J-A04015-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
EARL EUGENE BOX
Appellant No. 132 MDA 2017
Appeal from the PCRA Order entered December 7, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0000965-1975
BEFORE: STABILE, NICHOLS, AND RANSOM,* JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 31, 2018
Appellant, Earl Eugene Box, appeals pro se from the December 7, 2016
order entered in the Court of Common Pleas of Dauphin County, granting
appointed counsel’s motion to withdraw and dismissing Appellant’s seventh
petition for collateral relief filed pursuant to the Post Conviction Relief Act, 42
Pa.C.S.A. §§ 9541-9546.1 Following review, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 The PCRA court refers to the instant petition as Appellant’s fifth PCRA
petition. From the record, it appears this is actually Appellant’s seventh
petition for collateral relief, with the appeal from denial of a fifth petition being
dismissed by this Court in 2007 for failure to file a brief and the appeal from
denial of a sixth petition being quashed as untimely in 2008. See Docket
Entries at pp. 12 and 14.
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In this appeal, Appellant asks us to consider two issues:
I. Did the PCRA court err by dismissing Appellant’s [PCRA]
petition pursuant to counsel’s “no merit” letter that failed to
comport with appellate standards governing withdrawal of
counsel’s representation in a PCRA proceeding, and did the
PCRA court err in not conducting an evidentiary hearing on
Appella[nt]’s ex-wife’s affidavit and Mr. Jamie Luquis’ official
response to Appella[nt]’s June 7, 2016 request, and did the
PCRA court err in not issuing a Rule 907 notice, and should
appointed counsel have filed a “no merit” letter without ever
communicating with Appellant in regards to the additional
issues Appellant wished counsel to raise in an amended
petition, and did the PCRA court conduct an independent
review of the ultimate merits of the issues on the timeliness
requirements, and did PCRA counsel render ineffective
assistance of counsel?
II. Whether the prosecution’s “suppression” of Appellant’s
“whereabouts” in 1970 and its knowing use of Massey’s false
testimony and the Commonwealth improperly permitting
Massey to do so denied Appellant a fair trial or due process
by preventing Appe[]llant from impeaching Massey with the
Brady[2] material that the Commonwealth intentionally
suppressed, and whether the trial judge or the undisclosed
Brady evidence prevented Appellant from impeach[i]ng
Massey by showing bias or interest when it comes to who
allegedly fired the shot in the ceiling at Abe’s Tavern?
Appellant’s Brief at 4-5.
In Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008), our
Supreme Court stated:
Our standard of review of the denial of PCRA relief is clear: we
are “limited to determining whether the PCRA court's findings are
supported by the record and without legal error.”
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2 Brady v. Maryland, 373 U.S. 83 (1963).
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Commonwealth v. Hawkins, 953 A.2d 1248, 1251 (Pa. 2006).
We note that a second or subsequent petition must present a
strong prima facie showing that a miscarriage of justice may have
occurred. Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d
154, 160 (1999). Finally, the petition must be timely, as the Act’s
timeliness restrictions are jurisdictional in nature and are to be
strictly construed. Commonwealth v. Abu–Jamal, 596 Pa. 219,
941 A.2d 1263, 1267–68 (2008).
Id. at 309.
On appeal from denial of Appellant’s fourth PCRA petition, this Court
noted that Appellant was convicted of second-degree murder and two counts
of robbery following a jury trial in September of 1975. See Commonwealth
v. Box, No. 1919 MDA 2003, unpublished memorandum at 1 (Pa. Super. filed
July 21, 2004). He was sentenced to life in prison for the murder conviction
with consecutive sentences of ten to twenty years in prison for the robbery
convictions. Our Supreme Court affirmed Appellant’s judgment of sentence
on October 27, 1978,3 and Appellant did not seek review from the United
States Supreme Court. Id. at 1-2. Therefore, his judgment of sentence was
final on December 26, 1978, 60 days after his judgment of sentence was
affirmed, and he had until December 26, 1979 to file a timely petition for
collateral review. Id. at 6.4
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3 Commonwealth v. Box, 391 A.2d 1316 (Pa. 1978).
4 Under U.S.Sup.Ct.R. 22(2) in effect at the time of Appellant’s direct appeal,
the time for seeking certiorari to the United States Supreme Court was 60
days. Rule 22(2) was subsequently renumbered as Rule 13, effective January
1, 1990, and now provides a 90-day period for seeking certiorari.
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The instant appeal is an appeal from dismissal of Appellant’s seventh
petition for collateral relief. This petition was filed on March 28, 2016, more
than thirty-seven years after his judgment of sentence became final.
Therefore, the petition is patently untimely and we may not consider it unless
Appellant has presented and proved an exception to the PCRA’s timeliness
requirement. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time restrictions are
jurisdictional in nature. Thus, [i]f a PCRA petition is untimely, neither this
Court nor the [PCRA] court has jurisdiction over the petition. Without
jurisdiction, we simply do not have the legal authority to address the
substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.
