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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LEONARD AIKEN, JR.
Appellant No. 1323 WDA 2013
Appeal from the PCRA Order July 1, 2013
In the Court of Common Pleas of Erie County
Criminal Division at No(s): 1286 and 1287 of 1985
BEFORE: PANELLA, JENKINS and MUSMANNO, JJ.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 12, 2014
Appellant, Leonard Aiken, Jr., appeals pro se from the order entered
on July 1, 2013, in the Court of Common Pleas of Erie County, dismissing his
third petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
PA.CONS.STAT.ANN. §§ 9541-9546, as untimely. After careful review, we
affirm.
The PCRA court set forth the factual and procedural history of this case
as follows:
[O]n May 27, 1986, a jury found [Aiken] guilty of first-degree
murder, hindering apprehension or prosecution, possessing
instruments of a crime and conspiracy to commit firearms not to
be carried without a license. [Aikens] was acquitted of the
robbery charge. Following the jury trial, [Aikens] was sentenced
by the Honorable Jess Jiuliante, on April 3, 1987, and received a
life sentence on the murder conviction, and received sentences
totaling nine-and-a-half (9½) years to nineteen (19) years on
the other related charges, which run consecutive to each other
and the life sentence. [Aiken] filed a timely Notice of Appeal on
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April 30, 1987, which was docketed by the Pennsylvania
Superior Court as 617 Pittsburgh 1987. Thereafter, the
Pennsylvania Superior Court filed a Memorandum Opinion, dated
October 18, 1988, ordering the judgment of sentence affirmed.
[The Pennsylvania Supreme Court subsequently denied
allocator].
[Aiken] unsuccessfully filed a PCRA on April 4, 1997. Then, on
January 9, 2001, [Aiken] filed his second PCRA, which was
subsequently denied. [Aiken] appealed the dismissal of his
second PCRA on March 12, 2001. On December 3, 2001, the
Pennsylvania Superior Court affirmed this Lower Court’s Order
dismissing [Aiken’s] second PCRA as untimely.
PCRA Court Opinion, 9/25/13, at 1-2.
Aiken filed the instant PCRA petition, his third,1 on April 17, 2013. The
PCRA court issued notice of its intention to dismiss Aiken’s PCRA petition
without a hearing and Aiken then filed a pro se response. On July 1, 2013,
the PCRA court entered its order dismissing the petition as untimely. This
timely appeal followed.
On appeal, Aiken raises the following issue for our review:
1.) DID THE DEFENDANT’S PCRA PETITION STATE AN
EXCEPTION TO THE TIMELINESS REQUIREMENTS SET
FORTH IN 42 PA.C.S. § 9545.
Appellant’s Brief, at 2.
Our standard of review of a trial court order granting or denying
relief under the PCRA calls upon us to determine whether the
determination of the PCRA court is supported by the evidence of
record and is free of legal error. The PCRA court’s findings will
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1
Aiken does not benefit from the grace period provided in the statute for
those petitioners whose judgments of sentence became final before the
effective date of the 1995 amendments to the PCRA. See Commonwealth
v. Sattazahn, 869 A.2d 529, 533 n.8. (Pa. Super. 2005).
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not be disturbed unless there is no support for the findings in the
certified record.
Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013)
(citations and quotation marks omitted).
Before we may consider the merits of Aiken’s claims, we must consider
whether this appeal is properly before us. The PCRA court determined that
Aiken’s petition was untimely and that he did not properly plead an
exception to the PCRA’s jurisdictional time-bar. See PCRA Court Opinion,
9/25/13, at 4-7. We agree.
A PCRA Petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545 (b)(1). A
judgment becomes final at the conclusion of direct review by
[the Pennsylvania Supreme] Court or the United States Supreme
Court, or at the expiration of the time for seeking such review.
42 Pa.C.S.[A.] § 9545(b)(3). The PCRA’s timeliness
requirements are jurisdictional; therefore, a court may not
address the merits of the issues raised if the petition was not
timely filed. The timeliness requirements apply to all PCRA
petitions, regardless of the nature of the individual claims raised
therein. The PCRA squarely places upon the petitioner the
burden of proving an untimely petition fits within one of the
three exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and
footnote omitted).
