NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. DAVID ROBERT KENNEDY Appellant No. 281 WDA 2013 Appeal from the PCRA Order September 18, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR BEFORE: GANTMAN, J., OTT, J., and PLATT, J.* MEMORANDUM BY GANTMAN, J.: FILED AUGUST 8, 2013 Appellant, David Robert Kennedy, appeals from the order entered in the Allegheny County Court of Common Pleas, dismissing his second petition brought pursuant to the Post Conviction Relief Act ( PCRA ). 1 We affirm. The relevant facts and procedural history of this appeal are as follows. On November 21, 2005, a jury convicted Appellant of first degree murder, and the court immediately sentenced him to life imprisonment. This Court affirmed the judgment of sentence on February 26, On March 12, 2008, Appellant timely filed a counseled PCRA petition. On August 4, 2008, the PCRA court reinstated Appellant s right to file a petition for allowance of 1 42 Pa.C.S.A *Retired Senior Judge assigned to the Superior Court.

2 appeal nunc pro tunc, which Appellant filed on August 18, On December 31, 2008, our Supreme Court denied the petition for allowance of appeal nunc pro tunc. On February 19, 2009, Appellant timely filed a counseled PCRA petition alleging ineffective assistance of trial counsel. On March 16, 2009, the court provided notice of its intent to dismiss the petition without a hearing, pursuant to Pa.R.Crim.P The court denied PCRA relief on April 14, This Court affirmed the order on December 18, 2009, and our Supreme Court denied Appellant s petition for allowance of appeal on May 11, On May 23, 2012, Appellant filed the current pro se PCRA petition, raising multiple claims of prosecutorial misconduct. Appellant also asserted that the facts upon which his claims were based were unknown to him and could not have been ascertained by the exercise of due diligence. On June 1, 2012, the court provided Rule 907 notice. Appellant filed a pro se response on August 30, In it, Appellant argued that the time restrictions of the PCRA should not apply to the current petition: The facts upon which the claims of this petition are predicated were unknown to [Appellant]. This was not through lack of diligence, as [Appellant] repeatedly made requests pretrial for a copy of the discovery and throughout the appeal process requested a copy of both the trial transcript and the discovery. These requests were made to the courts as well as [Appellant s] attorneys. All requests were unanswered. There was no lack of diligence on the part of [Appellant]

3 It was not until the state appeals process moved to the federal courts that [Appellant], courtesy of the federal courts, received copies of all appeals made on his behalf. In those appeals, [Appellant] found the portions of the trial transcript and discovery that led to the issues of this petition. (Pro Se Response to Rule 907 Notice, filed 8/30/12, at 1). Ultimately, the court denied PCRA relief on September 18, Appellant filed a pro se notice of appeal on October 19, The court did not order Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Preliminarily, we address the timeliness of this appeal. A notice of appeal shall be filed within thirty (30) days after the entry of the order from which the appeal is taken. Pa.R.A.P. 903(a). Here, the court denied PCRA relief by order entered September 18, October 18, 2012 to file his notice of appeal. Thus, Appellant had until Appellant filed his pro se notice of appeal on October 19, 2012, which appears to be untimely. Generally, an appellate court cannot extend the time for filing an appeal. Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa.Super. 2007), appeal denied, 599 Pa. 691, 960 A.2d 838 (2008). Nonetheless, this general rule does not affect the power of the courts to grant relief in the 2 Pursuant to the prisoner mailbox rule, a notice of appeal is considered filed on the date it was delivered to prison authorities for mailing. See Commonwealth v. Castro, 766 A.2d 1283 (Pa.Super. 2001). Here, the postmark attached to Appellant s pro se notice of appeal is dated October 19,

4 case of fraud or breakdown in the processes of the court. Id. A breakdown can occur when the trial court departs from the obligations specified in the Pennsylvania Rules of Criminal Procedure. Id. Additionally, our rules of criminal procedure govern the denial of PCRA relief as follows: Rule 907. Disposition Without Hearing * * * (4) When the petition is dismissed without a hearing, the judge promptly shall issue an order to that effect and shall advise the defendant by certified mail, return receipt requested, of the right to appeal from the final order disposing of the petition and of the time limits within which the appeal must be filed. The order shall be filed and served as provided in Rule 114. Pa.R.Crim.P. 907(4). Pursuant to Rule 114, service shall be in writing by sending a copy to an unrepresented party by certified, registered, or first class mail addressed to the party s place of residence, business, or confinement. Pa.R.Crim.P. 114(B)(3)(a)(v). The docket entries shall contain the date of receipt in the clerk s office of the order, the date appearing on the order, and the date of service of the order. Pa.R.Crim.P. 114(C). Instantly, the certified docket entries confirm that the clerk of courts filed the order denying PCRA relief on September 18, Nevertheless, the docket entries do not indicate the date of service. See Pa.R.Crim.P. 114(C). Further, the certified record does not reveal whether the clerk of courts complied with Rule 114(B), as there is no evidence of the method of - 4 -