2006) (first alteration in original) (internal citations and quotation marks
omitted). As timeliness is separate and distinct from the merits of Appellant’s
underlying claims, we first determine whether this PCRA petition is timely
filed. See Stokes, 959 A.2d at 310 (consideration of Brady claim separate
from consideration of its timeliness).
Appellant asserts that his current petition is saved from the PCRA’s time
bar based on after-discovered evidence consisting of an undisclosed prior
conviction of a witness who testified at Appellant’s 1975 trial. 5 Appellant
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5As this Court stated in Commonwealth v. Medina, 92 A.3d 1210 (Pa.
Super. 2014):
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contends he was not aware until February 2016 that the witness, Donald
Massey, a/k/a Donald Reinberry, had previously been convicted of obstructing
an officer in the execution of process or in the performance of his duties. That
evidence, he contends, could have been used to impeach Massey.
In his Turner/Finley6 no-merit letter, appointed counsel explained:
Upon review of the record, it is clear that [Appellant] wanted
to impeach Donald Massey. During the trial, [Appellant]
interrupted the direct examination of Mr. Massey in front of the
jury and gave a colloquy in open court how [Appellant] thought
Mr. Massey was lying. Also, trial counsel . . . impeached Donald
Massey with his prior testimony in [Appellant’s] case, prior
testimony in [a related] trial and his prior statements to the
Commonwealth. Further, Mr. Massey testified in open court that
he plead guilty to the first-degree murder and various robberies.
Mr. Massey received a life sentence for the murder plus a
consecutive sentence of ten (10) to twenty (20) years for his
involvement in the robberies. Mr. Massey testified that he
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Our Supreme Court has previously described a petitioner’s burden
under the newly-discovered fact exception as follows.
[S]ubsection (b)(1)(ii) has two components, which must be
alleged and proved. Namely, the petitioner must establish
that: 1) “the facts upon which the claim was predicated
were unknown” and 2) “could not have been ascertained by
the exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii)
(emphasis added).
Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1272
(2007).
Id. at 1216.
6Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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negotiated a deal with the Commonwealth in which Mr. Massey
would receive the aforementioned sentence but prevented the
Commonwealth from seeking the death penalty against Mr.
Massey.
[Appellant’s] claim that Mr. Massey’s prior criminal
conviction for Obstruction [of] an Officer meets the timeliness
exception is misplaced. This being [Appellant’s seventh] PCRA
petition, there is not a prima facie showing that [a] miscarriage of
justice occurred. [Appellant] obtained Mr. Massey’s criminal
conviction because it is a public record. Further, [Appellant] and
trial counsel knew the impeachment of Mr. Massey was vital to
[Appellant’s] case. [Appellant] cannot claim [he] exercised due
diligence into Mr. Massey’s criminal history thirty-one (31) years
after his conviction and [six] PCRA petitions later.
Undersigned counsel has also reviewed this timeliness issue
as a Brady violation. Again, [Appellant’s] claim fails because
[Appellant] could have obtained Mr. Massey’s criminal history
before or during trial or with due diligence in his previous . . .
PCRA petitions. See Commonwealth v. Bennett, 930 A.2d
1264 (Pa. 2007), citing Commonwealth v. Johnson, 863 A.2d
423 (Pa. 2004).
No-Merit Memorandum, 11/22/16, at 5-6 (references to Notes of Trial
Testimony omitted).
Appellant’s contention that his untimely petition is saved by Brady is
misplaced. As in Stokes,
Appellant’s argument is essentially that a Brady claim operates
to negate—wholly—the statutory timeliness requirements set
forth in the PCRA. Appellant’s reasoning would permit a PCRA
petition to be filed at any time, as long as the claim is couched in
terms of a Brady violation. But this Court has explicitly held
otherwise. See Abu–Jamal, supra at 1268 (concluding that not
only must a petitioner assert that “the facts upon which the Brady
claim is predicated were not previously known to the petitioner,”
but also that they “could not have been ascertained through due
diligence”). See also Hawkins, supra at 1253 (“Although a
Brady violation may fall within the governmental interference
exception, the petitioner must plead and prove that the failure to
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previously raise these claims was the result of interference by
government officials, and that the information could not have
been obtained earlier with the exercise of due diligence.”)
Stokes, 959 A.2d at 311 (citation omitted) (emphasis in original).
As reflected in appointed counsel’s analysis quoted above, and
confirmed by our review of the record as well as statutory and case law,
Appellant has failed to establish an exception to the PCRA’s time bar. Further,
Appellant has not presented a strong prima facie showing that a miscarriage
of justice may have occurred. Therefore, we affirm the December 6, 2016
order granting counsel’s motion to withdraw and dismissing Appellant’s
seventh petition for collateral relief. We—like the PCRA court—do not have
jurisdiction to entertain the merits, if any, of Appellant’s issues, and we shall
not consider them.7
Order affirmed. Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/31/18
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7 We note that Appellant contends the PCRA court erred in dismissing his
petition without providing a notice of intent to do so under of Pa.R.Crim.P.
907. However, “our 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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