Com. v. Flood, R.

J-S03039-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD D. FLOOD :
:
Appellant : No. 1322 EDA 2022
Appeal from the PCRA Order Entered April 27, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0426351-1989
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED JUNE 13, 2023
Richard D. Flood (“Flood”) appeals pro se from the order dismissing his
serial petition for relief, filed pursuant to the Post Conviction Relief Act
(“PCRA”),1 as an untimely serial petition.2 We affirm.
On Flood’s direct appeal, this Court summarized the relevant facts and
procedural history as follows:
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1 See 42 Pa.C.S.A. §§ 9541-9546.
2 Although Flood titled the instant petition as one seeking habeas corpus relief,
see 42 Pa.C.S.A. §§ 6501-6505, he also cited the sections of the PCRA in the
petition. “It is well-settled that the PCRA is intended to be the sole means of
achieving post-conviction relief . . . [and i]ssues that are cognizable under
the PCRA must be raised in a timely PCRA petition . . . and cannot be raised
in a habeas corpus petition.” Commonwealth v. Taylor, 65 A.3d 462, 465-
66 (Pa. Super. 2013) (internal citations and footnote omitted). On appeal,
Flood also concedes that he was required to state a time-bar exception to the
PCRA. Therefore, we discern no issue in the PCRA court’s decision to regard
Flood’s petition as a PCRA petition.
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[Flood] was charged with first degree murder and possession of
an instrument of crime in connection with the shooting death of
sixteen-year-old Jose Perez . . ..
****
Two members of the local town watch heard the shots and
observed two men running, then stopping, then pushing
something into their pockets. One of the men wore a distinctive
red and black jacket. . .. [P]olice saw [Flood], emerging from an
alley, wearing a distinctive red and black jacket. . .. At a point
very close[] to where [Flood] was apprehended, the police
discovered a gun which later proved to be the weapon used to kill
Perez.
****
[At trial, Flood] . . . claimed . . . he heard gunfire and saw
someone running out of an alley, whereupon [Flood] went into the
alley and picked up a discarded gun which he intended to sell
because he was unemployed. When [Flood] saw the police, he
dropped the gun . . . because he was on bail in another criminal
matter.
At the conclusion of defense counsel’s closing argument, the
Commonwealth moved to reopen the trial because the prosecution
had acquired additional information which would rebut [Flood’s]
alibi[:] . . . a statement obtained . . . from Gregory A. Brunson,
Jr. . . . that he had purchased [the murder weapon] for [Flood] at
[Flood’s] behest. . ..
[Flood] and defense counsel then met to discuss the potential
impact of this new evidence . . .. The Commonwealth agreed to
refrain from seeking the death penalty if [Flood] would plead
guilty to the charges. On December 7, 1990, [Flood] entered a
guilty plea and submitted to written and oral colloquies after which
the trial court accepted his plea and immediately sentenced
[Flood] to life imprisonment for the murder charge plus a
concurrent [term of] one to two years for the possession of an
instrument of crime charge.
[Flood] moved to withdraw his negotiated guilty plea at which
point the trial court vacated the sentence pending disposition of
[Flood’s] petition. On January 10, 1990, [Flood] petitioned the
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court for appointment of new counsel. Following a hearing on that
date, the trial court denied [Flood’s] motion to withdraw his plea
and re-imposed sentence.
Commonwealth v. Flood, 627 A.2d 1193, 1195-96 (Pa. Super. 1993).
This Court affirmed Flood’s judgment of sentence on direct appeal. See
id. The Supreme Court denied allowance of appeal on February 23, 1994.
See Commonwealth v. Flood, 641 A.2d 583 (Pa. 1994). Flood subsequently
filed five post-conviction petitions. The PCRA court denied all five petitions.
In January 2021, Flood filed the instant petition pro se, and in August
2021, he filed a supplemental habeas corpus petition. In his petitions, Flood
referred to his plea counsel’s 1990 motion to withdraw his guilty pleas and
alleged, in relevant part, that his issue arose “from [that] legal document that
the petitioner presume[d] to be lost or destroyed,” by the Department of
Corrections (“DOC”), but that the DOC recently found the document and “sent
[it] to the petitioner at SCI-Retreat [in] February 2020 before its closing.”
Petition, 1/22/21, at 5. The PCRA court issued a notice of intent to dismiss
pursuant to Pa.R.Crim.P. 907, to which Flood submitted responses alleging
that he properly pleaded the newly discovered fact exception to the PCRA time
bar and that the DOC withheld the document giving rise to his claims. See
Response, 4/12/22, at 1-2. The court dismissed the petition as untimely in
April 2021. Flood timely appealed. The court did not require Flood to comply
with Pa.R.A.P. 1925, and he did not do so. The court filed a Rule 1925(a)
opinion.
