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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BRIAN THOMPSON :
:
Appellant : No. 2502 EDA 2018
Appeal from the Order Entered August 16, 2018
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0003498-2005
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED MAY 21, 2019
Brian Thompson appeals from the order denying as untimely his serial
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
On July 7, 2005, Appellant shot and killed the mother of his children,
Crystal Thompson. At trial, Appellant claimed either that the shotgun went
off accidently when he tripped, or that it inadvertently fired while he was
cleaning and playing with the gun because he was under the influence of drugs
and alcohol. To rebut these claims, the Commonwealth presented the
testimony of Appellant’s friend, Richard Mack (“Mack”), who contradicted
Appellant’s testimony that he had been drinking or doing drugs that morning.
Appellant was found guilty of first degree murder and sentenced to life
imprisonment.
Appellant filed a timely direct appeal. On appeal, he contended that the
Commonwealth failed to turn over Brady material about Mack’s parole status
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and elicited false testimony from Mack that he was not on parole at the time
of the murder.1 See Brady v. Maryland, 373 U.S. 83 (1963). On August
24, 2007, this Court affirmed the judgment of sentence. Commonwealth v.
Thompson, 935 A.2d 24 (Pa.Super. 2007) (unpublished memorandum). The
Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on November 19, 2008. Commonwealth v. Thompson, 960 A.2d
840 (Pa. 2008).
Appellant, acting pro se, filed a timely PCRA petition. The PCRA court
appointed counsel, although Appellant elected to proceed pro se with stand-
by counsel. In his petition, Appellant raised numerous issues including
challenging his trial counsel’s effectiveness for failing to request a bill of
particulars for all of the prior convictions of Mack. Following a hearing, the
PCRA court denied Appellant’s first PCRA petition. This Court affirmed the
denial on August 23, 2011. Commonwealth v. Thompson, 32 A.3d 840
(Pa.Super. 2011). The Pennsylvania Supreme Court denied Appellant’s
petition for allowance of appeal. Commonwealth v. Thompson, 38 A.3d
825 (Pa. 2012).
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1 This inconsistency was significant because, as a parolee, Mack could not
consume alcohol without violating the conditions of his parole. Appellant’s
primary defense at trial was diminished capacity from voluntary intoxication.
Appellant testified that, on the morning of the crime, Mr. Mack visited him,
bringing beer, which the two drank as they smoked marijuana. N.T. Trial,
3/8/06, at 124. Mr. Mack testified that he visited Appellant, but they did not
consume any intoxicating substances together and Appellant appeared to be
sober. N.T. Trial, 3/6/06, at 102.
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On September 21, 2012, Appellant, acting pro se, filed his second PCRA
petition. In his petition, Appellant argued that he was entitled to relief under
the newly-discovered facts and governmental interference exceptions to the
PCRA time bar, based on the fact that the Commonwealth never informed him
that Mack had a pending criminal case at the time of Appellant’s trial. The
PCRA court dismissed the petition as untimely, and we agreed.
Commonwealth v. Thompson, 105 A.3d 42 (Pa.Super. 2014) (unpublished
memorandum). Our Supreme Court denied his subsequent petition for
allowance of appeal. Commonwealth v. Thompson, 105 A.3d 42 (Pa.
2014).
On May 1, 2018, Appellant filed his third PCRA petition, in which he
alleged that he had discovered new evidence of previously undisclosed prior
convictions of Mack. Appellant filed a memorandum of law in support of his
petition and the Commonwealth filed its Answer. The PCRA court issued notice
of its intent to dismiss the petition as untimely and Appellant filed a response.
On August 2, 2018, the PCRA court dismissed the petition. This pro se appeal
followed.
Appellant presents the following two issues in his brief:
1. Did the trial court err by dismissing the properly filed PCRA
petition without a hearing where the Appellant established
that the Commonwealth suppressed evidence of numerous
felony convictions by its witness-in-chief?
