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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
THORNTON SAVAGE, :
:
Appellant : No. 2332 EDA 2016
Appeal from the PCRA Order June 28, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1210952-1985
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 21, 2018
Thornton Savage appeals from the order, entered in the Court of
Common Pleas of Philadelphia County, denying his petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After
review, we affirm.
The trial court summarized the factual and procedural history of this
case as follows:
On November 10, 1985, [Savage] argued with sixteen [] year[-
]old Lamont Poller inside a bar [] in Philadelphia. The argument
spilled into the street, and [Savage] shot Poller in the back as the
unarmed victim ran away. [] [F]ollowing a jury trial, [Savage]
was convicted of first[-]degree murder and related offenses, and
sentenced to life in prison without the possibility of parole. The
Superior Court [] affirmed [Savage’s] judgment of sentence on
December 19, 1989. On January 17, 1992, the Supreme Court
affirmed said judgment, and denied re-argument on May 15,
1992.
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On April 16, 2015, [Savage] filed his sixth [PCRA] [p]etition[.]
. . . [Savage] claims entitlement to relief based on the racial
composition of his jury.[1]
Trial Court Opinion, 6/6/17, 1-2.
Savage amended the instant PCRA petition three times on March 10,
2016, April 18, 2016 and April 26, 2016.2 On June 28, 2016, the PCRA court
dismissed Savage’s sixth PCRA petition. Savage filed a timely notice of appeal
on July 8, 2016. Both Savage and the trial court have complied with Pa.R.A.P.
1925. On appeal, Savage raises the following issues for our review:
1. Whether the PCRA court erred when it failed to analyze [] new
evidence related to [] Savage’s Batson claim, but instead,
wrongfully concluded that [] [his] [Batson] claim was
previously litigated, and therefore, untimely?
2. Whether the PCRA court erred when it based its decision to
dismiss [] Savage’s PCRA petition, in part, on statements taken
out of context in this Court’s 2014 Opinion . . . affirming the
dismissal of [] Savage’s untimely PCRA petition?
3. Whether the PCRA court erred in holding that [] Savage’s
petition was untimely filed under the newly-discovered
evidence and government interference exceptions to the PCRA
time bar?
4. Whether [] Savage’s conviction should be vacated because of
Jack McMahon’s racially discriminatory jury selection?
5. Whether the PCRA court erred in dismissing [] Savage’s
petition without holding an evidentiary hearing[?]
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1 Savage premises his argument on the rule announced in Batson v.
Kentucky, 476 U.S. 79 (1986). Savage raised a Batson claim in several
previous PCRA petitions, all of which the PCRA court dismissed. This is at least
the third time Savage has sought PCRA relief through a Batson claim.
2 Savage avers that he became aware of the discovery of voir dire sheets on
April 15, 2015.
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Brief of Appellant, at 3-4.
“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).
Before addressing the merits of Savage’s claims, 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 of the exceptions in §
9545(b)(1)(i)-(iii) applies and the petition is filed within 60 days of the date
the claim could have been presented.” Commonwealth v. Copenhefer, 941
A.2d 646, 648 (Pa. 2007) (internal citations and footnote omitted).
Jurisdictional time limits go to a court’s right or competency to
adjudicate a controversy. These limitations are mandatory and
interpreted literally; thus, a court has no authority to extend filing
periods except as the statute permits. Unlike a statute of
limitations, a jurisdictional time limitation is not subject to
equitable principles such as tolling except as provided by statute.
Thus, the filing period is only extended as permitted; in the case
of the PCRA, the time limitations are extended upon
satisfaction of the exceptions found in § 9545(b)(1)(i)-(iii)
and timely filing pursuant to (b)(2). As it has been established
that the PCRA’s time restrictions are jurisdictional, we hold that
the period for filing a PCRA petition is not subject to the doctrine
of equitable tolling, save to the extent the doctrine is embraced
by § 9545(b)(1)(i)-(iii).
Fahy, 737 A.2d at 222 (citations omitted) (emphasis added).
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Instantly, we review whether the PCRA court erred by holding Savage’s
sixth PCRA petition was untimely. See 42 Pa.C.S.A. § 9545(b)(1); Fahy, 737
A.2d at 222. Savage’s judgment of sentence became final on or about August
15, 1992, ninety days after our Supreme Court denied re-argument. U.S.
Sup. Ct. Rule 13; Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super.
1998) (conviction become final after Pennsylvania Supreme Court denies
allocatur and time for seeking certiorari in United States Supreme Court
expires). Savage filed the instant PCRA petition almost twenty-three years
later. Thus, this Court must discern whether the PCRA court erred by holding
Savage did not plead or prove either the government interference or newly-
discovered evidence timeliness exception. Trial Court Opinion, 6/6/17, at 5.
See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii); Copenhefer, 941 A.2d at 648.
The three timeliness exceptions are:
(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.A. § 9545(b)(1)(i)-(iii).
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Savage avers that the PCRA court erred in holding that he filed his
petition late. Specifically, Savage argues that newly-discovered facts related
to his voir dire proceeding support his claim that the government interfered
with his attempt to prove his Batson claim. In effect, Savage raises two time-
bar exceptions, which intertwine with one another.
In order to meet the statutory requirements of the
“governmental interference” exception to the PCRA’s one[-]year jurisdictional
time-bar, [an appellant is] required to plead and prove that his “failure to raise
the claim [or claims] previously was the result of interference by government
officials with the presentation of the claim [or claims] in violation of the
Constitution or law of this Commonwealth or the Constitution or laws of the
United States[.]” 42 Pa.C.S.A. § 9545(b)(1)(i).
In order to meet the requirement of the newly-discovered facts
exception, “a petitioner must allege and prove that there were ‘facts’ that were
‘unknown’ to him and that he exercised ‘due diligence.’” Commonwealth v.
