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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JAMES MCINTOSH
Appellant No. 676 EDA 2016
Appeal from the PCRA Order February 10, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0210661-2001
BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 19, 2016
James McIntosh appeals from the February 10, 2016 order dismissing
his second PCRA petition as untimely filed. We affirm.
On August 22, 1994, Appellant, Travis Hall, and several other men
decided to rob Marie’s Variety Store, which contained drugs and cash and
was located in Philadelphia. Travis Hall drove a van carrying his armed co-
conspirators to the targeted location, where Asley Espuet and Skirvy Powell
were present. The assailants pretended to be police conducting a drug raid,
and, when Powell attempted to escape, he was shot three times and
wounded. After taking the money and cash, the cohorts forced Espuet into
the van, and, during their escape, shot and killed him.
* Retired Senior Judge assigned to the Superior Court.
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In 1996, Travis Hall was arrested in connection with a federal
prosecution involving a bank robbery. Powell told authorities about the
events of August 22, 1994; as a result, Appellant was taken into custody in
2000 for his participation in the crimes. In July 2002, a jury convicted
Appellant of second-degree murder, robbery, aggravated assault,
kidnapping, criminal conspiracy, and possession of an instrument of crime.
The court sentenced Appellant to life imprisonment for murder and a
concurrent, aggregate term of twenty-seven and one-half to fifty-five years
incarceration for the other offenses.
After sentencing, Appellant filed a direct appeal, in which we affirmed,
Commonwealth v. McIntosh, 849 A.2d 607 (Pa.Super. 2004)
(unpublished memorandum). His subsequent petition for allowance of
appeal was denied. Commonwealth v. McIntosh, 860 A.2d 489 (Pa.
2004). While Appellant did not seek review in the United States Supreme
Court, he filed a timely PCRA petition. Counsel was appointed and filed an
amended PCRA petition. Relief was ultimately denied, and we affirmed on
appeal. Commonwealth v. McIntosh, 964 A.2d 440 (Pa.Super. 2008)
(unpublished memorandum), appeal denied, 980 A.2d 110 (Pa. 2009).
Appellant filed his second PCRA petition on August 23, 2012, and
amended it on April 5, 2013. After the court issued notice of its intent to
dismiss the petitions without a hearing, Appellant responded with another
amendment to the PCRA petition on July 5, 2015. On November 30, 2015,
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Appellant filed a document that we will construe as a third amendment to
the PCRA petition. This appeal followed the February 10, 2016 dismissal of
Appellant’s petition for PCRA relief as time barred.
Appellant’s brief does not contain a statement of issues involved;
hence, we summarize his appellate positions: 1) he is entitled to relief under
the Supreme Court’s pronouncement in Miller v. Alabama, 132 S.Ct. 2455
(2012); 2) he properly invoked an exception to PCRA’s time constraints
when he averred that the Commonwealth withheld exculpatory evidence
relating to Commonwealth witnesses James Robert and Travis Hall; and 3)
he satisfied the newly-discovered evidence exception in the November 30,
2015 filing.1
Initially, we observe that this Court reviews the “denial of PCRA relief
to determine whether the findings of the PCRA court are supported by the
record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79, 86
(Pa. Super. 2016) (quoting Commonwealth v. Treiber, 121 A.3d 435, 444
(Pa. 2015)). Herein, the PCRA court dismissed Appellant’s PCRA petition as
untimely.
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1
We note that Appellant does not fully develop his latter two positions in his
appellate brief, and instead, continually refers us to filings that he made in
the trial court. While we could deem those issues waived, in the interests of
justice we have endeavored to address them in a cogent manner.
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All PCRA petitions must be filed within one year of the date a
defendant’s judgment becomes final unless an exception to the one-year
time restriction applies. 42 Pa.C.S. § 9545(b)(1). If a PCRA petition is
untimely, “neither this Court nor the trial court has jurisdiction over the
petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014).
(citation omitted); see also Commonwealth v. Chester, 895 A.2d 520,
522 (Pa. 2006).
To calculate the one-year filing deadline, we first determine when
Appellant’s judgment of sentence became final. “A judgment becomes final
at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.” 42 Pa.C.S. §
9545(b)(3). Appellant’s petition for allowance of appeal was denied on
September 14, 2004, and, since he did not seek review with the United
States Supreme Court, his judgment of sentence became final ninety days
thereafter, or on December 13, 2004. Miller, supra (where our Supreme
Court denies allowance of appeal and no further review is sought, a
defendant’s sentence becomes final when the ninety-day period for filing a
petition for a writ of certiorari expires). Appellant had until December 13,
2005, to file a timely PCRA petition, and the instant petition, presented in
2012 and amended during 2013 and 2015, is patently untimely. There are
three exceptions to the one-year time bar of § 9545:
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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). “Any petition invoking an exception provided
in paragraph (1) shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant first seeks relief under Miller v. Alabama, supra, which
was made fully retroactive in Montgomery v. Louisiana, 136 S.Ct. 718
(2016).2 Miller held that it was unconstitutional to impose a mandatory
term of life imprisonment without parole on juvenile homicide offenders.
