J-S03012-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BABAESU BEY,
Appellant No. 129 EDA 2017
Appeal from the PCRA Order Entered December 2, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0603821-1999
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 06, 2018
Appellant, Babaesu Bey, appeals pro se from the post-conviction
court’s December 2, 2016 order denying, as untimely, his petition under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
The facts underlying Appellant’s convictions are not necessary to our
disposition of this appeal. The PCRA court summarized the procedural
history of Appellant’s case, as follows:
On February 13, 2004, [A]ppellant was convicted before
this [c]ourt and a jury, of first[-]degree murder, attempted
murder, aggravated assault, carrying a firearm without a license
(VUFA), possessing an instrument of crime (PIC), and recklessly
endangering another person (REAP), and [he was] sentenced to
an aggregate sentence of life [imprisonment, without the
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* Former Justice specially assigned to the Superior Court.
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possibility of parole,] and 10-20 years[’] incarceration.
Appellant did not file a direct appeal, however his appellate
rights were reinstated nunc pro tunc on June 14, 2005, after a
successful PCRA petition. On September 21, 2007, the Superior
Court affirmed the judgment of sentence and [A]ppellant’s
petition for allowance of appeal to the Pennsylvania Supreme
Court was denied on April 28, 2008. [Commonwealth v. Bey,
938 A.2d 1108, unpublished memorandum (Pa. Super. filed
Sept. 21, 2007), appeal denied, 948 A.2d 802 (Pa. 2008).] On
October 31, 2008, [A]ppellant timely filed a first pro se PCRA
[petition] and counsel was appointed. On December 17, 2009,
PCRA counsel submitted a [Turner/]Finley letter,[1] detailing
each of [A]ppellant’s claims in his pro se PCRA petition and
stating that they had been either waived or previously litigated,
and that he could not find any additional meritorious claims to
raise. On February 9, 2010, following review and proper notice,
the [c]ourt formally dismissed [A]ppellant’s PCRA petition.
Dismissal was affirmed by the Superior Court on August 11,
2011[, and] [t]he petition for allowance of appeal was denied on
April 10, 2012. [Commonwealth v. Bey, 32 A.3d 829,
unpublished memorandum (Pa. Super. filed Aug. 11, 2011),
appeal denied, 42 A.3d 290 (Pa. 2012).]
On March 18, 2016, [A]ppellant filed the instant[,] second
PCRA petition claiming that his facially untimely petition was
timely based upon the after[-]discovered facts/evidence
exception to the PCRA timeliness requirements. Appellant
asserts that on January 24, 2016, he came across an article
written by an inmate in the Fall 2015 edition of Graterfriends, a
publication of the Pennsylvania Prison Society, indicating that, on
November 13, 2014, his former trial counsel had been
suspended from the practice of law for two years, retroactive to
February 16, 2013, for misconduct[] that occurred as a result of
his several mental health concerns. Appellant claims that,
because counsel was suffering from “un-disclosed [sic], un-
diagnosed [sic], and un-treated [sic] psychiatric disorders which
directly affect the cognitive and executive functioning areas of
the brain, it prevented trial counsel from providing him with the
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1 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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effective assistance of counsel envisioned by the state and
federal constitutions.” (Memorandum of Facts and Law in
Support of PCRA Relief, pg. 2)[.] The [c]ourt reviewed the
averments in the petition for relief and [A]ppellant’s response to
the [Pa.R.Crim.P.] 907 notice of intent to dismiss without a
hearing, and determined that [A]ppellant’s petition was untimely
and did not properly invoke an exception to the PCRA timeliness
requirements. Appellant’s petition was formally dismissed on
December 2, 2016. This appeal followed.
PCRA Court Opinion (PCO), 3/20/17, at 1-3 (footnotes omitted).
The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal, but it issued a Rule
1925(a) opinion on March 20, 2017. Herein, Appellant presents two issues
for our review:
I. Did the PCRA court err in denying Appellant’s post-
conviction petition as untimely filed when Appellant
established that his after-discovered facts claim was within
the plain language of the timeliness exception set forth at
42 Pa.C.S.[] § 9545(b)(1)(ii) and section 9545(b)(2)?
II. Did the PCRA court err by denying [] [A]ppellant’s request
for permission to file an amended petition in order to
present his claims in a manner sufficient to avoid dismissal
due to a correctable defect in claim pleading and
presentation?
Appellant’s Brief at 4.
This Court’s standard of review regarding an order denying 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.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations
implicate our jurisdiction and may not be altered or disregarded in order to
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address the merits of a petition. Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our
jurisdiction and may not be altered or disregarded to address the merits of
the petition). Under the PCRA, any petition for post-conviction relief,
including a second or subsequent one, must be filed within one year of the
date the judgment of sentence becomes final, unless one of the following
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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 attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
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Here, Appellant’s judgment of sentence became final on July 27, 2008,
at the expiration of the 90-day time period for seeking review with the
United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (stating that a
judgment of sentence becomes final at the conclusion of direct review or the
expiration of the time for seeking the review); Commonwealth v. Owens,
718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the PCRA,
petitioner’s judgment of sentence becomes final ninety days after our
Supreme Court rejects his or her petition for allowance of appeal since
petitioner had ninety additional days to seek review with the United States
Supreme Court). Consequently, his present petition, filed in March of 2016,
is patently untimely and, for this Court to have jurisdiction to review the
merits thereof, Appellant must prove that he meets one of the exceptions to
the timeliness requirements set forth in 42 Pa.C.S. § 9545(b).
Instantly, Appellant argues that he meets the after-discovered
evidence exception of section 9545(b)(1)(ii) based on his discovering the
new fact “that he was represented at trial by an attorney who was suffering
from several psychiatric diseases, which directly affects the cognitive and
executive functioning areas of his brain….” Appellant’s Brief at 11.
