Com. v. Jacobs

J-S11033-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
EUGENE JACOBS :
:
Appellant : No. 1732 EDA 2022

Appeal from the PCRA Order Entered June 10, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1003721-1995

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY KING, J.: FILED MAY 23, 2023

Appellant, Eugene Jacobs, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed as untimely his

third petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.

A prior panel of this Court summarized some of the relevant facts and

procedural history of this case as follows:

On October 2, 1996, a jury found Appellant guilty of first-
degree murder, robbery, theft, and possessing an
instrument of crime. On October 4, 1996, the trial court
sentenced Appellant to serve a term of life in prison for the
murder conviction and various other terms of imprisonment
for the remaining convictions. [This Court] affirmed
Appellant’s judgment of sentence on December 1, 1999;
Appellant did not file a petition for allowance of appeal with
the Pennsylvania Supreme Court. Commonwealth v.
Jacobs, 750 A.2d 369 (Pa.Super. 1999) (unpublished
memorandum)[.]
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1 42 Pa.C.S.A. §§ 9541-9546.
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On November 30, 2000, Appellant filed his first PCRA
petition and the PCRA court appointed counsel to represent
Appellant. On October 2, 2002, the PCRA court dismissed
Appellant’s petition and, after a lengthy appeal, this Court
affirmed the dismissal on April 8, 2009. The Pennsylvania
Supreme Court denied Appellant’s petition for allowance of
appeal on December 9, 2009. Commonwealth v. Jacobs,
974 A.2d 1184 (Pa.Super. 2009) (unpublished
memorandum)…, appeal denied, [604 Pa. 688, 985 A.2d
970 (2009)].

Commonwealth v. Jacobs, No. 250 EDA 2016, 2016 WL 7031029, at *1

(Pa.Super. filed Dec. 2, 2016) (unpublished memorandum) (internal footnote

omitted), appeal denied, 641 Pa. 798, 169 A.3d 595 (2017). On May 14,

2012, Appellant filed a second PCRA petition, which the court dismissed as

untimely on December 2, 2016; our Supreme Court denied allowance of

appeal on June 27, 2017. See id.

Appellant filed the current pro se serial PCRA petition on May 9, 2019.

In it, Appellant claimed the “newly-discovered facts” exception to the PCRA

time-bar, alleging, inter alia, that he recently discovered a newspaper article

discussing the prosecutorial misconduct of former prosecutor Roger King2 in

an unrelated case. Based on the claims made in the newspaper article,

Appellant insisted Roger King, who was also the prosecutor in Appellant’s case,

had committed similar misconduct in his own case. Appellant further alleged

various claims of trial counsel’s ineffectiveness. While his petition was

____________________________________________

2 There is no familial relationship between this prosecutor and the authoring
jurist.

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pending, another newspaper article was published detailing allegations of

misconduct against other homicide detectives who were involved in

Appellant’s case. Thus, Appellant filed a supplemental PCRA petition, claiming

that those detectives had also committed misconduct in Appellant’s case. The

court issued notice of its intent to dismiss the petition without a hearing per

Pa.R.Crim.P. 907 on December 17, 2021. Appellant filed a response on

December 30, 2021. On June 10, 2022, the PCRA court dismissed the petition

as untimely. Appellant timely filed a notice of appeal on June 24, 2022. The

court did not order, and Appellant did not file, a concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b).

As a prefatory matter, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008),

cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009).

Pennsylvania law makes clear that no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837

A.2d 1157 (2003). The PCRA requires a petition, including a second or

subsequent petition, to be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence

is 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 review.” 42 Pa.C.S.A. §

9545(b)(3).

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Generally, to obtain merits review of a PCRA petition filed more than

one year after the judgment of sentence became final, the petitioner must

allege and prove at least one of the three timeliness exceptions:

(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). Additionally, a PCRA petitioner must file his

petition within one year of the date the claim could have first been presented.

See 42 Pa.C.S.A. § 9545(b)(2) (as amended, effective December 24, 2018;

providing one year statutory window in which to invoke time-bar exception for

claims arising on or after December 24, 2017).

To meet the “newly discovered facts” timeliness exception set forth in

Section 9545(b)(1)(ii), a petitioner must 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.” Commonwealth v. Brown, 111

A.3d 171, 176 (Pa.Super. 2015). “Due diligence demands that the petitioner

take reasonable steps to protect his own interests. A petitioner must explain

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why he could not have learned of the new fact(s) earlier with the exercise of

due diligence.” Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.Super.

