Com. v. Armstrong, J.

• Court: Superior Court of Pennsylvania
• Decided: March 18, 2025
• Docket: 1422 EDA 2024
• Status: Unpublished

Opinion

J-S08005-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES EDWARD ARMSTRONG : : Appellant : No. 1422 EDA 2024

Appeal from the PCRA Order Entered May 7, 2024 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005475-2011

BEFORE: DUBOW, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E. *

MEMORANDUM BY DUBOW, J.: FILED MARCH 18, 2025

Appellant James Edward Armstrong appeals pro se from the Order

entered in the Delaware County Court of Common Pleas dismissing as

untimely his second petition filed pursuant to the Post Collateral Relief Act

(“PCRA”), 42 Pa.C.S §§ 9541-46. We affirm.

In 2007, Appellant shot and killed Eric Caldwell outside a bar in

Philadelphia. His jury trial proceeded in March 2012, with co-defendant

Rashad Ismail, at which the court admitted the preliminary hearing testimony

of Craig Gibson, an eyewitness who was murdered before Appellant’s trial. In

addition, the parties entered into a stipulation regarding Mr. Gibson’s criminal

background. Steven Cooper, Appellant’s cell mate, testified that Appellant

told him that he killed the victim because Appellant owed the victim money.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S08005-25

The jury found Appellant guilty of first-degree murder and a firearms offense,

and the court sentenced Appellant to life imprisonment. 1 This Court affirmed

the judgment of sentence, and our Supreme Court denied allocatur on March

5, 2014.2

Appellant filed his first unsuccessful PCRA petition in 2014 alleging, inter

alia, that trial counsel provided ineffective assistance for failing to object to

the admission of Mr. Gibson’s preliminary hearing testimony based on an

alleged agreement he had with the Commonwealth. The trial court denied

relief and this Court affirmed. See Commonwealth v. Armstrong, 2018 WL

2438317 (Pa. Super. 2018) (non-precedential decision). 3

On June 9, 2023, Appellant pro se filed the instant PCRA Petition again

alleging ineffective assistance of trial counsel for counsel’s failure to discover

alleged cooperation agreements between the Commonwealth and both Mr.

Gibson and trial witness, Mr. Steven Cooper, respectively. He also asserted

that the Commonwealth improperly expunged the criminal records of Mssrs. ____________________________________________

1 The jury found Mr. Ismail not guilty of all charges.

2 Commonwealth v. Armstrong, 2013 WL 11257229 (Pa. Super. filed July

25, 2013) (non-precedential decision); appeal denied, 87 A.3d 317 (Pa. 2014).

3 This Court concluded that Appellant had waived his challenge that counsel

failed to investigate and discover the purported agreement between the Commonwealth and Gibson for failing to raise it in his Pa.R.A.P. 1925(b) statement. In a footnote, the Court nonetheless agreed with the trial court that the claim lacked merit. Commonwealth v. Armstrong, No. 2018 WL 2438317, at *7 n.11 (Pa. Super. 2018).

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Gibson and Cooper following Appellant’s trial and contended that the

Commonwealth engaged in misconduct by withholding evidence of the alleged

agreements, which he characterizes as “exculpatory and impeachment

evidence.” PCRA Petition, filed 6/9/23, at 4. Finally, he asserted that prior

PCRA counsel provided ineffective assistance for failing to raise claims of trial

counsel’s ineffectiveness for failing to discover this alleged impeachment

evidence.4

The PCRA court issued a Pa.R.Crim.P. 907 notice on November 9, 2023,

advising Appellant of its intention to dismiss the instant PCRA petition without

a hearing. After receiving several extensions, Appellant responded to the Rule

907 Notice on February 12, 2024.

On May 2, 2024, the PCRA court denied relief.

***

Appellant timely appealed. The PCRA court did not order Appellant to

file a Pa.R.A.P. 1925(b) Statement. The PCRA court filed a Rule 1925(a)

Opinion that thoroughly reviews the entirety of Appellant’s case, addresses

Appellant’s objections to its Rule 907 notice, and concludes that the Petition

failed to meet the PCRA’s timeliness exceptions.

Appellant raises the following issues for our review:

4 Without obtaining leave of the court, Appellant filed a supplemental PCRA

petition in July 2023 reiterating his prosecutorial misconduct claims and again challenging the stewardship of prior counsel.

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1. Did the PCRA court err in concluding, without a hearing, that the claims raised in the [Appellant’s] successor PCRA petitions were untimely pursuant to 42 Pa.C.S. § 9545?

2. Are [Appellant’s] claims for relief sufficient to raise a genuine issue of material fact requiring a hearing, thus, necessitating a remand to the PCRA court?

Appellant’s Br. at 4.

We review the denial of a PCRA petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Dozier, 208 A.3d 1101, 1103 (Pa. Super.

