J-S29039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALONZO GARWOOD :
:
Appellant : No. 2752 EDA 2016
Appeal from the PCRA Order August 14, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0608053-1979
BEFORE: LAZARUS, SOLANO, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 19, 2017
Appellant Alonzo Garwood appeals nunc pro tunc from the order
entered on August 14, 2014, denying his pro se petition for writ of habeas
corpus, which the lower court treated as his third PCRA1 petition. We
affirm.2
This Court previously summarized the relevant procedural history, in
part, as follows:
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
2
This Court has been provided with a partial certified record for this matter.
However, since our review has not been hampered, we decline to remand for
completion of the record.
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On June 13, 1979, the Philadelphia County Investigating
Grand Jury of November 29, 1978[,] issued indictments charging
each of six defendants, including [Appellant], with the following
criminal offenses arising from two separate firebombing incidents
of Philadelphia residences on December 3, 1977: three separate
counts of murder, two separate counts of arson, endangering
person and endangering property, causing a catastrophe and
risking a catastrophe, and criminal conspiracy. A jury trial
commenced on June 12, 1980[,]...and [Appellant] was found
guilty of second degree murder and other offenses on June 27,
1980. He was sentenced to three terms of life imprisonment on
April 15, 1981.
[Appellant] thereafter filed a direct appeal to [this Court],
and his judgment of sentence was affirmed in an opinion filed on
November 5, 1986. [Appellant’s] petition for reconsideration to
[this Court] was granted, but his judgment of sentence was
ultimately affirmed on January 14, 1987. His petition for
allowance of appeal, filed with the Supreme Court of
Pennsylvania, was...denied on [September 15,] 1987.
[Appellant did not file a petition for writ of certiorari with the
United States Supreme Court.]
Thereafter, a pro se [PCRA] petition was filed with the
Court of Common Pleas, First Judicial District. Counsel was
appointed for the petitioner and an amended PCRA petition was
subsequently filed with the court. After a review of the evidence
and the pleadings, the PCRA petition was denied by [the lower
court] on March 9, 1989. [This Court] affirmed the denial of the
PCRA petition for relief in a memorandum [decision] that was
filed on January 3, 1990.
[A] pro se “motion for post-conviction collateral relief”
was...filed...on November 10, 2004[.] The [PCRA] court
reviewed the PCRA petition, the Quarter Sessions file, and the
responses of the [Commonwealth], and formally notified the
petitioner on June 21, 2005, that his petition was to be
dismissed without a hearing. On June 21, 2005, [the PCRA]
court formally dismissed the PCRA petition without a hearing[.]
[Appellant appealed to this Court, and we affirmed the dismissal
of his PCRA petition. Appellant filed a petition for allowance of
appeal, which our Supreme Court denied on March 17, 2009.]
Commonwealth v. Garwood, No. 2426 EDA 2005, 1-2 (Pa.Super. filed
7/24/08) (unpublished memorandum) (citation to record omitted).
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On or about February 5, 2010, Appellant filed in the lower court a pro
se petition entitled “Petition for [] Writ Habeas Corpus Relief Pursuant to
Acticle [sic] 1, Section 14 of the Pennsylvania Constitution.” The petition
was forwarded to the Pennsylvania Supreme Court, which issued an order on
April 3, 2014, denying Appellant’s request for extraordinary relief, granting
mandamus relief, and directing the lower court to adjudicate Appellant’s
petition.
Treating Appellant’s petition as his third PCRA petition, on July 2,
2014, the lower court provided Appellant with notice of its intention to
dismiss Appellant’s petition on the basis it was untimely filed, and on July
22, 2014, Appellant filed a pro se response alleging that the lower court
erred in treating Appellant’s February 5, 2010, habeas corpus petition as one
filed under the auspices of the PCRA. By order entered on August 14, 2014,
the PCRA court dismissed Appellant’s petition. This nunc pro tunc appeal
from the lower court’s August 14, 2014, order followed.3
____________________________________________
3
On or about March 16, 2015, Appellant filed a pro se petition requesting
reinstatement of his right to appeal the lower court’s August 14, 2014,
order. Specifically, Appellant averred that he did not receive the lower
court’s August 14, 2014, order until approximately February 23, 2015.
Appellant attached as an exhibit the envelope from the trial court, which
contained a postage stamp of February 23, 2015. Properly treating
Appellant’s March 16, 2015, petition as a PCRA petition, and concluding
Appellant met a timeliness exception under the PCRA, the lower court
granted the March 16, 2015, petition and reinstated Appellant’s appeal rights
from the lower court’s August 14, 2014, order. See Commonwealth v.
Fairiror, 809 A.2d 396, 397 (Pa.Super. 2002) (holding a petition for
(Footnote Continued Next Page)
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At the outset, contrary to Appellant’s argument, we conclude the lower
court properly treated Appellant’s instant petition, entitled “Petition for []
Writ Habeas Corpus Relief Pursuant to Acticle [sic] 1, Section 14 of the
Pennsylvania Constitution,” under the auspices of the PCRA. The PCRA
provides: “The action established in this subchapter shall be the sole means
of obtaining collateral relief and encompasses all other common law and
statutory remedies for the same purpose that exist when this subchapter
takes effect, including habeas corpus and coram nobis.” 42 Pa.C.S.A. §
9542. Thus, where a petitioner’s claim is cognizable under the PCRA,
regardless of the title given to the petition, the court must analyze the
petition under the auspices of the PCRA. Commonwealth v. Taylor, 65
A.3d 462, 465-66 (Pa.Super. 2013).
