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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GREGORY CAMPBELL :
:
Appellant : No. 3430 EDA 2018
Appeal from the PCRA Order Entered October 24, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0104481-1985
BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 05, 2019
Gregory Campbell appeals, pro se, from the order entered October 24,
2018, in the Philadelphia County Court of Common Pleas, dismissing as
untimely his serial petition for collateral relief filed pursuant to the Post
Conviction Relief Act (“PCRA”).1 Campbell seeks relief from the judgment of
sentence of life imprisonment, imposed on December 2, 1986, following his
jury conviction of murder in the first degree, burglary, possession of an
instrument of crime, and conspiracy.2 On appeal, he asserts the PCRA court
erred in dismissing the petition as untimely because he received ineffective
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
2 18 Pa.C.S.A. §§ 2502(a), 3502, 907, and 903, respectively.
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assistance of counsel, there was a miscarriage of justice, and he has newly
discovered facts. For the reasons discussed below, we affirm.
As we write primarily for the parties, a detailed factual and procedural
history is unnecessary. We briefly note, on November 20, 1984, Campbell,
along with co-defendants Veleda Broaddus and Bernard Jackson forcibly
entered the apartment of Alvin Gass, and shot and murdered him in front of
his wife and child. Gass and his family had a prior relationship with Campbell.
At trial, Gass’ daughter Lydia positively identified Campbell as the shooter.
Gass’ wife, Freda Dowling was unable to identify which of the two men was
the shooter but identified Campbell as one of the individuals involved. The
jury convicted Campbell of the aforementioned charges on December 21,
1985. On December 2, 1986, the trial court sentenced Campbell as noted
above.
Following reinstatement of Campbell’s appellate rights, this Court
affirmed the judgment of sentence on August 28, 1991. See
Commonwealth v. Campbell, No. 1993 Philadelphia 1990 (Pa. Super. filed
Aug. 28, 1991) (unpublished memorandum). Campbell did not seek leave to
appeal to the Pennsylvania Supreme Court.
In January 1997, Campbell filed a PCRA petition, which the court
dismissed on November 13, 1998. Campbell did not appeal its dismissal to
this Court.
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On August 25, 2016, Campbell filed the instant PCRA petition
accompanied by a memorandum of law. On May 16, 2017, Campbell filed a
supplemental amended PCRA petition. On April 17, 2018, the PCRA court
issued notice of its intent to dismiss the petition pursuant to Pennsylvania Rule
of Criminal Procedure 907(1). The PCRA court granted Campbell’s request for
a continuance and he filed responses to the Rule 907 notice in the fall of 2018.
On October 24, 2018, the PCRA court dismissed the petition as untimely filed.
This timely appeal follows.3
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)
(internal punctuation and citation omitted). Here, the PCRA court determined,
inter alia, Campbell’s petition was untimely. We agree. A petitioner must file
a PCRA within one year of the date the underlying judgment becomes final.
See 42 Pa.C.S.A. § 9545(b)(1).
The PCRA timeliness requirement, however, is mandatory and
jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
1035, 1038 (Pa. Super.2007), appeal denied, 597 Pa. 715, 951
A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
untimeliness and reach the merits of the petition. Id.
____________________________________________
3The PCRA court did not order Campbell to file a concise statement of errors
complained of on appeal. On December 21, 2018, the PCRA court filed an
opinion.
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Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,
572 U.S. 1151 (2014).
Campbell’s judgment of sentence became final on September 27, 1991,
30 days after this Court affirmed the judgment of sentence and Campbell
failed to seek leave to appeal to the Pennsylvania Supreme Court. See 42
Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 113(a). Therefore, he had until September
27, 1992, to file a timely PCRA petition. His second petition, filed August 25,
2016, is patently untimely.
Nevertheless, we may still consider an untimely PCRA petition if one of
the following three exceptions applies:
(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).
