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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JONATHAN GRANT, :
:
Appellant : No. 3834 EDA 2017
Appeal from the PCRA Order November 3, 2017
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0003705-1991
BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED JUNE 12, 2018
Pro se Appellant Jonathan Grant appeals from the order dismissing his
eleventh Post Conviction Relief Act1 (PCRA) petition. Appellant contends his
petition is timely because of newly-discovered evidence, specifically a January
13, 1992 trial transcript. We affirm.
In Commonwealth v. Grant, 3502 PHL 1992 (Pa. Super. Dec. 15,
1993) (Grant 1),2 this Court, in resolving Appellant’s direct appeal, set forth
the factual background as follows:
On the evening of April 15, 1991, Bensalem Township Police were
summoned to the Bensalem Common Apartments where they
found the dead body of Nora Adderly in an apartment which she
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2 The caption and decision misspelled Appellant’s first name as “Jonathon.”
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had shared with her boyfriend, [Appellant]. Downstairs
neighbors, Peggy Sterling and John Krier, testified at [Appellant’s]
trial that they had heard a loud argument in the apartment earlier
the same evening. The argument, they said, had grown
progressively louder and had culminated in the sound of shots
being fired, followed by a woman’s scream. After a bullet had
burst through their ceiling and become lodged in their bed, they
called the police. The police, when they arrived, found Adderly’s
dead body in a pool of blood and ascertained that death had been
caused by multiple gunshot wounds of the head, back and
stomach. It was later determined that the shots had been fired
from both a shotgun and a .22 caliber pistol.
In the early hours of the following morning, [Appellant] arrived at
the home of his sister, Julia, who testified that [A]ppellant had
then admitted killing Adderly. Leaving a shotgun and .22 caliber
pistol at his sister’s home and abandoning his car in a nearby alley,
[A]ppellant fled to Savannah, Georgia, where he was later
apprehended [on May 7, 1991].
Id. at 1-2.
At trial, Appellant testified on his behalf and admitted he shot the victim,
but raised several defenses including accident, self-defense, diminished
capacity, and intoxication. See Commonwealth v. Grant, 157 PHL 1995, at
3 (Pa. Super. Oct. 27, 1995) (Grant 2) (resolving Appellant’s first PCRA
petition). Needless to say, Appellant was present throughout trial.
On Friday, January 10, 1992 (the third day of trial), witnesses for the
Commonwealth and Appellant testified. N.T., 1/10/92, at 1-205. On January
13, 1992 (the fourth and last day of trial), Detective Robert Shutter testified
for the defense, and John Riley, an FBI witness, testified for the
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Commonwealth about the lead used in the bullets.3 No other witness testified
that day. Counsel delivered closing arguments, and the trial court charged
the jury. The jury found Appellant guilty of first-degree murder, recklessly
endangering another person, possession of an instrument of crime, and flight
to avoid prosecution. See generally N.T. Trial, 1/13/92, at 1-106.4
The jury was instructed to return on January 14, 1992, to deliberate on
Appellant’s penalty. Id. at 106.5 The jury, however, was unable to agree on
a sentence of death, and the court sentenced Appellant to mandatory life
imprisonment on January 14, 1992. Grant 1, at 1.
Appellant filed a direct appeal claiming
the trial court erred when it (1) allowed evidence that he had had
a shotgun and .22 caliber pistol in his possession prior to the
shooting; (2) allowed testimony of prior criminal conduct; and (3)
instructed the jury that a deliberate intent to kill could be inferred
from the use of a deadly weapon upon a vital part of the victim’s
body.
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3 Appellant’s seventh PCRA petition, which was filed on March 19, 2010,
challenged Riley’s January 13, 1992 testimony.
4 As explained below, Appellant argues for the instant eleventh PCRA petition
that he was unaware of the existence of the January 13, 1992 trial transcript
in an attempt to overcome the PCRA’s timebar. We note that among the
numerous timestamps on this transcript, this Court’s earliest timestamp was
November 30, 1992.
