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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DERRICK R. CRAMER,
Appellant No. 1921 MDA 2014
Appeal from the PCRA Order entered October 16, 2014,
in the Court of Common Pleas of York County,
Criminal Division, at No(s): CP-67-CR-0001906-2002
BEFORE: BENDER, P.J.E., ALLEN, and WECHT, JJ.
MEMORANDUM BY ALLEN, J.: FILED MAY 27, 2015
Derrick R. Cramer (“Appellant”) appeals pro se from the order denying
his fifth petition for post-conviction relief filed pursuant to the Post
Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent facts and protracted procedural history are as follows:
In the early morning hours of February 9, 2002, Appellant killed Randolph
(Jamal) Echols (“the victim”), who had frequently supplied him with drugs,
by stabbing and/or slashing the victim with a knife. On May 9, 2003, a jury
convicted Appellant of first-degree murder. On May 13, 2003, at the
conclusion of a penalty hearing, the trial court sentenced Appellant to life in
prison.
On June 9, 2003, Appellant filed a timely appeal to this Court, and on
March 16, 2004, we affirmed his judgment of sentence. Commonwealth v.
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Cramer, 850 A.2d 6 (Pa. Super. 2004) (unpublished memorandum). On
August 12, 2004, our Supreme Court denied Appellant’s petition for
allowance of appeal. Commonwealth v. Cramer, 856 A.2d 832 (Pa.
2004).
Appellant filed a timely pro se PCRA petition on February 5, 2005. The
PCRA court appointed counsel, and on May 20, 2005, PCRA counsel filed an
amended petition. The PCRA court held an evidentiary hearing on June 13,
2005. At the conclusion of the hearing, the PCRA court denied relief.
Appellant filed a timely appeal to this Court, in which he raised eight claims
of trial counsel’s ineffectiveness, including trial counsel’s failure “to obtain an
expert to testify as to the effect of drugs and/or alcohol as it relates to the
specific intent to kill” which “may have provided additional evidence relative
to [Appellant’s] claim of voluntary intoxication which would otherwise reduce
murder of the first degree to murder of the third degree.” Commonwealth
v. Cramer, 898 A.2d 1126 (Pa. Super. 2006), unpublished memorandum at
4. Rejecting all of Appellant’s claims, we affirmed the PCRA court’s denial of
post-conviction relief. Id. at 15. On December 15, 2006, our Supreme
Court denied Appellant’s petition for allowance of appeal. Commonwealth
v. Cramer, 912 A.2d 1290 (Pa. 2006).
Appellant filed a second pro se PCRA petition on February 20, 2007.
The PCRA court once again appointed counsel, and on April 30, 2007, the
PCRA court dismissed the petition as untimely and otherwise without merit.
Although Appellant filed a timely, counseled appeal to this Court, on July 18,
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2007, we dismissed it for failure to file a docketing statement pursuant to
Pa.R.A.P. 3517.
On August 14, 2007, Appellant filed a “[PCRA] PETITION FOR LEAVE
TO RESTORE APPEAL RIGHTS NUNC PRO TUNC.” The PCRA court denied the
petition on September 17, 2007. Appellant filed a timely appeal to this
Court. On June 20, 2008, we affirmed the PCRA court’s denial of relief, and
on October 16, 2008, our Supreme Court denied Appellant’s petition for
allowance of appeal. See Commonwealth v. Cramer, 959 A.2d 927 (Pa.
2008).
Appellant filed a fourth pro se PCRA petition on August 25, 2011. On
August 30, 2011, the PCRA court issued Pa.R.Crim.P. 907 notice of intent to
dismiss Appellant’s serial petition without a hearing. Appellant filed a
response on September 20, 2011. By order entered September 26, 2011,
the PCRA court denied relief. Appellant filed a timely appeal to this Court.
In an unpublished memorandum filed on July 10, 2012, we affirmed the
denial of relief on the basis that the serial PCRA petition was untimely.
Commonwealth v. Cramer, 55 A.3d 130 (Pa. Super. 2012).
On October 2, 2014, Appellant filed the pro se PCRA petition at issue,
his fifth. Within this petition, Appellant asserts that his “family made me
aware of the fact that new information concerning [] cocaine use had
surfaced and had it been available at the time of my trial, [it] would have
changed the outcome of the verdict. I was also given new information
concerning alcoholism[.]” PCRA Petition, 10/2/14, at 3. As an exhibit to the
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petition, Appellant attached an online article describing “cocaine psychosis.”
By order entered October 16, 2014, the PCRA court denied Appellant’s
petition as untimely. In doing so, the PCRA court noted that Appellant’s
“discovery of the term ‘cocaine psychosis’ does not constitute newly
discovered evidence that could not have been ascertained by the exercise of
due diligence, nor does it constitute exculpatory evidence that would have
changed the outcome of the case.”
