Com. v. Nelson, J.

J-S63020-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JORGE M. NELSON,

Appellant No. 145 EDA 2016

Appeal from the PCRA Order December 9, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0121811-1988

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 03, 2016

Appellant, Jorge M. Nelson, appeals pro se from the order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

The underlying facts of this case have been summarized as follows:

The evidence introduced at trial established that on November 9,
1982, [Appellant] and his co-conspirator, William Birdsong,
entered an apartment where they had arranged to pick up some
cocaine. Present in the apartment were Nathaniel Boon[e],
Stefan Purcell and Donald Latimer. [Appellant] and Birdsong
were expected and were let into the apartment. After entering
the apartment, [Appellant] and Birdsong proceeded to rob those
persons present, demanding drugs in addition to those that had
been prepared for them to receive. The robbery quickly went
wrong and [Appellant] and Birdsong killed two of the three men
present. They left the apartment believing the third man,
____________________________________________

*
Former Justice specially assigned to the Superior Court.
J-S63020-16

Donald Latimer, also had been killed after Birdsong fired a bullet
into a cushion that covered Mr. Latimer’s head. Somehow, that
bullet missed Latimer. Subsequently, Mr. Latimer was able to
identify Birdsong to the police, as he knew Birdsong prior to the
killings. At that time, he did not know [Appellant] by name,
though he told police that he could recognize him if he saw him.

PCRA Court Opinion, 8/29/98, at 2-3. Appellant was arrested approximately

five years later. On July 11, 1989, a jury convicted Appellant of two counts

each of second-degree murder and robbery, and one count each of burglary,

conspiracy, and possession of an instrument of crime. On December 11,

1989, the trial court sentenced Appellant to concurrent terms of life

imprisonment for the second-degree murder convictions and a consecutive

term of five to ten years of incarceration for the conspiracy conviction.

Appellant filed a timely direct appeal. On September 3, 1991, this

Court affirmed Appellant’s judgment of sentence and, on April 14, 1992, our

Supreme Court denied Appellant’s petition for allowance of appeal.

Commonwealth v. Nelson, 3482 Philadelphia 1990, 601 A.2d 372 (Pa.

Super. 1991) (unpublished memorandum), appeal denied, 607 A.2d 252

(Pa. 1992).

On January 15, 1997, with the assistance of counsel, Appellant filed

his first PCRA petition. The PCRA court dismissed the PCRA petition without

a hearing on September 29, 1997. On November 9, 1999, this Court

affirmed the PCRA court in part, and remanded the matter to the PCRA court

for an evidentiary hearing regarding whether Appellant had been advised of

his right to testify at trial. Commonwealth v. Nelson, 4490 Philadephia

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1997, 748 A.2d 1253 (Pa. Super. 1999) (unpublished memorandum). On

remand, the PCRA court held a hearing on July 19, 2000, and denied further

relief on November 13, 2000. On subsequent appeal, this Court affirmed the

order of the PCRA court on January 22, 2002, and our Supreme Court denied

Appellant’s petition for allowance of appeal on August 1, 2002.

Commonwealth v. Nelson, 3496 EDA 2000, 797 A.2d 375 (Pa. Super.

2002) (unpublished memorandum), appeal denied, 805 A.2d 855 (Pa.

2002).

On September 24, 2007, Appellant filed another PCRA petition. The

court of common pleas docket reflects that notice was sent to Appellant of

the PCRA court’s intent to dismiss the PCRA petition pursuant to

Pa.R.Crim.P. 907 on May 23, 2008. On September 5, 2008, the PCRA court

filed an order dismissing Appellant’s PCRA petition due to the untimely

nature of Appellant’s PCRA filing.

Appellant filed, pro se, the instant petition on November 23, 2010,

which he titled an “‘Emergency’ Petition for Writ of Habeas Corpus Nunc Pro

Tunc.” In the years that followed, Appellant filed several pro se items of

correspondence with the PCRA court requesting relief and seeking action on

his filing. Ultimately, our Supreme Court entered the following per curiam

order:

AND NOW, this 19th day of September 2014, the
Application for Leave to File Original Process is GRANTED.
Furthermore, the Petition for Writ of Mandamus and/or
Extraordinary Relief is DENIED to the extent it requests

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extraordinary relief and is GRANTED to the extent it requests
mandamus relief. The Court of Common Pleas of Philadelphia
County is DIRECTED to adjudicate Petitioner’s pending petition
within 90 days.

