Com. v. Grant, J.

J-S18014-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JONATHAN GRANT :
:
Appellant : No. 117 EDA 2023
Appeal from the PCRA Order Entered December 9, 2022
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003705-1991
BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 18, 2023
Jonathan Grant appeals from the order entered in the Bucks County
Court of Common Pleas on December 9, 2022, dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546 as untimely. After careful review, we affirm.
In 1992, a jury convicted Grant of first-degree murder, recklessly
endangering another person, possession of an instrument of crime, and flight
to avoid apprehension arising from charges that Grant fatally shot Nora
Adderly, a 41-year-old woman who shared an apartment with Grant. After the
jury deadlocked on the issue of the death penalty, the trial court sentenced
Grant to life imprisonment without parole. We affirmed the judgment of
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* Former Justice specially assigned to the Superior Court.
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sentence on direct appeal. On September 12, 1994, the Pennsylvania
Supreme Court denied Grant’s petition for allowance of appeal. Grant did not
appeal to the United States Supreme Court.
In the more than two decades that have passed, Grant has filed eleven
unsuccessful PCRA petitions.
On March 4, 2022, Grant filed the instant PCRA petition, his twelfth.
PCRA counsel was appointed but did not file an amended petition. Instead,
counsel filed a Turner/Finley1 no-merit letter, along with a petition to
withdraw as counsel. After a hearing, the court notified Grant that it was
granting counsel’s motion to withdraw, and that it intended to dismiss the
petition pursuant to Pa.R.Crim.P. 907. After considering Grant’s response, the
PCRA court dismissed the PCRA petition. This timely appeal followed.
Prior to reaching the merits of Grant’s claims on appeal, we must
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
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
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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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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).
Grant’s judgment of sentence became final in December 1994, 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
two decades later – is patently untimely. Therefore, the PCRA court lacked
jurisdiction to review Grant’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
(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
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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).
Grant attempts to invoke Section 9545(b)(1)(ii), i.e., the newly
discovered fact exception. 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 earlier by the exercise of “due
diligence.” Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (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 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 the new fact(s) earlier with the exercise of due diligence.”
Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011) (citations
omitted).
To invoke the newly discovered fact exception, Grant relies on a
Philadelphia Inquirer article from 1992. Grant highlights that the article
reports that John Neris, who is wheelchair bound, testified that Grant
previously shot him. Grant argues that the article proves Neris testified during
the guilt phase of the trial.
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The actual “fact” for purposes of Section 9545(b)(1)(ii) would not be the
article itself, but rather the “fact” that the district attorney allowed Neris to
testify during the guilt phase of trial to an unrelated prior crime. However, this
is not a “newly discovered fact.” Grant was present during trial proceedings
and sat through all of the testimony offered by the Commonwealth. That Grant
found a newspaper article reiterating who testified, and when, does not satisfy
the newly discovered fact exception to the PCRA’s time-bar. It is not the
source of the facts - i.e., a newspaper article - but rather the information
contained in the source which may satisfy the newly discovered facts
exception.
Further, Grant misreads the article. Grant purports the article indicates
Neris testified after Raymond Morris, and accordingly Neris must have testified
on January 9, 1992, since Morris testified on January 8, 1992. However, the
article actually states that Neris testified “after Raymond Morris … repeated
his earlier testimony that Grant acknowledged killing Adderly because she
knew of Neris’ shooting.” The article, which was published on Wednesday,
January 15, 1992, clearly states that Grant was convicted “on Monday”, which
would have been January 13, 1992. The article then states that Neris’s
testimony came “[b]efore the jury began its deliberations yesterday”, which
would have been Tuesday, January 14, 1992. As Grant was convicted on
Monday, January 13, 1992, the article indicates that Neris’s testimony came
during the penalty phase of trial proceedings.
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Finally, Grant has failed to demonstrate he exercised due diligence in
finding the article. The article was published in 1992. The only explanation
Grant offers for the delay in locating the article is that he only recently decided
to ask his nephew to look into articles regarding his trial. Grant offers no
explanation for why he did look into these articles in the more than two
decades that passed since his trial.
Accordingly, Grant has failed to plead and prove the newly-discovered
facts exception to the PCRA jurisdictional time-bar. Consequently, the PCRA
court lacked jurisdiction to review Grant’s PCRA petition, and we may not
review the substance of the petition on appeal.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2023
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