 928 A.2d 1117 (Pa.Super. 2007) (non-
precedential decision) (direct appeal) (“Alexander I”), allowance of appeal
denied, 934 A.2d 1275 (Pa. 2007). Commonwealth v. Alexander, 990 A.2d
34 (Pa.Super. 2009) (non-precedential decision) (first PCRA) (“Alexander
II”), allowance of appeal denied, 4 A.3d 1050 (Pa. 2010); Commonwealth
v. Alexander, 116 A.3d 688 (Pa.Super. 2014) (non-precedential decision)
(second PCRA) (“Alexander III”), allowance of appeal denied, 114 A.3d 415(Pa. 2015); Commonwealth v. Alexander, 175 A.3d 411 (Pa.Super. 2017)
(non-precedential decision) (third PCRA) (“Alexander IV”), allowance of
appeal denied, 176 A.3d 849 (Pa. 2017); Commonwealth v. Alexander,
224 A.3d 366 (Pa.Super. 2019) (unpublished memorandum) (fourth PCRA)
(“Alexander V”), allowance of appeal denied, 224 A.3d 366 (Pa. 2019),
certiorari denied, 140 S.Ct. 2780 (2020).
-2-
J-S12030-22
the time for seeking such review.”), abrogated in part on separate grounds,
Commonwealth v. Small, 238 A.3d 1267, 1286 (Pa. 2020).
On February 11, 2021, Appellant re-filed this latest PCRA petition as an
attachment to a motion seeking a response from the PCRA court. See Motion
for Honorable [sic] to Respond, 2/11/21, at Exhibit 1 (“PCRA Petition”). By
this point, Appellant’s petitions for allowance of appeal in both the United
States and Pennsylvania Supreme Courts had been denied in Alexander V.
In this filing, Appellant asserted claims that: (1) his trial counsel was
ineffective; and (2) that the prosecutor assigned to Appellant’s case
committed fraud. See PCRA Petition at 1-15. Although not cited in the
petition, Appellant’s arguments on this second point implicated Brady v.
Maryland, 373 U.S. 83 (1963) and allegations that the Commonwealth
withheld impeachment and/or exculpatory evidence. With respect to
ineffectiveness, Appellant asserted “[t]here is no sign that [trial counsel] tried
to defend his client or clear him of the charges,” citing a number of examples
from the proceedings. PCRA Petition at 6-8. As to fraud, Appellant claimed
the Commonwealth obtained his conviction “by using uncorrected testimony
that the prosecutor [knew] to be false[.]”2 Id. at 5.
____________________________________________
2 We also note that Appellant’s first trial ended in a mistrial due to a lack of
unanimity amongst the jurors before he was convicted in a second proceeding.
Many of Appellant’s allegations of attorney error and prosecutorial fraud
appeared to relate to events that took place during his first trial. See
Appellant’s brief at 9 (“The issues of the first trial were not remedied by the
(Footnote Continued Next Page)
-3-
J-S12030-22
Treating Appellant’s motion seeking a response as a newly filed PCRA
petition, the PCRA court filed notice of its intent to dismiss it without a hearing
pursuant to Pa.R.Crim.P. 907. Specifically, the PCRA court concluded the
petition was untimely. See Order, 6/21/21, at 1 (“As you failed to plead and
prove one of the exceptions to the PCRA’s time-bar, this Court is without
jurisdiction to consider the merits of your claims or offer any form of relief.”).
Appellant did not respond to the Rule 907 notice and the PCRA court
dismissed his petition. See Order, 9/7/21, at 1. Thereafter, Appellant filed a
timely notice of appeal to this Court. The PCRA court did not direct Appellant
to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b) and he did
not file one. In a brief opinion, the trial court set forth its justification for
dismissing the petition, i.e., untimeliness. See Opinion, 9/16/21, at 1-2.
Appellant presents a single issue for our consideration, which he has chosen
to phrase as follows: “Whether the PCRA court acknowledged the Brady
violation in the first trial[?]” Appellant’s brief at 7.
Our standard of review in this context is “limited to examining whether
the PCRA court’s determination is supported by the record evidence and free
of legal error.” Commonwealth v. Whitehawk, 146 A.3d 266, 269
(Pa.Super. 2016) (cleaned up). However, “[b]efore addressing the merits of
Appellant’s claims, we must first determine whether we have jurisdiction to
____________________________________________
prosecution in the second trial.”); see also PCRA Petition at 4-8. Appellant
also referenced evidence admitted at his second trial, but not his first. Id.-4-
J-S12030-22
entertain the underlying PCRA petition.” Id. Specifically, the timeliness
limitations pursuant to the PCRA are jurisdictional, mandatory, and “a court
has no authority to extend filing periods except as statute permits.”
Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.Super. 2011).
Instantly, timeliness under the PCRA is governed by 42 Pa.C.S.
§ 9545(b), which provides in pertinent part as follows:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within one year of the date the
claim could have been presented.
(3) For purposes of this subchapter, a judgment 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.
-5-
J-S12030-22
42 Pa.C.S. § 9545(b)(1)-(3). Accordingly, “[i]f the petition is determined to
be untimely, and no exception has been pled and proven, the petition must
be dismissed without a hearing because Pennsylvania courts are without
jurisdiction to consider the merits of the petition.” Jackson, supra at 519(citation and quotation marks omitted).
For the purposes of § 9545(b)(3), direct review of Appellant’s judgment
of sentence concluded when the Supreme Court of Pennsylvania denied his
petition for allowance of appeal on October 24, 2007. Appellant did not seek
a writ of certiorari in the United States Supreme Court and his time in which
to do so expired on January 22, 2008. See U.S. Sup. Ct. Rule 13(1) (providing
that a petitioner has ninety days after “entry of judgment” to file “[a] petition
for a writ of certiorari seeking review of a judgment of a lower state court”).
Thus, Appellant had until January 22, 2009 to file a timely PCRA petition. The
instant PCRA petition was filed on February 11, 2021. Accordingly, it is facially
untimely by more than twelve years.
In his instant petition, Appellant has pleaded the applicability of two
timeliness exceptions, namely that: (1) the alleged interference by
unidentified government officials; and (2) the facts upon which the claims are
predicated were unknown to Appellant and could not have been ascertained
by the exercise of due diligence. See PCRA Petition at 3; 42 Pa.C.S.
§ 9545(b)(1)(i)-(ii). We will address each section seriatim. From the outset
of our analysis, we emphasize that the PCRA requires that any petition
-6-
J-S12030-22
invoking one of these timeliness exceptions must be filed within one year of
the date the claim could have been presented. See 42 Pa.C.S. § 9545(b)(2).
Both the governmental interference and newly discovered facts timeliness
exceptions must comply with § 9545(b)(2). See Commonwealth v.
Natividad, 200 A.3d 11, 28 (Pa. 2019).
We discern that Appellant’s allegations as to governmental interference
are predicated upon his Brady claims. However, these specific claims have
already been addressed in an earlier memorandum of this Court:
Appellant attempts to invoke the “governmental interference”
exception to the statutory time-bar per Section 9545(b)(1)(i),
claiming the prosecution withheld exculpatory evidence from
Appellant at his second trial in violation of Brady. Specifically,
Appellant avers the prosecution withheld a police officer
memorandum, investigative report, and two eyewitness
statements, one of which exonerates Appellant. The record belies
Appellant's contentions. Appellant's trial counsel received the
evidence at issue prior to Appellant's second trial, specifically
referenced the “withheld” evidence at trial, and discussed the
eyewitness statement at length.
Commonwealth v. Alexander, 175 A.3d 411 (Pa.Super. 2017) (non-
precedential decision at 2) (cleaned up) (“Alexander IV”). In light of this
memorandum published approximately five years ago, Appellant has failed to
comply with the requirements of § 9545(b)(2). Specifically, the discussion in
Alexander IV evinces that Appellant has been fully aware of these alleged
Brady violations for the better part of a decade. Thus, Appellant’s allegations
of governmental interference could have been (and, in fact, were) raised at
an earlier date. Accordingly, § 9545(b)(1)(i) does not apply.
-7-
J-S12030-22
Turning to Appellant’s allegations of newly discovered facts pursuant to
§ 9545(b)(1)(ii), he relies upon trial counsel’s purported ineffectiveness on
this point. However, the ineffectiveness complained of by Appellant would
have been immediately evident during Appellant’s first and second trials. In
pertinent part, Appellant has offered no discussion of why he has waited over
a decade to raise this claim. See 42 Pa.C.S. § 9545(b)(2). Furthermore,
Appellant has not offered any argument concerning due diligence in his filings.
See Commonwealth v. Sanchez, 204 A.3d 524, 526 (Pa.Super. 2019)
(“Due diligence demands that the petitioner take reasonable steps to protect
his own interests; a petitioner must explain why he could not have learned
the new facts earlier with the exercise of due diligence.”). Accordingly,
Appellant is not entitled to the benefit of § 9545(b)(1)(ii).
Based upon the foregoing, we conclude that the PCRA court’s dismissal
is supported by the record and free of legal error. Appellant’s fifth PCRA
petition is patently untimely and not entitled to any exception.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2022
-8-