Order, 9/19/14, at 1. On January 13, 2015, the court of common pleas sent

Appellant a full docketing statement. On March 6, 2015, Appellant filed, pro

se, another item of correspondence in the court of common pleas titled,

“Motion for Judgment on Petitioner’s Pending Petition for Fraud upon the

Court by Officers of the Court Pursuant to 42 Pa.C.S.A. § 5504 & 5505.”

On August 24, 2015, the PCRA court entered notice of its intent to

dismiss pursuant to Pa.R.Crim.P. 907, noting that Appellant’s Petition for

Writ of Habeas Corpus must be treated as a PCRA petition, which was

untimely filed. Appellant filed a response to the Pa.R.Crim.P. 907 notice.

On December 9, 2015, the PCRA court entered an order and opinion denying

PCRA relief. This timely appeal followed. The PCRA court did not order

Appellant to file a statement pursuant to Pa.R.A.P. 1925(b).

Appellant presents the following issues for our review:

1. WAS THE PCRA COURT IN ERROR AND WHETHER ITS
FINDINGS SUPPORTED BY THE RECORD AND FREE FROM LEGAL
ERROR, AND ARE THOSE FINDINGS IN VIOLATION OF
PETITIONER’S DUE PROCESS RIGHTS UNDER FUNDAMENTAL
FAIRNESS AND EQUAL TO A MISCARRIAGE OF JUSTICE?

2. DOES COMMONWEALTH V. NEWMAN AND COMMONWEALTH V
HOPKINS APPLY RETROACTIVELY TO PETITIONERS SENTENCE
AND CONVICTION REQUIRING RELIEF?

Appellant’s Brief at 1.

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When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

Initially, we must determine whether this matter is properly before us.

We begin by determining whether the PCRA court accurately considered

Appellant’s petition to be a PCRA petition.

The scope of the PCRA is explicitly defined as follows:

This subchapter provides for an action by which persons
convicted of crimes they did not commit and persons serving
illegal sentences may obtain collateral relief. The action
established in this subchapter shall be the sole means of
obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose
that exist when this subchapter takes effect, including
habeas corpus and coram nobis. This subchapter is not
intended to limit the availability of remedies in the trial court or
on direct appeal from the judgment of sentence, to provide a
means for raising issues waived in prior proceedings or to
provide relief from collateral consequences of a criminal
conviction.

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42 Pa.C.S. § 9542 (emphasis added).

The plain language of the statute above demonstrates that the General

Assembly intended that claims that could be brought under the PCRA must

be brought under that Act. Commonwealth v. Hall, 771 A.2d 1232, 1235

(Pa. 2001) (emphases in original). Where a defendant’s claims “are

cognizable under the PCRA, the common law and statutory remedies now

subsumed by the PCRA are not separately available to the defendant.” Id.

at 1235 (citations omitted). By its own language, and by judicial decisions

interpreting such language, the PCRA provides the sole means for obtaining

state collateral relief. Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa.

1999) (citations omitted). Thus, it is well settled that any collateral petition

raising issues with respect to remedies offered under the PCRA will be

considered to be a PCRA petition. Commonwealth v. Deaner, 779 A.2d

578, 580 (Pa. Super. 2001).

The question then is whether the particular claims at issue, i.e.

Appellant’s allegations that he was convicted on the basis of false ballistic

testimony and that he learned that his co-defendant had been granted funds

to conduct a ballistics experiment, are claims available to him under the

PCRA. The relevant portion of the PCRA provides as follows:

(2) That the conviction or sentence resulted from one or more
of the following:

(i) A violation of the Constitution of this
Commonwealth or the Constitution or laws of the
United States which, in the circumstances of the

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particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or
innocence could have taken place.

***

(vi) The unavailability at the time of trial of
exculpatory evidence that has subsequently become
available and would have changed the outcome of
the trial if it had been introduced.