Bennett, 930 A.2d 1264, 1270 (Pa. 2007) (footnote omitted). In other
words, “a petitioner must explain why he could not have learned the
new fact(s) earlier with the exercise of due diligence.” Commonwealth v.
Brown, 111 A.3d 171, 176 (Pa. Super. 2015). This rule is strictly
enforced. Id. “If the petitioner alleges and proves these two components,
then the PCRA court has jurisdiction over the claim under this subsection.”
Id. at 1272. “The focus of the exception is on the newly-discovered
facts, not on a newly-discovered or newly-willing source for
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previously known facts.” Commonwealth v. Marshall, 947 A.2d 714,
720 (Pa. 2008) (quotation marks and citation omitted) (emphasis added).
In Commonwealth v. Brown, this Court discussed, in greater detail,
the exception set forth in section 9545(b)(1)(ii):
The timeliness exception set forth at Section 9545(b)(1)(ii) has
often mistakenly been referred to as the “after-
discovered evidence” exception. Bennett, [] 930 A.2d at 1270.
“This shorthand reference was a misnomer, since the plain
language of subsection (b)(1)(ii) does not require the petitioner
to allege and prove a claim of ‘after-
discovered evidence.’” Id. Rather, as an initial jurisdictional
threshold, Section 9545(b)(1)(ii) requires a petitioner to
allege and prove that there were facts unknown to him and
that he exercised due diligence in discovering
those facts. See 42 Pa.C.S.A. § 9545(b)(1)(ii); Bennett,
supra. Once jurisdiction is established, a PCRA petitioner can
present a substantive after-discovered-evidence claim. In other
words, the “new facts” exception at:
[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. If the petitioner alleges and proves these
two components, then the PCRA court has jurisdiction
over the claim under this subsection.
Bennett, [] 930 A.2d at 1272 (internal citations omitted)
(emphasis in original). Thus, the “new facts” exception at Section
9545(b)(1)(ii) does not require any merits analysis of an
underlying after-discovered-evidence claim. Id. at 395.
Brown, supra at 176-177 (emphasis added).
Here, Savage argues that he is entitled to relief based on an alleged
violation of Batson, when then-Assistant District Attorney Jack McMahon used
peremptory challenges to strike a black venire person, resulting in an all-white
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jury. Savage also argues that he is entitled to relief based on the newly-
discovered fact that there was “governmental interference” in obtaining the
transcripts from his voir dire proceeding. See 42 Pa.C.S.A. § 9545(b)(1)(i).
Specifically, Savage argues that voir dire sheets recovered from his co-
defendant’s case file and an affidavit prepared by the Deputy Court
Administrator for the First Judicial District of Pennsylvania constitute newly-
discovered facts that also demonstrates governmental interference. The
relevant inquiry here is whether the voir dire sheets and affidavit evidence
newly-discovered facts or are just new sources for previously known facts.
Savage first alleges that the Court Reporter covered up the loss of his
voir dire transcripts; as evidence of this, Savage cites a letter he received on
July 26, 2000. The letter purportedly states that his voir dire hearing was
never transcribed; Savage characterizes that assertion as an intentional lie.
To meet the newly-discovered fact exception, Savage now presents an
affidavit prepared by the Deputy Court Administrator of Philadelphia County.
Savage avers that the affidavit “flat out disputes the contents of the [July 26,
2000] letter and uncovers an intentional lie told to Mr. Savage by the Court
Reporter’s Office.” Brief of Appellant, at 6. In short, Savage argues that the
affidavit evidences governmental interference.
However, the affidavit prepared by the Deputy Court Administrator
belies Savage’s assertion that it evidences government interference.
Specifically, the affidavit states, “it is inconceivable that any senior staff would
have sent or authorized the sending of the ‘2000 Letter.’” Deputy Court
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Administrator Affidavit, 4/25/16, at 1. The affidavit goes on to suggest that
the 2000 Letter’s suggestion that voir dire was not recorded by a court
reporter is inaccurate; “[t]he docket reflects that Beverly Lawson[] was the
stenographer assigned to Judge Ivin’s courtroom[,]” id., and thus, should
have taken down the voir dire proceedings. Ultimately, the letter concludes
that the stenographer likely contemporaneously took down the voir dire
proceeding and subsequently prepared transcripts that were later lost,
misfiled or taken. In other words, the affidavit concludes that in all likelihood
the voir dire transcripts were prepared and then lost. The affidavit, as Savage
alleges, does not suggest that the government intentionally compromised his
ability to acquire the voir dire sheets or lied to him. Additionally, Savage has
failed to show that the voir dire sheets are an underlying source of a newly-
discovered fact. See Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa.
2013) (to constitute “facts” which were unknown to petitioner and could not
have been ascertained by the exercise of due diligence, the information must
not be facts that were previously known but are now presented through newly-
discovered source). The affidavit is not newly-discovered evidence, but
rather, newly-created evidence that confirms a previously known fact (i.e.,
that the voir dire transcripts were likely lost).
Second, Savage argues that the voir dire sheets from his voir dire
proceeding constitute newly-discovered evidence. However, while Savage’s
brief compellingly argues why the voir dire sheets are, in fact, newly
discovered (i.e., they could not have been discovered with due diligence and
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are public documents3), his brief is devoid of any argument regarding what
new evidence the sheets present. Our review of the record and the voir dire
sheets confirms only what Savage knew at the time of his trial: his jury was
composed entirely of white jurors.
In light of the foregoing, the PCRA court lacked jurisdiction to consider
Savage’s petition. Having discerned no error of law by the trial court, we
conclude that the trial court was correct in determining that it is without
jurisdiction to entertain Savage’s PCRA claims.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/18
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3 See Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017).
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