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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BIRDELL BROCKINGTON
Appellant No. 3611 EDA 2015
Appeal from the PCRA Order October 30, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002736-1997
BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED NOVEMBER 17, 2016
Birdell Brockington appeals, pro se, from the order entered in the
Lehigh County Court of Common Pleas, dated October 30, 2015, dismissing
his second petition filed under the Post-Conviction Relief Act (“PCRA”), as
untimely.1 Brockington seeks relief from the judgment of sentence imposed
on May 26, 1998, following his convictions for various offenses including,
inter alia, first-degree murder.2 Based on the following, we affirm.
The facts and procedural history are as follows. Brockington’s
convictions stem from an incident on August 2, 1997, when he and Kevin
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. § 2501.
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Taylor burglarized the home of Bruce Kight in order to steal personal items
from him, and subsequently, Taylor shot Kight numerous times, killing him.
On May 22, 1998, a jury convicted Brockington of first-degree murder,
burglary, criminal trespass, theft by unlawful taking, and five counts of
criminal conspiracy. Four days later, he was sentenced to an aggregate
term of life imprisonment. A panel of this Court affirmed the judgment of
sentence on July 31, 2000, and the Pennsylvania Supreme Court denied
allowance of appeal on December 14, 2000. See Commonwealth v.
Brockington, 764 A.2d 1119 [493 EDA 1999] (Pa. Super. 2000)
(unpublished memorandum), appeal denied, 764 A.2d 1064 (Pa. 2000).
On December 14, 2001, Brockington filed a timely, pro se PCRA
petition, alleging ineffective assistance of trial counsel. Counsel was
appointed, and an amended petition was filed on his behalf. The PCRA court
held an evidentiary hearing on May 29, 2002, and subsequently denied
Brockington’s petition on July 15, 2002. A panel of this Court affirmed the
PCRA court’s order on May 20, 2003, and the Pennsylvania Supreme Court
denied allowance of appeal on June 22, 2004. See Commonwealth v.
Brockington, 829 A.2d 353 [3028 EDA 2002] (Pa. Super. 2003)
(unpublished memorandum), appeal denied, 853 A.2d 359 (Pa. 2004).
The case went dormant for over ten years until June 19, 2015, when
Brockington filed the present, pro se PCRA petition, his second, requesting
the admission of expert testimony regarding eyewitness identification “being
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that it is no longer per se impermissible” in this Commonwealth.
Brockington’s Motion for Post Conviction Collateral Relief, 6/19/2015, at 3.
In support of his assertion, Brockington points to Commonwealth v.
Walker, 92 A.3d 766 (Pa. 2014),3 which he read about in a March 31, 2015,
article, titled “Handling Eyewitness Identification Experts and Cases,” in The
Legal Intelligencer. See Brockington’s Motion for Post Conviction Collateral
Relief, 6/19/2015, at Exhibit A. Brockington also filed a “brief and
memorandum of newly excepted state law in support of PCRA petition” on
July 8, 2015.
After reviewing the matter, the PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss the petition without first conducting an
evidentiary hearing on October 5, 2015. Specifically, the court found the
petition was untimely filed and Brockington did not prove any exception to
the timeliness provisions of the PCRA. Brockington filed a response to the
Rule 907 notice on October 27, 2015.4 Three days later, the PCRA court
denied Brockington’s petition. This appeal followed.
____________________________________________
3
In Walker, the Pennsylvania Supreme Court held that “in Pennsylvania,
the admission of expert testimony regarding eyewitness identification is no
longer per se impermissible, and [it] join[ed] the vast majority of
jurisdictions which leave the admissibility of such expert testimony to the
discretion of the trial court.” Walker, 92 A.3d at 769.
4
The response was not docketed until October 30, 2015.
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On November 23, 2015, the PCRA court ordered Brockington to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). A review of the certified record reveals Brockington did not file a
concise statement. Nevertheless, the PCRA court issued an opinion pursuant
to Pa.R.A.P. 1925(a) on December 17, 2015.
