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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
JEROME BLANCHETT
Appellant No. 312 MDA 2018
Appeal from the PCRA Order entered December 6, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0004472-2008
BEFORE: STABILE, MURRAY, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 18, 2018
Appellant, Jerome Blanchett, appeals pro se from the December 6, 2017
order entered in the Court of Common Pleas of Dauphin County, denying as
untimely his third petition for collateral relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Appellant contends
his petition is saved from the PCRA’s timeliness requirement based on newly-
discovered evidence. Upon review, we affirm.
In a November 8, 2017 opinion in support of its Rule 907 notice of intent
to dismiss Appellant’s third petition, the PCRA court explained:
Following a trial conducted March 30, 2009 through April 2, 2009,
a jury found [Appellant] guilty of four counts of robbery, three
counts of criminal conspiracy to commit robbery, and two counts
of aggravated assault, arising out of the brutal assaults and
robberies of pizza delivery men between March and May 2008.
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On April 22, 2009, . . . the [c]ourt imposed an aggregate sentence
of 52 to 104 years[’] incarceration in a state correctional
institution. [Appellant] appealed. On April 16, 2010, the Superior
Court affirmed the judgment of sentence. On September 13,
2010, the Pennsylvania Supreme Court denied allowance of
appeal.
PCRA Court Memorandum Opinion and Order, 11/8/17, at 1-2. The PCRA
court detailed the filing of a first and second PCRA petition, both of which were
denied. Id. at 2. Subsequently, as the PCRA explained:
On May 6, 2016, [Appellant] filed a document entitled “Motion
Requesting Permission to Supplement and/or Amend a Claim of
Actual Innocence to the [PCRA] Petition Held Before This Court
Pursuant to Pa.R.Crim.P. Rule 905.” On August 17, 2017,
[Appellant] filed a “Motion to Compel.” In that Motion, [Appellant]
attached a letter dated April 11, 2016, which he purportedly
received from an attorney associated with the Pennsylvania
Innocence Project. The letter apprised [Appellant] of receipt of a
statement from a prisoner, Johnnie Mccollum. In the statement,
Mccollum claimed that “there was some robberies that I did that
Blanchett is actually innocent of.” (Motion to Compel, Exhibit A.).
The Pennsylvania Innocence Project has not entered an
appearance or filed any documents on behalf of [Appellant].
Id. at 2-3.
The PCRA court directed the Commonwealth to file an answer to the
motion. In its response, the Commonwealth asserted that the court should
treat the motion as a PCRA petition and asked the court to direct Appellant to
file an amended petition. The court agreed and ordered Appellant to file an
amended PCRA petition. Appellant complied, filing an amended petition that
incorporated his claim that Mccollum admitted committing robberies of which
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Appellant was convicted. Amended PCRA Petition, 12/29/16. The
Commonwealth filed a response.
As noted above, on November 8, 2017, the PCRA court filed its notice
of intent to dismiss Appellant’s amended PCRA petition. The court explained
that Appellant’s petition, his third PCRA petition, was facially untimely and
failed to plead an exception to the PCRA’s timeliness requirements. Appellant
filed a response, contending the PCRA court erred by relying on 42 Pa.C.S.A.
§ 9543(a)(2)(vi)1 and by failing to address the merits of his claim.
By order entered December 6, 2017, the PCRA court dismissed
Appellant’s petition, noting that Appellant’s response to the court’s Rule 907
notice “fail[ed] to raise any issue not fully addressed in our Memorandum
Opinion filed November 8, 2017.” PCRA Order, 12/6/17, at 1. This appeal
followed.2 The PCRA court did not order Appellant to file a Rule 1925 concise
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1 The subsection to which Appellant refers involves a showing that a
petitioner’s conviction or sentence resulted from “[t]he 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.A. § 9543(a)(2)(vi).
2 The deadline for filing an appeal to this Court was Friday, January 5, 2018.
Appellant’s notice of appeal was self-dated January 4, 2018 and included the
purported signature of a corrections officer with a notation indicating the
“Prisoner Mailbox Rule Applies.” However, the notice of appeal was not
received and docketed until Tuesday, January 10, 2018.
On April 16, 2018, we issued a rule to show cause why the appeal should not
be dismissed as untimely. Appellant did not respond. On May 3, 2018, the
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statement of errors complained of on appeal. On March 5, the PCRA court
issued a Rule 1925(a) opinion indicating that its reasons for dismissing
Appellant’s petition were set forth in its November 8, 2017 Memorandum
Opinion.
In this appeal, Appellant asks us to consider one issue: “Whether the
PCRA court erred when the court denied an evidentuary [sic] hearing on a
claim of actual innocence?” Appellant’s Brief at 3 (some capitalization
omitted).
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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show-cause order was discharged and the issue was referred to this merits
panel.
Pa.R.A.P. 121(a) provides that a pro se filing by an incarcerated individual is
deemed filed on the date it is delivered to prison authorities for mailing, “as
evidenced by a properly executed prisoner cash slip or other reasonably
verifiable evidence of the date that the prisoner deposited the pro se filing
with the prison authorities.” Pa.R.A.P. 121(a) (emphasis added). We decline
to quash the appeal as untimely, recognizing that the date of receipt indicates
it is likely Appellant placed his notice of appeal into the hands of prison
authorities on or before Friday, January 5, 2018. See Commonwealth v.
