from the PCRA Order October 27, 2015 In the Court of Common
Pleas of Philadelphia County Criminal Division at No(s):
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA,
J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and
E. Robinson appeals from an order dismissing two PCRA
petitions as untimely. Appellant alleges that he is entitled
to an evidentiary hearing with respect to the petition filed
June 19, 2015, since the PCRA court analyzed the underlying
merits of his substantive claim. While we agree that the PCRA
court erred, we affirm on the basis that Appellant failed to
establish due diligence.
previously set forth the facts underlying Appellant's
conviction in our order denying his third petition for PCRA
relief, which we repeat herein.
On June 25, 1982, Appellant and a cohort were in the process
of breaking into a car for the purpose of stealing it when
they were confronted by the car's owner, the victim.
Appellant shot the victim four times and escaped with his
cohort in another stolen vehicle; the victim died.
Approximately one week later, Appellant was questioned about
the crime, and he ultimately was charged with murder,
robbery, criminal conspiracy, and possession of an instrument
of crime. On July 1, 1983, Appellant pled guilty to second
degree murder and criminal conspiracy. He received a life
sentence for the murder conviction and a concurrent sentence
of ten-to-twenty years confinement for conspiracy. Appellant
asserted on direct appeal that his trial counsel was
ineffective and that his guilty plea was involuntary. We
affirmed the judgment of sentence on March 1, 1985.
Commonwealth v. Robinson, 2347 EDA 2000 (Pa.Super.
2001) (unpublished memorandum).
appeal concerns an order dismissing Appellant's eighth
and ninth attempts to secure PCRA relief. The eighth
petition submitted that
was entitled to relief pursuant to Miller v.
Alabama, 567 U.S. 460 (2012). While that petition was
pending, Appellant filed another petition, docketed June 19,
2015. The petition contained numerous allegations concerning
drug use by his plea counsel, Richard Michaelson, Esquire.
The petition alleged that "At the time of trial/guilty
plea . . . my counsel suffered from the effects of cocaine
abuse. He was ingesting, [c]ocaine, and because of
counsel's [c]ocaine addiction, 'his mind was
befog[ged], disordered by paranoid thoughts and the belief
that he was in control when he was not.'" Pro
se PCRA petition, 6/19/15, at 4. The petition alleged
that this drug use "impaired his ability to represent
[me] in a Constitutionally sufficient manner."
petition included sworn affidavits prepared by Appellant and
Bruce Quarles, a fellow prisoner, which related the
following. Mr. Quarles overheard Appellant complaining about
trial counsel. Mr. Quarles informed Appellant that he knew of
trial counsel and supplied documentation regarding Attorney
Michaelson's purchase of cocaine in the Caribbean Islands
during May of 1982, around the time of Appellant's plea.
Additionally, Mr. Quarles stated that he knew Attorney
Michaelson had been convicted of drug offenses in federal
court, and told Appellant "he would bring the
transcripts and newspaper articles to the law library and I
could make photo copies of the newspaper articles and the
transcripts. This is how I obtained the after [d]iscovered
[e]vidence on April 28, 2015." Pro se PCRA
petition, 6/19/15, at 4-A.
to the petition were three additional exhibits: a newspaper
article dated May 29, 1982, stating that Attorney Michaelson
was fired from his job as an Assistant District Attorney in
Philadelphia due to an FBI informant alleging Attorney
Michaelson had purchased cocaine; a transcript of trial
counsel's plea to possession of drugs in the Eastern
District of Pennsylvania on April 29, 1994; and, a newspaper
story reporting the 1994 conviction. The plea transcript
indicates that in 1991 through June 1992, Attorney Michaelson
regularly purchased cocaine from a dealer. During the plea
hearing, Attorney Michaelson stated that he had been using
cocaine since approximately 1979. According to Appellant, his
receipt of this statement marked the first time he was aware
that trial counsel was using cocaine at a time period
relevant to his case, prompting him to file the untimely PCRA
petition at issue.
PCRA court dismissed the petition on the basis it was
untimely, and explained its ruling in its Pa.R.A.P. 1925(a)
[Appellant]'s claim does not constitute after-discovered
evidence, and his argument is not convincing. Trial counsel
represented [Appellant] in 1983. Counsel pled guilty to drug
trafficking offenses that occurred between 1991 and 1992.
[Appellant] cannot reasonably claim that trial counsel's
subsequent legal problems impacted his decision to plead
guilty a decade earlier. Aside from allegations contained in
an article, [Appellant] has not provided any evidence to
suggest that counsel's representation as it related to
[Appellant]'s specific case was improper. [Appellant] has
failed to demonstrate that any of the exceptions to the
limitations of the PCRA apply to his case.
PCRA Court Opinion, 11/16/15, at 4.
appeal, a panel of this Court unanimously determined that
Appellant was not entitled to relief on his petition seeking
to raise a Miller claim. The panel split with
respect to the other petition. The majority determined that
the PCRA court improperly considered the merits of
Appellant's underlying claim in dismissing the PCRA
petition, and, as a result, held that a remand for an
evidentiary hearing was required to determine whether
Appellant properly pled the § 9545(b)(1)(ii) exception.
The dissent, written by this author, agreed that the PCRA
court applied the wrong inquiry by assessing the merits of
the claim in determining the timeliness of the petition, but
would have affirmed on the alternative basis that Appellant
failed to establish his due diligence. Additionally, the
dissenting memorandum opined that the petition did not set
forth any facts that could ever entitle him to relief.
Commonwealth filed for reargument, asserting that a remand
would result in a needless expenditure of time and expense in
this and similar cases. We granted en banc review
and appointed counsel to represent Appellant's interests.
The parties submitted substituted briefs and the matter is
ready for our review. Appellant raises the following issue:
Should the PCRA court have held an evidentiary hearing on
Appellant's claim regarding trial counsel's drug
offenses for purposes of determining whether Appellant met
the timeliness exception for newly discovered facts?
Appellant's brief at 3.
standard of review examines "whether the PCRA
court's determination is supported by the evidence of
record and free of legal error. We grant great deference to
the PCRA court's findings, and we will not disturb those
findings unless they are unsupported by the certified
record." Commonwealth v. Holt, 175 A.3d 1014,
1017 (Pa.Super. 2017) (citation omitted). A PCRA petition
must be filed within one year of the date the judgment of
sentence becomes final. 42 Pa.C.S. § 9545(b)(1).
"This time constraint is jurisdictional in nature, and
is not subject to tolling or other equitable
considerations." Commonwealth v. Spotz, 171
A.3d 675, 678 (Pa. 2017) (citation omitted). The time bar can
"only be overcome by satisfaction of one of the three
statutory exceptions codified at 42 Pa.C.S. §
9545(b)(1)(i)-(iii)." Id. "Questions
regarding the scope of the statutory exceptions to the
PCRA's jurisdictional time-bar raise questions of law;
accordingly, our standard of review is de
novo." Commonwealth v. Chester,
895 A.2d 520, 522 n.1 (Pa. 2006).
Appellant's judgment of sentence became final long ago,
Appellant averred that these facts satisfied the second of
the three exceptions to the PCRA's one-year time bar.
These exceptions are:
(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
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been ascertained