Com. v. Turner, W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM D. TURNER :
:
Appellant : No. 2826 EDA 2022
Appeal from the PCRA Order Entered October 20, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1007161-1980
BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 27, 2023
Appellant William D. Turner appeals pro se from the order entered in
the Court of Common Pleas of Philadelphia County dismissing his serial
petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§
9541-9546, on the basis it was untimely filed. After a careful review, we
affirm.
This Court has previously set forth the relevant facts and procedural
history, in part, as follows:
On February 20, 1981, a jury convicted Appellant of first-
degree murder and possessing instruments of crime. [See 18
Pa.C.S.A. §§ 2502 and 907.] The [trial] court imposed a sentence
of life imprisonment on March 18, 1982. On May 20, 1983, this
Court affirmed the judgment of sentence. Our Supreme Court
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* Former Justice specially assigned to the Superior Court.
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denied allowance of appeal on September 21, 1983. Appellant did
not pursue further direct review.
On December 19, 1983, Appellant filed a pro se petition for
post-conviction relief under the Post Conviction Hearing Act
(“PCHA”), the PCRA’s predecessor. The court appointed counsel,
who filed an amended petition, and the court subsequently denied
relief [on April 29, 1988. This Court affirmed, and the
Pennsylvania Supreme Court denied allowance of appeal on
November 29, 1989.] On February 16, 2011, Appellant filed a
motion to modify sentence, which the court treated as a serial
PCRA petition. The court issued Pa.R.Crim.P. 907 notice on
August 10, 2012; Appellant responded, and on September 13,
2012, the PCRA court dismissed Appellant’s petition. Appellant
timely filed a pro se notice of appeal on September 24, 2012.
On December 9, 2013, this Court affirmed the PCRA court’s
order dismissing Appellant’s PCRA petition as untimely. The
Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal on July 28, 2014.
On November 7, 2014, Appellant filed [a] pro se petition for
writ of habeas corpus. Appellant filed two amended petition[s] on
February 20, 2015, and April 1, 2016, respectively. On June 23,
2016, Appellant filed a motion to compel a habeas corpus hearing.
The PCRA court issued notice of its intent to dismiss
Appellant’s petition pursuant to Rule 907…on July 19, 2019.
Appellant did not file a response or amended petition. On August
21, 2019, the PCRA court entered an order denying relief on the
basis that it lacked jurisdiction to consider the merits of the
petition because it was an untimely PCRA petition. Appellant filed
a timely pro se appeal to this Court.
Commonwealth v. Turner, No. 2639 EDA 2019, 202 WL 4386792 at *1
(Pa.Super. 7/31/20) (unpublished memorandum) (citations omitted).
On appeal, this Court affirmed the PCRA court’s order dismissing
Appellant’s petition. Appellant filed a timely petition for allowance of appeal,
which our Supreme Court denied on April 27, 2021. Appellant did not file a
petition for a writ of certiorari with the United States Supreme Court.
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On or about November 9, 2021, Appellant filed the instant PCRA
petition. On June 15, 2022, the Commonwealth filed an answer to the PCRA
petition arguing that the PCRA petition is facially untimely, and Appellant did
not present any timeliness exceptions.
On August 5, 2022, Appellant filed a response, and on September 15,
2022, the PCRA court provided notice pursuant to Pa.R.Crim.P. 907 of its
intent to dismiss the PCRA petition. On October 6, 2022, Appellant filed a
response to the Rule 907 notice, and by order entered on October 20, 2022,
the PCRA court dismissed the instant PCRA petition. Appellant filed a timely
pro se notice of appeal, and all Pa.R.A.P. 1925 requirements have been
adequately met.
On appeal, Appellant sets forth the following issues in his “Statement of
Questions Presented” (verbatim):
1. Whether the Post Conviction Relief Act Court erred and abused
its discretion by not addressing the newly discovered fact from
the Defender Association of Philadelphia which satisfied 42
Pa.C.S. § 9545(b)(ii) for Turner to be heard?
2. Whether the PCRA court erred and abused its discretion by not
addressing in some instance the first PCHA/PCRA counsel
ineffective per se can satisfy 42 Pa.C.S.A. § 9545(b) for
Appellant Turner to be heard concerning his trial was a nullity
when there was no written decision on the record when it
comes to Rule 587 or instruction to appeal relating to double
jeopardy concerning Rule 1100 although the PCHA court order
[sic] greater specificity to PCHA counsel Mr. Padova, Esq?