5 The record does not establish whether a stenographer was present on
January 14, 1992, let alone whether a transcription even existed.
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Id. The Grant 1 Court affirmed, and the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal. Commonwealth v. Grant, 668
A.2d 1124 (Pa. Sept. 12, 1994) (table).6
Appellant’s First Ten PCRA Petitions
We briefly discuss Appellant’s first ten PCRA petitions. Appellant filed a
timely first PCRA petition.7
On December 6, 1996,8 pro se Appellant filed a second PCRA petition,
which the PCRA court denied on December 23, 1996, and this Court affirmed.
Commonwealth v. Grant, 2187 PHL 1997, at 2 (Pa. Super. Feb. 18, 1998)
(Grant 3). Appellant had claimed that the district attorney engaged in
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6 Because the Grant 1 Court held Appellant’s jury instruction issue lacked
merit, it had the January 13, 1992 transcript. Thus, Appellant knew or should
have known the transcript existed on or before December 15, 1993, the date
of the Grant 1 decision.
7 The PCRA court denied relief, the Grant 2 Court affirmed, and the
Pennsylvania Supreme Court denied allocatur. Commonwealth v. Grant,
676 A.2d 1195 (Pa. May 8, 1996) (table). Appellant had alleged that trial and
appellate counsel “were ineffective for not objecting to the inaccurate
statement of the law of third degree murder after the jury requested
clarification regarding first degree murder, third degree murder, and
manslaughter.” Grant 2, at 3.
8 To be consistent with the numerous other decisions recounting the lengthy
procedural history of this case, we use the court’s docketing date, and not the
prisoner mailbox date. See generally Commonwealth v. Little, 716 A.2d
1287, 1288 (Pa. Super. 1998) (holding, the “prisoner mailbox rule provides
that the date of delivery of the PCRA petition by the defendant to the proper
prison authority or to a prison mailbox is considered the date of filing the
petition”).
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misconduct at the first PCRA hearing by creating a fictitious witness. Id. at
2. The Grant 3 Court affirmed because the witness was real. Id. at 4-5
(citing to the January 10, 1992 transcript).
Subsequently, on June 5, 1998, Appellant requested the trial transcripts
for January 13 and 14, 1992. Appellant’s Req. for Trs., 6/5/98. The court
granted the request on June 12, 1998, and ordered the transcription. On
August 31, 1998, the court sent a letter to Appellant, which advised him that
they could not transcribe the testimony for January 13 and 14, 1992, because
the stenographer had retired and was unavailable. Ex. 2 to Appellant’s Third
PCRA Pet., 10/14/98.9
On October 14, 1998, Appellant filed his third pro se PCRA petition. In
his petition, he referenced the court’s correspondence regarding the alleged
unavailability of trial transcripts for January 13 and 14, 1992. Appellant’s
Third PCRA Pet., 10/14/98, at 13. Appellant therefore substituted a Pa.R.A.P.
1923 statement in lieu of transcription summarizing the purported trial
testimony of John Heris and Richard Young. Id. at Ex. B.10 The PCRA court
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9 As explained above, this was partially erroneous because the January 13,
1992 transcript had always existed. Indeed, the hardcopy bears timestamps
reflecting receipt of the transcript by this Court on June 19, 1997, and March
2, 1999, among many other dates.
10The Commonwealth had previously noted that Heris and Young were called
only during the penalty phase of the trial on January 14, 1992, which
unfortunately was not transcribed. Commonwealth’s Brief, 695 EDA 2007,
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denied relief, and this Court affirmed. Commonwealth v. Grant, 188 EDA
1999, at 2-3 (Pa. Super. Sept. 23, 1999) (Grant 4), appeal denied, 795 A.2d
972 (Pa. Jan. 20, 2000) (table).11
Pro se Appellant filed his fourth PCRA petition on October 23, 2002,
which the PCRA court dismissed.12 Appellant filed his fifth PCRA petition, pro
se, on February 23, 2007.13 Pro se Appellant filed his sixth petition on July
28, 2008, and February 4, 2009.14 On March 19, 2010, the PCRA court
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2007 WL 3034139, at *4-*5. Our review of the trial transcripts confirms that
Heris and Young never testified at trial.
