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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TYREE LIGON :
:
Appellant : No. 1194 EDA 2021
Appeal from the Order Entered June 17, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001138-2012
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED JULY 27, 2022
Tyree Ligon appeals from the June 17, 2021 order that dismissed as
untimely his third petition filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 We affirm.
The PCRA court offered the following summary of the history of this
case:
On April 11, 2014, following a jury trial presided over by
Judge Sandy Byrd, [Appellant] was convicted of aggravated
assault, carrying a firearms on a public street, carrying a firearm
without a license, conspiracy, possession of an instrument of
crime and possession of a firearm by a prohibited person. On July
18, 2014, the court sentenced him to an aggregated term of
imprisonment of fifteen to thirty years . . . followed by ten years
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1 Appellant prematurely filed his notice of appeal from the PCRA court’s
Pa.R.Crim.P. 907 notice of intent to dismiss his petition without a hearing.
Pursuant to Pa.R.A.P. 905(a)(5), the appeal is properly treated as filed as of
the date of the PCRA court’s subsequent order that dismissed the petition.
We have amended the caption accordingly.
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of probation. On July 12, 2016, the Superior Court affirmed his
judgment of sentence. [See Commonwealth v. Ligon, 154 A.3d
851 (Pa.Super. 2016) (unpublished memorandum)]. [Appellant]
did not seek review with the Pennsylvania Supreme Court.
On August 25, 2016, [Appellant] filed his first PCRA petition.
Counsel was appointed and filed an amended PCRA petition on
April 17, 2017. Following a hearing, the court issued a notice of
intent to dismiss pursuant to Pa.R.Crim.P 907 on November 3,
2017. His petition was dismissed on December 8, 2017. Upon
appeal, the Superior Court affirmed the denial of his PCRA petition
on March 11, 2019. [See Commonwealth v. Ligon, 206 A.3d
515 (Pa.Super. 2019)]. [Appellant] did not seek review with the
Pennsylvania Supreme Court.
[Appellant] filed his second PCRA petitions on April 25,
2019. The court dismissed the petition on November 22, 2019,
and the Superior Court dismissed the appeal for failure to file
briefs on April 29, 2020.
On July 28, 2020, [Appellant] filed the instant pro se PCRA
petition, his third. Pursuant to Pa.R.Crim.P 907, [Appellant] was
served notice of this court’s intention to dismiss his petition on
April 30, 2021. A response to the court’s 907 notice was received
on May 24, 2021. [Appellant] filed a notice of appeal on June 2,
2021. This court dismissed his petition as untimely without
exception on June 17, 2021.
PCRA court opinion, 2/2/22, at 1-2 (cleaned up).
The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)
statement, and none was filed. Appellant raises the following question for our
review: “Did the PCRA court err and abuse its discretion when it dismissed
[Appellant]’s PCRA petition without a hearing, where Appellant’s petition was
timely and in accordance with [42] Pa.C.S. § 9545(b)(1)?” Appellant’s brief
at 4.
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We begin with a review of the pertinent legal principles. “The standard
of review of an order dismissing a PCRA petition is whether that determination
is supported by the evidence of record and is free of legal error.”
Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa.Super. 2019) (cleaned up).
“It is an appellant’s burden to persuade us that the PCRA court erred and that
relief is due.” Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super.
2019) (cleaned up).
It is well-settled that, “[b]ecause the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition, we must start by examining the timeliness of Appellant’s
petition.” Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014).
Indeed, “no court has jurisdiction to hear an untimely PCRA petition.”
Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa.Super. 2019). The
PCRA provides as follows regarding the time for filing a petition:
Any petition [filed pursuant to the PCRA], 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:
(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
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(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). Further, a petition invoking a timeliness exception
“shall be filed within one year of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant’s judgment of sentence became final in August 2016, thirty
days after he failed to file a petition for allowance of appeal with our Supreme
Court following this Court’s affirmance of his judgment of sentence. See 42
Pa.C.S. § 9545(b)(3) (“For purposes of this subchapter, 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.”). Therefore, his July 2020
petition was facially untimely by nearly three years, and Appellant was
required to allege and prove a timeliness exception in order to confer
jurisdiction upon the PCRA court. In his filings in the PCRA court and in this
Court, Appellant has offered three arguments why his petition should not have
been dismissed as untimely.
In his appellate brief, Appellant contends that his PCRA petition “was
not time-barred because at no time during appellate review did he allow one
year to lapse after a judgment.” Appellant’s brief at 7. However, as indicated
above, the judgment in question is his judgment of sentence, and it became
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final at the conclusion of direct review. His subsequent PCRA filings did not
result in additional judgments and their pendency did not toll the one-year
period for filing a timely petition. See Commonwealth v. Fahy, 737 A.2d
214, 222 (Pa. 1999) (rejecting argument that PCRA time limitation was tolled
while a petition was pending). Accordingly, Appellant’s claim that the instant
petition was filed within one year of a judgment is unavailing.
