J-S42009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BERNARD JACKSON                            :
                                               :
                       Appellant               :   No. 2414 EDA 2018

               Appeal from the PCRA Order Entered July 10, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0600971-1985


BEFORE:      OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY OTT, J.:                             FILED SEPTEMBER 05, 2019

        Bernard Jackson appeals, pro se, from the order entered July 10, 2018,

in the Philadelphia County Court of Common Pleas, dismissing as untimely his

serial petition for collateral relief filed pursuant to the Post Conviction Relief

Act (“PCRA”).1       Jackson seeks relief from the judgment of sentence of life

imprisonment, followed by an aggregate consecutive term of 2½ to 5 years’

imprisonment, imposed on December 2, 1986, following his jury conviction of

murder in the first degree, burglary, and conspiracy.2 On appeal, he asserts




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*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.

2   18 Pa.C.S.A. §§ 2502(a), 3502, and 903, respectively.
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the PCRA court erred in dismissing the petition as untimely because he has

newly discovered evidence. For the reasons discussed below, we affirm.

      We take the underlying facts and procedural history in this matter from

this Court’s February 5, 2016 memorandum denying Jackson’s second PCRA

petition.

      This Court previously summarized the facts of [Jackson’s] case,
      as follows:

            On November 20, 1984, [Jackson], . . . along with
            codefendants, Gregory        Campbell     and Veleda
            Broaddus, forcibly entered the apartment of Alvin
            Gass, shot and murdered him. [Jackson] was not the
            actual triggerman. Present in the apartment at the
            time of the shooting were the victim’s wife, Freda
            Dowling, their thirteen year old daughter, Lydia[,] and
            other children of the couple. Broaddus, known to the
            victim’s family as “Miss Marie,” was positioned outside
            the apartment door. Broaddus asked the victim’s
            daughter, Lydia[,] whether her parents were home.
            Lydia replied that they were not. Soon thereafter,
            Broaddus was joined by Campbell, known by the
            victim’s family, and [Jackson], later identified, who
            were seen by the victim’s daughter conversing outside
            the apartment building moments earlier.

            Again, following a knock on the door, Lydia was asked
            from outside the apartment door whether her parents
            were home and again she stated that they were not.
            When Lydia refused to open the door to the apartment
            for the perpetrators, the door was kicked open.
            [Jackson] was identified as the male who entered the
            apartment and pushed Freda Dowling to the floor
            while his co-defendant, Campbell, fired on the victim,
            Alvin Gass[,] from the doorway.

            [Jackson] was identified by the victim’s wife, Freda
            Dowling, by photo array conducted four days after the
            shooting. . . . [Jackson] was again identified by
            Dowling at the time of the trial.

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     Commonwealth v. Jackson, No. 3216 Philadelphia 1986,
     unpublished memorandum at 1–2 (Pa. Super. filed May 17, 1988).

     Following a jury trial alongside co-defendants Campbell and
     Broaddus, [Jackson] was convicted of first-degree murder,
     burglary, and criminal conspiracy.

           [Jackson] appealed from the judgment of sentence
           and on May 17, 1988, the Superior Court affirmed the
           judgement of sentence.       [ ] Jackson, [supra].
           [Jackson] thereafter filed a pro se PCRA petition in
           August [of] 1988. On March 5, 1991, the lower court
           dismissed [Jackson’s] PCRA petition. The Superior
           Court subsequently affirmed the dismissal of
           [Jackson’s] petition. [Commonwealth v. Jackson,
           No.     00894    Philadelphia   1991,     unpublished
           memorandum (Pa. Super. filed October 8, 1992) ]. . .
           . On May 23, 2014, [Jackson] filed [his second] pro se
           PCRA petition. Pursuant to Pennsylvania Rule of
           Criminal Procedure 907, [Jackson] was served with
           notice of the court’s intention to dismiss his PCRA
           petition on September 26, 2014. [Jackson] filed a
           [pro se] response to the court’s Rule 907 notice on
           October 14, 2014.        The lower court dismissed
           [Jackson’s second PCRA] petition as untimely on
           March 23, 2015. . . .

     PCRA Court Opinion (PCO), 4/24/15, at 1–2.

Commonwealth v. Jackson, 2016 WL 490180, at **1-2 (Pa. Super. Feb. 5,

2016) (unpublished memorandum).

     On February 5, 2016, this Court affirmed the dismissal of Jackson’s

second PCRA petition. Id. at *1. On October 13, 2016, the Pennsylvania

Supreme Court denied leave to appeal. Commonwealth v. Jackson, 158

A.3d 1242 (Pa. 2016).

     On March 24, 2017, Jackson filed a third pro se PCRA petition.    In

September 2017, he filed a supplemental PCRA petition. On April 26, 2018,

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the PCRA court issued notice of its intent to dismiss the petition pursuant to

Pennsylvania Rule of Criminal Procedure 907(1). Jackson filed a response on

May 16, 2018. On July 10, 2018, the PCRA court dismissed the petition as

untimely filed. This timely appeal follows.3

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). Here, the PCRA court determined,

inter alia, that Jackson’s petition was untimely. We agree. A petitioner must

file a PCRA within one year of the date the underlying judgment becomes final.

