Com. v. Cook, M.

J-S38007-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCEL COOK :
:
Appellant : No. 317 WDA 2017

Appeal from the PCRA Order February 3, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000391-1986,
CP-02-CR-0000530-1986

BEFORE: BOWES, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 19, 2018

Marcel Cook appeals pro se from the February 3, 2017 order dismissing

his fourteenth petition seeking post-conviction relief as untimely. After

thorough review, we affirm.

On December 30, 1985, Appellant and his girlfriend broke into the home

Donald Stoker shared with his mother and uncle, and during the course of a

robbery, Appellant’s girlfriend shot Mr. Stoker in the head. Mr. Stoker died

the next day. The victim’s mother and uncle, eyewitnesses to the shooting,

positively identified Appellant from a photographic array.

Appellant was arrested and charged with one count of criminal homicide

at criminal information No. 8600391; one count each of burglary, robbery,

and conspiracy, two counts of Uniform Firearms Act violations, and other

firearms offenses, at No. 8600530. All charges arose from the December 30,

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* Retired Senior Judge assigned to the Superior Court.
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1985 incident. Following his arrest, Appellant made incriminating statements

to police that he later moved to suppress. The suppression motion was not

litigated because Appellant entered a negotiated guilty plea to second-degree

murder and robbery on July 22, 1986. In exchange for the plea, the

Commonwealth agreed to recommend that firearms, conspiracy, and burglary

charges be dismissed, and that Appellant be sentenced to the mandatory term

of life imprisonment for second-degree murder.

Two days after pleading guilty, on July 24, 1986, Appellant filed a pro

se motion to withdraw his guilty plea, alleging that it was his understanding

at the time of the plea that he would receive a sentence of ten to twenty years

incarceration. At sentencing on September 29, 1986, the court denied the

motion, and sentenced Appellant to the mandatory term of life imprisonment.

Thereafter, the court appointed new counsel for post-sentencing proceedings.

Appellant filed a counseled motion to withdraw the guilty plea as

involuntarily and unknowingly entered. He alleged that counsel was

ineffective for failing to properly advise him prior to entry of the plea, and in

failing to file a formal motion to withdraw the plea when he was asked to do

so.1 Following an evidentiary hearing at which trial counsel testified that he
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1 This proceeding occurred under the PCHA. The 1995 amendments provided
that an appellant whose judgment became final on or before January 16,
1996, which is the case herein, shall be deemed to have filed a timely petition
if his first petition is filed within one year of the effective date of the
amendments, on or before January 16, 1997. It also occurred prior to
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), wherein the Supreme
Court ruled that claims of ineffective assistance of counsel would be deferred
to collateral review under the PCRA.

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advised Appellant that life imprisonment was the mandatory sentence for

second-degree murder, the court denied the motion to withdraw the plea.

On appeal, this Court affirmed. Commonwealth v. Cook, 547 A.2d

435 (Pa.Super. 1988) (unpublished memorandum). We noted that, prior to

the court’s acceptance of the plea, Appellant initialed and signed a seven-page

written guilty plea colloquy and participated in an on-the-record oral guilty

plea colloquy. Id. Furthermore, the record established that Appellant was

advised during the colloquy that second-degree murder carried a mandatory

life sentence, and he acknowledged that he understood the sentence. Id.

Finally, we found no basis to disturb the trial court’s determination that

counsel advised Appellant that the mandatory penalty for second-degree

murder was life imprisonment.

Appellant did not seek allowance of appeal in the Supreme Court. On

February 9, 1990, Appellant filed a pro se PCRA petition, his first, and counsel

was appointed. Appellant claimed that he should have been convicted, at

most, of third-degree murder, and that he should not have received a

sentence of life imprisonment. He also alleged that trial counsel was

ineffective in withdrawing and abandoning a meritorious motion to suppress,

and further, that the court and counsel failed to apprise him that by entering

a plea, he was foregoing the right to seek suppression of his statement to

police. Appellant contended that his plea was not voluntary and knowing as

he was unaware of the elements of second-degree murder, or that it carried

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a sentence of mandatory life imprisonment. Finally, he claimed that counsel

abandoned him by failing to file a requested petition for allowance of appeal

to our Supreme Court. He asked that he be allowed to withdraw his plea, or

in the alternative, that he be permitted to plead to third-degree murder.

