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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DEWAYNE JACKSON :
:
Appellant : No. 576 WDA 2018
Appeal from the PCRA Order March 9, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007527-2000,
CP-02-CR-0016994-2000
BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED MAY 30, 2019
Appellant, Dewayne Jackson, appeals pro se from the order denying his
serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. We affirm.
In a memorandum disposing of Appellant’s direct appeal, a panel of this
Court set forth the facts of this case as follows:
In the early morning hours of August 27, 1997, Barbara Flewellen
and her daughter, Melkeya Brown, were out celebrating Ms.
Brown’s 21st birthday in the Homewood section of the City of
Pittsburgh. As they crossed the street, Appellant approached
them brandishing a gun and demanded Ms. Brown’s necklace. The
victim, Todd Snyder, was standing on the sidewalk and criticized
Appellant for bothering the women. After Ms. Brown gave
Appellant the necklace, the women turned to leave and heard
Appellant and the victim arguing which was immediately followed
by the sound of gunshots. Police and paramedics soon arrived,
and Mr. Snyder was pronounced dead at the scene. The cause of
death was multiple gunshot wounds. Appellant was arrested
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several weeks later and charged with the murder of Mr. Snyder
and robbery of Ms. Brown.
Commonwealth v. Jackson, 830 A.2d 1046, 1681 WDA 2001 (Pa. Super.
filed May 12, 2003) (non-precedential decision at 1-2).
At separate docket numbers, Appellant was charged with one count each
of criminal homicide and robbery.1 On June 13, 2001, a jury convicted
Appellant of first-degree murder and robbery. On August 28, 2001, the trial
court sentenced Appellant to serve a term of incarceration of life for the
murder conviction and a consecutive term of incarceration of five to fifteen
years for the robbery conviction.
On May 12, 2003, this Court affirmed Appellant’s judgment of sentence.
Jackson, 830 A.2d 1046, 1681 WDA 2001 (non-precedential decision). On
March 24, 2004, our Supreme Court granted Appellant’s petition for allowance
of appeal. Commonwealth v. Jackson, 847 A.2d 58 (Pa. 2004). However,
on October 7, 2004, the appeal was dismissed as having been improvidently
granted. Commonwealth v. Jackson, 857 A.2d 1292 (Pa. 2004).
On November 10, 2005, Appellant timely filed his first PCRA petition.
Counsel was appointed, an amended petition was filed, and hearings were
held on August 16 and 20, 2007. The PCRA court denied relief on February
1, 2008. This Court affirmed the order denying relief on February 20, 2009,
and Appellant’s petition for allowance of appeal to our Supreme Court was
____________________________________________
1 18 Pa.C.S. §§ 2501 and 3701, respectively.
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denied on July 22, 2009. Commonwealth v. Jackson, 970 A.2d 469, 257
WDA 2008 (Pa. Super. filed February 20, 2009) (non-precedential decision),
appeal denied, 981 A.2d 218 (Pa. 2009).
Appellant filed a second PCRA petition on March 26, 2014. On May 28,
2014, the PCRA court dismissed the petition as untimely filed. Appellant then
appealed to this Court, and on October 30, 2014, we sua sponte quashed due
to the appeal having been untimely filed.
Appellant filed the instant PCRA petition on September 28, 2017. On
March 9, 2018, the PCRA court dismissed the petition. This timely appeal
followed.2
Appellant presents the following issues for our review, which we
reproduce verbatim:
APPELLANT CHALLENGES HIS CONVICTION AS TAINTED, BY
KNOWINGLY PERJURED TESTIMONY IN VIOLATION OF HIS
FOURTEENTH AMENDMENT, RIGHT TO DUE PROCESS, WHICH
LED TO A MISCARRIAGE OF JUSTICE, TO SHOW APPELLANT’S
INNOCENCE.
____________________________________________
2 We observe that Appellant’s notice of appeal lists two trial court docket
numbers. On June 1, 2018, our Supreme Court decided Commonwealth v.
Walker, 185 A.3d 969, 977 (Pa. 2018). Citing the official note to Pa.R.A.P.
