February 19, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
JOHN D. PREACHER, Appellant
Appeal from the PCRA Order May 29, 2013 in the Court of Common Pleas of Delaware County, Criminal Division at No(s): CP-23-CR-0001286-2008
BEFORE: ALLEN, STABILE, and STRASSBURGER [*] , JJ.
John D. Preacher (Appellant) appeals pro se from the May 29, 2013 order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On October 8, 2007, Appellant shot and wounded Frederick Bowman (Bowman). On August 18, 2008, a Monday morning and immediately prior to jury selection, counsel for Appellant learned that the Commonwealth had just received on Friday afternoon the results of a gunshot residue test conducted on Appellant. These results showed that Appellant may have handled a firearm around the time of the shooting. Appellant's counsel asked the trial court either to continue the trial or to exclude the test results from evidence. N.T., 8/18/2008, at 6. The trial court excluded the evidence. Id. at 7-8.
On August 20, 2008, a jury convicted Appellant of attempted homicide, aggravated assault, persons not to possess firearms, possession of a firearm without a license and recklessly endangering another person. On October 27, 2008, Appellant was sentenced to an aggregate term of imprisonment of 25 to 50 years. On August 19, 2009, this Court affirmed Appellant's judgment of sentence, and on December 29, 2009, our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Preacher, 984 A.2d 1021 (Pa.Super. 2009), appeal denied, 987 A.2d 160 (Pa. 2009) (table).
On August 23, 2010, Appellant timely filed a pro se PCRA petition. Counsel was appointed, but was subsequently permitted to withdraw pursuant Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). Appellant's PCRA petition was dismissed, and Appellant timely filed a pro se notice of appeal to this Court. On December 15, 2011, this Court issued a memorandum affirming the dismissal of Appellant's PCRA petition. Commonwealth v. Preacher, 40 A.3d 182 (Pa.Super. 2011) (table). This Court concluded, inter alia, that Appellant waived an issue with respect to trial counsel's ineffective assistance in handling the results of the gunshot residue tests because he raised it for the first time on appeal. Id. at 10.
On January 17, 2012, Appellant filed a petition for allowance of appeal to our Supreme Court. Two days later, Appellant filed, with the PCRA court, a pro se document entitled "Motion for New Trial on Grounds of After-Discovered/Newly Discovered Evidence." In that document, Appellant raised claims with respect to all prior counsels' ineffective assistance in handling the gunshot residue results. On April 16, 2012, Appellant filed a pro se "Petition for Writ of Habeas Corpus Ad Subjiciendum" requesting the dismissal of charges against him. On July 17, 2012, the Commonwealth filed a response to Appellant's pro se petitions, asserting that they should be treated as untimely filed PCRA petitions. On August 22, 2012, the Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Preacher, 50 A.3d 692 (Pa. 2012) (table).
On November 27, 2012, the PCRA court issued a notice of intent to dismiss Appellant's PCRA petition pursuant to Pa.R.Crim.P. 907. On December 7, 2012, Appellant filed an amendment to his prior petitions requesting relief under the PCRA. By order dated May 29, 2013, mailed June 1, 2013, and docketed on June 3, 2013, the PCRA court dismissed the petition without a hearing.
On July 1, 2013, Appellant timely filed a notice of appeal and complied with the PCRA court's order to file a concise statement pursuant to Pa.R.A.P. 1925. On appeal, Appellant presents numerous issues for review; however, due to the nature of this case, we focus on the timeliness of the PCRA petition.
The timeliness of a post-conviction petition is jurisdictional. Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa.Super. 2011). Generally, a petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment of sentence is final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition is met. 42 Pa.C.S. § 9545. The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of interference of 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. § 9545(b)(1)(i), (ii), and (iii). A PCRA petition invoking one of these statutory exceptions must "be filed within 60 days of the date the claims could have been presented." Robinson, 12 A.3d at 480.
Instantly, Appellant's judgment of sentence became final on March 30, 2010, at the expiration of the time in which Appellant had to file a petition for a writ of certiorari with the United States Supreme Court. 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct. Rule 13. Thus, Appellant had until March 30, 2011 to file a timely PCRA petition. The petitions in this case were filed on January 19, 2012, April 4, 2012, and December 7, 2012.
On appeal, Appellant asserts several reasons his petition is timely. First, he asserts that the United States Supreme Court's ruling in Maples v. Thomas, 132 S.Ct. 912 (2012) (holding that the abandonment of counsel of record, causing Maples not to receive court notices, was requisite cause to excuse procedural default and permit federal court to continue habeas proceedings) is applicable in this case pursuant to 42 Pa.C.S. § 9545(b)(1)(iii).
Subsection (iii) of Section 9545[(b)(1)] has two requirements. First, it provides that 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 provided in this section. Second, it provides that the right "has been held" by "that court" to apply retroactively. Thus, a petitioner must prove that there is a "new" constitutional right and that the right "has been held" by that court to apply retroactively. The language "has been held" is in the past tense. These words mean that the action has already occurred, i.e., "that court" has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed.
Commonwealth v. Wojtaszek, 951 A.2d 1169, 1171 (Pa.Super. 2008).
Instantly, Maples did not announce a new constitutional right, and even if it did, Appellant acknowledges that Maples has not been held to apply retroactively. Thus, the claim fails.
Appellant also asserts claims with respect to the late-disclosed results of the gunshot residue test, which he claims is a newly discovered fact pursuant to 42 Pa.C.S. § 9545(b)(1)(ii). Appellant argues that PCRA counsel abandoned Appellant on collateral review in failing to pursue this issue.
"Our Supreme Court has made clear that the section 9545(b)(1)(ii) exception will not apply to alleged ineffective assistance of counsel claims." Commonwealth v. Perrin, 947 A.2d 1284, 1287 (Pa.Super. 2008). Thus, an assertion that PCRA counsel was ineffective for failing to pursue the gunshot residue claim is not recognized as a newly discovered fact. Moreover, "[t]he newly-discovered evidence exception requires that [an appellant] prove that he could not have ascertained the evidence he now proffers by the exercise of due diligence." Perrin, supra. Here, Appellant was clearly aware of this issue at the time of trial and could have raised it in his first PCRA petition. For these reasons, Appellant has not met his burden for the newly-discovered facts exception to apply.
Finally, we point out that the trial court actually ruled in Appellant's favor when it excluded the gunshot residue evidence. That report suggested that Appellant had gunshot residue on his hands on October 8, 2007, the date of the shooting. Thus, there is no arguable merit to any claim of counsel's ineffective assistance; and, furthermore, Appellant suffered no prejudice by the Commonwealth's late disclosure of the evidence.
Accordingly, because Appellant has failed to establish an exception to the timeliness requirements, we affirm the order of the PCRA court denying Appellant's petition.