2019). This Court grants “great deference to the factual findings of the PCRA

court” if they are supported by the record. Id. (citation omitted). For

questions of law, “our standard of review is de novo[,] and our scope of review

is plenary.” Id. (citation omitted).

Additionally, “[a] petitioner is not entitled to a PCRA hearing as a matter

of right; the PCRA court can decline to hold a hearing if there is no genuine

issue concerning any material fact and the petitioner is not entitled to post-

conviction collateral relief, and no purpose would be served by any further

proceedings.” Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa. Super.

2007).

Relevant to our disposition, it is well-settled that “the timeliness of a

PCRA petition is [] a jurisdictional requisite.” Commonwealth v. Zeigler,

148 A.3d 849, 853 (Pa. Super. 2016). “A PCRA petition, including a second

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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. § 9545(b)(1).” Commonwealth v.

Jones, 54 A.3d 14, 16 (Pa. 2012). If a petitioner fails to plead and prove a

valid exception to the PCRA time-bar, neither the PCRA court nor this Court

may review the merits of the claims raised in the petition. Commonwealth

v. Watts, 23 A.3d 980, 983 (Pa. 2011). In addition, any petition invoking a

timeliness exception “shall be filed within one year of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

Once a petition is deemed timely, a PCRA petitioner bears the burden of

“pleading and proving that the allegation of error has not been previously

litigated or waived” and that the failure to raise it previously “could not have

resulted from any rational, strategic, or tactical decision by counsel.” Id. at

§§ 9543(a)(3), (4). Further, “an issue is waived if the petitioner could have

raised it but failed to do so before trial, at trial, during unitary review, or in a

prior [PCRA petition].” Id. at Section 9544(b).

Here, Appellant filed the instant PCRA petition over nine years after his

judgment of sentence became final; it is, thus, facially untimely. The PCRA

court, applying “a generous review” of Appellant’s PCRA petition, discerned

that Appellant’s arguments “may suggest” that he raised the “newly

discovered facts and/or governmental interference exceptions to the . . . time

bar.” PCRA Ct. Op., 7/11/24, at 25, 26.

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The government interference exception requires proof that “the failure

to raise the claim previously was the result of interference by government

officials[.]” 42 Pa.C.S. § 9545(b)(1)(i). See also Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1268 (Pa. 2008). This requires the petitioner to show

that due to the interference of a government actor, “he could not have filed

his claim earlier.” Commonwealth v. Vinson, 249 A.3d 1197, 1205 (Pa.

Super. 2021).

The newly-discovered facts exception to the PCRA’s time bar provides

that the facts upon which the claim is predicated were unknown to petitioner

and could not have been ascertained by due diligence. 42 Pa.C.S. §

9545(b)(1)(ii); Commonwealth v. Small, 238 A.3d 1267, 1271 (Pa. 2020).

“The plain language of subsection (b)(1)(ii) does not require the petitioner to

allege and prove a claim of ‘after-discovered evidence.’ Rather, it simply

requires petitioner to allege and prove that there were ‘facts’ that were

‘unknown’ to him and that he exercised ‘due diligence.’” Commonwealth v.

Robinson, 185 A.3d 1055, 1059 (Pa. Super. 2018) (citation omitted). The

Pennsylvania Supreme Court has “explained that the exception set forth in

Section 9545(b)(1)(ii) does not require any merits analysis of the underlying

claim. Rather, the exception only requires a petitioner to prove that the facts

were unknown to him and that he exercised due diligence in discovering those

facts.” Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016) (internal

citations and quotation marks omitted).

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Here, the PCRA court concluded that Appellant had not met any

timeliness exceptions to the PCRA’s one-year time bar. PCRA Ct. Op. at 1, 37.

The PCRA court observed that the documents attached to the PCRA Petition

were notes of testimony from Mr. Cooper’s 2011 plea and sentencing hearings

in an unrelated case that evidenced no “secretive cooperation agreement,”

thereby providing no support for his prosecutorial misconduct claim that could

support either a newly-discovered fact or a governmental interference claim.

Id. at 30.5 Further, with respect to the newly-discovered fact exception, the

court observed that Appellant did not satisfy the due diligence aspect of that

timeliness exception because he offered no explanation as to why he waited

eight years after his judgment of sentence became final to raise his claims.

Id. at 29-30. Finally, the PCRA court observed that Appellant had previously,

and unsuccessfully, litigated his claim regarding his allegation of an agreement

between Mr. Gibson and the Commonwealth. There, that PCRA court observed

that evidence showed that “years before the murder,” Mr. Gibson had “entered

open guilty pleas, absent any prosecution sentencing recommendations, and

resultantly in 2004 was sentenced.” Id., at 30, citing Tr. Ct. Op., 6/13/17, at

5 The PCRA court also noted that the transcripts annexed to the PCRA petition

showed that Mr. Cooper entered an open guilty plea to retail theft and that the Commonwealth made no recommendation at the sentencing hearing. PCRA Ct. Op., 7/11/24, at 30.

