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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD D. WILSON :
:
Appellant : No. 1364 WDA 2022
Appeal from the PCRA Order Entered November 7, 2022
In the Court of Common Pleas of Armstrong County Criminal Division at
No(s): CP-03-CR-0000647-2018
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED: September 12, 2023
Appellant, Edward D. Wilson, appeals from the order entered on
November 7, 20221 in the Criminal Division of the Court of Common Pleas of
Armstrong County that denied his petition for collateral relief filed pursuant to
the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm.
This Court previously summarized the historical facts of this case on
direct appeal.
On the evening of July 8, 2018, Chad Bennett (“Bennett”), his ex-
girlfriend, Crystal Johns (“Johns”), and friend, Justin Batten
(“Batten”), were drinking at the Hot Spot bar in Kittanning,
Pennsylvania. At approximately 1:30 a.m. on July 9, 2018,
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* Former Justice specially assigned to the Superior Court.
1 We have amended the caption to reflect that an appeal properly lies from
the entry of a final order, which in this case is the order that dismissed
Appellant’s petition for collateral relief as untimely. See Commonwealth v.
Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc).
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Bennett, Batten, and Johns left the Hot Spot and drove to the
house of Johns's aunt. When they arrived at the house, Johns
went inside while Bennett and Batten waited for her to return.
At some point, Johns exited the house and began looking for
something in her car. While Bennett and Batten were waiting,
[Appellant] arrived at the house on a tractor. [Appellant] got off
of the tractor, ran towards Johns, and struck Johns in the face
several times. Bennett saw [Appellant] strike Johns, shouted at
[Appellant] and walked towards him. [Appellant] and Bennett
approached each other and began fighting. Sometime thereafter,
Batten broke up the fight. Batten and Bennett discovered that
Bennett had suffered a large gash wound from his sternum to his
stomach, and Bennett's intestines were visible. No one saw any
weapons or sharp objects, and none were recovered. Bennett was
transported to the hospital[, where medical personnel removed
several feet of his intestines due to] his injuries.
A jury subsequently convicted [Appellant] of [one count each of
aggravated assault and simple assault]. The trial court deferred
sentencing [to allow preparation of] a pre-sentence investigation
report. On April 12, 2018, prior to sentencing, [Appellant] filed a
[post-trial motion] alleging that the Commonwealth committed a
BradyFN1 violation and requesting a new trial. Specifically,
[Appellant] argued that the Commonwealth [] failed to disclose
the “Agreement to Classify Case as Inactive” (“Inactive
Agreement”),FN2 which the Commonwealth used to secure
Bennett's testimony against [Appellant]. The trial court
considered the [m]otion to be a premature post-sentence motion
and deferred ruling until after [Appellant’s] sentencing.
FN1 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding
that the prosecution must disclose evidence favorable to the
accused that is material either to guilt or punishment).
FN2 In its memorandum and order, the trial court explained
the unique practice of inactive status and inactive
agreements in Armstrong County. “In Armstrong County,
inactive status operates a[s a] general continuance of a case,
pending some action that causes the case to be placed back
on active status.” See Post-Sentence Motion Memorandum
and Order, 9/20/19, at 3. Further, “[i]nactive agreements
are not a matter of public record.” Id. The original copy of
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the agreement is retained by the Court Administrator until
active status is resumed, at which point the Court
Administrator discards the original agreement. Id.
Additionally, the Commonwealth keeps a physical copy of any
inactive agreements. Id.
On July 21, 2017, prior to the filing of charges against
[Appellant] in the instant case, Bennett was charged in a
separate case with drug-related offenses. The
Commonwealth and Bennett subsequently entered into the
Inactive Agreement. As a result, Bennett's case was placed
on inactive status pending the outcome of [Appellant’s] trial.
The trial court found that, pursuant to the Inactive
Agreement, Bennett waived his Pa.R.Crim.P. 600 speedy trial
rights and his right to assert the applicable statute of
limitations “as consideration for being placed on [i]nactive
[s]tatus.” Id. at 3. The Inactive Agreement further specified
that Bennett's case would remain inactive “until [Appellant’s]
matter is finalized.” Id. At some point, the Commonwealth
provided discovery materials to [Appellant], but did not
include a copy of, or otherwise mention, the Inactive
Agreement. Id. at 3-5. Ultimately, [Appellant] was not
made aware of the Inactive Agreement until post-sentence
proceedings. Id.
