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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TIMOTHY BROWN
Appellant No. 2880 EDA 2015
Appeal from the PCRA Order August 11, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1229871-1991
BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED MAY 13, 2016
Timothy Brown appeals, pro se, from the order entered August 11,
2015, in the Philadelphia County Court of Common Pleas, dismissing, as
untimely, his second petition for collateral relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Brown seeks relief
from the judgment of sentence of an aggregate term of life imprisonment,
imposed on December 6, 1993, following his jury conviction of second
degree murder, robbery (five counts), burglary, possessing an instrument of
crime (“PIC”), and conspiracy,1 for his participation in the gunpoint robbery
of a Dunkin’ Donuts store. On appeal, Brown argues the PCRA court erred in
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*
Former Justice specially assigned to the Superior Court.
1
See 18 Pa.C.S. §§ 2502, 3701, 3502, 907, and 903, respectively.
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dismissing his petition without conducting an evidentiary hearing, and in
rejecting his assertion that his illegal sentencing claim met the newly
discovered facts exception to the PCRA’s time-for-filing requirements. For
the reasons set forth below, we affirm.
The facts underlying Brown’s conviction were summarized, as follows,
in the decision of this Court affirming Brown’s judgment of sentence on
direct appeal:
Brown was employed at a Dunkin’ Donuts store located in the
Fox Chase area of Philadelphia. Sometime in October, 1991
[Brown] quit his job and then encountered difficulty in getting
money he claimed the store owed him as a final paycheck. After
speaking with the manager and being told that no money was
due [to] him, [Brown] suggested to two of his friends, [brothers]
Theodore Burns and Rodney Burns, that they rob the store.
[Brown] explained that the robbery should take place on a
Sunday night since at that time the entire weekend’s receipts
would be in the store safe.
The Burns brothers agreed and the three men arrived at the
store in the early morning hours on November 11, 1991 armed
with three guns, a crowbar to open the safe and duct tape to
bind the store’s employees. In order that he not be recognized,
[Brown] waited outside while Theodore and Rodney Burns
entered the store. The men drew their weapons on the two
employees and one patron inside and ordered them to the rear
of the store. After robbing them, the men taped their mouths
and hands and forced them into a freezer. Once the employees
were out of sight, Rodney opened the back door to let [Brown]
inside. At that point a customer, Stephen Rivel, entered the
store. He was taken at gunpoint to the rear of the store where
he struggled with his captors. Rivel was shot several times in
the legs, then his shirt was pulled up over his head and he was
shot again, a single, fatal bullet to the back of his head. After
taking whatever valuables could be found from the body, the
men left Rivel on the floor by a drain in the back of the store.
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The three then set about opening the safe and removed
from it all of the weekend’s cash. They also emptied the cash
register and fled in the car they had driven to the store. Within
minutes, the employees freed themselves, exited the freezer and
found Rivel’s body. They immediately called police.
Commonwealth v. Brown, 654 A.2d 1096, 1097-1098 (Pa. Super. 1995).
Brown and his co-conspirators were arrested, after the police stopped
their getaway vehicle. Brown proceeded to a jury trial, and, on November
20, 1992, was found guilty of the above-stated charges. On December 6,
1993, the trial court sentenced Brown to a mandatory term of life
imprisonment for second degree murder,2 a consecutive term of five to 10
years’ imprisonment for conspiracy, and a consecutive term of 11½ to 23
months’ imprisonment for PIC.3 His judgment of sentence was affirmed on
direct appeal, id., and the Pennsylvania Supreme Court denied his petition
for allowance of appeal. Commonwealth v. Brown, 664 A.2d 972 (Pa.
1995).
On December 31, 1996, Brown filed a pro se PCRA petition, claiming
trial counsel never filed a direct appeal. New counsel was appointed, but
submitted a petition to withdraw and Turner/Finley4 “no merit” letter. On
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2
See 18 Pa.C.S. § 1102(b).
3
No further punishment was imposed on the remaining charges.
4
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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January 7, 1999, the PCRA court denied Brown’s petition. No appeal was
filed.
Brown filed the present petition, his second, pro se, on November 14,
2014, claiming his mandatory sentence of life imprisonment was illegal. The
trial court issued notice of its intent to dismiss the petition without first
conducting an evidentiary hearing, pursuant to Pa.R.Crim.P. 907, on July 10,
2015. Although Brown submitted a pro se response to the court’s Rule 907
notice, on August 11, 2015, the PCRA court dismissed Brown’s petition as
untimely filed. This appeal followed.5
On appeal, Brown contends the PCRA court erred (1) in denying his
petition as untimely filed without first conducting an evidentiary hearing;
and, (2) in dismissing his petition as untimely when he invoked the newly
discovered facts exception to the PCRA’s time-for-filing requirements. We
will address these claims together.
Our standard of review of an order denying PCRA relief is well-
established. We must determine “whether the record supports the PCRA
court’s determination and whether the PCRA court’s decision is free of legal
error.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014)
(internal citations omitted). We will not disturb the findings of the PCRA
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5
The PCRA court did not direct Brown to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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court unless they have no support in the certified record. Id. Furthermore,
relevant to this appeal, we emphasize:
A PCRA court is only required to hold a hearing where the
petition, or the Commonwealth’s answer, raises an issue of
material fact. When there are no disputed factual issues, an
evidentiary hearing is not required. If a PCRA petitioner’s offer
of proof is insufficient to establish a prima facie case, or his
allegations are refuted by the existing record, an evidentiary
hearing is unwarranted.
Commonwealth v. Eichinger, 108 A.3d 821, 849 (Pa. 2014) (internal
citations omitted).
