J-S42022-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN KING, :
:
Appellant : No. 1772 EDA 2019
Appeal from the PCRA Order Entered May 24, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0111401-2006,
CP-51-CR-0111411-2006
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN KING, :
:
Appellant : No. 1773 EDA 2019
Appeal from the PCRA Order Entered May 24, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0111401-2006,
CP-51-CR-0111411-2006
BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: Filed: October 8, 2020
Appellant, Brian King, appeals pro se from the order entered on May 24,
2019, which dismissed his second petition filed under the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We previously summarized the underlying facts of this case:
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On October 31, 2005, Appellant was driving his car and met
up with his . . . coconspirator, Tyreek Wilford. After Wilford
got into Appellant’s car, Appellant told him that they were
going to Norristown to rob somebody. When the intended
victim was not where he was supposed to be, they drove back
to Philadelphia. . . .
When they got to the area of Comly and Malta Streets, they
saw three young men and two young women on the street.
Appellant told Wilford that he wanted to rob [the people]. He
drove around the corner. Appellant pulled out a loaded
[TEC-9 pistol] and put it on his lap. They got out of the car
and Appellant left the car running. Appellant gave Wilford
the gun and Wilford hid the gun in his waist. Appellant
approached the group and had a brief conversation with
them. The people began to walk away. Appellant
announced, “Hold up!” Wilford pulled the gun; Appellant told
everyone to lie on the grass. Appellant then went through
each person’s pockets. Wilford saw Appellant take cell
phones and clothing from the victims. They ran back to the
car. As they were about to get into the car, Appellant
demanded the gun back. As Wilford was getting into the car,
Appellant ran to another car on the block and attempted to
take money from the driver of that car, Steven Badie. During
the course of that robbery, Appellant fired a series of shots
into the car, striking Badie a number of times, killing him. .
..
Appellant ran back to the car and [he and Wilford] drove
away. As the initial robbery victims had called the police,
their car was stopped a few minutes later. [Appellant and
Wilford] were arrested after being identified by the surviving
robbery victims. The gun was recovered from the back seat
of the car, as well as cell phones and clothing. The phones
and clothing were identified by the victims as those taken
during the robbery.
When arrested, both Appellant and Wilford gave statements
admitting to the initial robberies. Each, however, claimed
that the other robbed and shot Badie and denied knowing
that the other intended to do so. At time of Appellant’s trial,
Wilford had already entered into a plea agreement with the
Commonwealth in which he pleaded guilty to third degree
murder [and other charges]. He then testified against
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Appellant. No agreement was made with Wilford concerning
the length of his prison sentence. At the time of Appellant’s
trial, Wilford had yet to be sentenced.
At trial, Appellant’s theory was to concede his participation in
the robbery of the five individuals. He then claimed that
Wilford robbed and shot Badie without Appellant’s knowledge
or consent.
...
On July 12, 2007, a jury convicted Appellant of one count of
second degree murder, six counts of robbery, and one count
each of conspiracy and possession of an instrument of
crime[.] On May 18, 2007, the trial court sentenced
Appellant to serve a mandatory term of life imprisonment for
the second-degree murder conviction.
...
On direct appeal, [the Superior Court] affirmed Appellant’s
judgment of sentence . . . and the Pennsylvania Supreme
Court denied Appellant’s petition for allowance of appeal on
July 7, 2010. Commonwealth v. King, [984 A.2d 1016 (Pa.
Super. 2009) (unpublished memorandum), appeal denied,
997 A.2d 1175 (Pa. 2010)].
Commonwealth v. King, 159 A.3d 50 (Pa. Super. 2016) (unpublished
memorandum) at 2-3 (quotations and footnotes omitted), quoting PCRA Court
Opinion, 2/29/16, at 1-3.