11On appeal, Appellant had argued that all prior counsel were ineffective with
respect to various issues involving the testimony of two Commonwealth
witnesses: Laroy Freeman and Raymond Morris. Appellant also raised an
unspecified claim of prosecutorial misconduct, which this Court held lacked
merit.
12 The petition raised claims of prosecutorial misconduct previously raised in
his second and third petitions. This Court affirmed, and our Supreme Court
denied relief. Commonwealth v. Grant, 3831 EDA 2002, at 1 (Pa. Super.
Aug. 28, 2003), appeal denied, 844 A.2d 551 (Pa. Feb. 20, 2004).
13 See Commonwealth v. Grant, 695 EDA 2007, at 3 (Pa. Super. Nov. 14,
2007). This petition is not in the certified record. In pertinent part, he argued
his petition was timely because of governmental interference, specifically the
Commonwealth’s failure to provide him with the complete trial transcripts,
including the transcripts for the testimony for Commonwealth witnesses Heris
and Young. Id. at 3-4. Because the record was incomplete, Appellant claimed
all prior counsel were ineffective. Id. at 4. The PCRA court dismissed his
petition as untimely, this Court affirmed, and the Pennsylvania Supreme Court
denied allocatur. Commonwealth v. Grant, 951 A.2d 1161 (Pa. June 26,
2008) (table).
14See Commonwealth v. Grant, 2364 EDA 2009, at 3 (Pa. Super. Mar. 9,
2010). We note that the certified record only includes twenty-nine pages of
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docketed Appellant’s seventh pro se PCRA petition.15 On January 5, 2011, pro
se Appellant filed his eighth PCRA petition.16 Appellant, pro se, filed his ninth
PCRA petition on December 24, 2012, which the PCRA court dismissed.17
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the July 28, 2008 petition, which has a table of contents reflecting a length of
at least fifty-three pages. Appellant’s Sixth PCRA Pet., 7/28/08 (unpaginated
table of contents). The document docketed on February 4, 2009, is a
Pa.R.A.P. 1925(b) statement with a certificate of service date of January 28,
2009. Stapled to that document is an envelope with a postmark date of July
28, 2008. We add that the PCRA court had not yet ruled on Appellant’s sixth
PCRA petition and the record does not reflect a relevant notice of appeal or
Rule 1925(b) order. Our PCRA and appellate courts, however, have
consistently construed the February 4, 2009 statement and July 28, 2008
petition as a single combined PCRA petition. In the “combined” sixth petition,
Appellant raised several issues, which included challenges to the testimony of
Freeman and Morris. The PCRA court dismissed the petition as untimely, and
this Court affirmed on March 9, 2010. Appellant did not appeal to the
Pennsylvania Supreme Court.
15 Appellant claimed newly-discovered evidence and governmental
interference with respect to Riley’s testimony analyzing the lead used in the
bullets. The PCRA court dismissed the petition on July 15, 2010, and Appellant
did not appeal to this Court.
16 Appellant again disputed the testimony of Freeman and Morris. He also
filed a supplemental PCRA petition on February 14, 2011, which reiterated his
arguments about the testimony of Morris. The PCRA court dismissed the
petition, this Court affirmed, and the Pennsylvania Supreme Court denied
allocatur. Commonwealth v. Grant, 892 EDA 2011 (Pa. Super. Nov. 1,
2011), appeal denied, 42 A.3d 291 (Pa. Apr. 5, 2012) (table).
17 The petition alleged the trial judge erred in charging the jury regarding first-
degree murder, see also Grant 2, at 3, raised a claim under Batson v.