Appellant filed a timely appeal to this Court, in which he challenges the
PCRA court’s determination that he failed to establish an exception to the
PCRA’s time bar.1 Both Appellant and the PCRA court have complied with
Pa.R.A.P. 1925.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
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Appellant also asserts that the PCRA court erred in failing to comply with
Pa.R.Crim.P. 907 regarding its intent to dismiss his serial petition. We
disagree. “[O]ur Supreme Court has held that where the PCRA petition is
untimely, the failure to provide such notice is not reversible error.”
Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citations
omitted).
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1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
hearing on the petition if the PCRA court determines that the petitioner’s
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011
(Pa. Super. 2001).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation
omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor
the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction,
we simply do not have the legal authority to address the substantive claims”
raised in an untimely petition. Id.
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
becomes final unless the petition alleges, and the petitioner proves, an
exception to the time for filing the petition. Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
these exceptions, the petitioner must plead and prove that: “(1) there has
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
constitutional right has been recognized.” Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
invoking one of these statutory exceptions must “be filed within sixty days of
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the date the claim first could have been presented.” Gamboa-Taylor, 753
A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to
the time restrictions of the PCRA must be pled in the petition, and may not
be raised for the first time on appeal. Commonwealth v. Burton, 936
A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not
raised before the lower court are waived and cannot be raised for the first
time on appeal.”).
Because Appellant did not file a petition for writ of certiorari with the
United States Supreme Court following our Supreme Court’s denial of
allocatur, for PCRA purposes, Appellant’s judgment of sentence became final
ninety days thereafter, on November 10, 2004. 42 Pa.C.S.A. § 9545(b)(3);
U.S.Sup.Ct.R. 13. Appellant filed the instant PCRA petition almost ten years
later. As a result, his PCRA petition is patently untimely unless he has
satisfied his burden of pleading and proving that one of the enumerated
exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261
(Pa. 1999).
Appellant has failed to prove the applicability of any of the exceptions
to the PCRA’s time restrictions. When considering a PCRA petitioner’s claim
that he or she has established an exception to the PCRA’s time bar under
section 9545(b)(1)(ii), the petitioner must establish only that the facts upon
which the claim is predicated were unknown to him, and that he could not
have ascertained the facts earlier despite the exercise of due diligence.
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Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). The
determination of timeliness does not require a merits analysis.
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).
In rejecting Appellant’s claim, the PCRA court explained:
Appellant’s reliance on the after-discovered exception is
misplaced for at least two reasons. First, although
Appellant may not have discovered the term “cocaine
psychosis” until 2014, he was certainly aware of his
cocaine use and the symptoms flowing therefrom at the
time of trial. Any amount of due diligence would have
revealed that cocaine has the potential to trigger paranoid
delusions in those who abuse the drug. In fact, Appellant’s
[PCRA] petition concedes this point. Appellant’s PCRA
Memorandum, p.7 (“Petitioner posits that had trial counsel
exercised at a minimum a reasonable amount of
investigative action on the part of petitioner, counsel could
have discovered the scientific and psychiatric term of
‘Cocaine Psychosis’”). Thus, the facts upon which
Appellant’s claim is predicated were known to Appellant at
the time of trial or could have been ascertained by the
exercise of due diligence. Second, the law is clear that
Appellant must show the new facts constitute “exculpatory
evidence” that would have changed the outcome of the
trial if it had been introduced. Commonwealth v.
Palmer, 814 A.2d 700, 706 (Pa. Super. 2002). The fact
that the phrase “cocaine psychosis” exists in the medical
community does not tend to establish Appellant is innocent
of first degree murder for the killing of [the victim].
PCRA Court Opinion, 1/9/15, at 2-3.
Our review of the record supports the PCRA court’s conclusions, and
Appellant’s claims to the contrary are unavailing. Initially, we note that prior
to trial, Appellant was subjected to psychological testing. See N.T., 4/29/03
(Deposition of Larry A. Rotenberg, M.D.). Appellant proffers no evidence
that he was or could have been diagnosed with “cocaine psychosis.”
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Moreover, Appellant’s girlfriend testified at trial that Appellant became
“paranoid when using cocaine”, and was “geeking” – a term she
acknowledged as “irrational fear.” See N.T., 5/5/03, at 196-98. Thus, we
agree with the Commonwealth’s statement that Appellant “simply learned of
a new term to describe old facts that were already known and presented at
trial.” Commonwealth’s Brief at 7.
In sum, for all of the above reasons, the PCRA court correctly
determined that it lacked jurisdiction to consider Appellant’s untimely PCRA
petition. We therefore affirm the PCRA court’s order denying Appellant post-
conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2015
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Com. v. Cramer, D.
Combined Opinion