See 42 Pa.C.S.A. § 9545(b)(1).

       The PCRA timeliness requirement, however, is mandatory and
       jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
       1035, 1038 (Pa. Super.2007), appeal denied, 597 Pa. 715, 951
       A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
       753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
       untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

572 U.S. 1151 (2014).

       Jackson’s judgment of sentence was final on June 16, 1988, 30 days

after this Court affirmed the judgment of sentence and Jackson failed to seek



____________________________________________


3 The PCRA court did not order Jackson to file a concise statement of errors
complained of on appeal. Despite this, Jackson filed a Rule 1925(b) statement
on August 23, 2018. On November 6, 2018, the PCRA court filed an opinion.


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leave to appeal to the Pennsylvania Supreme Court.        See 42 Pa.C.S.A. §

9545(b)(3); Pa.R.A.P. 113(a). Therefore, he had until June 16, 1989, to file

a timely PCRA petition. His third petition, filed March 24, 2017, is patently

untimely.

       Nevertheless, we may still consider an untimely PCRA petition if one of

the following three exceptions applies:

        (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).

       Here, Jackson attempts to invoke the previously unknown facts

exception set forth in Subsection 9545(b)(1)(ii).4 Until recently, a petitioner




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4 In his PCRA petition, Jackson also sought to invoke the governmental
interference exception; however, he has abandoned this claim on appeal.




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invoking an exception had to file his petition within 60 days of the date he or

she could have presented the claim.5

       This Court has previously explained the interplay between the newly

discovered facts exception to the timeliness requirements and a substantive

collateral claim of after-discovered evidence as follows:

       The timeliness exception set forth in Section 9545(b)(1)(ii)
       requires a petitioner to demonstrate he did not know the facts
       upon which he based his petition and could not have learned those
       facts earlier by the exercise of due diligence. 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.
       This rule is strictly enforced. Additionally, the focus of this
       exception is on the newly discovered facts, not on a newly
       discovered or newly willing source for previously known facts.

       The timeliness exception set forth at Section 9545(b)(1)(ii) has
       often mistakenly been referred to as the “after-discovered
       evidence” exception. This shorthand reference was a misnomer,
       since the plain language of subsection (b)(1)(ii) does not require
       the petitioner to allege and prove a claim of “after-discovered
       evidence.” Rather, as an initial jurisdictional threshold, Section
       9545(b)(1)(ii) requires a petitioner to allege and prove that there
       were facts unknown to him and that he exercised due diligence in
       discovering those facts. Once jurisdiction is established, a PCRA
       petitioner can present a substantive after-discovered-evidence
       claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be
       eligible for relief under PCRA, petitioner must plead and prove by
       preponderance of evidence that conviction or sentence resulted
       from, inter alia, unavailability at time of trial of exculpatory
       evidence that has subsequently become available and would have
____________________________________________


5 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), and now provides that a PCRA petitioner invoking a timeliness
exception must file the petition within one year of the date the claim could
have been presented, for all claims arising after December 24, 2017. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.


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     changed outcome of trial if it had been introduced).      In other
     words, the “new facts” exception at:

           [S]ubsection (b)(1)(ii) has two components, which
           must be alleged and proved. Namely, the petitioner
           must establish that: 1) the facts upon which the
           claim was predicated were unknown and 2) could not
           have been ascertained by the exercise of due
           diligence. If the petitioner alleges and proves these
           two components, then the PCRA court has jurisdiction
           over the claim under this subsection.

     Thus, the “new facts” exception at Section 9545(b)(1)(ii) does not
     require any merits analysis of an underlying after-discovered-
     evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015) (some

citations and quotation marks omitted, emphases in original), appeal denied,

125 A.3d 1197 (Pa. 2015).     Accordingly, before we may consider whether

Jackson’s substantive claim of after-discovered evidence merits relief, we

must first determine whether he has established “there were facts unknown

to him and that he exercised due diligence in discovering those facts.” Id. at

176. Here, Jackson has failed to do so.

     Jackson first contends that the unsworn “Letter-Statement” of Wanda

Campbell, his co-defendant’s sister, constitutes a new fact.    In the letter,

Campbell contends that her mother told her that Jackson had an alibi for the

night in question, namely that he and co-defendant Broaddus were together

in their home at the time of the murder.         Letter-Statement of Wanda

Campbell, 1/23/2017, at unnumbered page 1. Jackson argues that the PCRA

court improperly assessed the merits of his substantive claim of after-


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discovered evidence in finding that the Letter-Statement did not constitute a

new fact. Jackson’s Brief, at 15, 19. We disagree.

      Initially, we note that the record does not support Jackson’s contention

that the trial court improperly assessed the merits of the underlying claim.

Rather, the record demonstrates that it properly assessed whether the Letter-

Statement was sufficient to constitute a new fact meriting either an

evidentiary hearing or relief and concluded it did not. We agree.