Kentucky, 476 U.S. 79 (1986), and argued his due process rights were
violated because he was shackled and chained during trial. This Court
affirmed, and the Pennsylvania Supreme Court denied his petition for
allowance of appeal. Commonwealth v. Grant, 1475 EDA 2013 (Pa. Super.
Nov. 25, 2013), appeal denied, 89 A.3d 1283 (Pa. Apr. 15, 2014) (table).
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Appellant’s tenth pro se PCRA petition was filed on October 31, 2014.18
Appellant’s Eleventh PCRA Petition
On November 28, 2016, the PCRA court docketed Appellant’s eleventh
PCRA petition, which claimed his petition is timely because of newly discovered
evidence. Specifically, Appellant asserts he did not receive the January 13,
1992 trial transcript until October 6, 2016. Appellant’s Eleventh PCRA Pet.,
11/28/16, at 2. Appellant argues that he had no knowledge that the January
13, 1992 transcript existed because correspondence from prior counsel
advised him that it did not exist.19 Id. at 3-5 (referring to exhibits of
correspondence with prior counsel and the court).20 He also maintains that
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18 Appellant’s Tenth PCRA Pet., 10/31/14, at 1. In pertinent part, similar to
his third and fifth PCRA petitions, he claimed a Brady v. Maryland, 373 U.S.
83 (1963), violation and Commonwealth interference because the
Commonwealth failed to provide him with the trial transcripts for the
testimony of witnesses Heris and Young. The PCRA court dismissed the
petition, this Court affirmed, and the Pennsylvania Supreme Court refused
allocatur. Commonwealth v. Grant, 755 EDA 2015 (Pa. Super. Nov. 10,
2015), appeal denied, 910 MAL 2015 (Pa. Feb. 24, 2016).
19 The certified record transmitted to this Court includes hardcopy transcripts
for the following dates: December 6, 1991; January 8, 9, 10, and 13, 1992;
and December 19, 1994. It does not appear that January 14, 1992—the date
the jury deadlocked on Appellant’s penalty and the court imposed a mandatory
life sentence—was ever transcribed. As noted above, the January 13, 1992
transcript, which contained the jury charge, was used by this Court on direct
appeal. Grant 1, at 2.
20The exhibits document the intermittent confusion of all parties involved, as
they occasionally reference a request for transcripts dated January 10 and 13,
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the record established his due diligence in trying to obtain all of the trial
transcripts. Id. at 4-5.
The PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss,
and Appellant filed a response. The PCRA court dismissed the petition on
November 15, 2017, and Appellant timely appealed.
On December 6, 2017, the PCRA court ordered Appellant to comply with
Pa.R.A.P. 1925(b). The record and docket do not reflect that Appellant filed
a Rule 1925(b) statement. The PCRA court’s opinion, however, states that
Appellant filed a Rule 1925(b) statement on December 11, 2017, and quotes
the issues raised in the statement.21 PCRA Ct. Op., 1/8/18, at 3-4.
Appellant raises the following issues in his brief:
1. Whether the PCRA court erred and denied Appellant’s PCRA
petition as untimely filed when Appellant established that his
after-discovered evidence in the form of two days of missing trial
transcripts which Appellant exercised due-diligence in trying to
obtain and that Appellant was informed that such transcripts did
not exist in his case establishes after-discovered facts and
whether his PCRA petition satisfies the after-discovered facts
exception, and Appellant met the exception pursuant to the
statutory requirement of 42 Pa.C.S. § 9545(b)(1)(ii) and 42
Pa.C.S. § 9545(b)(2).
2. Appellant should be granted a new trial because there [was]
after discovered evidence that the leading detective “Terry
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1991, which never existed—the criminal complaint was filed on April 17,
1991, and Appellant was apprehended in Georgia on May 7, 1991.
21 Because there appears to be a breakdown in the operations of the PCRA
court, the Commonwealth does not argue waiver for failure to comply with
Rule 1925, and the PCRA court prepared an opinion addressing Appellant’s
issues, we decline to find waiver.