On July 18, 2019, the trial court sentenced [Appellant] to a term
of 10 to 20 years in prison for the aggravated assault conviction,
with credit for time served, plus fines and costs. The trial court
imposed no further penalty for [Appellant’s] conviction of simple
assault.
On July 24, 2019, [Appellant] filed a supplemental post-sentence
motion, in which he incorporated the Brady claim, and included a
list of witnesses to testify about the Inactive Agreement. The trial
court conducted a post-sentence motion hearing on September 6,
2019. On September 20, 2019, the trial court issued a
memorandum and order denying [Appellant’s] motion for failure
to establish the prejudice requirement of Brady. Thereafter,
[Appellant timely appealed].
Commonwealth v. Wilson, 239 A.3d 110, at *1-2 (Pa. Super. 2020)
(unpublished memorandum) (footnotes in original).
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On July 29, 2020, this Court affirmed Appellant's judgment of sentence.
See id. at *3. Specifically, we agreed with the trial court that, although the
Inactive Agreement constituted an undisclosed benefit conferred on Bennett,
Appellant failed to establish that he was prejudiced by nondisclosure in view
of the overwhelming and highly corroborated quantum of evidence that
established his guilt.2 See id. Appellant did not petition for review by our
Supreme Court.3
On September 14, 2020, Appellant filed a timely pro se PCRA petition,
his first. The court appointed PCRA counsel who filed an amended petition on
December 11, 2020. The amended petition alleged that trial counsel was
ineffective in failing to have meaningful conversations with Appellant, in failing
to raise an alternative theory of defense, and in refusing to allow Appellant to
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2 Appellant withdrew a challenge to the legality of his sentence. See Wilson,
239 A.3d 110, at *3 n.4.
3 Appellant needed to file his petition for allowance of appeal to the Supreme
Court no later than August 28, 2020. See Pa.R.A.P. 1113(a) (petition for
allowance of appeal to Supreme Court shall be filed within 30 days of entry of
Superior Court order). As it shall become relevant below, after we affirmed
Appellant’s judgment of sentence on July 29, 2020 but 10 days before
Appellant’s petition for allowance became due, our Supreme Court filed its
decision in Commonwealth v. Bagnall, 235 A.3d 1075 (Pa. 2020). In its
August 18, 2020 opinion, the Bagnall Court held, inter alia, that a homicide
defendant was entitled to a new trial due to the prosecution’s Brady violation
where an undisclosed cooperation agreement between the Commonwealth
and a witness constituted impeachment evidence that was material to the
defendant’s case since the defendant established a reasonable probability of
a different trial outcome if the agreement had been disclosed. See Bagnall,
supra.
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testify at trial. The amended petition did not allege that direct appeal counsel
was ineffective in failing to petition for allowance of appeal to our Supreme
Court on the strength of Bagnall.
The PCRA court convened a hearing on January 21, 2021, at which
Appellant and trial counsel testified. On February 4, 2021, the PCRA court
dismissed Appellant's petition. We affirmed the dismissal of Appellant’s
petition on November 16, 2021 and the Supreme Court denied further review
on May 3, 2022. See Commonwealth v. Wilson, 268 A.3d 427 (Pa. Super.
2021) (unpublished memorandum), appeal denied, 277 A.3d 1108 (Pa. 2022).
Appellant filed a second petition, through counsel, on June 23, 2022.4
This petition alleged that direct appeal counsel was ineffective in failing to
seek further review before the Supreme Court in August 2020 after the Court
issued its decision in Bagnall. The petition also alleged that PCRA counsel
who filed an amended petition on December 11, 2020 was ineffective in failing
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4 Appellant’s June 2022 petition was preceded by two pro se filings submitted
on February 24, 2022 and March 29, 2022. Litigation of Appellant’s pro se
submissions could not proceed given the pendency of appellate review on
Appellant’s first PCRA filing. See Commonwealth v. Lark, 746 A.2d 585,
588 (Pa. 2000) (“when an appellant's PCRA appeal is pending before a court,
a subsequent PCRA petition cannot be filed until the resolution of review of
the pending PCRA petition by the highest state court in which review is sought,
or upon the expiration of the time for seeking such review”), rev’d on other
grounds, Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020).