In his PCRA petition, Appellant asserted both the government
interference and newly-discovered facts timeliness exceptions. See PCRA
Petition, 7/28/20, at 3 (citing 42 Pa.C.S. § 9545(b)(1)(i)-(ii)). Regarding
government interference, Appellant alleged that the prior District Attorney
Seth Williams “was convicted for corruption” and failed to disclose “evidence
of corrupt [Philadelphia Police Detective Donald] Suchinsky [badge number]
9128 prior to trial or during trial.” Id. As for newly-discovered facts,
Appellant indicated that we was not aware of this non-disclosed information
until District Attorney Krasner so advised him on January 14, 2020.
Appellant attached to his petition the correspondence from the District
Attorney’s Office, as well as the misconduct disclosure indicating that,
following a hearing on May 29, 2002, Detective Suchinsky was found guilty of
making a false entry in a department report or record and another unspecified
infraction, resulting in a fifteen-day suspension and transfer. Id. at Exhibit A.
Appellant contended that this evidence demonstrated a due process violation
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warranting a new trial.2 Id. at 2, 4. See Brady v. United States, 397 U.S.
742 (1969) (holding due process is violated when the prosecution suppresses
evidence favorable to the defense).
In response to the PCRA court’s Rule 907 notice, Appellant focused upon
the § 9545(b)(1)(ii) newly-discovered facts exception, reiterating that he did
not become aware of the fact of Detective Suchinsky’s eighteen-year-old
misconduct until the District Attorney’s Office informed him of it on January
14, 2020. See Response to Rule 907 Notice, 5/24/21. While Appellant only
vaguely reasserts that position in this Court, the Commonwealth argues it on
his behalf. It maintains that, while Appellant may ultimately not prevail on
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2 As we recently explained, “Detective Suchinsky falsified details about a fire
rescue in a police incident report to be nominated for a heroism
commendation.” Commonwealth v. Watson, 270 A.3d 1134 (Pa.Super.
2021) (non-precedential decision at 6). We observe that the Watson Court
affirmed the denial of relief on the substantive after-discovered evidence
claim, raised in a timely PCRA petition, agreeing with the PCRA court’s
determination that “evidence of a nine year old discipline for falsifying a
report, involving a detective who was not a witness at trial, and who played
no significant role in the identification of [the defendant] as the perpetrator,
would not result in a different outcome.” Id. (non-precedential decision at 7).
See also Commonwealth v. Lambert, 884 A.2d 848, 854 (Pa. 2005)
(“[T]here are three necessary components that demonstrate a violation of the
Brady strictures: the evidence was favorable to the accused, either because
it is exculpatory or because it impeaches; the evidence was suppressed by the
prosecution, either willfully or inadvertently; and prejudice ensued.” (cleaned
up)). While Detective Sushinsky’s involvement in Appellant’s case appears to
be similar to that in Watson, as the Commonwealth properly observes, the
merits of Appellant’s substantive claim is not pertinent unless the timeliness
issue is resolved in his favor. See Commonwealth’s brief at 11. See also
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (discussed
infra).
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his substantive claim, or even be able prove that the newly-discovered facts
exception applies, his petition contained sufficient allegations to warrant a
hearing on the timeliness of the petition pursuant to § 9545(b)(1)(ii). See
Commonwealth’s brief at 9, 13.
Upon review of Appellant’s PCRA petition and Rule 907 response, we
discern no error on the part of the PCRA court in concluding that Appellant
failed to plead and offer to prove either the governmental-interference or
newly-discovered-facts timeliness exception. Our Supreme Court addressed
the applicability of these exceptions to Brady claims as follows:
Although 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. . . . [T]he exception set forth in subsection (b)(1)(ii)
does not require any merits analysis of the underlying claim . . .,
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) (cleaned
up). In other words, when faced with a facially-untimely PCRA petition
alleging a Brady violation, “the proper questions with respect to timeliness in
this case are whether the government interfered with Appellant’s access to
the [suppressed evidence], and whether Appellant was duly diligent in seeking
[that evidence].” Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).
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Our Supreme Court expressly delineated this requirement of a petitioner to
allege both the timing of the discovery of the new evidence and the petitioner’s
diligence:
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 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.
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (cleaned up).
In the instant case, Appellant merely alleged that he did not know of
Detective Suchinsky’s misconduct until January 2020. He offered no
explanation why he could not have learned of the 2002 misconduct prior to
his 2014 trial, or at any earlier time within the past twenty years, upon the
exercise of due diligence. Consequently, Appellant’s July 2020 PCRA petition
did not sufficiently allege either of the implicated timeliness exceptions. See
Commonwealth v. Smith, 194 A.3d 126, 134 (Pa.Super. 2018) (“Appellant
failed to demonstrate that he acted with due diligence in presenting his Brady
claim . . . . This conclusion is fatal to his attempts to invoke the PCRA
timeliness exceptions set forth in Section 9545(b)(1)(i) and (b)(1)(ii).”). The
PCRA court, therefore, did not err in dismissing the petition as untimely, and
no relief is due.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2022
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