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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOHN GRIFFIN
Appellant : No. 2849 EDA 2018
Appeal from the PCRA Order Entered September 5, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0214273-1975
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 12, 2019
John Griffin appeals from the order dismissing as untimely his petition
filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
In 1974, Griffin was convicted by a jury of first -degree murder and
criminal conspiracy for the strangulation of a fellow prison inmate. The court
sentenced Griffin to mandatory life imprisonment. This Court affirmed Griffin's
judgment of sentence in 1979, and the Pennsylvania Supreme Court denied
his petition for allowance of appeal on April 1, 1980. Between 1985 and 2012,
Griffin filed multiple unsuccessful petitions under the PCRA and its
predecessor, the Post Conviction Hearing Act. See Trial Court Opinion, filed
11/21/18, at 1-2.
Relevant to the instant appeal, Griffin filed his fourth petition on
September 4, 2003. In that petition, he asserted, inter alia, that at a discovery
Former Justice specially assigned to the Superior Court.
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hearing prior to trial, the court had ordered the Commonwealth to provide
Griffin's attorney with the complete criminal record of a Commonwealth
witness, Calvin Hunter;' the Commonwealth had provided a criminal record
showing only one conviction for burglary. However, Hunter had a more
extensive criminal record than the prosecution had disclosed during trial-
including robbery, fraud, and additional burglary convictions. Griffin asserted
that on July 11, 2003, less than 60 days prior to the filing of the petition, two
investigators had uncovered the remainder of Hunter's criminal convictions.
Griffin argued that previous investigators and prior counsel had been unable
to obtain any additional information regarding Hunter's criminal record. Griffin
alleged that the Commonwealth had violated Brady v. Maryland, 373 U.S.
83 (1963), by suppressing Hunter's criminal history and misleading his trial
counsel. Griffin asserted his 2003 PCRA petition was timely under both the
governmental interference and newly discovered facts exceptions to the PCRA
time bar. See 42 Pa.C.S.A. §§ 9545(b)(1)(i) and (ii).
The PCRA court dismissed the 2003 petition as untimely. The court
stated no timeliness exceptions applied, as "[i]t strains credulity to suggest
that [Griffin] could not have ascertained the full criminal record of Mr. Hunter
by the exercise of due diligence. Mr. Hunter's criminal history is a matter of
official record and would have been readily available to [Griffin] and/or his
counsel as a public record." PCRA Ct. Op., filed 4/14/05, at 3 (internal
1 Hunter died prior to Griffin's trial, but his preliminary hearing testimony was
introduced as evidence at trial.
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quotation marks and citation omitted). This Court affirmed the dismissal, and
the Pennsylvania Supreme Court denied allowance of appeal.
Griffin filed the instant PCRA petition, his seventh, on October 13, 2015.
Griffin filed several supplements to the petition, which the PCRA court
accepted. See Tr. Ct. Op. at 2 (stating PCRA court reviewed supplements to
2015 petition along with initial petition). The PCRA court gave notice pursuant
to Pa.R.Crim.P. 907 of its intention to dismiss the petition as untimely, and
Griffin filed a response. The PCRA court dismissed the petition, and Griffin
appealed.
Griffin raises the following issues:
[1.] Whereas Commonwealth v. Burton, 121 A.3d 1063
(Pa.Super. 2015)[(en banc), aff'd,] 158 A.3d 618 (Pa. 2017),
stated, "We hold that the presumption of access to information
available in the public domain does not apply where [the] untimely
PCRA petitioner is [pro se,]" did the PCRA Court err in rejecting
[Griffin]'s 2003 Petition pursuant to the public record rule, as his
Petition raised genuine issues of material facts that warranted
development that newly discovered evidence existed to satisfy the
after discovered facts exception to the timeliness requirement
under [42 Pa.C.S.A. § 9545(b)(1)(ii)]?
[2.] Considering the limitation stated in[Commonwealth v.
Starr, 664 A.2d 1326 (Pa. 1996)]-[w]here the general rule is
subject to at least three limitations that apply when there are
exceptional circumstances, such as where there has been an
intervening change in the controlling law, a substantial change in
facts or evidence giving rise to the dispute in the matter[,] or
where the prior holding was clearly erroneous and would create a
manifest injustice if[ ]followed[-]should the PCRA court have
reviewed the merits of [Griffin]'s claim in his present Petition and
[g]ranted a [h]earing?
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[3.] Was [Griffin] denied his right [under] the Equal Protection
Clause[,] U.S. Const. Amend XIV, and Pa. Const. Art 1 [§] 26[,]
which requires, "all persons similarly situated to be treated alike?"
Griffin's Br. at vi (reordered).
"When reviewing the denial of a PCRA petition, this Court's standard of
review is limited 'to whether the PCRA court's determination is supported by
evidence of record and whether it is free of legal error." Commonwealth v.
Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (quoting Commonwealth v. Pew,
189 A.3d 486, 488 (Pa.Super. 2018)).
As the PCRA's time restrictions are jurisdictional in nature, we may not
address the substantive claims presented in an untimely petition.
Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super. 2017). Typically, a
PCRA petition must be filed within one year of the date the petitioner's
judgement of sentence becomes final, which is at the conclusion of direct
review or the expiration of time for seeking such review. 42 Pa.C.S.A. §
9545(b)(1), (3). Here, Griffin's judgment of sentence became final in 1980,
after the Pennsylvania Supreme Court denied his petition for allowance of
appeal and the time for seeking review in the Supreme Court of the United
States expired. As the 2015 petition was filed over a year later, it is facially
untimely.