Following an evidentiary hearing concluding on June 30, 1994, post-

conviction relief was denied. The court found that all claims were either

waived or previously litigated. Appellant timely appealed pro se, and filed

motions in this Court seeking in forma pauperis status, transcripts from the

PCRA evidentiary hearing, and appointment of counsel. All motions were

granted. On May 9, 1995, the appeal was dismissed for failure to file a brief.

Appellant filed a second PCRA petition in 1996, which was denied. On

appeal, this Court affirmed, finding all claims to be related to the guilty plea

and previously litigated. See Commonwealth v. Cook, 712 WDA 1996

(Judgment Order). Thereafter, Appellant filed a series of petitions for writ of

habeas corpus and/or PCRA petitions, which were dismissed for lack of

jurisdiction either due to pending appeals or due to their untimeliness, and

affirmed on appeal. Throughout, Appellant repeatedly sought orders from the

PCRA court, as well as this Court, compelling discovery from the

Commonwealth. Appellant consistently maintained that he had not received

transcripts, documents, and alleged Brady material necessary to establish his

entitlement to relief.

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On December 12, 2016, Appellant filed the instant petition, his

fourteenth, styled as a petition for habeas corpus relief. He alleged therein

that 18 Pa.C.S. § 1102(b), which provides for a sentence of life imprisonment

for a person convicted of second-degree murder, is unconstitutionally vague

as it does not give fair notice that life imprisonment is life imprisonment

without parole. The PCRA court gave notice of its intent to dismiss the petition

as untimely pursuant to Rule 907, and Appellant filed a response reiterating

that the relief sought was not obtainable under the PCRA, and that habeas

corpus was a proper remedy. The court dismissed the petition as an untimely

PCRA petition on February 3, 2017, and this pro se appeal ensued.

Appellant was ordered to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. He sought several extensions and an

evidentiary hearing based on receipt of responses to his right-to-know

requests, and the alleged unavailability of transcripts. On May 18, 2017, the

court entered an order denying Appellant’s motion for an evidentiary hearing

on the right-to-know responses, that Appellant alleged were newly-discovered

facts. However, by order dated September 29, 2017, the court entered an

order giving Appellant until January 3, 2018 to file an amended petition for

post-conviction relief.

On December 4, 2017, Appellant filed a rambling amended petition for

habeas corpus relief in which he pled that governmental interference with his

access to transcripts, such as the transcript of the coroner’s inquest, had

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violated his constitutional right to appellate review. He also alleged, inter alia,

that the search and arrest warrants were invalid, that he exercised due

diligence in discovering materials in the public domain, and that an evidentiary

hearing was required. He reiterated that his sentence was illegal, that all

counsel had abandoned him, and that he should have been permitted to

withdraw his plea, all of which were claims that he had previously litigated.

Attached to the amended petition were responses he received to requests that

he made pursuant to the Right-To-Know Law, specifically a Department of

Corrections sentence status summary, what he called an “information or

indictment” for criminal homicide, and a response from Allegheny County

seeking an extension to provide a response to Appellant’s request for coroner’s

inquest information.

Despite several extensions, Appellant failed to file the ordered concise

statement of errors.2 The PCRA court penned its Rule 1925(a) opinion urging

this Court to affirm since Appellant’s failure to comply with Pa.R.A.P. 1925(b)

resulted in the waiver of all claims on appeal.

Appellant presents three questions for our review:

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2 In seeking an extension to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal, Appellant represented that he needed
“transcripts” in order to file the statement. He also filed an application in this
Court seeking an order compelling the trial court to furnish transcripts. This
Court entered a February 22, 2018 order, granting Appellant leave to raise
the lack of records in his appellate brief. Without specifics, Appellant argues
that governmental interference denied him access to records and transcripts
that would prove his claims of error.