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On appeal, Flood presents the following issues for our review:
1. Whether the lower court erred when [it] vacated and
annulled [Flood’s] sentence[] and didn[’]t grant a new trial.
2. Whether the lower court erred when [it] reimposed a[n]
invalid and unlawful sentence.
3. Whether there was a manifest injustice that took place in
this case.
4. Whether the prosecutor[] committed prosecutorial
misconduct, when requested discovery evidence was withheld.
5. Whether there [were] constitutional violations of [Flood’s]
6th [and] 14th Amendment rights to a fair trial.
6. Whether [Flood] suffered ineffectiveness of trial
counsel[], who induce[d Flood] to plead guilty.
7. Whether [Flood] suffered ineffectiveness of counsel[] to
plead guilty to a higher degree of homicide.
8. Whether all previous PCRA counsel[] [were] ineffective.
9. Whether there was governme[n]t interference committed
by the Department of Corrections.
Flood’s Brief at 4.
Our standard of review of an order dismissing a PCRA petition is well-
settled:
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
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petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
We must initially determine whether the PCRA court had jurisdiction
over Flood’s petition. Under the PCRA, any petition “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). The PCRA’s timeliness
requirements are jurisdictional in nature, and a court may not address the
merits of the issues raised if the PCRA petition was not timely filed. See
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Pennsylvania courts may nevertheless consider an untimely PCRA petition if
the petitioner can plead and prove one of three exceptions set forth in section
9545(b)(1)(i)-(iii).
To establish the governmental interference exception, pursuant to
section 9545(b)(1)(i), a petitioner must plead and prove: (1) the failure to
previously raise the claim was the result of interference by government
officials, and (2) the petitioner could not have obtained the information earlier
with the exercise of due diligence. See Commonwealth v. Kennedy, 266
A.3d 1128, 1135 (Pa. Super. 2021). Section 9545(b)(1)(ii) also provides an
exception to the jurisdictional time-bar if “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[.]” 42 Pa.C.S.A. § 9545(b)(1)(ii).
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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.” Commonwealth v. Medina, 92 A.3d 1210, 1216 (Pa. Super.
2014) (internal quotations and citations omitted). Any PCRA petition invoking
an exception under section 9545(b)(1) “shall be filed within one year of the
date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2); see
also Commonwealth v. Williamson, 21 A.3d 236, 242 (Pa. Super. 2011)
(holding that “a petitioner invoking section 9545(b)(1)[ ] must still comply
with section 9545(b)(2) by presenting the claim within [one year] of
discovering the new fact”) (internal citations omitted, emphasis in original).
Here, Flood’s judgment of sentence became final on May 24, 1994,
ninety days after the February 23, 1994 denial of his petition for Pennsylvania
Supreme Court review when his time for filing a petition for writ of certiorari
expired. See 42 Pa.C.S.A. § 9545(b)(3); see also U.S. Sup. Ct. R. 13.1.
Flood’s serial PCRA petition, filed in January 2021, is facially untimely under
the PCRA, precluding review of the merits of the issues raised in the petition,
absent a time-bar exception. See Albrecht, 994 A.2d at 1093.
Flood asserts that the PCRA court failed to acknowledge that he properly
pled exceptions to the PCRA time bar. He claims government interference
because the DOC officials allegedly withheld his plea counsel’s 1990 motion to
withdraw his guilty plea, which he did not receive until 2020. See Flood’s
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Brief at 12. Flood also contends that had he possessed that motion he would
have filed a timely PCRA challenging the legality of his reimposed sentence.
See id. at 12-13.
Following our review, we discern no merit to Flood’s assertions that he
properly pleaded and proved an exception to the PCRA time bar. Flood failed
to show due diligence in asserting his claims. He asserts only that he wrote a
letter to trial counsel in 1992 seeking a copy of “recent legal material,” and
waited twenty-eight more years before attempting to seek this motion, which
he admits he knew existed. Id. at 13-14 & Exhibit E; see also Petition,
1/22/21, at 2. That obvious failure to exercise due diligence in attempting to
obtain a copy of the motion defeats the claim. See 42 Pa.C.S.A. § 9545(b)(2).
Finally, Flood’s receipt of a document he had known about for twenty-eight
years cannot constitute a newly discovered fact. See 42 Pa.C.S.A.
§ 9545(b)(1)(ii). For all these reasons, Flood’s claim is fatally deficient. The
PCRA court properly dismissed Flood’s petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2023
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