A petition filed after the one-year deadline is nonetheless timely if one
of three enumerated exceptions applies. Id. at § 9545(b)(1)(i-iii). First, the
"governmental interference" exception applies when "the failure to raise the
claim previously was the result of interference by government officials with
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the presentation of the claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States." Id. at §
9545(b)(1)(i). Second, the "newly discovered facts" exception applies when
"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." Id. at
§ 9545(b)(1)(ii). Finally, under the third exception, a petition is timely when
"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." Id. at § 9545(b)(1)(iii). If any exception applies, the
petitioner must prove the petition was filed within 60 days of the earliest date
it might have been filed. Id. at § 9545(b)(2).2
Griffin argues that his 2015 is timely under the third exception, because
he filed it within 60 days of this Court's decision in Commonwealth v.
Burton.3 Griffin argues that the PCRA court held his 2003 petition did not
qualify under the first two timeliness exceptions because the court assumed
242 Pa.C.S.A. § 9545(b)(2) has since been amended to allow a petitioner one
year to file a petition from the date it first could have been filed. The
amendment applies to claims presented after December 24, 2017, and thus
does not apply to Griffin's petition.
3 Although Griffin filed his petition based on this Court's decision in Burton,
the Pennsylvania Supreme Court subsequently affirmed that decision. See
Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017). We acknowledge that
it is the date of the Supreme Court decision which is controlling for the
purposes of a PCRA timeliness analysis under the third exception.
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he had access to public information and could have discovered the full extent
of Hunter's convictions at the time of trial. However, according to Griffin, the
information qualified as suppressed Brady material, which his attorney could
not have discovered during trial, because the trial court had ordered the
Commonwealth to disclose it and the Commonwealth offered a misleading and
false criminal history instead. And, Griffin argues, Burton subsequently held
that the public record rule does not preclude pro se petitioners from pleading
timeliness under the newly discovered facts exception based on facts that are
a matter of public record.4 Griffin argues that the holding of Burton should
apply to the allegations in his 2003 petition.
This issue merits no relief. Even assuming the allegations in the 2003
petition make a valid claim that a Brady violation occurred, and even if
Burton would now apply to a petitioner's new discovery of suppressed crimen
falsi convictions-issues which we need not reach-Griffin's 2015 petition does
not qualify for the third timeliness exception on the basis of Burton, because
Burton did not recognize a new constitutional right. See Commonwealth v.
Kretchmar, 189 A.3d 459, 464, appeal denied, 198 A.3d 1046 (Pa. 2018).
Next, quoting Commonwealth v. Starr, Griffin argues that although
an appellate court generally may not alter the resolution decided by the same
4 In Burton, the Supreme Court held that if a petitioner pleads timeliness
based on the newly discovered facts exception, "the PCRA court must first
determine whether 'the facts upon which the claim is predicated were
unknown to the petitioner" and then consider whether "the facts could have
been ascertained by the exercise of due diligence, including an assessment of
the petitioner's access to public records." Burton, 158 A.3d at 638.
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court in a previous appeal, the coordinate jurisdiction rule does not bar
reconsideration of an earlier decision "where there has been an intervening
change in the controlling law, a substantial change in the facts or evidence
giving rise to the dispute in the matter, or where the prior holding was clearly
erroneous and would create a manifest injustice if followed." Starr, 664 A.2d
at 1332. Griffin argues that this Court may reconsider the dismissal of the
2003 petition based on the change in controlling law and because allowing the
dismissal of that petition to stand in light of Burton would "create a manifest
injustice."
This argument is unavailing. In Starr, the Pennsylvania Supreme Court
considered whether a judge of the court of common pleas erred in revoking
the defendant's right to represent himself after another judge on the same
court had accepted his waiver of counsel. Id. at 1331. Starr does not pertain
to the PCRA's time -based jurisdictional restrictions, and is inapplicable to the
instant case. Our consideration of Griffin's Brady claim is not barred by the
coordinate jurisdiction rule, but rather the jurisdictional requirement that
Griffin present his claim in a timely PCRA petition.
Finally, Griffin argues that denying his 2003 petition the benefit of the
Burton holding violates the Equal Protection Clause, as he is at a
disadvantage compared to those petitioners who presented PCRA claims
following the Burton decision.
Griffin's argument amounts to a bald assertion that the PCRA's
timeliness requirements offend equal protection. However, "[t]he concept of
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equal protection requires that uniform treatment be given to similarly situated
parties." Commonwealth v. Grove, 170 A.3d 1127, 1145 (Pa.Super. 2017)
(quoting Commonwealth v. Kramer, 378 A.2d 824, 826 (Pa. 1977)), appeal
denied, 185 A.3d 967 (Pa. 2018). As the same PCRA timeliness requirements
apply to all petitioners, we fail to see how they violate equal protection. See
id. at 1145-46 (holding that a court's failure to retroactively apply a change
in law, where the change applies equally to all persons similarly situated in
time, does not violate equal protection).
As Griffin's petition does not qualify for any of the PCRA's timeliness
exceptions, we affirm the order of the PCRA court denying relief.
Order affirmed.
Judge Lazarus did not participate in the consideration or decision of this
case.
Judgment Entered.
seph D. Seletyn,
Prothonotary
Date: 8/12/19
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