Com. v. Brockenbrough, C.

J-S19006-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CORNELIUS BROCKENBROUGH :
:
Appellant : No. 2486 EDA 2021
Appeal from the PCRA Order Entered November 19, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007278-2009
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED JULY 8, 2022
Cornelius Brockenbrough appeals from the order entered in the
Philadelphia County Court of Common Pleas on November 19, 2021,
dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa. C.S.A. §§ 9541-9546 as untimely. Because we agree
Brockenbrough’s petition was untimely filed, we affirm.1
In March 2009, Brockenbrough was arrested and charged with first
degree murder and possessing an instrument of crime (“PIC”) for the
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* Former Justice specially assigned to the Superior Court.
1 Also before us is Brockenbrough’s Application for Extension of Time to File
Reply Brief. We deny Brockenbrough’s application because the PCRA court
clearly lacked jurisdiction. As the PCRA court explicitly relied upon this ground
in its opinion, see PCRA Court Opinion, 1/25/2022, at 4, a reply brief could
provide no relevant argument.
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strangulation and murder of his long-term girlfriend. On November 24, 2010,
after a jury trial, Brockenbrough was found guilty. A week later, the trial court
sentenced Brockenbrough to a mandatory term of life imprisonment without
parole for the murder conviction, along with a concurrent term of two and
one-half to five years’ imprisonment for the PIC conviction. On appeal, we
affirmed the judgment of sentence. On March 1, 2013, the Pennsylvania
Supreme Court denied Brockenbrough’s petition for allowance of appeal.
On September 9, 2013, Brockenbrough filed a pro se PCRA petition,
claiming (1) trial counsel was ineffective for failing to protect his right to a
speedy trial; (2) trial counsel was ineffective for failing to investigate his case;
(3) his confession should have been excluded from evidence; and (4) a DNA
test would have exonerated him. PCRA counsel was appointed 2 and
subsequently filed a petition to withdraw and a Finley3 no-merit letter.
On December 27, 2017, the PCRA court issued notice of its intent to
dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907, based on
PCRA counsel’s Finley no-merit letter. On March 27, 2018, the PCRA court
dismissed the petition and granted counsel leave to withdraw. We affirmed
the denial on appeal, and our Supreme Court later denied Brockenbrough’s
petition for allowance of appeal.
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2Brockenbrough filed multiple pro se petitions prior to and after counsel had
been appointed raising numerous claims of error.
3 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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On August 20, 2020,4 Brockenbrough filed the instant pro se PCRA
petition, claiming (1) police misconduct for violating his Miranda rights by
using coercive tactics to obtain a false confession, (2) prosecutorial
misconduct by denying Brockenbrough the right to a fair trial and due process
by pursuing a wrongful conviction, and (3) trial counsel ineffectiveness for
failing to allow Brockenbrough to testify at trial. The PCRA court issued notice
of its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P.
907. On November 19, 2021, the PCRA court dismissed the petition. This
timely appeal followed.
In his appellate brief, Brockenbrough raises a single issue on appeal:
“Whether … trial counsel was ineffective for failing to move for mistrial after
[Brockenbrough’s] constitutional right to confront Deanna Ferrioa on the
testing she performed to generate her five-page report without the
opportunity to cross?”
Prior to reaching the merits of Brockenbrough’s claim on appeal, we
must first consider the timeliness of his PCRA petition. See Commonwealth
v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
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4 In a letter to the court included with the petition, Brockenbrough alleged that
he submitted his petition on June 25, 2020 but never received a stamped copy
back from the court so he was now submitting a copy of the petition. There is
no proof in the record of the alleged original filing. As his petition is outside
the PCRA one-year time bar in either event, we will analyze timeliness using
a filing date of June 25, 2020.
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sentence becomes final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration of
the time for seeking such review. 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. The timeliness requirements apply to all PCRA
petitions, regardless of the nature of the individual claims raised
therein. The PCRA squarely places upon the petitioner the burden
of proving an untimely petition fits within one of the three
exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (internal citations
and footnote omitted).