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to raise the ineffectiveness of direct appeal counsel. The PCRA court dismissed
Appellant’s petition on November 7, 2022 and this appeal followed.5
Appellant’s brief lists two claims for our review.
Whether Appellant has timely filed the instant PCRA petition?
Whether Bagnall supports Appellant’s claim that he entitled to
collateral relief on his Brady claim?
Appellant’s Brief at 4 (cleaned up).
In addressing Appellant’s issues, we are mindful of our well-settled
standard and scope of review of an order denying a PCRA petition. Proper
appellate review of a PCRA court’s dismissal of a petition is limited to an
examination of “whether the PCRA court’s determination is supported by the
record and free of legal error.” Commonwealth v. Miller, 102 A.3d 988,
992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified record.”
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations
omitted). “This Court grants great deference to the findings of the PCRA court,
and we will not disturb those findings merely because the record could support
a contrary holding.” Commonwealth v. Hickman, 799 A.2d 136, 140
(Pa. Super. 2002) (citation omitted). In contrast, we review the PCRA court’s
legal conclusions de novo. Commonwealth v. Henkel, 90 A.3d 16, 20
(Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014).
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5 Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
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It is well-established that the timeliness of a PCRA petition is
jurisdictional, and if a PCRA petition is untimely, courts lack jurisdiction over
the claims and cannot grant relief. Commonwealth v. Wharton, 886 A.2d
1120, 1124 (Pa. 2005); see also Commonwealth v. Callahan, 101 A.3d
118, 121 (Pa. Super. 2014) (holding, courts do not have jurisdiction over an
untimely PCRA petition). To be timely filed, a PCRA petition, including second
and subsequent petitions, must be filed within one year of the date a
petitioner’s judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1).
“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 the time for seeking
the review.” 42 Pa.C.S.A. § 9545(b)(3). The PCRA’s jurisdictional time
restriction is constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287,
292 (Pa. 2004).
Appellant’s judgment of sentence became final on August 28, 2020.
Therefore, Appellant had until August 28, 2021, in which to file a timely PCRA
petition. 42 Pa.C.S.A. § 9545(b)(1) (stating, a PCRA petition, “including a
second or subsequent petition, shall be filed within one year of the date the
judgment becomes final” unless the petitioner alleges and proved one of the
three enumerated exceptions set forth herein). The order currently subject
to review denied a petition filed on June 23, 2022. Therefore, the instant
petition is patently untimely.
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If a PCRA petition is untimely filed, the jurisdictional time-bar can only
be overcome if the petitioner alleges and proves one of the three statutory
exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v.
Spotz, 171 A.3d 675, 678 (Pa. 2017). The three narrow statutory exceptions
to the one-year time-bar are as follows: “(1) interference by government
officials in the presentation of the claim; (2) newly[-]discovered facts; and (3)
an after-recognized constitutional right.” Commonwealth v. Brandon, 51
A.3d 231, 233-234 (Pa. Super. 2012), citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii).
A petition invoking an exception to the jurisdictional time-bar must be filed
within one year of the date that the claim could have been presented. 6 42
Pa.C.S.A. § 9545(b)(2) (effective Dec. 24, 2018). If a petitioner fails to invoke
a valid exception to the PCRA time-bar, courts are without jurisdiction to
review the petition and provide relief. Spotz, 171 A.3d at 676.
It is well-established that, to invoke the newly-discovered facts
exception, the petitioner must plead and prove facts that were “unknown” to
him or her, and that he or she could not uncover such facts with the exercise
of “due diligence.” Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa.
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6 We note that effective December 24, 2018, the time-period in which to file
a petition invoking one of the three exceptions was extended from 60 days to
one year. 42 Pa.C.S.A. § 9545(b)(2). This amendment applies to claims
arising one year prior to the effective date of the amendment; i.e. December
24, 2017, or later. Act. 2018, Oct. 24, P.L. 894, No. 146, § 3. Because
Appellant filed his PCRA petition on June 23, 2022, this amendment applies,
and Appellant had one year in which to file a petition that validly invoked any
of the exceptions to the PCRA’s time-bar.