Here, Campbell first claims he received ineffective assistance of all prior
counsel. However, this claim does not fall within any of the statutory
exceptions. First, the PCRA provides, “for purposes of this subchapter,
‘government officials’ shall not include defense counsel, whether appointed or
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retained.” 42 Pa.C.S.A. § 9545(b)(4). Therefore, Campbell’s claim does not
fall within the “governmental interference” exception. 42 Pa.C.S.A. §
9454(b)(1)(i). Second, our Supreme Court has held “a conclusion that
previous counsel was ineffective is not a newly discovered ‘fact’ entitling
Appellant to the benefit of the exception for [newly-discovered facts].”
Commonwealth v. Gamboa–Taylor, 753 A.2d 780, 785 (Pa. 2000).
Therefore, Campbell’s claim does not satisfy the newly discovered fact
exception. 42 Pa.C.S.A. § 9545(b)(1)(ii). Finally, Campbell’s ineffectiveness
claim does not implicate the PCRA’s exception for a newly recognized
constitutional right that applies retroactively. 42 Pa.C.S.A. § 9545(b)(1)(iii).
Campbell also argues his conviction resulted from a fundamental
miscarriage of justice. However, this assertion of “manifest injustice” and
“miscarriage of justice” fails to overcome the PCRA time bar.
Commonwealth v. Fahy, 737 A.2d 214, 222-223 (Pa. 1999) (rejecting
petitioner’s assertion that miscarriage of justice standard permitted court to
reach merits of untimely PCRA petition).
Lastly, Campbell attempts to invoke the previously unknown facts
exception set forth in Subsection 9545(b)(1)(ii). Until recently, a petitioner
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invoking an exception had to file his petition within 60 days of the date he or
she could have presented the claim.4
This Court has previously explained the interplay between the newly
discovered facts exception to the timeliness requirements and a substantive
collateral claim of after-discovered evidence as follows:
The timeliness exception set forth in Section 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the facts
upon which he based his petition and could not have learned those
facts earlier by the exercise of due diligence. Due diligence
demands that the petitioner take reasonable steps to protect his
own interests. A petitioner must explain why he could not have
learned the new fact(s) earlier with the exercise of due diligence.
This rule is strictly enforced. 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.
The timeliness exception set forth at Section 9545(b)(1)(ii) has
often mistakenly been referred to as the “after-discovered
evidence” exception. 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.” 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. Once jurisdiction is established, a PCRA
petitioner can present a substantive after-discovered-evidence
claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be
eligible for relief under PCRA, petitioner must plead and prove by
preponderance of evidence that conviction or sentence resulted
from, inter alia, unavailability at time of trial of exculpatory
evidence that has subsequently become available and would have
____________________________________________
4 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), and now provides that a PCRA petitioner invoking a timeliness
exception must file the petition within one year of the date the claim could
have been presented, for all claims arising after December 24, 2017. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.
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changed outcome of trial if it had been introduced). 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.
Thus, the “new facts” exception at Section 9545(b)(1)(ii) does not
require any merits analysis of an underlying after-discovered-
evidence claim.
Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015) (some
citations and quotation marks omitted, emphases in original), appeal denied,
125 A.3d 1197 (Pa. 2015). Accordingly, before we may consider whether
Campbell’s substantive claim of after-discovered evidence merits relief, we
must first determine whether he has established “there were facts unknown
to him and that he exercised due diligence in discovering those facts.” Id. at
176. Here, Campbell has failed to do so.
Campbell may be asserting appellate counsel’s failure to file for
permission for leave to appeal to the Pennsylvania Supreme Court constituted
a newly discovered fact. In Commonwealth v. Bennett, 930 A.2d 1264 (Pa.
2007), the Pennsylvania Supreme Court determined counsel’s failure to file an
appellate brief and perfect the appeal, which resulted in this Court’s dismissal
of the appeal, constituted abandonment as it was “the functional equivalent
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of having no counsel at all.” Id. at 1273. Our Supreme Court further
concluded counsel’s abandonment could serve as a newly discovered fact, as
allowing such claims to go forward would not eviscerate the time
requirements crafted by the Legislature [in the PCRA]. Rather,
subsection (b)(1)(ii) is a limited extension of the one-year time
requirement under circumstances when a petitioner has not had
the review to which he was entitled due to a circumstance that
was beyond his control.
