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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROBERT WASHINGTON :
:
Appellant : No. 1423 EDA 2018
Appeal from the PCRA Order May 2, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0200121-2004,
CP-51-CR-0200131-2004
BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED MAY 29, 2019
Appellant Robert Washington appeals from the order dismissing his
fourth Post Conviction Relief Act1 (PCRA) petition as untimely. Appellant
claims he recently discovered that he was taken into custody without an arrest
warrant and affidavit of probable cause. Appellant asserts that without a valid
arrest warrant, the trial court lacked subject matter jurisdiction to accept his
guilty plea and sentence him. We affirm.
In November 2003, Appellant was taken into custody, and the
Commonwealth filed criminal complaints charging Appellant with numerous
offenses, including homicide, in two cases.2 In February 2014, the Municipal
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1 42 Pa.C.S. §§ 9541-9546.
2Appellant, who was born on October 8, 1986, was seventeen years old when
he committed the offenses.
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Court held the matters for proceedings in the Court of Common Pleas. This
Court previously adopted the following summary of the procedural history of
Appellant’s conviction and the first two PCRA proceedings:
On October 12, 2004, [Appellant] pled guilty to third-degree
murder, robbery (two counts), aggravated assault and criminal
conspiracy. Th[e trial] court deferred [Appellant’s] sentencing
hearing until the completion of his accomplice’s trial.
While awaiting sentencing, [Appellant] filed a motion to withdraw
his guilty plea and requested the appointment of new counsel. On
September 16, 2005, th[e trial] court held a hearing with regard
to [Appellant’s] motions. [Appellant] ultimately withdrew his
motions, and his case proceeded to sentencing. The court
imposed concurrent prison terms of thirteen (13) to twenty-six
(26) years on the murder bill and five (5) to ten (10)-year prison
terms on each of the remaining bills. [Appellant] filed a motion
for Reconsideration and/or Modification of Sentence. The court
denied the motion on October 3, 2005. [Appellant] then filed an
appeal in the Superior Court. On August 1, 2006, the Superior
Court affirmed [Appellant’s] judgment of sentence.
Commonwealth v. Washington, 2969 EDA 2005 (Pa. Super.
Aug. 1, 2006) (unpublished [mem.]). The Pennsylvania Supreme
Court denied his Petition for Allowance of Appeal on January 18,
2007. Commonwealth v. Washington, 918 A.2d 745 (Pa.
2007) (per curiam).
On October 30, 2007, [Appellant filed] a PCRA petition. The
[PCRA] court appointed counsel on [Appellant’s] behalf. Counsel
thereafter filed a brief pursuant to Commonwealth v. Finley,
550 A.2d 213 (Pa. Super. 1988) [(en banc)], stating that the
issues raised in the pro se petition were without merit and that no
meritorious issues or defenses could be raised in an amended
petition. On October 3, 2008, after reviewing [Appellant’s] pro se
PCRA petition, counsel’s thorough and exhaustive Finley brief and
the relevant notes of testimony, th[e PCRA] court dismissed the
PCRA petition as frivolous [after issuing a Pa.R.Crim.P. 907
notice].
* * *
[Appellant] appealed th[e PCRA] court’s ruling to the Superior
Court. On February 5, 2009, the Superior Court dismissed the
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appeal because [Appellant] failed to file an appellate brief.
Commonwealth v. Washington, 3206 EDA 2008 (Pa. Super.
Feb. 5, 2009) (per curiam). [Appellant] then filed a Petition for
Review with the Supreme Court. The Supreme Court denied the
petition on July 21, 2009. Commonwealth v. Washington, 977
A.2d 1086 (Pa. 2009) (per curiam).
On or about August 13, 2012, [Appellant] filed [his second pro se]
PCRA petition. [Appellant] claimed that his guilty plea was not
valid and that both trial and PCRA counsel rendered ineffective
assistance. On March 25, 2013, after reviewing [Appellant’s] pro
se PCRA petition and the record, th[e PCRA c]ourt dismissed the
PCRA petition as untimely [after issuing a Rule 907 notice].
Commonwealth v. Washington, 1278 EDA 2013 (Pa. Super. filed Feb. 20,
2014) (unpublished mem.) (internal alterations and footnotes omitted). This
Court affirmed the dismissal of Appellant second PCRA petition, id. at 1, and
the Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal, Commonwealth v. Washington, 180 EAL 2014 (Pa. filed Aug. 20,
2014).
Appellant filed a third pro se PCRA petition, which the PCRA court
received on September 19, 2014. After issuing a Pa.R.Crim.P. 907 notice, the
PCRA court dismissed that petition on April 28, 2015. Appellant did not
appeal.
On April 15, 2016, the PCRA court docketed Appellant’s fourth pro se
PCRA petition, which gives rise to this appeal. On March 2, 2017, the PCRA
court issued a Rule 907 notice indicating that the petition was untimely and
that Appellant failed to invoke a timeliness exception.
In response, Appellant filed a motion to amend his PCRA petition on
March 16, 2017. Appellant alleged that he recently discovered evidence that
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he was taken into custody without an arrest warrant. Specifically, he asserted
that he first discovered the absence of an arrest warrant on November 10,
2016. Appellant attached to his response a Right to Know Law3 (RTKL) request
dated September 24, 2016, and a copy of his administrative appeal dated
October 6, 2016. Appellant also suggested that the Commonwealth violated
Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose that it
proceeded with an illegal prosecution without a valid arrest. Lastly, Appellant
asserted that all prior counsel were ineffective for failing to raise this issue.