2. Does the trial court’s failure to address or otherwise dispose
of the July 9, 2018 properly[-]filed motion to amend the
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PCRA and proposed amendment constitute an abuse of
discretion and clear legal error?2
Appellant’s brief at 6.
Our standard of review examines “whether the PCRA court’s
determination is supported by the evidence of record and free of legal error.
We grant great deference to the PCRA court’s findings, and we will not disturb
those findings unless they are unsupported by the certified record.”
Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa.Super. 2017) (citation
omitted).
A PCRA petition must be filed within one year of the date the judgment
of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). “This time constraint is
jurisdictional in nature, and is not subject to tolling or other equitable
considerations.” Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017)
(citation omitted). The time bar can “only be overcome by satisfaction of one
of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)–(iii).”
Id.
Appellant first alleges that he has uncovered newly-discovered facts
which entitle him to a new trial. When considering a claim seeking to invoke
the newly-discovered fact exception, our Supreme Court requires that a
petitioner establish that: “(1) the facts upon which the claim was predicated
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2 We note with displeasure that Appellant’s argument section does not
correspond to his statement of issues.
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were unknown and (2) they could not have been ascertained by the exercise
of due diligence.” Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016)
(citation omitted). Due diligence demands that the petitioner take reasonable
steps to protect his own interests. Commonwealth v. Carr, 768 A.2d 1164,
1168 (Pa.Super. 2001). This rule is strictly enforced. Commonwealth v.
Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010). Additionally, the focus of
this exception “is on the newly discovered facts, not on a newly discovered or
newly willing source for previously known facts.” Commonwealth v.
Marshall, 947 A.2d 714, 720 (Pa. 2008).
Appellant concedes that his petition is untimely, but asserts that he has
newly discovered evidence in the form of Mack’s “numerous felony drug
convictions,” which he discovered on March 8, 2018, from his private
investigator. Appellant’s brief at 8. Appellant contends that he was not
required to exercise due diligence, since it was “patently unreasonable” for
him to conclude that Mack had any more unknown prior convictions after the
conclusion of his second PCRA petition in 2012. Appellant’s brief at 13-14.
The trial court found Appellant’s argument unconvincing and we agree.
The facts at issue are Mack’s prior convictions, which Appellant alleges
that he discovered for the first time in March of 2018. However, Appellant’s
direct appeal and two previous PCRA petitions already raised allegations about
Mack’s criminal history. Appellant was well-aware that Mack had a criminal
record before the conclusion of trial, as trial counsel brought the fact that Mack
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was out of jail on parole at the time of the murder to the attention of the jury,
Commonwealth, and trial court. N.T. Trial, 3/8/06, at 107-09. Additionally,
Appellant’s second PCRA petition challenged the Commonwealth’s failure to
disclose Mack’s pending charges at the time of trial. Therefore, even if
Appellant was not aware of Mack’s entire criminal record at the conclusion of
his second PCRA petition in 2012, Appellant “was [at the very least] put on
notice that there was information unknown to him about Mack’s criminal
history and that further investigation may be necessary” at that time. Trial
Court Opinion, 9/20/18, at 15.
In his brief, Appellant argues that he had no due diligence obligations
after his second PCRA petition was dismissed, because he had no reason to
believe that he did not have Mack’s entire criminal record. Appellant’s brief
at 14. This conclusion fails to account for the fact that “due diligence demands
that the petitioner take reasonable steps to protect his own interests.”
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015). Appellant
concedes this point, admitting that the information recovered during the
pendency of his second PCRA petition led him to continue to investigate Mack’s
prior criminal record. Appellant’s brief at 14-15. In fact, Appellant contends
that immediately following the conclusion of his second PCRA petition he spent
years seeking an investigator and an attorney to assist him. Id. at 24-25.
Thus, by Appellant’s own admission, he was aware of the need for further
investigation into Mack’s criminal record as of 2012.