      Even assuming, arguendo, that the averments in this letter were not

hearsay, this Court has already held that any claims that Jackson had a viable

alibi defense do not constitute a new fact. See Jackson, supra at **3-4. In

his second PCRA petition, Jackson contended that an affidavit by Broaddus,

which also stated that she and Jackson were watching television at her home

at the time of the murder, constituted a newly discovered fact. Id. at *3. In

rejecting this claim, we stated:

      In Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714
      (Pa.2008), our Supreme Court explained that,

            [e]xception (b)(1)(ii) “requires petitioner to allege
            and prove that there were ‘facts’ that were ‘unknown’
            to him” and that he could not have ascertained those
            facts by the exercise of “due diligence.”
            [Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d
            1264, 1271-1272 (Pa. 2007)] (emphasis added). 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. Johnson, 580 Pa. 594, 863 A.2d 423, 427 (2004)
            (emphasis in original). In Johnson, this Court
            rejected the petitioner’s argument that a witness’s
            subsequent admission of alleged facts brought a claim

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            within the scope of exception (b)(1)(ii) even though
            the facts had been available to the petitioner
            beforehand. Relying on Johnson, this Court more
            recently held that an affidavit alleging perjury did not
            bring a petitioner’s claim of fabricated testimony
            within the scope of exception (b)(1)(ii) because the
            only “new” aspect of the claim was that a new witness
            had come forward to testify regarding the previously
            raised claim. [Commonwealth v.] Abu–Jamal, [941
            A.2d 1263,] 1267 [Pa. 2008)]. Specifically, we held
            that the fact that the petitioner “discovered yet
            another conduit for the same claim of perjury does not
            transform his latest source into evidence falling within
            the ambit of [Section] 9545(b)(1)(ii).” Id. at 1269.

      Marshall, 947 A.2d at 720 (footnote omitted).

      In this case, even if we presume that Ms. Broaddus’ alibi is
      credible, [Jackson] obviously became aware of the ‘fact’ of this
      alibi defense on the day he was arrested and informed that he was
      charged with the November 20, 1984 murder of Alvin Gass.
      Therefore, Ms. Broaddus’ admission of this alibi in her affidavit is
      merely a new source of a fact that Appellant previously knew. See
      Johnson, 863 A.2s at 602.

Id.

      The current affidavit is no different.    Our review of the record, the

parties’ briefs, and the relevant statutory and case law, reveals no basis to

disturb the PCRA court’s ruling.

      Jackson also maintains that a sworn affidavit by David Mack both

constitutes a new fact and that the PCRA court improperly rejected it on the

merits. We disagree.

      In the affidavit, Mack, who was twelve-years-old at the time of the

murder, claims that he overheard the victim’s wife saying that she

misidentified   Jackson   as   one   of   the   participants   in   the   murder.

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Declaration/Affidavit, 8/30/2017, at unnumbered pages 1 and 2. Mack also

maintains that, when he met Jackson for the first time in August 2017, he

realized that he was not one of the two men he saw leaving the area at the

time of the murder. Id. at unnumbered page 3.

     As the PCRA court correctly notes, Mack’s statement regarding Dowling

constitutes inadmissible hearsay because it is an out-of-court statement

offered for the truth of the matter asserted. See Pa.R.Evid. 801(c); PCRA

Court Opinion, 10/31/2018, at n.11.

     Mack’s statement that Jackson was not one of the men he saw in 1984

also does not constitute a new fact meriting either relief or an evidentiary

hearing. As the PCRA court stated:

     With respect to Mack’s visual claim, the purported fact that
     [Jackson] did not resemble either man glimpsed by Mack was not
     substantiated by Mack’s statement. Specifically, Mack’s claim,
     stated precisely, is that [Jackson’s] appearance in 1984 differed
     from that of both men Mack saw in the stairwell. Mack, who was
     twelve years old in 1984, did not even allege, however, that he
     was familiar with [Jackson’s] physical appearance in 1984. To the
     contrary, Mack indicated that he had neither met nor seen
     [Jackson] prior to their chance meeting while in custody in 2017.[a]
     See Supplemental [P]etition, 9/8/17 at Exhibit B. Thus, based
     upon Mack’s own admission, his comparative assessment of
     [Jackson’s] appearance, thirty-three years earlier, and that of the
     two men was speculative.

           [a][Jackson’s] date of birth is August 4, 1951 and
           therefore he was sixty-six years old when Mack met
           him in 2017.

PCRA Ct. Op. at 4-5.




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      We agree. Mack’s statement that the sixty-six-year-old man he met for

the first time in 2017 did not currently resemble either of the young men he

saw in the stairwell over thirty years earlier is wildly speculative and thus did

not merit an evidentiary hearing. See Commonwealth v. Grove, 170 A.3d

1127, 1149 (Pa. Super. 2017) (grant of PCRA evidentiary hearing “is not

meant to function as a fishing expedition for any possible evidence that may

support some speculative claim”), appeal denied, 185 A.3d 967 (Pa. 2018).

      Accordingly, because we agree with the ruling of the PCRA court that

Jackson did not timely file his PCRA petition and he failed to establish the

applicability of any of the time-for-filing exceptions, we affirm the order

dismissing his petition without first conducting an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/19




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