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I. Did the lower court, the District Attorney, and the Allegheny
County coroner non-disclosure of discovery, criminal
investigative files under “Brady Rule,” and lack of access to
the records violated their obligation under the United
State[s] Fourteenth Amendment Constitution, and
Pennsylvania’s Article 1 Section 9 of Pennsylvania
Constitution?

II. Did Appellant’s after-discovered facts under the Right-To-
Know-Law[,] 65 P.S. section 67.708(b)(6)[,] pursuant to
section 9764 Information required upon commitment from
DC-300D. included; DC-16E-Sentence status summary; the
initial information or indictment filed under first degree
murder 2502(A); and the trial court Judge G.H. Ross
sentencing order. Provided to him by the Department of
Correction granting him his right-to-know request. Did
Appellant’s after-discovery facts of being sentenced to an
illegal [sentence] pursuant to 18 Pa.C.S. section 1106. And
under 18 Pa.C.S. section 1102(b) and 104(3)(4), triggered
one of the exception[s]to the PCRA timed-barred rule under
42 Pa.C.S. section 9545(b)(1)(2)(ii)?

III. Did layered abandonment of counsels of records created and
caused absolute prejudice to Appellant’s absolute right to
effective assistance of counsel protected to him by the
United States 6th and 14th Amendments Constitutions, and
Article 1 Section 9, and V section 9 of Pennsylvania
Constitution when Appellant desireously [sic] requested
layered abandonment counsels of records to file various
motion, and ineffectiveness against each other and did
abandoned his requests?

Appellants brief at 1 (unnecessary capitalization omitted).

On appeal from the denial of PCRA relief, our standard of review calls

for us to determine whether the ruling of the PCRA court is supported by the

record and free of legal error. Commonwealth v. Lesko, 15 A.3d 345, 358

(Pa. 2011). We will review an order dismissing a PCRA petition in the light

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most favorable to the prevailing party at the PCRA level. Commonwealth v.

Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012).

The trial court found that Appellant waived all issues because he failed

to file a court-ordered Rule 1925(b) concise statement by January 3, 2018.

The Commonwealth candidly admits that there may have been confusion

surrounding the due date for the concise statement. Although a September

29, 2017 court order permitted Appellant to file an amended petition by

January 3, 2018, it neglected to mention the new due date for the concise

statement. The Commonwealth urges us to affirm on the alternative ground

that the petition is time barred. Due to the apparent confusion surrounding

the extended due date for Appellant’s concise statement, we decline to find

waiver of all issues based on Rule 1925(b) non-compliance. Rather, we will

examine whether Appellant’s petition was timely filed as it implicates our

jurisdiction.

Generally, a petition for post-conviction relief, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final, unless the petitioner alleges and proves that one of the three

exceptions to the time bar applies. “A judgment of sentence becomes 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 time for seeking the review.” Commonwealth v. Hernandez,

79 A.3d 649, 650 (Pa.Super. 2013). Since the time bar is jurisdictional, we

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may not ignore it in order to reach the merits of the petition. Id.; see also

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (reiterating

that merits of a PCRA petition cannot be addressed unless the PCRA court has

jurisdiction).

Appellant concedes that his petition is patently untimely under 42

Pa.C.S. § 9545(b), but maintains that he pled and proved the applicability of

the exceptions to the PCRA time-bar set forth in § 9545(b)(1)(i) and (ii):

(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

....

42 Pa.C.S. § 9545(b)(1).

It is the petitioner’s burden to allege and prove that one of the timeliness

exceptions applies. See Commonwealth v. Smallwood, 155 A.3d 1054,

1060 (Pa.Super. 2017). In addition, a petitioner invoking one or more of the

exceptions must file his petition within sixty days of the date the claim first

could have been presented. 42 Pa.C.S. § 9545(b)(2). The law is well settled

that, “[q]uestions regarding the scope of the statutory exceptions to the

PCRA’s jurisdictional time-bar raise questions of law; accordingly, our

standard of review is de novo.” Commonwealth v. Robinson, 185 A.3d

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1055, 1059 (Pa.Super. 2018) (en banc) (quoting Commonwealth v.