Aiken’s judgment of sentence became final for PCRA purposes 60 days
after March 20, 1989, when the Pennsylvania Supreme Court denied
allowance of appeal, and the time allowed for petitioning the United States
Supreme Court for writ of certiorari expired. Therefore, Aiken had one year
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from that date to file a petition for collateral relief, specifically, until May 21,
1990. See 42 PA.CONS.STAT.ANN. § 9545(b)(1). Because Aiken filed the
instant petition on April 17, 2013, it is untimely on its face, and the PCRA
court lacked jurisdiction to review it unless he pled and proved one of the
statutory exceptions to the time-bar.
The PCRA provides only three exceptions that allow for review of an
untimely PCRA petition:
(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.CONS.STAT.ANn. § 9545(b)(1)(i)-(iii). In addition, a PCRA petition
invoking one of these statutory exceptions must “be filed within 60 days of
the date the claim could have been presented.” 42 PA.CONS.STAT.ANn.§
9545(b)(2).
Here, Aiken contends that the after-discovered evidence exception,
see 42 PA.CONS.STAT.ANN. § 9545(b)(1) (ii), is applicable to this case. See
Appellant’s Brief, at 9 In support of this claim, Aiken points to affidavits that
he maintains “prove innocence.” Appellant’s Brief, at 8. Aiken claims he first
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learned of this information in 2013, prior to filing the instant PCRA petition.
See id., at 9-10. Aiken’s arguments do not merit relief from the PCRA’s
jurisdictional time-bar.
The after-discovered evidence exception requires the facts upon which
the claim is predicated “were not previously known to the petitioner and
could not have been ascertained through due diligence.” Commonwealth v.
Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008). The PCRA creates a three-
part test for the after-discovered facts exception: 1) the discovery of an
unknown fact; 2) the fact could not have been learned by the exercise of
due diligence; and 3) the petition for relief was filed within 60 days of the
date that the claim could have been presented. See Commonwealth v.
Smith, 35 A.3d 766, 771 (Pa. Super. 2011), appeal denied, 53 A.3d 757
(Pa. 2012).
Although Aiken claims that he first learned of the “after discovered
evidence” in March 2013, a review of the record belies this claim. Aiken’s
PCRA petition and affidavits attached thereto demonstrate Aiken was made
aware of the evidence he now asserts is “newly discovered” as early as
1999. In his PCRA petition, Aiken states that “[p]etitioner attaches as Exhibit
2 an affidavit of truth from one Paul Johnson dated August 01, 1999,
notarized by Thomas P. Bender of Pittsburgh, Allegheny County,
Pennsylvania.” PCRA Petition, 4/17/13, at 10. Interestingly, a review of the
exhibits attached to Aiken’s PCRA petition reveal there are no affidavits
signed by Paul Johnson.
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Moreover, Aiken admits, by affixing a copy to his PCRA Petition as
Exhibit 3, that he also received an affidavit from Ricky Redd dated April 11,
2003. In the affidavit, Redd asserts that he was coerced into making a
statement against Aiken in the Jordan murder case. Accordingly, at the very
least, Aiken was under a duty in 2003 to exercise due diligence and take any
further reasonable steps to protect his own interests by investigating further
or by filing a PCRA petition at the time he received Redd’s affidavit. The
record indicates that Aiken only filed two PCRA petitions prior to the instant
petition, both of which were filed prior to receipt of Redd’s affidavit. Aiken
elected to wait until the instant PCRA petition, more than 10 years after
receipt of Redd’s affidavit, to raise this “newly-discovered evidence” of his
innocence.
Pursuant to § 954(b)(2)’s requirement, Aiken only had 60 days from
the date he received Redd’s affidavit to effectively invoke one of the
enumerated exceptions to the timeliness requirements of the PCRA. As
stated previously, over 10 years had elapsed since Aiken learned of the
existence of this claim, making the PCRA petition in this case patently
untimely. Therefore, we are without jurisdiction to reach the merits of
Aiken’s claims.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2014
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Com. v. Aiken, L., Jr.
Combined Opinion