5 service. Appellant s notice of appeal states he did not receive a copy of the order denying PCRA relief until September 27, Absent more, we conclude a breakdown in the operations of the court excuses the apparent untimeliness of the instant appeal. Consequently, we will proceed with the appeal. Appellant raises the following issues for our review: WHETHER THE PROSECUTION S EGREGIOUS USE OF PROSECUTORIAL ABUSE AND MISCONDUCTS, INTENTIONALLY OR UNINTENTIONALLY UNDERTAKEN, PREJUDICED APPELLANT TO THE POINT OF DENIAL OF A FAIR TRIAL. THE TRIAL COURT ERRED IN NOT RECOGNIZING: THE PROSECUTION S DELIBERATE FAILURES TO DISCLOSE EXCULPATORY PHYSICAL EVIDENCE AND THE INTENTIONAL SUPPRESSION OF SAID EXCULPATORY EVIDENCE THROUGH THE UNCORRECTED FALSE TESTIMONY OF CHIEF WITNESSES (I.E. POLICE OFFICERS), THE PROSECUTION S ACKNOWLEDGED PRETRIAL SELECTIONS OF WHICH REPORTS WITNESSES WOULD OR WOULD NOT REVIEW, THE PRETRIAL (ALSO ACKNOWLEDGED) COUNSELING OF THOSE WITNESSES, AND THE SUPPRESSED/WITHHELD EXCULPATORY EVIDENCE IN VIOLATION OF BRADY CLAIMS, THE PROSECUTION S VOUCHING FOR DR. ROZIN, PORTRAYING AS FACT WHAT IS NOT IN EVIDENCE, AND CONTINUOUS USE OF PREJUDICIAL OR INFLAMMATORY COMMENTS, WHICH PREJUDICED APPELLANT S FAIR TRIAL RIGHTS, THE PROSECUTION S CLOSING REMARKS, INFLAMMATORY AND PREJUDICING IN NATURE, AND NOT BASED ON EVIDENCE IN RECORD, WHICH SO - 5 -

6 PREJUDICED THE JURY THAT A VERDICT BASED ON ACTUAL EVIDENCE WAS NOT ACHIEVED, THE 28-YEAR PRETRIAL DELAY WHICH SO VIOLATED APPELLANT S DUE PROCESS THROUGH THE LOSS OF FAVORABLE EVIDENCE AND, MOST IMPORTANTLY, THE LOSS OF FAVORABLE WITNESSES, ALLOWING THE PROSECUTION TO EGREGIOUSLY ABUSE [ITS] AUTHORITY, RESPONSIBILITIES, AND INTEGRITY TO DENY DUE PROCESS AND A FAIR TRIAL. WHETHER THE COURT OF COMMON PLEAS ERRED AND/OR ABUSED ITS DISCRETION IN FAILING TO HOLD AN EVIDENTIARY HEARING ON ONE OR MORE OF APPELLANT S CLAIMS FOR POST-CONVICTION RELIEF. REGARDING THE RULING THAT THIS PETITION IS TIME- BARRED: WHETHER THE [PCRA] JUDGE ERRED IN HIS DECISION BY NOT TAKING INTO CONSIDERATION THE TIME SPENT BY APPELLANT ARGUING A WRIT OF HABEAS CORPUS (WHERE THE ISSUES OF THIS APPEAL FIRST CAME TO LIGHT), WHETHER THE [PCRA] JUDGE FAILED TO CONSIDER APPEAL AS ONE OF NEWLY DISCOVERED EVIDENCE, WHETHER THE [PCRA] JUDGE FAILED TO INVESTIGATE THE ISSUES ON APPEAL, THAT THEY ARE PROOF OF INNOCENCE AND HIDDEN BY THE EGREGIOUS USE OF PROSECUTORIAL MISCONDUCTS, AND AS SUCH PROOF THERE IS NO TIME BAR FOR INNOCENCE. (Appellant s Brief at 1-2) (internal citation omitted). As an additional preliminary matter, we must determine whether Appellant timely filed his current PCRA petition. Commonwealth v. Harris, 972 A.2d 1196 (Pa.Super. 2009), appeal denied, 603 Pa. 684, 982 A.2d - 6 -