Patterson, 931 A.2d 710, 714 (Pa. Super. 2007) (“Although the record is
bereft of the envelope in which the notice of appeal was mailed, and thus lacks
a postmark definitively noting the date of mailing, [based on the dates,
including an intervening weekend], in order for the trial court to have received
the notice of appeal by [the deadline], it is likely that [a]ppellant mailed his
notice of appeal on or before [the deadline]. Accordingly, we decline to quash
the appeal for untimeliness.”).
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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.
As noted above, in April 2009 a jury found Appellant guilty to various
offenses, including robbery, conspiracy, and aggravated assault. He was
sentenced to 52 to 104 years in prison. After this Court affirmed Blanchett’s
judgment of sentence, our Supreme Court denied his petition for allowance of
appeal on September 13, 2010. Blanchett did not seek review from the United
States Supreme Court. Therefore, his judgment of sentence was final on
December 13, 2010, 90 days after our Supreme Court denied his petition for
allowance of appeal,3 and Blanchett had until December 13, 2011 to file a
timely petition for collateral review.
The instant appeal is from dismissal of Blanchett’s third petition for
collateral relief. This petition was filed on May 6, 2016, more than four years
after his judgment of sentence became final. Therefore, the petition is facially
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3 The 90th day was actually Sunday, December 12, 2010. Accordingly,
Appellant had until the following business day, Monday, December 13, 2010,
to file for a writ of certiorari to the Supreme Court of the United States. See
U.S. Sup.Ct. Rule 30.
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untimely and we may not consider it unless Blanchett 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). Because timeliness is separate and
distinct from the merits of Blanchett’s underlying claims, we must 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).
Blanchett asserts that his current petition is saved from the PCRA’s time
bar based on newly-discovered facts set forth in the letter from Johnnie
Mccollum in which Mccollum admitted committing robberies for which
Appellant was convicted. Appellant’s Brief at 6.
As this Court stated in Commonwealth v. Medina, 92 A.3d 1210 (Pa.
Super. 2014) (en banc):
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
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the exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii)
(emphasis added).
Id. at 1216 (quoting Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa.
2007)). The focus of the exception is “on facts, not on a newly discovered or
newly willing source for previously known facts.” Commonwealth v.
Marshall, 947 A.2d 714, 721 (Pa. 2008) (citation omitted) (emphasis in
original).
Blanchett has not met this burden. As the PCRA court recognized,
[Appellant’s] presentation of an after-trial confession fails to
satisfy his burden of proving the timeliness exception. First,
[Appellant] fails to plead why Mccollum’s alleged involvement
could not have been obtained at or prior to the conclusion of trial
by the exercise of reasonable diligence. In spite of thorough
investigation of the robberies, [Appellant’s] representation by
experienced counsel, and the defense theory that [Appellant] did
not commit the crimes, the evidence contained no mention of
Johnnie Mccollum. The issue of [Appellant’s] involvement in the
crimes is cumulative of matters fully addressed at trial.
[Further, Appellant] offers Mccollum’s statement solely to impeach
the credibility of trial witnesses who identified [Appellant] as the
assailant.
PCRA Court Memorandum Opinion and Order, 11/7/17, at 7.
Our review of Appellant’s amended PCRA petition confirms the PCRA
court’s findings. In his amended petition, Appellant simply pronounces that
his “claim of Actual Innocence raised in this present petition could not have
been presented in [his] original PCRA petition nor in [his] subsequent
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petition.” Amended Petition, Appendix at 2.4 He suggests that by filing the
petition within 60 days of his receipt of the letter from Johnnie Mccollum, his
petition is timely. However, he does not allege, let alone prove, that his
“newly-discovered facts” could not have been ascertained by the exercise of
due diligence, as required by 42 Pa.C.S.A. § 9545(b)(1)(ii).
We agree with the PCRA court’s conclusion that Appellant’s third PCRA
petition was untimely and that Appellant failed to plead or prove any exception
to the PCRA’s timeliness requirements. Therefore, like the PCRA court, this
Court does not have the authority to hear Appellant’s claims.5
Order affirmed.
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4 The quoted statement appeared in Appellant’s May 6, 2016 motion seeking
to supplement his PCRA petition. That motion was appended to Appellant’s
amended PCRA petition filed on December 29, 2016.
5Appellant contends the PCRA court erred by not conducting an evidentiary
hearing before dismissing his petition. As this Court has recognized:
[A] petitioner is not entitled to a PCRA hearing as a matter of
right; the PCRA court can decline to hold a hearing if there is no
genuine issue concerning any material fact and the petitioner is
not entitled to post-conviction collateral relief, and no purpose
would be served by any further proceedings.
Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa. Super. 2008) (quoting
Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa. Super. 2007)).
Because Appellant’s third PCRA petition was untimely filed, no purpose would
have been served by holding a hearing.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/18/2018
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Com. v. Blanchett, J.
Combined Opinion