Appellant asserts that the case created a newly-recognized constitutional
right applicable to him and his claim falls within the exception contained in §
9545(b)(1)(iii). The record establishes that Appellant was born in 1953 and
was forty-one years old in 1994, when these crimes were committed.
Appellant maintains that Miller has language suggesting that it may apply to
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2
We observe that the Miller claim was presented in the 2012 PCRA petition,
and was facially timely.
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adults and that it should under the equal protection clause. However,
Miller’s holding was firmly premised upon the unique characteristics of a
juvenile’s mind in contrast to that of an adult. It does not imply to any
extent that adults cannot be sentenced to a mandatory term of life
imprisonment without parole. See Commonwealth v. Cintora, 69 A.3d
759 (Pa.Super. 2013) (Miller inapplicable to a defendants who were
nineteen and twenty-one when they committed murders). We reject
Appellant’s equal protection argument as wholly undeveloped, and thus
conclude that PCRA relief was properly denied in connection with Appellant’s
invocation of Miller.
Appellant also asserts that the Commonwealth violated Brady v.
Maryland, 373 U.S. 83 (1963), by withholding evidence regarding two
Commonwealth witnesses. “Although a Brady violation may fall within the
governmental interference exception, the petitioner must plead and prove
the failure to previously raise the claim was the result of interference by
government officials, and the information could not have been obtained
earlier with the exercise of due diligence.” Commonwealth v. Abu-Jamal,
941 A.2d 1263, 1268 (Pa. 2008); see also Commonwealth v. Porter, 35
A.3d 4 (Pa. 2012).
In his April 5, 2013 amendment, Appellant averred that the
Commonwealth violated Brady by withholding evidence that Commonwealth
witness James Roberts, who was arrested on February 24, 2011 for a
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murder committed on February 1, 1999, was under investigation for that
crime when he testified at Appellant’s 2002 trial. Appellant would have us
surmise that the Commonwealth knew in 2002 that Roberts committed the
1999 murder, even though Roberts was not arrested until 2011, and that
this fact should have been disclosed to him for impeachment purposes.
Appellant provides not a scintilla of proof that the Commonwealth
knew in 2002 that Roberts committed the 1999 crime and shielded that fact
from him. Bare assertions that the government was in possession of and hid
evidence from a defendant, when those assertions are unaccompanied by
any type of support, are insufficient to invoke the governmental interference
exception. Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008).
Additionally, Roberts was arrested in 2011, and this Brady claim was first
presented in 2013. Appellant did not properly invoke the governmental
interference exception for the additional reason that he failed to establish
that he exercised due diligence in presenting this claim.
Appellant’s next issue on appeal concerns Travis Hall. In his July 5,
2015 amendment, Appellant raised another Brady violation by contending
that he should have been informed by the prosecution that, during the 1996
federal bank robbery investigation, Hall gave a statement similar to the one
herein, i.e., Hall told police that he had driven the get-away car. See
Commonwealth v. Roney, 79 A.3d 595 (Pa. 2013) (where the
Pennsylvania Supreme Court set forth the contents of Hall’s 1996 statement
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about his involvement in the bank robbery). Appellant asserts that he could
have impeached Hall with the statement made in connection with the federal
bank robbery.
In his July 5, 2015 amendment, Appellant averred that he first learned
about Hall’s 1996 statement on June 9, 2015, from an unidentified jailhouse
source. Not only was the Roney decision, which clearly outlined the
contents of Hall’s statement, published on October 30, 2013, Appellant knew
about Hall’s involvement in the 1996 bank robbery because it was revealed
at Appellant’s 2002 trial that Hall was prosecuted and sentenced in that
matter. Appellant proffers no explanation as to why, employing due
diligence, he could not have discovered Hall’s 1996 statement before June 9,
2015. Hence, we conclude that the governmental interference exception
does not apply to this claim.
Appellant’s final position is that he properly invoked the newly-
discovered facts exception in his November 30, 2015 amendment. This
exception “requires petitioner to allege and prove that there were ‘facts’ that
were ‘unknown’ to him and that he exercised ‘due diligence’” in discovered
those facts. Commonwealth v. Bennett, 930 A.2d 1264, 1270 (Pa. 2007).
Appellant’s averment relates to a June 29, 2015 affidavit, which was filed of
record herein on November 30, 2015, from Richard Rasheed Corbin, a fellow
inmate. Therein, Corbin attested that James Roberts told Corbin that he lied
at Appellant’s trial. This claim is premised upon a hearsay statement made
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by Roberts to Corbin. As our High Court articulated in Abu-Jamal, supra at
1269, “a claim based on inadmissible hearsay does not implicate” the newly
discovered evidence exception. Additionally, Appellant did not raise his
claim within sixty days of when it first could have been presented. Corbin’s
affidavit is dated March 28, 2015, and it was given to defendant on June 29,
2015. Appellant did not present his claim based upon the affidavit until
November 30, 2015, which was outside the sixty days permitted under §
9545(b)(2).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2016
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