On July 30, 2010, Appellant filed his first PCRA petition. The PCRA court
dismissed this petition on August 22, 2014, we affirmed the PCRA court’s order
on October 21, 2016, and the Pennsylvania Supreme Court denied Appellant’s
petition for allowance of appeal on June 27, 2017. Commonwealth v. King,
159 A.3d 50 (Pa. Super. 2016) (unpublished memorandum) at 1-21, appeal
denied, 169 A.3d 596 (Pa. 2017).
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On April 27, 2018, Appellant filed the current PCRA petition; the petition
constitutes Appellant’s second petition seeking post-conviction collateral
relief. Within the petition, Appellant claimed that his counsel on direct appeal
– former attorney J. Michael Farrell (hereinafter “Attorney Farrell”) – was
ineffective because Attorney Farrell was “pre-occupied with extra-curricular
criminal activities.”1 Appellant’s Second PCRA Petition, 4/27/18, at 4.
Specifically, Appellant claimed:
On March 20, 2018, through a family member who [had]
gotten the information off the internet and mailed to me,
information about my court appointed attorney[, Attorney
Farrell,] being convicted of a crime that [sic] activities goes
[sic] back to the time he was representing me. . . . [Attorney
Farrell’s] divided loyalties made his performance deficient
and per se ineffective when he filed frivolous appeals [on] my
behalf.
Id. at 3-4.
On March 25, 2019, the PCRA court notified Appellant that it intended
to dismiss the untimely petition in 20 days, without holding a hearing. PCRA
Court Order, 3/25/19, at 1; see also Pa.R.Crim.P. 907(1). Appellant did not
respond to the Rule 907 notice and, on May 24, 2019, the PCRA court finally
dismissed Appellant’s petition. See PCRA Court Order, 5/24/19, at 1.
____________________________________________
1On December 4, 2019, the Pennsylvania Supreme Court entered an order
declaring that Attorney Farrell was disbarred on consent, retroactive to March
10, 2017. Office of Disciplinary Counsel v. Farrell, 2362 Disciplinary
Docket No. 3 (Pa. 2019).
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Appellant filed a timely notice of appeal. We now affirm the dismissal
of Appellant’s patently untimely, serial PCRA petition.
We “review an order granting or denying PCRA relief to determine
whether the PCRA court’s decision is supported by evidence of record and
whether its decision is free from legal error.” Commonwealth v. Liebel, 825
A.2d 630, 632 (Pa. 2003).
The PCRA contains a jurisdictional time-bar, which is subject to limited
statutory exceptions. This time-bar demands that “any PCRA petition,
including a second or subsequent petition, [] be filed within one year of the
date that the petitioner’s judgment of sentence becomes final, unless [the]
petitioner pleads [and] proves that one of the [three] exceptions to the
timeliness requirement . . . is applicable.” Commonwealth v. McKeever,
947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further, since
the time-bar implicates the subject matter jurisdiction of our courts, we are
required to first determine the timeliness of a petition before we consider the
underlying claims. Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999).
Our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in nature
and, accordingly, a PCRA court is precluded from considering
untimely PCRA petitions. See, e.g., Commonwealth v.
Murray, 753 A.2d 201, 203 (Pa. 2000) (stating that “given
the fact that the PCRA's timeliness requirements are
mandatory and jurisdictional in nature, no court may properly
disregard or alter them in order to reach the merits of the
claims raised in a PCRA petition that is filed in an untimely
manner”); Commonwealth v. Fahy, 737 A.2d 214, 220 (Pa.
1999) (holding that where a petitioner fails to satisfy the
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PCRA time requirements, this Court has no jurisdiction to
entertain the petition). [The Pennsylvania Supreme Court
has] also held that even where the PCRA court does not
address the applicability of the PCRA timing mandate, th[e
court would] consider the issue sua sponte, as it is a
threshold question implicating our subject matter jurisdiction
and ability to grant the requested relief.
Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).