Chester, 895 A.2d 520, 522 n.1 (Pa. 2006)).

In his initial PCRA petition, Appellant did not invoke any of the

exceptions to the PCRA time-bar. See Commonwealth v. Burton, 936 A.2d

521, 525 (Pa.Super. 2007) (“[e]xceptions to the time-bar must be pled in the

PCRA petition, and may not be raised for the first time on appeal”). However,

in his amended petition, Appellant pled that the governmental interference

and newly-discovered facts exceptions rendered his petition timely. He

alleged that the government denied him access to records, transcripts, and

Brady3 material that would have permitted him to prove errors on appeal, but

he did not specifically identify those errors or the underlying claims that he

was unable to present. In addition, he claimed that he recently discovered

new facts through responses received under the Right–To-Know Law that

indicated that his sentence is illegal.

We turn first to Appellant’s claim that his petition was timely filed

because government officials interfered with his ability to raise the claim

previously. Appellant contends that the Commonwealth denied him discovery

and Brady material that effectively precluded him from raising his claims

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3Brady v. Maryland, 373 U.S. 83 (1963) (holding government’s suppression
of material evidence favorable to an accused is a violation of due process).

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earlier. He does not identify the Brady materials, or demonstrate how they

support his claims of error.4

The Commonwealth characterizes Appellant’s claims that the

government did not provide discovery and Brady material as bald assertions

insufficient to establish the governmental interference timeliness exception.

It directs our attention to Commonwealth v. Marshall, 947 A.2d 714, 720-

21 (Pa. 2008), where our High Court ruled that unsupported bare assertions

that the Commonwealth concealed information, not evidence, were insufficient

to prove the applicability of the governmental interference exception. See

also Commonwealth v. Dickerson, 900 A.2d 407, 411 (Pa.Super. 2011)

(rejecting as speculative claim that Commonwealth violated Brady by

concealing an eyewitness’s statement as there was no evidence that a

statement was given, or, if given, that it would have constituted Brady

material).

To the extent that Appellant is suggesting that the recently-received

right-to-know responses constitute the heretofore withheld Brady material

and discovery, his position lacks merit. The Department of Corrections

(“DOC”) sentence status summary, and what appears to be a copy of a docket

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4 In pursuing post-conviction relief, Appellant has repeatedly decried his lack
of transcripts and records. However, the record reflects that, in several prior
proceedings, the courts have granted his requests for transcripts. Appellant
is not entitled to discovery in PCRA proceedings “except upon leave of court
after a showing of exceptional circumstances.” Pa.R.Crim.P. 902(E)(1). No
such showing was made herein.

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sheet, were not Brady material nor discoverable items. The sentencing

summary was created by the DOC after his conviction and sentencing, and it

has no bearing on his guilt or innocence. The docket sheet is a matter of

public record. Furthermore, Appellant has not demonstrated how its alleged

non-disclosure impeded his ability to timely present his claims of error, or that

he asserted the claim within sixty days of obtaining access to that material.

Moreover, Appellant has neither pled nor proved that he filed the instant

petition within sixty days of receiving access to the previously withheld

documents.5 Appellant’s brief with respect to the applicability of the

governmental interference exception consists of citations to legal authorities

and oft-cited legal principles; absent are specifics and developed argument.

See Pa.R.A.P. 2119(a) (requiring parties to articulate their question, discuss

it, and cite to pertinent authorities). Thus, we find that Appellant failed to

establish the applicability of the governmental interference exception.

Appellant’s argument regarding the newly-discovered fact exception is

better articulated, but also woefully deficient. Appellant contends that it was

only due to the responses to his right-to-know requests that he recently

“discovered facts of his illegal sentencing order by the trial [court].” See

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5 Appended to Appellant’s brief are copies of his requests directed to the
Department of Corrections, the Office of the District Attorney of Allegheny
County, the Allegheny County Coroner’s Office, and the Pennsylvania State
Police under the Right-to-Know Law. Appellant’s brief at Exhibit C. Also
appended is the Sentence Status Summary received from the DOC, and what
appears to be a docket sheet from the Clerk of Courts’ Office.