42 Pa.C.S. § 9543(a)(2)(iii). Thus, the statute indicates that claims of a

constitutional nature and claims of after-discovered evidence are cognizable

under the PCRA. Id.

Essentially, Appellant is attacking the validity of his underlying murder

convictions. Since such a claim is cognizable under the PCRA, Appellant is

precluded from seeking relief pursuant to a petition for writ of habeas

corpus. Thus, the PCRA court had no authority to entertain the claims

except under the strictures of the PCRA.

We next address whether Appellant satisfied the timeliness

requirements of the PCRA. A PCRA petition must be filed within one year of

the date that the judgment of sentence becomes final. 42 Pa.C.S. §

9545(b)(1). This time requirement is mandatory and jurisdictional in

nature, and the court may not ignore it in order to reach the merits of the

petition. Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).

Effective January 16, 1996, the PCRA was amended to require a petitioner to

file any PCRA petition within one year of the date the judgment of sentence

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

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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.” 42 Pa.C.S. §

9545(b)(3). Where a petitioner’s judgment of sentence became final on or

before the effective date of the amendment, a special grace proviso allowed

first PCRA petitions to be filed by January 16, 1997. See Commonwealth

v. Alcorn, 703 A.2d 1054, 1056-1057 (Pa. Super. 1997) (explaining

application of PCRA timeliness proviso).

However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.1 A petition invoking one of these exceptions must be filed

____________________________________________

1
The exceptions to the timeliness requirement are:

(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.

(Footnote Continued Next Page)

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within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,

1167 (Pa. Super. 2001).

Our review of the record reflects that Appellant was sentenced on

December 11, 1990. Appellant filed a direct appeal, and this Court affirmed

Appellant’s judgment of sentence on September 3, 1991. Nelson, 3482

Philadelphia 1990, 601 A.2d 372. Appellant filed a petition for allowance of

appeal, which was denied by our Supreme Court on April 14, 1992. Nelson,

607 A.2d 252. Appellant did not file a petition for writ of certiorari with the

United States Supreme Court. Accordingly, Appellant’s judgment of

sentence became final on July 13, 1992, when the time for seeking certiorari

from the United States Supreme Court expired.2 See 42 Pa.C.S. §

9545(b)(3) (providing that “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
_______________________
(Footnote Continued)

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
2
Appellant had ninety days from the date of the Pennsylvania Supreme
Court’s decision on direct appeal to file a petition for a writ of certiorari with
the United States Supreme Court. Commonwealth v. Hackett, 956 A.2d
978, 980 n.4 (Pa. 2008); United States Supreme Court Rule 13.

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time for seeking the review.”). Thus, Appellant’s judgment of sentence

became final prior to the effective date of the PCRA amendments.

Appellant’s instant PCRA petition, filed on November 23, 2010, does not

qualify for the grace proviso as it was not filed before January 16, 1997.

Thus, the instant PCRA petition is patently untimely.

As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. §

9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted.

42 Pa.C.S. § 9545(b)(2).

The record reflects that Appellant attempted to raise the exception

that the facts upon which his claim is predicated previously were unknown to

him, pursuant to 42 Pa.C.S. § 9545(b)(1)(ii). Regarding this exception, this

Court has stated the following:

In order to sustain an untimely PCRA petition under the
after-discovered evidence exception, a petitioner must show that
the evidence: (1) has been discovered after the trial and could
not have been obtained prior to the conclusion of the trial
by the exercise of reasonable diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely for
impeachment purposes; and (4) is of such a nature and
character that a different verdict will likely result if a new trial is
granted.

Commonwealth v. Johnson, 841 A.2d 136, 140-141 (Pa. Super. 2003)

(emphases added). In addition, our Supreme Court explained that “the

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after-discovered facts exception focuses on facts, not on a newly

discovered or newly willing source for previously known facts[.]”

Commonwealth v. Marshall, 947 A.2d 714, 721 (Pa. 2008) (emphasis in

original; internal quotation marks and citation omitted).