Appellant’s judgment of sentence became final at the end of the day on
October 5, 2010, which was 90 days after the Pennsylvania Supreme Court
denied his petition for allowance of appeal and the time for filing a petition for
a writ of certiorari with the United States Supreme Court expired. See 42
Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13(1). Appellant then had until
October 5, 2011 to file a timely PCRA petition. 42 Pa.C.S.A. § 9545(b)(1). As
Appellant did not file his current petition until April 27, 2018, the current
petition is manifestly untimely and the burden thus fell upon Appellant to plead
and prove that one of the enumerated exceptions to the one-year time-bar
applied to his case. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to properly invoke a
statutory exception to the one-year time-bar, the PCRA demands that the
petitioner properly plead and prove all required elements of the relied-upon
exception).
Appellant claims that his petition is timely because it falls within the
newly-discovered fact exception to the PCRA’s one-year time-bar. The
newly-discovered fact exception provides:
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(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date
the judgment becomes final, unless the petition alleges and
the petitioner proves that:
...
(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[.]
...
(2) Any petition invoking an exception provided in paragraph
(1) shall be filed within one year of the date the claim could
have been presented.
42 Pa.C.S.A. § 9545(b).2
As our Supreme Court has explained:
subsection (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 [is] predicated were
unknown” and (2) “could not have been ascertained by the
exercise of due diligence.” 42 Pa.C.S.
§ 9545(b)(1)(ii)(emphasis added). If the petitioner alleges
and proves these two components, then the PCRA court has
jurisdiction over the claim under this subsection.
____________________________________________
2 Prior to December 24, 2018, Section 9545(b)(2) read: “Any petition invoking
an exception provided in paragraph (1) shall be filed within 60 days of the
date the claim could have been presented.” See 42 Pa.C.S.A. § 9545(b)(2)
(effective to December 23, 2018). However, effective December 24, 2018,
the legislature amended Section 9545(b)(2) to provide for a one-year
time-limitation. 42 Pa.C.S.A. § 9545(b)(2) (effective December 24, 2018).
This current version of Section 9545(b)(2) applies to “claims arising on
[December] 24, 2017 or thereafter.” See id. at Comment. Appellant filed his
current petition on April 27, 2018 and sought relief upon facts that he
discovered in 2018; thus, the current version of Section 9545(b)(2) applies to
Appellant’s claim.
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Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis
omitted).
Appellant claims that Attorney Farrell’s criminal activities caused
Attorney Farrell to file a frivolous direct appeal on Appellant’s behalf and, thus,
render ineffective assistance of counsel during Appellant’s direct appeal.
Appellant’s Second PCRA Petition, 4/27/18, at 3-4. At the outset, we note
that Attorney Farrell’s criminal activities were completely removed from
Appellant’s case and Appellant does not explain how Attorney Farrell’s
unrelated criminal activities could have caused Attorney Farrell to file a
frivolous direct appeal in his case. Further, our independent review has not
uncovered any relationship between the fact of Attorney Farrell’s criminal
activities and Appellant’s ineffective assistance of counsel claim. Thus,
Appellant’s attempt to plead the newly-discovered fact exception immediately
fails, as Appellant’s ineffective assistance of counsel claim is not, in any sense,
“predicated upon” the unrelated fact of Attorney Farrell’s irrelevant criminal
activities. See 42 Pa.C.S.A. § 9545(b)(1)(ii).
Moreover, and relatedly, Appellant’s attempt to avoid the PCRA’s
one-year time-bar fails since Appellant’s claim asserts that Attorney Farrell
was ineffective during Appellant’s direct appeal – and Appellant would have
known of any shortcomings in his direct appeal either at the time the brief
was filed or when this Court issued its August 14, 2009 memorandum. Thus,
Attorney Farrell’s unrelated and unknown criminal activities did not prevent
Appellant from asserting his ineffective assistance of counsel claim in his first
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PCRA petition. For this independent reason, Appellant’s petition fails to satisfy
the newly-discovered fact exception and is untimely, as Appellant’s ineffective
assistance of counsel claim is predicated upon alleged briefing failings that
were known to Appellant in 2009. See 42 Pa.C.S.A. § 9545(b)(1)(ii).
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/8/20
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