In the present case, the PCRA court determined Brown’s petition was
untimely filed. We agree. Brown’s sentence was final on November 21,
1995, 90 days after the Pennsylvania Supreme Court denied review, and
Brown failed to file a writ of certiorari in the United States Supreme Court.
See 42 Pa.C.S. § 9545(b)(3) (stating “a judgment becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States … , or at the expiration of time for seeking the
review.”); U.S. Sup.Ct. R. 13.1. The statute explicitly requires that a PCRA
petition must be filed “within one year of the date the judgment becomes
final[.]” 42 Pa.C.S. § 9545(b)(1). Brown’s present petition, filed nearly 14
years later, is manifestly untimely.
Nevertheless, an otherwise untimely petition is not time-barred if a
petitioner pleads and proves the applicability of one of three time-for-filing
exceptions:
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(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). Further, any petition invoking one of these
exceptions must be filed “within 60 days of the date the claim could have
been presented.” Id. at § 9545(b)(2).
On appeal, Brown invokes the newly discovered facts exception. See
42 Pa.C.S. § 9545(b)(1)(ii). Brown contends (1) his sentence of life
imprisonment is illegal in light of this Court’s en banc decision in
Commonwealth v. Newman, 99 A.3d 86, 98 (Pa. Super. 2014) (en banc),
appeal denied, 121 A.3d 496 (Pa. 2015), which applied the United States
Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151
(U.S. 2013),6 and (2) he “exercised his due diligence in presenting his claims
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6
In Alleyne, the United States Supreme Court held “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” Alleyne, supra, 133 S.Ct.
at 2155. In interpreting that decision, the courts of this Commonwealth
have determined that most of our mandatory minimum sentencing statutes
are unconstitutional because the language of those statutes “permits the
trial court, as opposed to the jury, to increase a defendant’s minimum
sentence based upon a preponderance of the evidence” standard.
(Footnote Continued Next Page)
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to the Court of Common Pleas for Philadelphia County[.]” Brown’s Brief at 8.
To that end, Brown states he learned of the decisions from a prison law clerk
in October of 2014, and mailed his PCRA petition on November 13, 2014.
Id.
We find Brown’s argument fails for several reasons. First, this Court
has “expressly rejected the notion that judicial decisions can be considered
newly-discovered facts which would invoke the protections afforded by
section 9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa.
Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013). Further, even if we
were to find that a judicial decision could constitute a newly discovered fact,
Brown has failed to establish he filed his petition “within 60 days of the date
the claim could have been presented” as required by 42 Pa.C.S. §
9545(b)(2). Indeed, “we have previously said that ‘the sixty-day period
begins to run upon the date of the underlying judicial decision’” not when
the petitioner first learns of the decision. Commonwealth v. Brandon, 51
A.3d 231, 235 (Pa. Super. 2012) (citation omitted). Both Alleyne (filed
June 17, 2013) and Newman (filed August 20, 2014), were decided more
_______________________
(Footnote Continued)
Newman, supra, 99 A.3d at 98. See Commonwealth v. Hopkins, 117
A.3d 247 (Pa. 2015) (invalidating 18 Pa.C.S. § 6317); Commonwealth v.
Vargas, 108 A.3d 858 (Pa. Super. 2014) (en banc), (invalidating 18 Pa.C.S.
§ 7508), appeal denied, 121 A.3d 496 (Pa. 2015). Further, our courts have
held that the unconstitutional provisions of the mandatory minimum statutes
are not severable from the statute as a whole. Hopkins, supra, 117 A.3d
at 262; Newman, supra, 99 A.3d at 101.
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than 60 days prior to date Brown filed his PCRA petition. Consequently,
Brown has not met his burden of establishing an exception to the one-year
filing requirement.7 See Commonwealth v. Jones, 54 A.3d 14, 17 (Pa.
2012) (“The timeliness requirements apply to all PCRA petitions, regardless
of the nature of the individual claims raised therein.”).
Furthermore, we note that even if Brown’s claim was timely, he would
be entitled to no relief. In Alleyne, the Pennsylvania Supreme Court
declared that “[f]acts that increase the mandatory minimum sentence are
therefore elements and must be submitted to the jury and found beyond a
reasonable doubt.” Alleyne, supra, 133 S.Ct. at 2158. Here, Brown was
sentenced pursuant to 18 Pa.C.S. § 1102(b), which mandates that “a person
who has been convicted of murder of the second degree … shall be
sentenced to a term of life imprisonment.” Id. Therefore, the “fact” that led
to Brown’s life imprisonment sentence was his jury conviction of second
degree murder. The trial court engaged in no fact finding at sentence in
order to determine the applicability of the life sentence. Compare
Newman, supra. Therefore, Brown’s sentence is not illegal under Alleyne.
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7
We note that in his pro se petition, Brown also invoked the new
constitutional right exception set forth at Subsection 9545(b)(1)(iii). See 42
Pa.C.S. § 9545(b)(1)(iii). However, in Commonwealth v. Miller, 102 A.3d
988 (Pa. Super. 2014), a panel of this Court held that an Alleyne claim fails
to satisfy the “new constitutional right exception to the time-bar” codified at
Section 9545(b)(1)(iii) because neither the United States or Pennsylvania
Supreme Court has held that Alleyne is to be applied retroactively. Miller,
supra, 102 A.3d at 995.
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In summary, we agree with the conclusion of the PCRA court that
Brown’s petition was untimely filed, and Brown failed to establish the
applicability of a time-for-filing exception. Accordingly, there were no
factual issues in dispute necessitating an evidentiary hearing, and we find no
error on the part of the PCRA court in dismissing Brown’s petition without
first conducting a hearing. See Eichinger, supra. Therefore, we affirm
the order dismissing Brown’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2016
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