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2007); see also Commonwealth v. Small, 238 A.3d 1267, 1271 (Pa. 2020)
(stating that, the newly-discovered facts exception “renders a petition timely
when the petitioner establishes that 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”). Our Supreme Court recently
reiterated the well-established principle that a judicial decision does not
constitute a “fact” for purposes of the newly-discovered facts exception.
Commonwealth v. Reid, 235 A.3d 1124, 1147 (Pa. 2020).
Appellant does not expressly invoke any of the timeliness exceptions set
forth in Section 9545. Instead, Appellant notes initially that nunc pro tunc
reinstatement of appellate rights is an appropriate remedy where a timely
PCRA petition has been filed and a deprivation of effective assistance of
appellate counsel has occurred. See Appellant’s Brief at 10-11. Appellant
next suggests that Bagnall represents a change in the law and that “manifest
injustice” would result if he were precluded from litigating his claims of
ineffective assistance under the new standards. See id. at 12. Appellant
concludes that he has “timely preserved” his claims since the ineffectiveness
of PCRA counsel could not have been raised until the Supreme Court denied
his petition for allowance of appeal on May 3, 2022. See id. at 13.
Appellant ignores fundamental principles of Pennsylvania law in
advancing his claims that his June 23, 2022 petition was timely, that our
Supreme Court’s decision in Bagnall somehow extended the time for filing a
petition for collateral relief, and that a manifest injustice permits us to reach
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the merits of Appellant’s untimely collateral claims. As we stated above, Lark
precluded the filing of a subsequent petition until appellate review of
Appellant’s first petition had concluded. Hence, Appellant’s June 23, 2022
petition, filed more that 21 months after his judgment of sentence became
final, was patently untimely.
Moreover, Appellant has not validly invoked any of the statutory
exceptions to the PCRA’s one-year time bar which are set forth at Section
9545. Pennsylvania courts have consistently held that judicial opinions are
not new facts under Section 9545(b)(1)(ii). See Reid, 235 A.3d at 1148;
Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011) (subsequent
decisional law does not constitute a new fact under Section 9454(b)(1)(ii)).
Accordingly, the issuance of the Supreme Court’s opinion in Bagnall does not
implicate the timeliness exception found at Section 9454(b)(1)(ii).
Appellant also cannot rely upon the new constitutional right exception
found in Section 9545(b)(1)(iii). This provision is triggered only 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.” 42 Pa.C.S.A. § 9545(b)(1)(iii). Our review of Bagnall leads
us to conclude that the decision neither announced a new constitutional right
nor contained an express pronouncement of retroactive application. Thus,
Section 9545(b)(1)(iii) does not apply in this instance.
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In short, everything Appellant needed to know in order to litigate the
alleged ineffectiveness of direct appeal counsel was available when Appellant
filed his initial timely petition; he cannot now cite the claimed ineffectiveness
of original PCRA counsel as grounds for circumventing the PCRA’s one-year
time bar. See Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.
2003) (“[t]he PCRA confers no authority upon this Court to fashion ad hoc
equitable exceptions to the PCRA time-bar in addition to those exceptions
expressly delineated in the Act[]”) (citation omitted); see also
Commonwealth v. Bradley, 261 A.3d 381, 406 (Pa. 2021) (Justice
Dougherty concurring) (“Importantly, our decision today does not create an
exception to the PCRA's jurisdictional time-bar, such that a petitioner
represented by the same counsel in the PCRA court and on PCRA appeal could
file an untimely successive PCRA petition challenging initial PCRA counsel's
ineffectiveness because it was his ‘first opportunity to do so[.]’”);
Commonwealth v. Stahl, 292 A.3d 1130, 1136 (Pa. Super. 2023) (“Nothing
in Bradley creates a right to file a second PCRA petition outside the PCRA's
one-year time limit as a method of raising ineffectiveness of PCRA counsel or
permits recognition of such a right.”).
For each of the foregoing reasons, we conclude that the PCRA court
correctly dismissed Appellant’s June 23, 2022 petition as untimely and not
subject to any statutory exception to the PCRA’s jurisdictional time bar.
Because we lack jurisdiction to reach the merits of Appellant’s claims for
collateral relief, we need not discuss the second issue Appellant raises on
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appeal. We therefore shall affirm the order entered by the PCRA court on
November 7, 2022.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2023
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