Id. In so holding, the Court distinguished Bennett’s claim of counsel’s
abandonment from those claims of ineffectiveness that “narrowed the ambit
of appellate review,” and could not fall within the purview of Section
9545(b)(1)(ii). Id. at 1273.
Here, however, Campbell has not demonstrated he acted with due
diligence. We affirmed the judgment of sentence in 1991. Campbell filed a
PCRA petition in 1997. Thus, presumably, in 1997, he was aware of when his
judgment of sentence became final. He has failed to explain why he did not
raise the claim at that juncture. Moreover, even if Campbell was somehow
unaware counsel had not sought leave to appeal to the Pennsylvania Supreme
Court, he has utterly failed to explain why he waited over twenty years to
investigate the matter. “A petitioner must . . . explain why his asserted facts
could not have been ascertained earlier with the exercise of due diligence.”
Commonwealth v. Taylor, 933 A.2d 1035, 1041 (Pa. Super. 2007), appeal
denied, 951 A.2d 1163 (Pa. 2008) (citation omitted). Here, Campbell has
failed to show he complied with the due diligence requirement of 42 Pa.C.S.A.
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§ 9545(b)(1)(ii). See Taylor, supra at 1041. Thus, this claim does not merit
relief.
Campbell also claimed in the memorandum of law, filed with his PCRA
petition:
he has obtained new and reliable evidence that will absolutely
clear him of a crime he did not commit; further, he can
demonstrate that [the] [C]ommonwealth’s witnesses, Lydia and
Freida [sic] Dowling “who framed [defendant]” of a crime,
[defendant] can show and bring forth evidence and new witnesses
and/or expert testimony that will exonerate him.
Memorandum of Law, 8/25/2016, at 9. However, Campbell did not attach any
witness statements to his PCRA petition and did not elaborate on this
contention. Nor did Campbell offer proof of when he discovered the “facts”
underlying this contention or explain why he could not have ascertained them
earlier with the exercise of due diligence.
On appeal, for the first time, Campbell contends that, within sixty days
of the date he filed his PCRA petition, he received information from an
unnamed intermediary that his co-defendant Valeda Broaddus told the
intermediary she lied about Campbell’s participation in the murder to the
police. Campbell’s Brief, at 10, 24. We have long held an appellant waives
PCRA issues on appeal that he did not raise in the PCRA petition. See
Commonwealth v. Lauro, 819 A.2d 100, 103-04 (Pa. Super. 2003), appeal
denied, 830 A.2d 975 (Pa. 2003) (waiving five issues not in original or
amended PCRA petition). This includes claims of exceptions to the time-bar.
Commonwealth v. Lewis, 63 A.3d 1274, 1280 n.3 (Pa. Super. 2013)
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(argument on appeal, including those seeking exception from PCRA time-bar,
must be raised and presented to PCRA court). Further, an appellant cannot
raise a subject for the first time on appeal. See Commonwealth v. Hanford,
937 A.2d 1094, 1098 n.3 (Pa. Super. 2007), appeal denied, 956 A.2d 432 (Pa.
2008) (new legal theories cannot be raised for first time on appeal); Pa.R.A.P.
302(a). Here, Campbell raised his claim about Broaddus’ alleged recantation
for the first time on appeal, thus, he waived his contention. See Lewis, supra
at 1280 n.3; Handford, supra at 1098 n.3; Lauro, supra at 103-04.
Accordingly, because we agree with the ruling of the PCRA court that
Campbell did not timely file his PCRA petition and he failed to establish the
applicability of any of the time-for-filing exceptions, we affirm the order
dismissing his petition without first conducting an evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/5/19
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