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Lachman” conspired with two jail house informants who [were]
working as undercover[s] assisting the state, and one informant
after given bits of information was sen[t] back into the same cell
with Appellant after a[n] interview with the leading detective,
violated Appellant’s right to assistance of counsel that’s
guaranteed by Federal and State constitutions, and both
informants received favorable treatment[] or leniency for their
assistance, and the prosecuting attorney may have secretly
kn[own] about such activity and did nothing to prevent such
activity from occurring.
3. Appellant should be granted a new trial because of prosecutorial
misconduct and/or the prosecutor committed a Brady violation
when the prosecutor intentionally meant to keep the jury from
receiving a newspaper article that was favorable evidence for the
defense and would have changed the outcome of the trial, was
intended to prejudice and deprive Appellant of a fair trial, among
other misconduct.
4. Appellant should be granted a new trial because the trial court
abused its discretion and/or committed reversible error which
resulted in manifest unreasonableness or prejudice when he
imposed t[h]reats and/or sanctions which may have caused a
Commonwealth’s witness, Appellant’s sister[,] to testify falsely
and/or perjure[] herself to please the court, whereas such false
testimony was prejudicial and denied Appellant a fair trial.
5. Appellant should be granted a new trial because the
Commonwealth failed to correct the many false testimony of their
Commonwealth’s witnesses that they know[] to be false sta[r]ting
with their lead detective “Terry Lachman”, Leroy Freeman, and
Raymond Morris, thereby undermining the outcome in the trial
verdict of the jury and the sentence.
6. Appellant should be granted a new trial because the
Commonwealth failed to disprove his claims of self-defense,
intoxication and diminish[ed] capacity which raises . . . a
reasonable possibility when reviewing Appellant’s testimony and
Dr. Fillinger’s testimony whom [sic] conducted the autopsy
demonstrates Appellant acted in self-defense and contradicts the
false testimony of the Commonwealth’s witnesses[’] testimony,
which undermined the confidence in the outcome of the verdict
whereas the evidence of guilt was not so overwhelming as to
convict the Appellant of first degree murder.
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7. Trial counsel, appellate counsel, and PCRA counsel all was
constitutionally ineffective assistance of counsel for filing appeals
with a half record, and failure to properly present[], and preserve
and raise each of the issues presented in Appellant’s PCRA
petition, each of the claims establishes arguable merit, and
counsels[’] failure had no reasonable strategic basis and the errors
individually and collectively undermined the confidence in the
outcome of the trial and sentencing prejudice[d] Appellant and he
should be awarded a new trial.
Appellant’s Brief at iii-iv.
In support of his contention that his eleventh PCRA petition is timely,
Appellant argues that he fulfilled the timeliness exception at Section
9545(b)(1)(ii). Specifically, he argues that he received new evidence in the
form of the January 10 and 13, 1992 trial transcripts that had been allegedly
missing since 1993. Id. at 1-2. Appellant then discusses the actions he took
that purportedly established his due diligence in discovering these transcripts.
Id. at 2-5.
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the evidence of record and free of legal error.” Commonwealth v.
Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).
Timeliness of Appellant’s Eleventh PCRA Petition
Our Supreme Court has required this Court to examine whether we have
jurisdiction to entertain the underlying PCRA petition. See Commonwealth
v. Fahy, 737 A.2d 214, 223 (Pa. 1999). A PCRA petition “must normally be
filed within one year of the date the judgment becomes final . . . unless one
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of the exceptions in § 9545(b)(1)(i)-(iii) applies.” Commonwealth v.
Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (citations and footnote omitted).
A petitioner must plead and prove 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). “The PCRA’s timeliness requirements are
jurisdictional in nature and must be strictly construed; courts may not address
the merits of the issues raised in a petition if it is not timely filed. It is the
petitioner’s burden to allege and prove that one of the [three] timeliness
exceptions applies.” Commonwealth v. Abu–Jamal, 941 A.2d 1263, 1267–
68 (Pa. 2008) (citations omitted).