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Appellant’s brief at 11. Specifically, he avers that he learned that he was not

charged with second-degree murder, the charge to which he pled guilty, and

therefore, his sentence is illegal. Since the Commonwealth did not amend the

criminal information to charge second-degree murder, Appellant contends that

he was not provided with notice of the charge to which he pled guilty.

We note preliminarily that Appellant failed to state when he learned of

the new fact, and plead and prove specific facts demonstrating that his claim

was raised within the sixty-day time frame.6 Furthermore, assuming that he

did not known the nature of the charges against him, he failed to plead or

prove why he could not have ascertained these facts earlier with the exercise

of due diligence. See Commonwealth v. Bennett, 930 A.2d 1264, 1270-72

(Pa. 2007). A petitioner invoking the newly-discovered facts exception “must

demonstrate that he did not know the facts upon which he based his petition

and could not have learned those facts earlier by the exercise of due

diligence.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015)

(citations and quotation marks omitted). Appellant has not made the requisite

showing to satisfy the timeliness exception for newly-discovered facts.

Appellant acknowledged in the written and oral colloquies prior to

entering the negotiated plea that he was pleading guilty to second-degree

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6 Appellant filed the within petition on December 12, 2016. The newly-
discovered fact, upon which he relies in support of the timeliness of the
petition, is contained in correspondence from the Pennsylvania Department of
Corrections Right-to-Know Office dated four months later on March 7, 2017.

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murder. The DOC sentence summary, which incorrectly states that he pled

guilty to first-degree murder, is not a newly-discovered fact. Appellant is

using incorrect information he received from a newly-discovered source that

contradicts facts of record long known to him. See Commonwealth v.

Graves, __ A.3d __, 2018 PA Super 279 (Pa.Super. 2018) (citing

Commonwealth v Edmiston, 65 A.3d 339 (Pa. 2013) (facts unknown to the

petitioner for purposes of the newly-discovered facts exception cannot be

information previously known and of public record, but merely presented

through a newly-discovered source)). Furthermore, Appellant’s contention

that his sentence is illegal is based on this newly-discovered fact, i.e., that he

was charged with and pled guilty to first-degree murder, is flatly refuted by

the record.

Moreover, Appellant offers no connection between the alleged new fact

and his illegal sentencing claim. See Commonwealth v. Robinson, 185

A.3d 1055, 1062 (Pa.Super. 2018) (en banc) (“[R]ecognizing the nature of

the underlying claim—as distinguished from assessing its merits—is necessary

to determine whether Appellant acted with due diligence in unearthing the

newly-discovered facts.”). Assuming that Appellant demonstrated that he

could not ascertain the nature of the charges against him with due diligence

until his right-to-know responses were received, the claim does not permit

him to circumvent the time-bar. The DOC sentence summary

notwithstanding, the record establishes that Appellant was charged with

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criminal homicide pursuant to 18 Pa.C.S. § 2501(a) (“A person is guilty of

criminal homicide if he intentionally, knowingly, recklessly or negligently

causes the death of another human being.”). He was not charged with first-

degree murder or any specific degree of murder. As the Commonwealth

correctly points out, the criminal information need not specify the degree of

murder in order to sustain a second-degree murder verdict. Commonwealth’s

brief at 21 n.20 (citing Commonwealth v. Chambers, 852 A.2d 1197, 1199

(Pa.Super. 2004)). Stated plainly, neither the DOC sentencing summary nor

the copy of the docket has any bearing on the legality of the sentence that

Appellant is serving. Thus, Appellant’s discovery of those documents is not a

basis for an exception to the statutory requirements.

Thus, having failed to plead and prove the applicability of a timeliness

exception to the one-year PCRA time bar, we find Appellant’s petition was

untimely filed, and hence, properly dismissed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/19/2018

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