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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BENJAMIN COOPER, :
:
Appellant : No. 1982 EDA 2014
Appeal from the PCRA Order June 18, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-1100941-2003
BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 17, 2015
Appellant, Benjamin Cooper, appeals pro se from the order dismissing
his second Post Conviction Relief Act1 (“PCRA”) petition as untimely.
Appellant asserts an exception to the PCRA time bar because he obtained
previously unknown facts and filed the instant petition within sixty days of
the conclusion of his appeal from the denial of his first PCRA petition. We
affirm.
The facts underlying Appellant’s convictions were recited in this Court’s
previous memorandum affirming the judgment of sentence and need not be
restated for the purposes of this appeal. See Commonwealth v. Cooper,
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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1257 EDA 2005 (unpublished memorandum at 1-4) (Pa. Super. Sept. 22,
2006) (quoting Trial Ct. Op., 12/7/05, at 1-5), appeal denied, 17 EAL 2007
(Pa. May 31, 2007). A jury found Appellant guilty of murder of the third
degree, robbery, theft, and abuse of a corpse.2 The trial court sentenced
him to thirty-one to sixty-two years’ imprisonment on April 12, 2005. This
Court affirmed the judgment of sentence on September 22, 2006.3 The
Pennsylvania Supreme Court denied allowance of appeal on May 31, 2007.
Appellant timely filed a pro se PCRA petition, his first, on August 3,
2007, and the PCRA court appointed counsel. Following a Grazier4 hearing,
the court granted Appellant permission to represent himself, after which he
filed an amended pro se petition. The PCRA court issued a Pa.R.Crim.P. 907
notice of intent to dismiss Appellant’s first petition without a hearing and on
June 18, 2010, entered the order dismissing that petition. Appellant
requested counsel for an appeal. The PCRA court appointed John M. Belli,
Esq. (“prior PCRA counsel”),5 who subsequently filed a petition to withdraw
2
Appellant was represented by Anthony D. Jackson, Esq. (“trial counsel”) at
trial.
3
Appellant was represented by Thomas L. McGill, Esq. (“direct appeal
counsel”) in his direct appeal.
4
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
5
Appellant was initially represented by James S. Bruno, Esq., in the appeal
from the dismissal of his first PCRA petition. See Commonwealth v.
Cooper, 1849 EDA 2010 (unpublished memorandum, at 3 n.4) (Pa. Super.
Sept. 21, 2012). Attorney Bruno failed to file a brief, and this Court
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and a no-merit letter6 in this Court. Appellant did not file a pro se response
or obtain new counsel for the purposes of that appeal. This Court affirmed
the order dismissing Appellant’s first PCRA petition on September 21, 2012.
Cooper, 1849 EDA 2010 at 7. Appellant did not seek allowance of appeal
from the Pennsylvania Supreme Court.
On November 19, 2012, the PCRA court received Appellant’s pro se
“Motion for Extraordinary Relief,” which gives rise to this appeal. Appellant
asserted “he acquired evidence of an exculpatory nature that completely
exonerates him of this heinous crime” and came into possession of alibi
evidence. Appellant’s Mot. for Extraordinary Relief, 11/19/12, at ¶ 8. The
court subsequently received Appellant’s pro se “Amended Petition for
Collateral Relief” on March 11, 2013. The court regarded Appellant’s filings
as a second PCRA petition and issued a Rule 907 notice of intent to dismiss
the petition as time-barred. Appellant did not respond, and the court
entered the underlying order dismissing Appellant’s petition on June 18,
2014. This timely appeal followed.7
remanded to determine whether Appellant was abandoned by counsel. Id.
Following remand, Attorney Belli was appointed to represent Appellant. Id.
6
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
7
The PCRA court did not order a Pa.R.A.P. 1925(b) statement, but filed an
opinion in support of its order.
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Appellant, in his pro se brief, argues the PCRA court erred in
dismissing his filings as an untimely PCRA petition. He argues he recently
obtained the following evidence: (1) on September 21, 2012, an eyewitness
report from defense investigator Walter P. Lee; (2) on February 28, 2012,
Attorney Belli’s no-merit letter; (3) on September 21, 2012, the criminal
complaint and arrest report; (4) on December 12, 2012, the April 3, 2009
order of the Pennsylvania Supreme Court disbarring trial counsel; and (5) on
January 4, 2013, a letter from his mother, Pamela Smith-Payton.