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Consequently, we reject Appellant’s attempt to tailor his newly-
discovered fact analysis to his alleged 2018 discovery. There are situations in
which a petitioner may passively rely on learning information as opposed to
actively seeking out those facts. See Commonwealth v. Medina, 92 A.3d
1210 (Pa.Super. 2014) (en banc) (finding that a PCRA petition based on
newly-discovered facts was timely where witnesses contacted the defendant
and recanted their testimony, claiming that a police detective coerced their
statements; Medina was not required to contact the witnesses because he had
no reason to suspect the coercion and no duty to engage in a fishing expedition
as to why witnesses lied). However, this is not one of those situations.
In contrast to Medina, the fact that Mack had a prior criminal record
should have been obvious to Appellant back at trial in 2006, when it was
brought to his attention that Mack had been on parole at the time of the
crimes. Therefore, Appellant bore the duty to seek out the facts that he now
attempts to use to support his claim twelve years later. His failure to do so is
fatal to his claim.
Appellant relies on Commonwealth v Burton, 158 A.3d 618 (Pa.
2017), which held that, for purposes of § 9545(b)(1)(ii)’s requirement that
the facts be unknown, materials in the public record are not presumptively
known to an incarcerated pro se petitioner. Appellant contends that his failure
to discover the full extent of Mack’s criminal record prior to 2018 does not
preclude a finding of due diligence in light of Burton, since he was pro se from
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2009 until 2018; therefore, he lacked the necessary “conduit to such records.”
Appellant’s brief at 16. We disagree, and find that Burton does not compel
such a result.
Burton holds only that material in the public record is not presumptively
known to an incarcerated pro se PCRA petitioner just because that information
is publicly available. It does not follow from Burton that Appellant is relieved
of his duty to seek out facts as a matter of due diligence. Appellant has to
prove both that the facts were unknown and that he exercised due diligence
when uncovering them. 42 Pa.C.S. 9545(b)(1)(ii). The knowledge about
Mack’s criminal history gleaned from trial and his previous PCRA petitions
supplied a basis for Appellant to seek out further information. It is readily
apparent from the lengthy delay that resulted, between when Appellant was
put on notice and when he allegedly uncovered the information, that Appellant
failed to proceed in a duly-diligent manner. Notably, Appellant’s claim that he
could not have learned of this information earlier because he was incarcerated
and unrepresented is specious since Appellant remains incarcerated and
unrepresented, yet he became aware of the alleged new material. Therefore,
we conclude that the PCRA court did not err when it determined that Appellant
failed to meet the newly-discovered fact exception to the PCRA time-bar
necessary to establish jurisdiction.
Second, Appellant asserts that the Commonwealth’s failure to disclose
the complete criminal history of Mack constitutes a Brady violation that falls
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within the ambit of the PCRA time-bar exception for governmental
interference. Appellant’s brief at 17-24; see also 42 Pa.C.S. § 9545(b)(1)(i).
Appellant further alleges that “no affirmative due diligence duty is required”
in order to meet this exception. Id. at 22. We disagree.
Although a Brady violation may fall within the governmental
interference exception, that conclusion does not end the analysis, since a
petition must still be filed within sixty days3 of the date the claim could have
been filed pursuant to 42 Pa.C.S. § 9545(b)(2). See also Commonwealth
v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999). This means that a petitioner
must still plead and prove that the failure to previously raise the claim was
the result of interference by government officials, and that the petition was
filed within sixty days of when he could first present the claim.
Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001).
As previously noted, Appellant has failed to convincingly explain why the
information concerning Mack’s prior record could not have been obtained or
presented earlier. Thus, he also fails to meet his burden of proof regarding
the governmental interference exception. We therefore affirm the dismissal
of Appellant’s third PCRA petition on this basis.
Order affirmed.
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3 Since the filing of Appellant’s brief, 42 Pa.C.S. § 9545(b)(2) has been
amended to allow petitioners one year to present claims, in lieu of the
previously-allotted sixty days.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/19
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