Appellant explains that he discovered this new fact on January 24, 2016,
when he “was provided an opportunity to read a ‘Graterfriends’ newsletter,
wherein … [A]ppellant came across an article written by Mr. Eric Cathell who
asserted that Attorney James S. Bruno, [Appellant’s] trial counsel, had been
suspended for 2 years due to numerous violations of the Rules of
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Professional Conduct, violations which were directly attributed to several
psychiatric disorders [from which] Mr. Bruno suffers….” Id. at 8. Attached
to his petition, Appellant included a copy of the article, which was contained
in the Fall 2015 edition of the Graterfriends newsletter.
In rejecting Appellant’s assertion that he met the newly-discovered-
fact exception of section 9545(b)(1)(ii), the PCRA court concluded that the
Graterfriends newsletter was a public record that was available to Appellant
in the fall of 2015; therefore, in the court’s view, Appellant’s not discovering
the newsletter containing the information about Mr. Bruno until January of
2016 demonstrated a lack of due diligence by Appellant. In support of this
position, the PCRA court relied on Commonwealth v. Edmiston, 65 A.3d
339 (Pa. 2013), in which our Supreme Court declared that “to constitute
facts which were unknown to a petitioner and could not have been
ascertained by the exercise of due diligence, the information must not be of
public record….” Id. at 352.
Appellant now challenges the PCRA court’s application of the ‘public
records rule,’ relying on this Court’s decision in Commonwealth v. Burton,
121 A.3d 1063 (Pa. Super. 2015) (en banc) (Burton I). There, this Court
held “that the presumption of access to information available in the public
domain does not apply where the untimely PCRA petitioner is pro se.” Id. at
1073. Notably, our Supreme Court affirmed Burton, reiterating “that the
presumption that information which is of public record cannot be deemed
‘unknown’ for purposes of subsection 9545(b)(1)(ii) does not apply to pro se
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prisoner petitioners.” Commonwealth v. Burton, 158 A.3d 618, 638 (Pa.
2017) (emphasis in original) (Burton II). Under the rationale of this Court
in Burton I, and our Supreme Court in Burton II, we agree with Appellant
that the PCRA court erred by presuming that the Graterfriends newsletter
was ‘knowable’ to him, in the exercise of due diligence.
Nevertheless, we conclude that the PCRA court properly deemed
Appellant’s petition as untimely, based on the alternative conclusion that
“allegations of ineffective assistance of counsel will not overcome the
jurisdictional timeliness requirements of the PCRA.” PCO at 4 (citation
omitted). “Our Supreme Court has made clear that the section
9545(b)(1)(ii) exception will not apply to alleged ineffective assistance of
counsel claims, even if the claims were not knowable until advised of their
existence by present counsel.” Commonwealth v. Perrin, 947 A.2d 1284,
1287 (Pa. Super. 2008) (citing Commonwealth v. Bronstein, 752 A.2d
868 (Pa. 2000); Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000);
Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999)). Here, the essence of
Appellant’s claim is that his trial counsel must have been ineffective because
of his mental health issues, and Appellant could not have discovered that
ineffectiveness until he read the Graterfriends article detailing counsel’s
suspension due to those issues. We conclude that this ineffectiveness claim
is the type of issue that, according to our Supreme Court, cannot satisfy the
exception of section 9545(b)(1)(ii). Thus, we ascertain no error in the PCRA
court’s conclusion that Appellant failed to meet that timeliness exception.
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In Appellant’s second issue, he maintains that the PCRA court erred by
“assert[ing] one reason for the dismissal of his PCRA [p]etition within its
[n]otice [p]ursuant to [Rule] 907, and then later alleg[ing] a different reason
for its decision to dismiss within its Pa.R.A.P. 1925(a) [o]pinion.” Appellant’s
Brief at 18. More specifically, Appellant claims that in the Rule 907 notice,
the PCRA court stated that his petition was untimely and that he failed to
satisfy any timeliness exception; however, in the court’s subsequent Rule
1925(a) opinion, it applied the ‘public records rule’ to conclude that
Appellant had failed to act with due diligence in raising his newly-discovered-
fact claim. Id. Appellant contends that this change in decision “deprived
[him] of the opportunity to present his claims to the PCRA court in a manner
sufficient to avoid dismissal due to a correctable defect in claim pleading or
presentation, as contemplated by Pa.R.Crim.P. 905, [and] also denied
[Appellant] the opportunity to alert the PCRA court to its erroneous
application of the ‘public records rule’ in this case and to likewise clarify the
PCRA [c]ourt’s misunderstanding of the ‘newly discovered fact’ that was
being asserted by [Appellant].” Id.
Appellant’s argument is unconvincing. As the Commonwealth avers,
[i]n its notice, the court informed [Appellant] that his claim to
have discovered evidence regarding prior counsel’s mental
health did not satisfy the requirements for a time-bar exception.
This was the same ground set forth in the court’s opinion. That
the court expounded upon its reasoning in its opinion is neither
remarkable nor improper.
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Commonwealth’s Brief at 14. We agree with the Commonwealth.
Additionally, we note that even if Appellant had raised, in response to the
court’s Rule 907 notice, his correct argument that the ‘public records rule’ is
inapplicable, and further clarified the nature of his claim, we would still see
no error in the PCRA court’s denial of his petition. Again, the exception of
section 9545(b)(1)(ii) cannot be satisfied with an ineffective-assistance-of-
counsel claim, such as that raised by Appellant herein.
Order affirmed.
Judge Panella joins the memorandum.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/18
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