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[U] Commonwealth v. Bennett

Superior Court of Pennsylvania

February 20, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
WAYNE BENNETT, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order August 24, 2012 in the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0933201-1991

BEFORE: GANTMAN, J., OLSON, J., and PLATT, J.[*]

MEMORANDUM

PLATT, J.

Appellant, Wayne Bennett, appeals from the order dismissing his first, counseled petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, without a hearing. We affirm.

On August 10, 1991, Appellant and several others robbed a University of Pennsylvania medical student at gunpoint. During the course of the robbery, Appellant shot the victim in the head at point-blank range, killing him. On January 20, 1993, Appellant, who had confessed to the police, entered a negotiated guilty plea to first degree murder, robbery, conspiracy, and possession of an instrument of crime in exchange for the Commonwealth's agreement not to seek the death penalty. Appellant was sentenced to life without the possibility of parole, and did not file a direct appeal.

Appellant filed this first PCRA petition pro se on October 8, 2010. The PCRA court appointed counsel, who filed an amended petition on January 23, 2012, requesting discharge from custody or a new trial, and alleging newly-discovered evidence "that the Commonwealth had withheld evidence that it had provided cash payments and other benefits to cooperating witnesses who testified against [Appellant] at his preliminary hearing and would have testified against [him] had he gone to trial." (PCRA Petition, 1/23/12, at unnumbered page 2 ¶ 6). The Commonwealth filed a motion to dismiss on June 4, 2012. On July 24, 2012, the PCRA court issued notice of its intent to dismiss Appellant's petition pursuant to Pa.R.Crim.P. 907(1), stating that "[the] petition is untimely and does not fall into any of the exceptions to the timeliness requirements" and "[t]he issues raised in [the] petition are without merit." (Notice, 7/24/12, at 1). The PCRA court subsequently dismissed Appellant's petition by order filed on August 24, 2012, and Appellant timely appealed to this Court.[1]

Appellant raises one question for our review:
Whether the [c]ourt erred when it dismissed the Appellant's [p]etition under the Post Conviction Relief Act on the grounds that it was time barred without considering the Appellant's substantive allegations where the facts upon which the claims were predicated were unknown to the Appellant and could not have been ascertained by the exercise of due diligence[?]

(Appellant's Brief, at 6).

When reviewing the denial of a PCRA petition, our scope of review is limited by the parameters of the act. Our standard of review permits us to consider only whether the PCRA court's determination is supported by the evidence of record and whether it is free from legal error. Moreover, in general we may affirm the decision of the [PCRA] court if there is any basis on the record to support the [PCRA] court's action; this is so even if we rely on a different basis in our decision to affirm.

Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005), appeal denied, 876 A.2d 393 (Pa. 2005) (citation omitted).

Because the time limits imposed by the PCRA are jurisdictional and must be strictly construed, see Commonwealth v. Fahy, 959 A.2d 312, 315 (Pa. 2008), we will begin by addressing the timeliness of Appellant's petition.

A PCRA petition "shall be filed within one year of the date the judgment [of sentence] becomes final[.]" 42 Pa.C.S.A. § 9545(b)(1).

Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition. Statutory time restrictions are mandatory and jurisdictional in nature, and may not be altered or disregarded to reach the merits of the claims raised in the petition. . . .
The three statutory exceptions to the timeliness provisions in the PCRA allow for very limited circumstances under which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition must allege and the petitioner must prove:
(i) the failure to raise a 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). The PCRA specifically provides that a petitioner raising one of the statutory exceptions to the timeliness requirements must affirmatively plead and prove the exception. Id. The statutory exceptions to the timeliness requirements of the PCRA are also subject to a separate time limitation and must be asserted within sixty (60) days of the date the claim could have been first presented. 42 Pa.C.S.A. § 9545(b)(2). As such, when a PCRA [petition] is not filed within one year of the expiration of direct review, or not eligible for one of the exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date that the claim could have been first brought, the trial court has no power to address the substantive merits of a petitioner's PCRA claims.