3. Did the PCRA court err by not allowing a nunc pro tunc petition
once it was clear the Administrator failed to docket Turner’s
objection to that court’s 907 or address the motion for
modification of the record concerning such failure?
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4. Did the PCRA court err and abuse its discretion by not
addressing the issue of breakdown in operation or fraud upon
the court?
Appellant’s Brief at 4 (unnecessary capitalization and suggested answers
omitted).1
Initially, we note the following:
On appeal from the denial of PCRA relief, our standard of
review calls for us to determine whether the ruling of the PCRA
court is supported by the record and free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for
the findings in the certified record. The PCRA court’s factual
determinations are entitled to deference, but its legal
determinations are subject to our plenary review.
Commonwealth v. Nero, 58 A.3d 802, 805 (Pa.Super. 2012) (quotation
marks and quotations omitted).
Pennsylvania law makes clear no court has jurisdiction to
hear an untimely PCRA petition. The most recent amendments to
the PCRA, effective January 16, 1996, provide a PCRA petition,
including a second or subsequent petition, shall be filed within one
year of the date the underlying judgment becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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.”
42 Pa.C.S.A. § 9545(b)(3).
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010)
(citations omitted).
[There are] three statutory exceptions to the timeliness
provisions in the PCRA [that] allow for the very limited
circumstances under which the late filing of a petition will be
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1 For the ease of discussion, we have renumbered Appellant’s issues.
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excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petitioner must allege and prove:
(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.
Id. at 1079-80 (citing 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii)).
Any petition invoking a timeliness exception must be filed within one
year of the date the claim could have been presented.2 42 Pa.C.S.A. §
9545(b)(2). “We emphasize that it is the petitioner who bears the burden to
allege and prove that one of the timeliness exceptions applies.”
Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008)
(citation omitted). Lastly, there is “no generalized equitable exception to the
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2 On October 24, 2018, the General Assembly amended Section 9545(b)(2)
and extended the time for filing a petition from sixty days to one year from
the date the claim could have been presented. See 2018 Pa.Legis.Serv.Act
2018-146 (S.B. 915), effective December 24, 2018. The amendment applies
only to claims arising one year before the effective date of this section,
December 24, 2017, or thereafter. Appellant filed the instant petition on
November 9, 2021, and thus, we apply this amended version of Section
9545(b)(2).
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jurisdictional one-year time bar pertaining to post-conviction petitions.”
Commonwealth v. Brown, 596 Pa. 354, 943 A.2d 264, 267 (2008).
Here, Appellant was sentenced on March 18, 1982, and this Court
affirmed his judgment of sentence on May 20, 1983. The Pennsylvania
Supreme Court denied Appellant’s petition for allowance of appeal on
September 21, 1983, and Appellant did not file a petition for a writ of certiorari
with the United States Supreme Court.
Accordingly, Appellant’s judgment of sentence became final 60 days3
later, on November 21, 1983. See 42 Pa.C.S.A. § 9545(b)(3). As indicated
supra, Appellant had one year-until November 21, 1984-to file a timely PCRA
petition. See 42 Pa.C.S.A. § 9545(b)(1). However, Appellant filed the instant
PCRA petition on November 9, 2021, and consequently, it is facially untimely.
However, this does not end our inquiry as Appellant attempts to invoke
the “newly-discovered facts” exception set forth in Subsection 9545(b)(1)(ii).4
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3 See U.S.Sup.Ct.R. 20 (effective June 30, 1980; amended August 1, 1984,
at U.S.Sup.Ct.R. 20.1) (allowing 60 days to file petition for writ of certiorari).
United States Supreme Court Rule 13 is the current rule, which allows 90 days
to file a petition for writ of certiorari. See U.S.Sup.Ct.R. 13. Sixty days from
September 21, 1983, was Sunday, November 20, 1983. Therefore, the time
period for Appellant to seek review by the United States Supreme Court
expired on Monday, November 21, 1983. See U.S.Sup.Ct.R. 30.
4 We note:
To establish the newly discovered fact timeliness exception in
[Sub]section 9545(b)(1)(ii), a petitioner must demonstrate he did
not know the facts upon which he based his petition and could not
have learned those facts earlier by the exercise of due diligence.