Instantly, Appellant claims that he is entitled to PCRA relief on the

basis of after-discovered facts consisting of information in the form of a

ballistics report that was obtained by his co-defendant and knowledge that

his co-defendant requested funding for ballistics testing. The PCRA court

found no merit to Appellant’s assertion and addressed his claim as follows:

[Appellant] fully admits that the request [by his co-defendant]
for a ballistics expert was made in 1985, and he offers no show
of due diligence in waiting 25 years to raise this claim.
Moreover, this information was made in his co-defendant’s case,
not his own. Furthermore, [Appellant] was convicted four years
after [his co-defendant’s] request was made; therefore, the
request for funds for a ballistic expert was discoverable at the
time of [Appellant’s] trial. A PCRA claim is waived “if the
petitioner could have raised it but failed to do so before trial, at
trial, during unitary review, on appeal or in a prior state post-
conviction proceeding.” 42 Pa.C.S.A. § 9544(b). Therefore, this
claim affords no relief.

PCRA Court Order and Opinion, 12/9/15, at 3.

We agree with the PCRA court’s analysis and likewise conclude that,

even if discovery of the co-defendant’s request for funds for a ballistics

expert qualified as an after-discovered fact, the PCRA court did not err in

finding that Appellant’s instant PCRA petition is untimely and no exception to

the timeliness provision applies. Our review of the record reflects that

Appellant has not alleged that there was an obstruction to Appellant

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obtaining the information about the co-defendant’s request for funds for a

ballistics expert prior to the conclusion Appellant’s trial. Indeed, Appellant

does not offer any explanation regarding the failure to investigate his co-

defendant’s trial, which preceded his own trial. Thus, because Appellant has

not shown that this evidence could not have been obtained prior to the

conclusion of his trial by the exercise of reasonable diligence, he has failed

to meet the first prong of the four-part Johnson test.

Moreover, Appellant essentially argues that the alleged ballistics

information would have been used to impeach the testimony offered by the

Commonwealth’s ballistics expert, whom Appellant claims perjured himself

at Appellant’s trial by falsely testifying with regard to ballistics evidence.

Therefore, because Appellant has not shown that the evidence will not be

used solely for impeachment purposes, he also fails to meet the third prong

of the four-part Johnson test. Accordingly, we conclude that Appellant has

not established that the after-discovered facts exception applies.

In addition, we observe that in his response to the Pa.R.Crim.P. 907

notice filed by the PCRA court, Appellant argued that his untimely petition

meets all three of the timeliness exceptions due to the decisions in

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (invalidating the

drug-free school zone mandatory minimum sentence, 18 Pa.C.S. § 6317,

based on the holding in of Alleyne v. United States, 133 S.Ct. 2151, 2155

(2013)), and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)

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(en banc), appeal denied, 121 A.3d 496 (Pa. 2015) (concluding that 42

Pa.C.S. § 9712.1, regarding the distance between drugs and guns, must be

struck down in its entirety as unconstitutional in light of Alleyne, as its

subsections are not severable). Answer and Amended Response to Notice,

9/11/15, at 2-9 (Record Docket Entry 11). Thus, the two cases relied upon

by Appellant each apply the United States Supreme Court’s decision in

Alleyne.

With regard to the allegation that the failure to make an Alleyne

related claim earlier was the result of governmental interference under 42

Pa.C.S. § 9545(b)(1)(i), such claim may be summarily dismissed. “Neither

the court system nor the correctional system is obliged to educate or update

prisoners concerning changes in case law.” Commonwealth v. Brandon,

51 A.3d 231, 236 (Pa. Super. 2012) (quoting Commonwealth v. Baldwin,

789 A.2d 728, 731 (Pa. Super. 2001)). Commonwealth v. Boyd, 923 A.2d

513, 517 (Pa. Super. 2007) (stating that, for purposes of PCRA exceptions,

“the sixty-day period begins to run upon the date of the underlying judicial

decision.”). Alleyne was available to all, including Appellant on the day it

was decided, June 17, 2013. Our review of the certified record reflects that

Appellant made no filings within sixty days of the decision in Alleyne.

Furthermore, Appellant’s veiled allegation that a claim based on Alleyne

could be made only after appellate courts applied Alleyne in subsequent

legal decisions constitutes “governmental interference” lacks merit.