Herein, Brockington presents the following questions for our review:
Whether the PCRA Court erred in denying [Brockington’s]
Post-Conviction Petition of Newly Excepted State Law in Support
of PCRA Petition as untimely filed when [Brockington]
established that his [after-discovered facts claims [was] within
the [plain language of the timeliness exception set forth at] 42
Pa.C.S.A. § 9545(b)(1)(ii) and section 9545(b)(2)?; When
[Brockington] requested an Evidentiary Hearing / Expert on [t]he
Well-Known Fallibilities of an Eyewitness’s Testimony / Frye
Hearing in relation to the Commonwealth v. Walker, 92 A.3d 776
(Pa. 2014) case.
Whether the PCRA Court erred in denying & dismissing
[Brockington’s] Response To Notice of Intent To Dismiss To
Pa.R.Crim. 907, when [Brockington] humbly presented / shared
the following new case law with the court: Commonwealth v.
Burton, PICS Case No. 15-1348 (Pa. Super. Aug. 25, 2015)
Bender, J. (47 pages); To further show why [Brockington’s]
PCRA and Memorandum of Newly Excepted State Law in Support
of PCRA Petition should have been granted.
Whether [Brockington] is entitled to a new trial, or remand
for an Evidentiary Hearing / an Expert on the well-known
fallibilities of an Eyewitness’s Testimony / Frye Hearing based
upon: The Commonwealth v. Walker, 92 A.3d 776 (Pa. 2014)
case; Elaborated on by: Mr. Jules Epstein and Ms. Marissa
Bluestine in: The Legal Intelligencer, dated: Tues. March 31,
2015, and an Exhibit (A) in [Brockington’s] Memorandum of
Newly Excepted State Law In Support of: Post Conviction Relief
Act Petition.
Brockington’s Brief at vi.
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Before we may address the merits of Brockington’s claims, we must
determine whether he has properly preserved these issues. As noted above,
Brockington failed to file a court-ordered concise statement.
Rule 1925 of the Rules of Appellate Procedure provides, in pertinent
part:
(b) Direction to file statement of errors complained of on
appeal; instructions to the appellant and the trial court. —
If the judge entering the order giving rise to the notice of appeal
(“judge”) desires clarification of the errors complained of on
appeal, the judge may enter an order directing the appellant to
file of record in the trial court and serve on the judge a concise
statement of the errors complained of on appeal (“Statement”).
…
(3) Contents of order.--The judge’s order directing the filing and
service of a Statement shall specify:
…
(iv) that any issue not properly included in the Statement
timely filed and served pursuant to subdivision (b) shall be
deemed waived.
…
(4) Requirements; waiver[.]
…
(vii) Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph
(b)(4) are waived.
Pa.R.A.P. 1925(b)(3)(iv), (4)(vii).
To effectuate these provisions, the Pennsylvania Supreme Court has
set forth a bright line rule that, “in order to preserve their claims for
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appellate review, appellants must comply whenever the trial court orders
them to file a Statement of Matters Complained of on Appeal pursuant to
Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b) statement will
be deemed waived.” Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.
2005), quoting Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998). This
bright line rule applies even when the trial or PCRA court has filed an
opinion. In re L.M., 923 A.2d 505, 509 (Pa. Super. 2007) (“If an appellant
does not comply with an order to file a Rule 1925(b) statement, all issues on
appeal are waived--even if the Rule 1925(b) statement was served on the
trial judge who subsequently addressed in an opinion the issues raised in the
Rule 1925(b) statement.”), citing Commonwealth v. Schofield, 888 A.2d
771, 774 (Pa. 2005). See also Greater Erie Indus. Dev. Corp. v.
Presque Isle Downs, Inc., 88 A.3d 222, 224 (Pa. Super. 2014) (en banc)
(“our Supreme Court does not countenance anything less than stringent
application of waiver pursuant to Rule 1925(b)[.]”); Commonwealth v.
Dozier, 99 A.3d 106, 110 (Pa. Super. 2014), appeal denied, 628 Pa. 637,
104 A.3d 523 (Pa. 2014) (finding issues waived for failure to present them in
concise statement). Accordingly, we conclude all of Brockington’s
arguments are waived.5
____________________________________________
5
We note the PCRA court, and the Commonwealth, did not address
Brockington’s lack of a concise statement. Nevertheless, “we may affirm the
(Footnote Continued Next Page)
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Assuming arguendo that Brockington had properly preserved his
claims, we would find no error in the PCRA court’s decision to deny him
relief. When reviewing an order dismissing a PCRA petition, we must
determine whether the ruling of the PCRA court is supported by evidence of
record and is free of legal error. Commonwealth v. Burkett, 5 A.3d 1260,
1267 (Pa. Super. 2010). “Great deference is granted to the findings of the
PCRA court, and these findings will not be disturbed unless they have no
support in the certified record.” Commonwealth v. Carter, 21 A.3d 680,
682 (Pa. Super. 2011) (citation omitted), appeal denied, 72 A.3d 600 (Pa.