7 1227 (2009). Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective January 16, 1996, provide that a PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. 9545(b)(1); Commonwealth v. Bretz, 830 A.2d 1273 (Pa.Super. 2003). 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 the review. 42 Pa.C.S.A. 9545(b)(3). The three statutory exceptions to the timeliness provisions in the PCRA allow for very limited circumstances under which the late filing of a petition will be excused. 42 Pa.C.S.A. 9545(b)(1). To invoke an exception, a petition must allege and the petitioner must prove: (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

8 42 Pa.C.S.A. 9545(b)(1)(i)-(iii). As such, when a PCRA petition is not filed within one year of the expiration of direct review, or not eligible for one of the three limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date that the claim could have been first brought, the trial court has no power to address the substantive merits of a petitioner s PCRA claims. Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000). Instantly, the court sentenced Appellant on November 21, This Court affirmed the judgment of sentence on February 26, Our Supreme Court denied Appellant s petition for allowance of appeal on December 31, 2008, and Appellant did not seek further review. Thus, Appellant s judgment of sentence became final ninety days later, on March 31, 2009, upon expiration of the time to file a petition for writ of certiorari with the United States Supreme Court. See 42 Pa.C.S.A. 9545(b)(3); U.S.Sup.Ct.R. 13. Appellant filed his current PCRA petition on May 23, 2012, more than three years after his judgment of sentence became final. Accordingly, Appellant s prayer for relief was patently untimely. Appellant attempts to invoke an exception to the time restrictions of the PCRA, arguing the facts upon which his claim is based were unknown to him and could not have been ascertained by the exercise of due diligence. See 42 Pa.C.S.A. 9545(b)(1)(ii). Specifically, Appellant contends he recently obtained trial transcripts from the federal courts after unsuccessful - 8 -

9 requests to the trial court and prior counsel. Appellant asserts he exercised due diligence by repeatedly requesting the transcripts throughout the pendency of his case. Appellant also insists he discovered the prosecutorial misconduct claims, which form the basis for the current pro se petition, only after reviewing the transcripts obtained from the federal courts. Under these circumstances, Appellant concludes the PCRA court should have considered the current petition timely filed. We disagree. The timeliness exception set forth in Section 9545(b)(1)(ii) requires a petitioner to 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. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007). Due diligence demands that the petitioner take reasonable steps to protect his own interests. A petitioner must explain why he could not have obtained the new fact(s) earlier with the exercise of due diligence. This rule is strictly enforced. Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011) (internal citations omitted). The focus of Section 9545(b)(1)(ii) is on the newly discovered facts, not on a newly discovered or a newly willing source for previously known facts. Commonwealth v. Lambert, 57 A.3d 645 (Pa.Super. 2012), appeal denied, Pa., 67 A.3d 795 (2013). Instantly, the certified record reveals Appellant s trial transcripts were - 9 -

10 filed on March 6, To the extent Appellant asserts that he made numerous unsuccessful requests to obtain the transcripts, the current PCRA petition and his response to the Rule 907 notice did not include any exhibits to confirm such requests. 3 Absent more, Appellant failed to prove he acted with due diligence. See Monaco, supra. See also Commonwealth v. Burton, 936 A.2d 521 (Pa.Super. 2007) (holding petitioner s discovery of hearing transcript did not overcome PCRA time-bar where transcript was available for over 30 years, and petitioner provided no explanation why he could not have obtained transcript sooner with exercise of due diligence). Moreover, the trial transcripts do not contain any facts unfamiliar to Appellant, as he was present at trial. Therefore, Appellant s current claims are not based on new facts of the type contemplated by Section 9545(b)(1)(ii). See Lambert, supra. Thus, Appellant failed to satisfy the requirements of Section 9545(b)(1)(ii). Based upon the foregoing, we conclude Appellant s current PCRA petition remains time-barred. See Bretz, 3 In his reply brief, Appellant attached a letter from the United States Court of Appeals for the Third Circuit, dated October 7, The letter acknowledged receipt of an October 2, 2011 letter from Appellant requesting copies of the transcripts. Nevertheless, this letter does not appear in the certified record. Consequently, we are unable to consider it. See Commonwealth v. Jordan, Pa., 65 A.3d 318 (2013) (reiterating that appellate courts may only consider facts which have been duly certified in record on appeal; item does not become part of certified record by simply copying it and including it in reproduced record)

11 supra; 42 Pa.C.S.A. 9545(b)(1). Accordingly, we affirm the PCRA court s dismissal of the petition. Order affirmed. Judgment Entered. Deputy Prothonotary Date: 8/8/