On May 2, 2018, the PCRA court dismissed Appellant’s petition as
untimely. On May 11, 2018, Appellant mailed timely notices of appeal, which
were docketed and filed in each of the above captioned case. The court did
not order a Pa.R.A.P. 1925(b) statement.
On appeal, Appellant presents seven questions, which we have
reordered as follows:
[1.] Whether . . . there’s newly-discovered evidence (relating to
the lack of arrest warrant issued)[]?
[2.] Whether . . . there [was] prosecutorial misconduct?
[3.] Whether . . . there were ineffective counsel?
[4.] Whether . . . there [was an] arrest warrant?
[5.] Whether . . . there w[as an] affidavit of probable cause for
the issuance of an arrest warrant?
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3 63 P.S. §§ 67.101-67.3104.
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[6.] Whether the [trial c]ourt had subject-matter jurisdiction?
[7.] Whether . . . the plea was knowing[,] intelligent[,] and
voluntary?
Appellant’s Brief, 6/15/18, at 3.4
Appellant’s first two arguments suggest that the PCRA court erred in
dismissing his petition as untimely. Appellant asserts that he recently
discovered that he was taken into custody without an arrest warrant or
accompanying affidavit of probable cause. Id. at 11. He relies on
Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017), for the
proposition that he could not have been presumed to know information in a
public record. Id. at 9. Moreover, he suggests that the Commonwealth
suppressed the information. Id. at 11.
Our review of the denial of PCRA relief is limited to “whether the record
supports the PCRA court’s determination and whether the PCRA court’s
decision is free of legal error.” Commonwealth v. Lawson, 90 A.3d 1, 4
(Pa. Super. 2014) (citation omitted).
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4 Appellant filed two briefs in this appeal, a typed brief filed in this Court on
June 15, 2018, and a handwritten brief filed August 3, 2018. The handwritten
brief only addresses the underlying merits of Appellant’s claim that his guilty
plea was involuntarily entered and does not argue that the instant petition
was timely filed. For the reasons set forth below, we do not address the issues
and arguments presented in Appellant’s handwritten brief.
Appellant also filed a handwritten application for relief seeking the dismissal
of his convictions based on the Commonwealth’s failure to file a brief in this
appeal. See Application for Relief, 11/26/18. We deny that application.
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“[T]he timeliness of a PCRA petition is a jurisdictional requisite.”
Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015). A PCRA
petition, “including a second or subsequent petition, shall be filed within one
year of the date the judgment becomes final” unless the petitioner pleads and
proves one of three statutory exceptions. 42 Pa.C.S. § 9545(b)(1). The three
statutory exceptions include the following:
(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). To invoke one of these exceptions, a
petitioner must also file his petition within sixty days of the date the claim
could have been presented. See 42 Pa.C.S. § 9545(b)(2) (subsequently
amended effective December 24, 2017).
The Pennsylvania Supreme Court has noted that
[a]lthough a Brady violation may fall within the governmental
interference exception, the petitioner must plead and prove the
failure to previously raise the claim was the result of interference
by government officials, and the information could not have been
obtained earlier with the exercise of due diligence. Section
9545(b)(1)(ii)’s exception requires the facts upon which the
Brady claim is predicated were not previously known to the
petitioner and could not have been ascertained through due
diligence. In [Commonwealth v. Bennett, 930 A.2d 1264, 1271
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(Pa. 2007)], we clarified that § 9454(b)(1)(ii)’s exception does not
contain the same requirements as a Brady claim, noting “we
made clear the exception set forth in subsection (b)(1)(ii) does
not require any merits analysis of the underlying claim. Rather,
the exception merely 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.”
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (citations
omitted).
In Burton, the Pennsylvania Supreme Court held “that the presumption
that information which is of public record cannot be deemed ‘unknown’ for
purposes of subsection 9545(b)(1)(ii) does not apply to pro se prisoner
petitioners.” Burton, 158 A.3d at 638 (emphasis in original). The Burton
Court, however, did not relieve a petitioner from establishing the exercise of
due diligence. See id.
Instantly, Appellant failed to demonstrate the exercise of due diligence.
According to Appellant, it was not until 2016 that he discovered the
information indicating that he was taken into custody without an arrest
warrant in November 2003. In support, Appellant attached a 2016 RTKL
request to his response to the PCRA court’s Rule 907 notice. Appellant
presented no other evidence that he could not have discovered this
information earlier with the exercise of reasonable diligence.
Accordingly, the PCRA court properly concluded that Appellant failed to
establish an exception to the PCRA’s timeliness requirements. See Burton,
158 A.3d at 638; Abu-Jamal, 941 A.2d at 1268. Because Appellant failed to
establish a time-bar exception, we do not consider Appellant’s remaining
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arguments that the trial court lacked jurisdiction, that all prior counsel were
ineffective for raising this claim, or that his plea was invalid.5
Order affirmed. Application for relief denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/29/19
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5 We add that the apparent absence of an arrest warrant in the record does
not affect a trial court’s subject-matter jurisdiction to accept a defendant’s
plea and impose sentence for violations of the Crimes Code. See
Commonwealth v. Jones, 929 A.2d 205, 211-12 (Pa. 2007);
Commonwealth v. Little, 314 A.2d 270, 272-73 (Pa. 1974);
Commonwealth v. Kazior, 410 A.2d 822, 823 (Pa Super. 1979);
Commonwealth v. Walker, 365 A.2d 1279, 1282 (Pa. Super. 1976) (citation
omitted). Additionally, a claim based on prior counsels’ failure to litigate a
claim in a timely manner does not permit a petitioner to avoid the PCRA time-
bar. See Commonwealth v. Edmiston, 65 A.3d 339, 349 (Pa. 2013).
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