2013).
Furthermore, “[c]rucial to the determination of any PCRA appeal is the
timeliness of the underlying petition. Thus, we must [] determine whether
the instant PCRA petition was timely filed.” Commonwealth v. Smith, 35
A.3d 766, 768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).
The PCRA timeliness requirement … is mandatory and
jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa.
1, 753 A.2d 201, 203 (2000)). The court cannot ignore a
petition’s untimeliness and reach the merits of the petition. Id.
Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,
134 S. Ct. 2695 (U.S. 2014).
_______________________
(Footnote Continued)
PCRA court’s order on any basis.” Commonwealth v. Reed, 107 A.3d 137,
144 (Pa. Super. 2014).
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A PCRA petition must be filed within one year of the date the
underlying judgment becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment
is deemed 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. §
9545(b)(3). Here, Brockington’s judgment of sentence became final on
March 14, 2001, when the period for Brockington to file a petition for writ of
certiorari with the United States Supreme Court expired. See 42 Pa.C.S. §
9545(b)(3); U.S. Sup. Ct. R. 13(a). Therefore, Brockington had one year
from that date, or until March 14, 2002, to file a timely PCRA petition. See
Taylor, supra. The instant petition was not submitted until June 15, 2015,
making it patently untimely.
An untimely PCRA petition may, nevertheless, be considered if one of
the following three exceptions applies:
(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.
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42 Pa.C.S. § 9545(b)(1)(i-iii). Furthermore, a PCRA petition alleging any of
the exceptions under Section 9545(b)(1) must be filed within 60 days of
when the PCRA claim could have first been brought. 42 Pa.C.S. §
9545(b)(2).
In rejecting Brockington’s arguments, the PCRA court opined as
follows:
In this case, [Brockington] has failed to demonstrate any
exception to the timeliness requirements of the PCRA. In his
PCRA petition, he cited the Pennsylvania Supreme Court’s
decision in Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014)
as a case which create a new constitutional right held to be
retroactively applicable. However, Walker was decided on May
28, 2014, over a year prior to [Brockington]’s instant PCRA
petition, which places it outside the sixty day requrirement.2
Accordingly, [Brockington]’s PCRA petition was untimely and did
not entitle him to relief.3
______________________
2
Walker also did not include any reference or indication
within the body of the decision or any subsequent
decisions that it applies retroactively. Absent some
indication that Walker is retroactively applicable, even if
[Brockington]’s PCRA petition had been filed within sixty
days of the date Walker was decided, it would not afford
[Brockington] any relief. See Commonwealth v.
Copenhefer, 941 A.2d 646, 649-50 (Pa. 2007) (language
in the PCRA statute “has been held” requires court to
recognize a new right and hold that it is to be applied
retroactively).
3
In [Brockington]’s response to the Court’s Notice of
Intent to Dismiss, [Brockington] cited the Superior Court’s
recent decision of Commonwealth v. Burton, 121 A.3d
1063 (Pa. Super. 2015). The Court notes that Burton was
decided after [Brockington]’s PCRA petition was filed. The
Court further notes that [Brockington] misconstrues the
impact of Burton, which discussed the after-discovered
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evidence exception to the timeliness requirements of the
PCRA. [Brockington]’s characterization of Burton is
misplaced because the basis for his requested relief in this
case was Walker, which falls under the exception of a new
constitutional right. The creation of a new constitutional
right is separate and distinct from after-discovered
evidence. 42 Pa.C.S.A. §§ 9545(b)(ii), (iii).
______________________
PCRA Court Opinion, 12/17/2015, at 4-5.
After reviewing Brockington’s arguments, the record, and our case
law, we would affirm on the basis of the PCRA court’s opinion. Brockington
has not established any of the timeliness exceptions to the PCRA
requirements. As such, we would agree with the PCRA court that it lacked
jurisdiction to address Brockington’s claims, and we would discern no abuse
of discretion by the court. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2016
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Com. v. Brockington, B.
Combined Opinion