Appellant’s Brief at 9. He also asserts his filings were timely under
Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000).8 Id. at 10. No relief is
due.
The principles governing our review are well-settled.
On appeal from the denial of PCRA relief, our standard
of review calls for us to determine whether the ruling of
the PCRA court is supported by the record and free of legal
error. The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified
record.
Commonwealth v. Lewis, 63 A.3d 1274, 1278 (Pa. Super. 2013) (citation
omitted).
“The PCRA’s time restrictions are jurisdictional in nature. Thus, if a
PCRA petition is untimely, neither this Court nor the PCRA court has
8
Appellant does not dispute that the PCRA court appropriately regarded
Appellant’s filings as a petition for PCRA relief and, under the PCRA, the
filings were untimely on their face. See 42 Pa.C.S. § 9545(b)(1).
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jurisdiction over the petition.” Id. at 1280-81 (citation and punctuation
omitted). It is well settled that a
second petition is untimely unless [a petitioner] can plead
and prove that one of the following three exceptions to 42
Pa.C.S. § 9545(b)(1) 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. § 9545(b)(1)(i)-(iii). Additionally, [a petitioner]
who invokes one of these exceptions must file his claim
“within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
Lark, 746 A.2d at 587.
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
obtained the new fact(s) earlier with the exercise of due
diligence. This rule is strictly enforced.
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010)
(citations omitted). “[T]o constitute facts which were unknown to a
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petitioner and could not have been ascertained by the exercise of due
diligence, the information must not be of public record and must not be facts
that were previously known but are now presented through a newly
discovered source.” Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa.),
cert. denied, 134 S. Ct. 639 (2013).
In Lark, a petitioner obtained newly discovered evidence while an
appeal from the dismissal of a prior PCRA petition was pending. Lark, 746
A.2d at 586-87. The Lark Court held:
[W]hen an appellant’s PCRA appeal is pending before a
court, a subsequent PCRA petition cannot be filed until the
resolution of review of the pending PCRA petition by the
highest state court in which review is sought, or upon the
expiration of the time for seeking such review.[ ] If the
subsequent petition is not filed within one year of the date
when the judgment became final, then the petitioner must
plead and prove that one of the three exceptions to the
time bar under 42 Pa.C.S. § 9545(b)(1) applies. The
subsequent petition must also be filed within sixty days of
the date of the order which finally resolves the previous
PCRA petition, because this is the first “date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Id. at 588.
Following our review, we conclude that Appellant failed to demonstrate
that his underlying second PCRA petition was timely filed under Section
9545(b)(1)(ii) or Lark. Specifically, our review reveals: (1) Appellant
provided no explanation why a defense investigator’s report generated
before trial, or the information that he was with his girlfriend in New Jersey
around the time of the incident, was unknown to him; (2) prior PCRA
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counsel’s no-merit letter contained no new facts, and Appellant waived his
opportunity to respond to the no-merit letter during his first PCRA appeal;
(3) his claim that he recently obtained copies the criminal complaint and
arrest report is belied by the fact that he referred to both documents during
the litigation of his first PCRA petition; (4) the April 3, 2009 order disbarring
trial counsel was a matter of public record9 and available during the litigation
of his first PCRA petition; and (5) the assertions in the January 4, 2013
letter from his mother were identical to claims he already raised during the
litigation of his first PCRA petition. Accordingly, Appellant did not establish
previously unknown facts warranting a time-bar exception under Section
9545(b)(1)(ii). See Edmiston, 65 A.3d at 352; Monaco, 996 A.2d at 1080.
Moreover, because the items and facts identified by Appellant could have
been discovered before his appeal from the denial of his first PCRA
petition,10 he is not entitled to relief under Lark. Thus, we discern no basis
to disturb the PCRA court’s order dismissing the instant PCRA petition as
untimely.
9
See Commonwealth Lopez, 51 A.3d 193, 195 (Pa. 2012) (per curiam);
Commonwealth v. Feliciano, 69 A.3d 1270, 1277-78 (Pa. Super. 2013)
(noting disciplinary orders of the Supreme Court are matters of public
record). We note the reasons for trial counsel’s disbarment did not pertain
to his representation of Appellant.
10
Indeed, our review reveals that with exception of prior PCRA counsel’s no-
merit letter and the April 3, 2009 disciplinary order disbarring trial counsel,
the facts and/or documents identified by Appellant were referred to during
the litigation of his first PCRA petition.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2015
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