Com. v. Silas, K.

J-A17015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN SILAS :
:
Appellant : No. 1489 EDA 2021
Appeal from the PCRA Order Entered July 1, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0624121-1981
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 21, 2022
Kevin Silas appeals, pro se, from the order dismissing his serial petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§
9541-9546. We conclude Silas’ PCRA petition is patently untimely, and he
failed to plead and prove an exception to the PCRA’s timeliness requirement.
We affirm.
In 1982, Silas was convicted of second-degree murder, conspiracy, and
robbery and sentenced to life in prison. This Court subsequently affirmed Silas’
judgment of sentence. See Commonwealth v. Silas, 547 A.2d 440, No.
00342 PHL 87 (Pa. Super. filed June 14, 1988) (unpublished memorandum).
Silas did not seek allowance of appeal with our Supreme Court. In the
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* Retired Senior Judge assigned to the Superior Court.
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following years, Silas filed a profusion of PCRA petitions, supplemental or
amended PCRA petitions, and other pro se filings bearing various names.
Silas filed the instant pro se PCRA petition on March 23, 2018, followed
by a multitude of supplemental PCRA petitions and other pro se filings. Silas
alleged he had recently learned that one of his co-defendants, Rhon Parker,
had an open robbery case for an unrelated incident; Silas suggested that
Parker received leniency in that case in exchange for implicating Silas in the
instant case.1, 2 Silas asserted this information constituted Brady3 material,
which the Commonwealth allegedly concealed prior to his trial. The PCRA court
issued a Pa.R.Crim. 907 notice of its intention to dismiss Silas’ petition without
a hearing. Silas filed a pro se response. On July 1, 2021, the PCRA court
dismissed Silas’ petition, and this timely appeal followed.
Our appellate review of the denial of PCRA relief “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.” Commonwealth v.
Koehler, 36 A.3d 121, 131 (Pa. Super. 2012) (citation omitted).
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1 In his pro se PCRA petition, Silas alleged that Parker’s other robbery case
stemmed from an incident that took place in December 1980, the month after
the offenses underlying the instant case. Silas does not clearly indicate what
the status of Parker’s second case was at the time of Silas’ trial in this matter.
2Notably, Parker invoked his Fifth Amendment right against self-incrimination
and did not testify at Silas’ trial. See Silas, 547 A.2d 440 (unpublished
memorandum at 16).
3 See Brady v. Maryland, 373 U.S. 83 (1963).
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Prior to reaching the merits of Silas’ claims, we must consider the
timeliness of his PCRA petition. See Commonwealth v. Miller, 102 A.3d 988,
992 (Pa. Super. 2014).
Because the time limitations established by the PCRA are
jurisdictional in nature, a court lacks jurisdiction to address the
claims raised in an untimely petition. The PCRA provides that a
petition for relief must be filed within one year of the date final
judgment is entered. A judgment becomes final for purposes of
the PCRA at the conclusion of direct review or after the time
provided for seeking direct review has lapsed, if no direct review
has been taken.
Commonwealth v. Liebensperger, 904 A.2d 40, 45 (Pa. Super. 2006)
(internal citations and quotation marks omitted); see also 42 Pa.C.S.A. §
9545(b)(1), (3).
Here, Silas’ judgment of sentence became final in July 1988, when the
time for filing a petition for allowance of appeal with our Supreme Court had
expired. See Pa.R.A.P. 1113(a). Because Silas filed the instant PCRA petition
nearly three decades later, the petition is patently untimely. Accordingly, the
PCRA court lacked jurisdiction to review Silas’ petition unless he was able to
plead and prove one of the statutory exceptions to the PCRA’s 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
(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court
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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). A petitioner asserting one of these
exceptions must file a petition within one year of the date the claim first could
have been presented. See 42 Pa.C.S.A. § 9545(b)(2). “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,
17 (Pa. 2012).
Silas attempts to invoke the government interference exception at 42
Pa.C.S.A. § 9545(b)(1)(i) and the newly-discovered fact exception at section
9545(b)(1)(ii).4 Silas now renews his assertions that the Commonwealth
violated Brady by failing to disclose Parker’s prior offenses or any possible
deal Parker may have received in that case. See Appellant’s Brief at 1-9. Silas
claims the Commonwealth “willingly suppressed and withheld that
information,” id. at 5, and his failure to raise this claim previously was
therefore the result of government interference.
A Brady violation may implicate the government interference exception
if the petitioner establishes that “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.”
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4 Silas cites both exceptions in his PCRA petition and his appellate brief;
however, he discusses them simultaneously in his brief.
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Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008). Similarly,
to invoke the newly-discovered fact exception based on an alleged Brady
violation, an appellant must establish that the facts upon which the Brady
claim is predicated were unknown to the appellant and could not have been
ascertained sooner through the exercise of due diligence. See
Commonwealth v. Lambert, 884 A.2d 848, 852 (Pa. 2005).
Silas claims he first learned about Parker’s additional robbery charges
in February 2018 after a conversation with prison staff. See Appellant’s Brief
at 2. However, Silas does not clearly articulate why he could not have obtained
the “fact” of Parker’s charges at an earlier time through the exercise of due
diligence. See Abu-Jamal, 941 A.2d at 1268; Lambert, 884 A.2d at 852;
see also Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015)
(“Due diligence demands that the petitioner take reasonable steps to protect
his own interests.”). Further, Silas’ contentions that the Commonwealth was
engaged in a three-decades-long effort to actively conceal information about
Parker’s criminal history are wholly speculative and unsupported by the
record. Accordingly, Silas failed to successfully invoke the PCRA court’s
jurisdiction by pleading and proving an exception to the PCRA’s time-bar.5 We
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5 Moreover, Silas has not established the existence of any deal Parker received
in a separate case in exchange for implicating Silas in the instant case. Nor
does Silas explain why the fact of Parker’s criminal charges in an unrelated
matter would have been exculpatory in his own trial. See generally
Lambert, 884 A.2d at 854 (explaining that a successful Brady claim requires
(Footnote Continued Next Page)
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therefore affirm the PCRA court’s order dismissing Silas’ untimely serial PCRA
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2022
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a petitioner to establish “the evidence was favorable to the accused, either
because it is exculpatory or because it impeaches; the evidence was
suppressed by the prosecution, either willfully or inadvertently; and prejudice
ensued.” (citation and quotation marks omitted)).
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