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In addition, Appellant’s claim that Alleyne and its progeny satisfy the

after-discovered fact exception under 42 Pa.C.S. § 9545(b)(1)(ii) also lacks

merit. A judicial opinion does not constitute after-discovered evidence for

the purposes of the PCRA time-bar. Commonwealth v. Watts, 23 A.3d

980, 986-987 (Pa. 2011); see Cintora, 69 A.3d at 763 (“[A] judicial opinion

does not qualify as a previously unknown ‘fact’ capable of triggering the

timeliness exception set forth in section 9545(b)(1)(ii) of the PCRA.”).

Therefore, this claim does not provide Appellant relief from the PCRA time

bar.

Finally, to the extent Appellant argues that Alleyne and its progeny

may be characterized as an attempt to assert the “new constitutional right”

exception to the PCRA time bar under 42 Pa.C.S. § 9545(b)(1)(iii), that

claim fails as well. Recently, in Commonwealth v. Washington, 142 A.3d

810 (Pa. 2016), the Pennsylvania Supreme Court addressed a situation in

which the defendant raised an Alleyne claim in a timely PCRA petition but

his judgment of sentence had become final prior to the Alleyne decision.

The Washington Court stated:

[A] new rule of law does not automatically render final, pre-
existing sentences illegal. A finding of illegality concerning such
sentences may be premised on such a rule only to the degree
that the new rule applies retrospectively. In other words, if the
rule simply does not pertain to a particular conviction or
sentence, it cannot operate to render that conviction or sentence
illegal.

***

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[N]ew constitutional procedural rules generally pertain to future
cases and matters that are pending on direct review at the time
of the rule’s announcement.

Id. at 814-815. See also id. at 815 (stating “if a new constitutional rule

does not apply, it cannot render an otherwise final sentence illegal”). The

Washington Court applied the retroactivity analysis delineated in Teague

v. Lane, 489 U.S. 288 (1989) (plurality),3 and determined the rule

announced in Alleyne is not a substantive or watershed procedural rule that

would warrant retroactive application. Washington. The Court held the

defendant was not entitled to retroactive application of Alleyne because his

judgment of sentence had become final before Alleyne was decided. Id.

The Washington Court definitively held that “Alleyne does not apply

retroactively to cases pending on collateral review.” Id. at 820. Moreover,

the Court declined to “recognize an independent state-level retroactivity

jurisprudence grounded on fairness considerations.” Id. at 819. In

summary, Washington stands for the proposition that no Alleyne violation

can occur where the defendant’s sentence was imposed and became final

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3
“Under the Teague framework, an old rule applies both on direct and
collateral review, but a new rule is generally applicable only to cases that are
still on direct review. A new rule applies retroactively in a [federal] collateral
proceeding only if (1) the rule is substantive or (2) the rule is a ‘watershed
rule of criminal procedure’ implicating the fundamental fairness and accuracy
of the criminal proceeding.” Whorton v. Bockting, 549 U.S. 406, 416
(2007) (internal citations omitted).

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before Alleyne was decided. Therefore, Appellant is not entitled to the

benefit of Alleyne.

As previously noted, Appellant’s judgment of sentence became final on

July 13, 1992. Alleyne was decided on June 13, 2013. Alleyne, 133 S.Ct.

at 2151. Appellant’s judgment of sentence was finalized nearly twenty-one

years before Alleyne was decided. Therefore, Appellant does not qualify for

the new constitutional right exception to the PCRA time bar under Alleyne.4

In conclusion, because Appellant’s PCRA petition was untimely and no

exceptions apply, the PCRA court correctly determined that it lacked

jurisdiction to address the claims presented and grant relief. See

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding

that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we

lack the authority to address the merits of any substantive claims raised in

the PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007) (“[J]urisdictional time limits go to a court’s right or competency

to adjudicate a controversy.”).

Order affirmed.

____________________________________________

4
In addition, we note that although a challenge based on Alleyne does
implicate the legality of a sentence, “a legality of sentence claim may
nevertheless be lost should it be raised . . . in an untimely PCRA petition for
which no time-bar exception applies.” Commonwealth v. Miller, 102 A.3d
988, 995-996 (Pa. Super. 2014).

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/3/2016

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