2011). A claim based on inadmissible hearsay does not satisfy the “newly-

discovered facts” exception.3 Commonwealth v. Abu-Jamal, 596 Pa. 219,

230, 941 A.2d 1263, 1269 (2008), cert. denied, 555 U.S. 916, 129 S.Ct. 271,

172 L.Ed.2d 201 (2008).

Instantly, Appellant’s judgment of sentence became final on December

31, 1999, upon expiration of the time for filing a petition for allowance of

appeal with our Supreme Court, following this Court’s affirmance of his

judgment of sentence. See Pa.R.A.P. 1113(a) (stating petition for allowance

of appeal shall be filed within 30 days after entry of order of Superior Court

____________________________________________

3 The substantive claim of after-discovered evidence and the newly-discovered
facts exception to the PCRA timeliness requirements are often conflated and
referred to as the same theory of relief. These concepts, however, are not
interchangeable and require different proofs. Under the newly-discovered
facts exception to an untimely PCRA petition, a petitioner must establish “the
facts upon which the claim was predicated were unknown and…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, 593 Pa. 382, 395, 930 A.2d 1264, 1272 (2007) (emphasis in
original). Only if a petitioner meets the statutory jurisdictional requirements
by satisfying this exception to the PCRA time-bar, can he then argue for relief
on a substantive after-discovered-evidence claim, which requires the
petitioner to demonstrate: (1) the evidence has been discovered after trial
and it could not have been obtained at or prior to trial through reasonable
diligence; (2) the evidence is not cumulative; (3) it is not being used solely to
impeach credibility; and (4) it would likely compel a different verdict. See,
e.g., Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586 (2007);
Commonwealth v. D’Amato, 579 Pa. 490, 856 A.2d 806 (2004).

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sought to be reviewed). Appellant filed the current PCRA petition on May 9,

2019, which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).

Appellant now attempts to invoke the “newly-discovered facts”

exception to the PCRA time-bar, relying on the newspaper articles discussing

misconduct in unrelated cases by prosecutor Roger King and other detectives

involved in Appellant’s case. In evaluating Appellant’s claims, the PCRA court

explained:

While your petition states that you are invoking the
previously unknown facts exception, you fail to identify
which facts were previously unknown, and why you were
unable to discover them through the exercise of due
diligence. Instead, the petition asserts several claims of
misconduct by various police officers and assistant district
attorneys, as well as raising the ineffectiveness of your trial
counsel, regarding your alibi defense, your interrogation
and confession, and the conclusions of the medical
examiner. You failed, however, to demonstrate how any of
these facts, which pertain to pre-trial and trial issues, were
previously unknown to you. Therefore, your petition does
not meet the criteria to overcome the time bar.

(Rule 907 Notice, filed 12/17/21, at 1-2). We agree with the PCRA court that

Appellant has failed to exercise due diligence regarding any “new facts” that

pertain to his case. See Brown, supra. Essentially, Appellant is simply using

the fact that Roger King and other detectives committed misconduct in

unrelated cases as an attempt to call into question the investigation and

prosecution of his own case.

We further note that Appellant’s reliance on the newspaper articles as

the “new facts” amounts to inadmissible hearsay that cannot satisfy the

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proffered exception. See Commonwealth v. Castro, 625 Pa. 582, 93 A.3d

818 (2014) (explaining newspaper articles contain allegations which suggest

evidence might exist but are no more than allegations in any other out-of-

court situation; thus, newspaper articles generally constitute inadmissible

hearsay); Abu-Jamal, supra. See also Commonwealth v. Trivigno, 262

A.3d 472, 2021 WL 3465926, at *4 (Pa.Super. filed Aug. 6, 2021)

(unpublished memorandum)4 (holding: “Stated simply, facts are not what a

reader gleans from media reports or newspaper articles but, instead, facts are

substantive events…”; newspaper articles presented by appellant alleging

misconduct by detectives do not specifically cite any admissions or conclusive

findings of wrongdoing by detective at issue that may be linked to appellant’s

case; “[t]herefore, [a]ppellant failed to demonstrate that the newspaper

article contained a fact that triggered the newly-discovered facts

exception…”). Similarly, the newspaper articles at issue here do not

specifically cite any admissions or conclusive findings of wrongdoing by Roger

King or other detectives that may be linked to Appellant’s case. See id. Under

these circumstances, Appellant’s current PCRA petition remains time barred.

Accordingly, we affirm the order dismissing Appellant’s current PCRA petition

as untimely.

Order affirmed.

____________________________________________

4See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this
Court filed after May 1, 2019 for their persuasive value).

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/23/2023

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