In Commonwealth v. Cox, 146 A.3d 221 (Pa. 2016), the Pennsylvania
Supreme Court highlighted the distinctions between the timeliness exception
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of Section 9545(b)(1)(ii), and eligibility for relief based on after-discovered
evidence under Section 9543(a)(2)(vi).22
When considering a claim seeking to invoke section
9545(b)(1)(ii), the petitioner must establish only that (1) the facts
upon which the claim was predicated were unknown and (2) they
could not have been ascertained by the exercise of due diligence.
We have unequivocally explained that the exception set forth in
subsection (b)(1)(ii) does not require any merits analysis of the
underlying claim. Rather, the exception only requires a petitioner
to prove that the facts were unknown to him and that he exercised
due diligence in discovering those facts.
Cox, 146 A.3d at 227 (citations and internal quotation marks omitted);
accord Commonwealth v. Bennett, 930 A.2d 1264, 1270 (Pa. 2007).
In Commonwealth v. Chmiel, 173 A.3d 617 (Pa. 2017), the
Pennsylvania Supreme Court explained the term “fact” as used under
subsection (b)(1)(ii):
This exception requires that the facts upon which such a claim is
predicated must not have been known to appellant, nor could they
have been ascertained by due diligence. [T]o fall within this
exception, the factual predicate of the claim must not be of public
record and must not be facts that were previously known but are
now presented through a newly discovered source.
Id. at 625 (quotation marks and citations omitted). Trial transcripts are in
the public domain and do not constitute new sources for previously known
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22 Section 9543(a)(2)(vi) provides as follows: “The unavailability at the time
of trial of exculpatory evidence that has subsequently become available and
would have changed the outcome of the trial if it had been introduced.” 42
Pa.C.S. § 9543(a)(2)(vi).
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information. See id.
Here, Appellant’s eleventh PCRA petition is patently untimely, given that
his judgment of sentence became final on Monday, December 12, 1994,
ninety-one days after the Pennsylvania Supreme Court denied allocatur. See
S. Ct. R. 13.23 Thus, Appellant had until December 12, 1995, to file his first
PCRA petition.24 Appellant, however, has not pled and proved an exception
under subsection (b)(1)(ii), because a transcript—even if it was missing, which
it was not—is merely a new source for previously known information. See
Chmiel, 173 A.3d at 625.
As set forth above, Appellant was present at trial and had first-hand
knowledge of the events that transpired on January 10 and 13, 1992. Thus,
Appellant has failed to establish the allegedly missing trial transcripts were
“unknown facts” that could not have been discovered with due diligence. See
Cox, 146 A.3d at 227. Moreover, Appellant has known about the “missing”
January 13, 1992 transcript since August 31, 1998, and explicitly referenced
its alleged unavailability in his third PCRA petition. See Appellant’s Third PCRA
Pet., 10/14/98, at 13. But the transcripts were never “missing”. Indeed,
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23We note that Rule 13 has been amended several times, and it appears the
version in effect in 1994 provided for a ninety-day period of time.
24 Appellant’s eleventh PCRA petition does not qualify for the grace proviso.
See Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (stating,
“Where a petitioner’s judgment of sentence became final on or before the
effective date of the amendment [to the PCRA], a special grace proviso
allowed first PCRA petitions to be filed by January 16, 1997”).
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several of Appellant’s prior PCRA petitions have relied on the “missing”
transcripts of January 10 and 13, 1992. See, e.g., Grant 2, at 3 (stating
counsel was not ineffective regarding jury charge issue); Grant 3, at 4-5
(citing to the January 10, 1992 transcript); see also Grant 1 (holding jury
charge issue lacked merit). In sum, we hold that the PCRA court’s
determination that it lacked jurisdiction is free from legal error. See Wilson,
824 A.2d at 333; see also Fahy, 737 A.2d at 223.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/18
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