341, the Walker Court prospectively determined that separate notices of
appeal must be filed when convictions arise from separate dockets. However,
our Supreme Court applied Walker prospectively from June 1, 2018, because
it was “contrary to decades of case law from [the Supreme] Court and the
intermediate appellate courts that, while disapproving of the practice of failing
to file multiple appeals, [appellate courts] seldom quashed appeals as a
result.” Walker, 185 A.3d at 977. Because Walker was decided after the
instant appeal was filed, we will not apply it, and we decline to quash this
single appeal.
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THE COMMONWEALTH FAILED TO DISCLOSE POLICE
PHOTO I.D. 267966, THAT APPELLANT WAS PICKED OUT OF ON
AUGUST 27, 1997, BY ROBBERY WITNESS MELKEYA BROWN AND
BARBRA BROWN, WHICH CAUSED A BRADY VIOLATION FOR
APPELLANT TO PROPERLY PREPARE FOR TRIAL.
Appellant’s Brief at 1.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.
2016). The PCRA court’s findings will not be disturbed unless there is no
support for them in the certified record. Commonwealth v. Lippert, 85 A.3d
1095, 1100 (Pa. Super. 2014).
A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). 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.” 42 Pa.C.S. § 9545(b)(3). This time requirement is mandatory and
jurisdictional in nature, and the court may not ignore it in order to reach the
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merits of the petition. Commonwealth v. Hernandez, 79 A.3d 649, 651
(Pa. Super. 2013).
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and
(iii), is met.3 A petition invoking one of these exceptions must be filed within
one year of the date the claim could have been presented. 42 Pa.C.S. §
9545(b)(2).
As previously noted, our review of the record reflects that Appellant’s
judgment of sentence was affirmed by this Court on May 12, 2003. Jackson,
830 A.2d 1046, 1681 WDA 2001. On October 7, 2004, our Supreme Court
ultimately dismissed Appellant’s appeal as having been improvidently granted.
____________________________________________
3 The exceptions to the timeliness requirement 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. § 9545(b)(1)(i), (ii), and (iii).
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Commonwealth v. Jackson, 857 A.2d 1292 (Pa. 2004). However, Appellant
did not file a petition for writ of certiorari with the United States Supreme
Court. Accordingly, Appellant’s judgment of sentence became final on January
5, 2005, ninety days after the Pennsylvania Supreme Court dismissed
Appellant’s appeal and the time for filing a petition for review with the United
States Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3) (providing that
“a judgment 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.”); U.S.Sup.Ct.R. 13. Thus, the instant PCRA petition, filed on
September 28, 2017, is patently untimely.
Our review of the certified record reflects that Appellant attempted to
invoke the third exception to the PCRA timeliness requirements, i.e., “the right
asserted is a constitutional right that was recognized by the Supreme Court
of the United States,” 42 Pa.C.S.§ 9544(b)(1)(iii), with reliance upon the
United States Court of Appeals for the Third Circuit’s decision in Haskell v.
Superintendent Greene SCI, 866 F.3d 139 (3d Cir. 2017). PCRA Petition,
9/28/17, at 1, Appendix at 3. However, the decision in Haskell does not
qualify as a new constitutional right exception because it did not set forth a
constitutional right recognized by the Supreme Court of the United States or
the Supreme Court of Pennsylvania. Rather, Haskell relies on a line of United
States Supreme Court cases to find that a constitutional violation exists where
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the prosecution in a criminal matter either knew testimony was false, or
should have known that testimony was false. Haskell, 866 F.3d at 146. Thus,
Appellant has not carried his burden to plead and prove applicability of one of
the exceptions to the timeliness requirement. Hence, the PCRA court did not
commit any error in dismissing Appellant’s petition as untimely.
In conclusion, the PCRA petition was untimely and no exceptions apply.
Therefore, the PCRA court lacked jurisdiction to address any claims presented.
See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002)
(holding that PCRA court lacks jurisdiction to hear an untimely petition).
Likewise, we lack the authority to address the merits of any substantive claims
raised in the PCRA petition. See Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to a court’s right or
competency to adjudicate a controversy.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/2019
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