IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
August 20, 2012
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
GEORGE IVAN LOPEZ, APPELLANT
Appeal from the December 30, 2009 Order of the Court of Common Pleas of Lehigh County
SUBMITTED: August 24, 2010
CONCURRING STATEMENT MR. JUSTICE McCAFFERY
I agree with the Court that the PCRA requires that petitions for relief be filed within one year of the date a judgment of sentence becomes final, subject to three exceptions. 42 Pa.C.S. § 9545(b). In this case, the PCRA judge held that certain facts contained in internal documents maintained by the Office of Disciplinary Counsel regarding Appellant's trial counsel could not have been discovered through the exercise of due diligence by Appellant's prior counsel. Therefore, the judge ruled that the instant petition was timely because it was filed within 60 days of the discovery by current counsel of the contents of those documents.
The Court disposes of this matter on the basis of untimeliness. However, while the Court posits that all of the documents containing the facts upon which Appellant relies were openly available to the public long before the filing of the instant petition, the Court does not address the PCRA judge's specific finding that certain of the newly discovered facts upon which Appellant relies were contained in internal documents, and that prior counsel was not derelict in his duty of due diligence in failing to obtain these internal documents.*fn1 Because I find no basis upon which to disagree with the assessment of the PCRA judge, I do not join the determination of the Court that the instant petition is time barred.
The instant petition is Appellant's second petition for collateral review of his death sentence. Therefore, Appellant bears the burden of making a strong prima facie showing to demonstrate that a miscarriage of justice may have occurred, or that he is actually innocent. Commonwealth v. Beasley, 967 A.2d 376, 384 (Pa. 2009); Commonwealth v. Lawson, 549 A.2d 107, 112 (Pa. 1988). Because Appellant does not assert his innocence, he is required to demonstrate that the proceedings which resulted in his conviction were so unfair that a miscarriage of justice has occurred which no civilized society could tolerate. Beasley, supra at 393; Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999); Commonwealth v. Carpenter, 725 A.2d 154, 160 (Pa. 1999); Commonwealth v. Morales, 701 A.2d 516, 520-21 (Pa. 1997). Upon thorough review of the record, I conclude that Appellant has not sustained his burden. Therefore, I would affirm the order denying his second petition for collateral review on this basis.