Commonwealth v. Taylor, 933 A.2d 1035, 1038-39 (Pa. Super. 2007), appeal denied, 951 A.2d 1163 (Pa. 2008) (footnote, quotation marks and case citations omitted). Accordingly, when a petition is filed outside the one-year time limitation, "our review focuses on whether Appellant has pled and proven that one of the three limited exceptions to the timeliness requirements of the PCRA apply." Commonwealth v. Wilson, 824 A.2d 331, 335 (Pa. Super. 2003) (en banc), appeal denied, 839 A.2d 352 (Pa. 2003).

Here, Appellant's judgment of sentence became final on February 19, 1993. See 42 Pa.C.S.A. § 9545(b)(3); see also Pa.R.A.P. 903(a). Hence, in order to comply with the filing requirements of the PCRA, Appellant's petition had to be filed by February 22, 1994.[2] Because Appellant's petition was filed on October 8, 2010, it is patently untimely and the PCRA court lacked jurisdiction to review it unless Appellant pleaded and proved one of the statutory exceptions to the time bar under 42 Pa.C.S.A. § 9545(b)(1).

In the instant case, Appellant cites to the second exception and argues that "he came into possession of documentary evidence demonstrating that the Commonwealth had concealed discoverable Brady evidence on 8/10/10." (Appellant's Brief, at 11). Specifically, he argues that he had a "chance encounter" with co-defendant Giovanni Reed, from whom he learned that "the three witnesses who would have testified against him at trial had been provided with cash payments and other benefits" and that "this evidence was withheld from his attorney" in violation of Brady v. Maryland, 373 U.S. 83 (1963), thus invalidating his guilty plea. (Id. at 12-14). We disagree.

In Brady, the United States Supreme Court held: "The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, supra at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218. In sum, there are three necessary components to demonstrate a Brady violation: the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.

Commonwealth v. Harris, 884 A.2d 920, 931-32 (Pa. Super. 2005), appeal denied, 928 A.2d 1289 (Pa. 2007) (some citations and quotation marks omitted).

"The newly-discovered evidence exception requires that the facts upon which the Brady claim is predicated were not previously known to the petitioner and could not have been ascertained through due diligence." Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2008), cert. denied, 558 U.S. 836 (2009) (citations omitted).

[F]or purposes of 42 Pa.C.S. § 9545(b)(1)(ii) information is not "unknown" to a PCRA petitioner when the information was a matter of public record. For purposes of the exception to the PCRA's jurisdictional time-bar under Section 9545(b)(1)(ii), a petitioner fails to meet his burden when the facts asserted were merely "unknown" to him.

Taylor, supra at 1040-41 (citations and some quotation marks omitted).

Here, Appellant's co-defendant, Giovanni Reed, litigated the exact same issue in a PCRA petition as early as 1996. See Commonwealth v. Reed, 742 A.2d 1150, No. 1725 Philadelphia 1998, at *3-4 (Pa. Super. filed July 20, 1999), appeal denied, 758 A.2d 1198 (Pa. 2000) (alleging Brady violation for failure to disclose that Philadelphia District Attorney's Office had paid for food and housing of Commonwealth witnesses). Furthermore, Appellant concedes in his brief that this issue was addressed by the Honorable David N. Savitt in 1998, providing us with an opinion supporting a discovery order in Giovanni Reed's PCRA proceedings. (See Appellant's Brief, at 15-16; see also id. at Exhibit D).

Therefore, the alleged Brady violations by the Commonwealth in Appellant and co-defendant's cases were a matter of public record for well over a decade before Appellant filed his petition. See Taylor, supra at 1040-41. Appellant fails to demonstrate how this issue could not have been ascertained by due diligence, and thus, his claim must fail. Hawkins, supra at 1253.[3]

Accordingly, the PCRA court did not err or abuse its discretion in dismissing Appellant's petition when it was patently untimely with no exception to the statutory time bar proven. See Heilman, supra at 544.[4]

Order affirmed.

Judgment Entered.


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