(Footnote Continued Next Page)
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Specifically, Appellant avers he has met the “newly-discovered facts”
exception based on his receipt of Ella Martin’s criminal record, which reveals
she was convicted of theft offenses prior to Appellant’s trial. Appellant
contends Ella Martin was a “key” Commonwealth witness, and he would have
used her criminal record to impeach her trial testimony had he known of her
criminal record. Appellant contends he discovered her criminal record when
it was provided to him by the Defender Association of Philadelphia.
While Appellant does not assert in his brief when he received Ella
Martin’s criminal record from the Defender Association, he asserted in his pro
se October 6, 2022, response to the Rule 907 notice that he received Ms.
Martin’s criminal record on January 12, 2015. See Appellant’s Reply, filed
10/6/22, at 5. However, Appellant waited until November 9, 2021, to file the
instant PCRA petition. Thus, he has not demonstrated he presented the claim
within one year of the date the claim could have been presented. See 42
Pa.C.S.A. § 9545(b)(2).
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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 fact(s) earlier with the exercise of
due diligence. This rule is strictly enforced. Additionally, the focus
of this exception is on the newly discovered facts, not on a newly
discovered or newly willing source for previously known facts.
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (citations
and quotation marks omitted).
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Appellant next seeks to invoke the “newly-discovered facts” exception
set forth in Subsection 9545(b)(1)(ii) on the basis his first PCHA/PCRA counsel
was per se ineffective in failing to raise certain issues during the first collateral
proceedings. Our Supreme Court has held the discovery that prior counsel was
allegedly ineffective is generally not a “newly-discovered fact” which would
satisfy the unknown “facts” exception to the PCRA’s time bar. See
Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780, 785-86
(2000). However, a narrow exception to this general rule exists where counsel
has been per se ineffective, and the petitioner pleads and proves the
applicability of this exception, set forth at 42 Pa.C.S.A. § 9545(b)(1)(ii), in a
subsequent PCRA petition. See Commonwealth v. Peterson, 648 Pa. 313,
192 A.3d 1123, 1130 (2018). In all circumstances, the petitioner must also
plead and prove that he acted with due diligence by filing the subsequent
petition with one year of the claim. 42 Pa.C.S.A. § 9545(b)(2).
Assuming, arguendo, Appellant’s claim of per se ineffectiveness is the
type of ineffectiveness claim for which the “newly-discovered fact” exception
is applicable, we conclude Appellant has failed to demonstrate he raised the
claim within one year of when the claim could have been presented. See id.
Simply put, the PCRA court denied Appellant’s first collateral petition on April
29, 1988. This Court affirmed, and the Pennsylvania Supreme Court denied
allowance of appeal on November 29, 1989. However, Appellant did not file
the instant petition until November 9, 2021. Simply put, he has failed to
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demonstrate he filed the petition within one year of the date the alleged per
se ineffectiveness claim could have been presented or otherwise explain how
he was duly diligent in presenting this claim.5 See id.
In his third and fourth issues, Appellant contends he was “denied
appellate review” with regard to his prior PCRA petition due to a breakdown
in the PCRA court. He asserts that on July 19, 2019, the PCRA court provided
him with a Rule 907 notice of its intent to dismiss his prior PCRA petition, and
he sent the Prothonotary a response. However, he contends the response
was not docketed, and thus, he seeks the reinstatement of his PCRA appeal
rights nunc pro tunc.
Regarding this claim, Appellant has not adequately developed an
argument as to any of the timeliness exceptions. Specifically, Appellant has
neither indicated what timeliness exception he is seeking to invoke nor has he
set forth any relevant authority pertaining to any timeliness exception. Since
Appellant has not developed an argument in support of a timeliness exception,
we decline to address the issue further. See Commonwealth v. Tielsch, 934
A.2d 81, 93 (Pa.Super. 2007) (holding that undeveloped claims will not be
considered on appeal).
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5 To the extent Appellant claims counsel’s alleged ineffectiveness satisfies the
“governmental interference” exception in 42 Pa.C.S.A. § 9545(b)(1)(i), we
note claims relating to ineffectiveness of counsel do not qualify as government
interference since defense counsel are not considered government officials.
See Commonwealth v. Abu-Jamal, 574 Pa. 724, 833 A.2d 719 (2003).
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For all of the foregoing reasons, we agree with the PCRA court that
Appellant’s instant PCRA petition is untimely. Thus, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2023
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