Brockenbrough’s judgment of sentence became final on May 30, 2013,
ninety days after his petition for allowance of appeal was denied by the
Pennsylvania Supreme Court, when time for filing a petition for writ of
certiorari to the United States Supreme Court expired. The instant petition –
filed more than seven years later – is patently untimely. Therefore, the PCRA
court lacked jurisdiction to review Brockenbrough’s petition unless he was able
to successfully plead and prove one of the statutory exceptions to the PCRA’s
time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
The PCRA provides three exceptions to its time bar:
(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
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(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.A. § 9545(b)(1)(i)-(iii). Exceptions to the time-bar must be pled in
the petition, and may not be raised for the first time on appeal. See
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also
Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are
waived and cannot be raised for the first time on appeal). Further,
although this Court is willing to construe liberally materials filed
by a pro se litigant, pro se status generally confers no special
benefit upon an appellant. Accordingly, a pro se litigant must
comply with the procedural rules set forth in the Pennsylvania
Rules of the Court. This Court may quash or dismiss an appeal if
an appellant fails to conform with the requirements set forth in
the Pennsylvania Rules of Appellate Procedure.
Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa. Super. 2003)
(citations omitted).
Even liberally construed, Brockenbrough has failed to plead and prove
that any of his claims constitute a valid exception to the PCRA time-bar. In his
petition, Brockenbrough asserts he meets the requirements of Section
9545(b)(1)(ii), i.e., the newly discovered fact exception, based on an article
given to him on July 28, 2020, by a fellow prison inmate. That article discusses
misconduct committed in a different case, by a different assistant district
attorney than the one that prosecuted Brockenbrough. He claims this “new”
information proves the same unethical practices were used by the district
attorney’s office during his case and led to his wrongful conviction.
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Section 9545(b)(1)(ii) “requires [a] petitioner to allege and prove that
there were ‘facts' that were ‘unknown’ to him” and that he could not have
ascertained those facts by the exercise of “due diligence.” See
Commonwealth v. Bennett, 930 A.2d 1264, 1270 (Pa. 2007). “The focus of
the exception is on the newly discovered facts, not on a newly discovered or
newly willing source for previously known facts.” Commonwealth v.
Marshall, 947 A.2d 714, 720 (Pa. 2008) (citation, internal quotation marks,
and brackets omitted). “Due diligence demands that the petitioner take
reasonable steps to protect his own interests. A petitioner must explain why
he could not have learned of the new fact(s) earlier with the exercise of due
diligence.” Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011)
(citations omitted).
Here, the actual “fact” for purposes of Section 9545(b)(1)(ii) is that
Assistant District Attorney (“ADA”) Roger King committed misconduct in at
least one unrelated case. See PCRA Petition, 8/25/2020, at 7. However, as
Brockenbrough admits, his underlying claim of police and prosecutorial
misconduct is not based on ADA King’s misconduct. See id. at 22 (originally
numbered page 7 of pro se memorandum of law).
Brockenbrough asserts that ADA King’s actions while working under
District Attorney Lynn Abraham establish that the ADA who tried this case,
Brendan O’Malley, engaged in the same misconduct while working under
District Attorney Seth Williams. Brockenbrough has alleged no facts to support
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this linkage. As Brockenbrough has failed to allege facts that could establish
that ADA O’Malley engaged in prosecutorial misconduct in the present case,
Brockenbrough cannot establish that his underlying claim is predicated on this
fact. See 42 Pa.C.S.A. § 9545(b)(1)(ii) (“the facts upon which the claim is
predicated were unknown to the petitioner”) (emphasis added). His petition
therefore does not qualify for the newly discovered fact exception, and is
untimely.
As we find Brockenbrough’s PCRA petition was untimely and does not
fall under an exception to the PCRA time bar,5 we affirm the PCRA court’s
order dismissing the petition.
Order affirmed. Application for extension of time to file reply brief
denied. Jurisdiction relinquished.
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5 It appears from the record that Brockenbrough misconstrued our law
regarding the PCRA timebar. In his answer to the 907 notice, Brockenbrough
asserts his petition is timely because he filed it “fewer than one-year after the
Pennsylvania Supreme Court denied Allowance of Appeal on, (5/27/20).”
Answer to Court’s Notice of Intent to Dismiss, 10/15/2021, at 2.
Brockenbrough makes the same argument in his appellate brief. See
Appellant’s Brief, at 11-12. However, the date he cites to is the date on which
our Supreme Court denied allowance of appeal regarding dismissal of his first
PCRA petition. A PCRA petition, including a second or subsequent one, must
be filed within one year of the date the petitioner’s judgment of sentence
becomes final, i.e. at the conclusion of direct review by this Court or the United
States Supreme Court, or at the expiration of the time for seeking such review.
As mentioned above, Brockenbrough’s judgment of sentence became final on
May 30, 2013, ninety days after his petition for allowance of appeal was denied
by our Supreme Court, when time for filing a petition for writ of certiorari to
the United States Supreme Court expired. Therefore, any PCRA petition,
whether his first or a subsequent petition, had to be filed by May 30, 2014 to
be timely.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2022
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