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21.6 Accordingly, the PCRA court here concluded that Appellant failed to

satisfy any timeliness exceptions and it, thus, lacked “jurisdictional authority”

to adjudicate Appellant’s claims raised in his second PCRA petition. Id. at 1.

In his brief to this Court, Appellant provides a series of bald statements

that ignore the PCRA court’s findings of fact. Appellant’s Br. at 13-20. Instead,

he argues that the prosecution failed to correct Mr. Cooper’s testimony when

he testified at Appellant’s trial that he did not have any agreement with the

Commonwealth. Appellant’s Br. at 17, 19.7 He claims that in December 2022

6 The PCRA court also surmised that Appellant based his governmental interference claim on an assertion that Commonwealth “expunged” Mr. Gibson’s and Mr. Cooper’s criminal records, implying he could not have discovered those records even if he exercised due diligence. The PCRA court concluded that the records were not “expunged”; rather, they were subjected to limited access “clean slating pursuant to “a statutorily directed scheme,” and “not the result of any prosecutorial misconduct or omission[.]” PCRA Ct. Op. at 32, citing 18 Pa.C.S. § 9122.2(b)(1)(5). The court further observed that Appellant made no attempt to explain why he could not have brought his governmental interference claim sooner since a printout from the AOPC that he annexed to his petition was dated March 23, 2018. See id. at 29.

7 Appellant quotes the following exchange between the assistant district attorney and Mr. Cooper as proof that Mr. Cooper lied during Appellant’s trial, and the prosecution did not correct his allegedly false testimony:

Q: Have you been promised anything with relationship to any of that probation and parole that you’ve described for testifying here today? A: No, ma’am. I report and I call in. Q: Have you been promised anything from the police officers, or from the District Attorney’s office for your testimony? A: Nothing. Q: Have you been promised anything, or were you promised, when you first came into the District Attorney’s office to speak with the (Footnote Continued Next Page)

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he received a transcript from Mr. Cooper’s 2011 sentencing in an unrelated

case, ostensibly to support his conclusion that Mr. Cooper lied in Appellant’s

case and the prosecutor failed to correct it. Id. at 14. He concludes that had

his defense counsel known of the alleged favorable treatment received by

Mssrs. Gibson and Cooper in their unrelated cases, counsel could have used

this information to impeach their credibility in Appellant’s closing argument.

Id. at 15. He further argues that this information supports a Brady8 claim

that meets the newly-discovered fact exceptions to the time bar. See

generally id. at 15-17. He concludes that he raised a “genuine issue of

material fact concerning a newly discovered fact” necessitating a hearing. Id.

at 21.

detectives, back in October of 2011, were you promised anything for giving a statement? A: No ma’am. They didn’t come to me. I came to them.

Appellant’s Br. at 19-20, citing N.T. Trial, 3/8/12, at 99.

8 Brady v. Maryland, 373 U.S. 83 (1963). “Brady and subsequent precedent

flowing therefrom impose upon a prosecutor the obligation to disclose all favorable evidence that is material to the guilt or punishment of an accused, even in the absence of a specific request by the accused. To establish a Brady violation, a defendant has the burden to prove that: (1) the evidence at issue was favorable to the accused, either because it is exculpatory or because it impeaches; (2) the prosecution has suppressed the evidence, either willfully or inadvertently; and (3) the evidence was material, meaning that prejudice must have ensued.” Commonwealth v. Towles, 300 A.3d 400, 404 n.5 (Pa. 2023) (citation, internal ellipses, and brackets omitted).

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Following our review, we conclude the record supports the PCRA court’s

findings of fact and its order is free of legal error. Even applying a “generous

reading,” Appellant’s PCRA petition and its supplement fail to meet any

timeliness exceptions and his brief provides no compelling argument to find

otherwise. Appellant fails to acknowledge the PCRA court’s finding that he

had previously raised his claim pertaining to Mr. Gibson in his prior

unsuccessful PCRA petition. Moreover, since our review reveals that Appellant

did previously raise this claim, even if Appellant had met a timeliness

exception here, we would decline to address it. 42 Pa.C.S. § 9543. Further,

aside from stating that he obtained Mr. Cooper’s 2011 sentencing transcripts

from an unrelated case in 2022, Appellant has not attempted to explain why

he could not have obtained these records previously or how these records

satisfy his alleged Brady claim. Finally, he has not made any attempt to

inform us of how the government interfered with him bringing his claim sooner

or how a potential closing argument provides evidence requiring PCRA relief.

Having concluded Appellant has failed to satisfy any timeliness

requirements, this Court, like the PCRA court, is without jurisdiction to address

the merits of Appellant’s claims. We, thus, affirm the order denying

Appellant’s second PCRA petition as untimely.

Order affirmed.

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Date: 3/18/2025

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