In the instant petition, Appellant alleged his conviction was the result
of a Brady4 violation in that the prosecutor failed to disclose that witnesses
offered testimony at Appellant’s trial in exchange for money from the police,
as well as the fact that a witness had psychological defects. He further
alleged that all prior counsel were ineffective in failing to raise the Brady
issues. Such claims are cognizable under the PCRA. Commonwealth v.
Simpson, 620 Pa. 60, 79, 66 A.3d 253, 264 (2013) (“A Brady claim is
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(Footnote Continued)
reinstatement of PCRA appellate rights nunc pro tunc must be considered a
subsequent PCRA petition).
4
Brady v. Maryland, 373 U.S. 83 (1963).
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cognizable on collateral appeal under the PCRA.”) (citation omitted));
Commonwealth ex rel. Dadario v. Goldberg, 565 Pa. 280, 773 A.2d 126
(2001) (holding ineffective assistance of counsel claim cognizable under
PCRA). Accordingly, the lower court properly treated Appellant’s petition for
a writ of habeas corpus as a PCRA petition.
With regard to petitions filed under the PCRA, as this Court has
observed:
The filing mandates of the PCRA are jurisdictional in nature and
are strictly construed. The question of whether a petition is
timely raises a question of law. Where the petitioner raises
questions of law, our standard of review is de novo and our
scope of review plenary. An untimely petition renders this Court
without jurisdiction to afford relief.
Taylor, 65 A.3d at 468 (citations omitted). Thus, at this juncture, we must
determine whether Appellant’s February 5, 2010, petition was timely filed
under the PCRA.
The most recent amendments to the PCRA, effective January 19, 1996,
provide that a PCRA petition, including a second or subsequent petition, shall
be filed within one year of the date the underlying judgment becomes final.
42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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
the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).
Three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
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will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of
interference by government officials with the
presentation of the claim in violation of the Constitution
or the law of this Commonwealth or the Constitution or
law 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 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).
“We emphasize that it is the petitioner who bears the burden to allege
and prove that one of the timeliness exceptions applies.” Commonwealth
v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation
omitted). Moreover, “the PCRA limits the reach of the exceptions by
providing that a petition invoking any of the exceptions must be filed within
60 days of the date the claim first could have been presented.”
Commonwealth v. Walters, 135 A.3d 589, 592 (Pa.Super. 2016)
(citations omitted).
Here, this Court affirmed Appellant’s judgment of sentence on January
14, 1987, and his petition for allowance of appeal was denied by the
Supreme Court on September 15, 1987. Appellant did not file a petition for
a writ of certiorari with the United States Supreme Court. Thus, his
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judgment of sentence became final on or about November 15, 1987, sixty
days after our Supreme Court denied review and the time for filing a petition
for a writ of certiorari expired. See 42 Pa.C.S.A. § 9545(b)(3); Former U.S.
Supreme Court Rule 20.1 (petition for writ of certiorari is deemed timely
when it is filed within 60 days after the denial of allocatur). Accordingly,
Appellant had until approximately November 15, 1988, to file a timely PCRA
petition. Appellant filed the instant PCRA petition on February 5, 2010, and
therefore, it is patently untimely.5
On appeal, Appellant attempts to invoke the governmental
interference exception under Section 9545(b)(1)(i) and the newly-discovered
fact exception under Section 9545(b)(1)(ii). Specifically, he suggests he
met these timeliness exceptions by pleading and proving the prosecutor
failed to disclose that two witnesses accepted money in exchange for
testifying against Appellant, as well as the fact one witness had
psychological defects.
____________________________________________
5
The PCRA provides that where a petitioner’s judgment of sentence became
final on or before the effective date of the amendments (January 16, 1996),
a special grace proviso allows first PCRA petitions to be filed by January 16,
1997. See Commonwealth v. Alcorn, 703 A.2d 1054, 1056–1057
(Pa.Super. 1997) (explaining application of PCRA timeliness proviso). Here,
as discussed infra, Appellant’s judgment of sentence became final before the
effective date of the amendments, however, Appellant did not file his instant
petition by January 16, 1997. Moreover, the proviso does not apply to
“second or subsequent petitions[,]” and thus, Appellant does not meet the
requirements of the proviso on this basis as well. Fairiror, 809 A.2d at 398.
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However, inasmuch as the basis of Appellant’s argument is his
“discovery” of notes of testimony from one of the witnesses’ 1979 trial, we
conclude Appellant has failed to meet the initial threshold of demonstrating
that he raised his claim within 60 days of the date the claim first could have
been presented. Simply put, the information related to Appellant’s claim
was easily discoverable and in the public record for longer than 60 days
before the instant petition was filed.6, 7
Based on the aforementioned, we conclude Appellant’s third PCRA
petition was untimely filed, and Appellant failed to demonstrate his
entitlement to one of the timeliness exceptions. Therefore, the lower court
properly denied Appellant’s petition.
Affirmed.
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6
In his appeal of the denial of his second PCRA petition, Appellant averred
that he improperly received differential treatment as compared to his co-
defendants under Commonwealth v. Cruz, 578 Pa. 263, 851 A.2d 870
(2004). The basis of his claim was, inter alia, that he was convicted based
on the prosecutor withholding information concerning the payment of money
by police to witnesses in exchange for their testimony, as well as other
evidence concerning the veracity of the witnesses. See Commonwealth v.
Garwood, No. 2426 EDA 2005 (Pa.Super. filed 7/24/08) (unpublished
memorandum). Thus, at least as of the time of the appeal of his second
PCRA petition, Appellant was aware of the alleged facts upon which his
current claims are based.
7
To the extent Appellant avers previous counsel was ineffective, we note
that a claim for ineffective assistance of counsel does not save an otherwise
untimely petition for review on the merits. Commonwealth v. Gamboa-
Taylor, 562 Pa. 70, 753 A.2d 780 (2000).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2017
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