Com. v. Burno, K.

• Court: Superior Court of Pennsylvania
• Decided: February 28, 2023
• Docket: 1444 EDA 2022
• Status: Unpublished

Opinion

J-S03011-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KENNETH HAROLD BURNO JR. : : Appellant : No. 1444 EDA 2022

Appeal from the PCRA Order Entered June 3, 2022 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000330-2003

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 28, 2023

Kenneth Harold Burno, Jr. appeals pro se from the June 3, 2022 order

dismissing his second petition for relief pursuant to the Post Conviction Relief

Act (“PCRA”) as untimely. We affirm.

On April 26, 2004, Appellant was convicted of first-degree murder,

unsworn falsification to authorities, and criminal conspiracy in connection with

the shooting death of John Irwin Davis, Jr. On September 27, 2004, Appellant

was sentenced to life imprisonment without the possibility of parole. Post-

sentence motions were denied and a timely direct appeal followed. On

July 25, 2005, this Court affirmed Appellant’s judgment of sentence. See

Commonwealth v. Burno, 883 A.2d 685 (Pa.Super. 2005) (unpublished

memorandum). Appellant filed a petition for allowance of appeal (“PAA”),

which was denied on December 8, 2005. See Commonwealth v. Burno,

889 A.2d 1213 (Pa. 2005). J-S03011-23

Appellant filed a timely pro se PCRA petition, claiming trial counsel had

provided ineffective assistance. Appointed counsel submitted an amended

petition and the court held an evidentiary hearing. Following the hearing, the

PCRA court denied Appellant’s petition. Appellant appealed and this Court

affirmed the PCRA court’s order denying the petition. See Commonwealth

v. Burno, 34 A.3d 221 (Pa.Super. 2011) (unpublished memorandum).

Appellant subsequently filed a PAA, which was also denied. See

Commonwealth v. Burno, 49 A.3d 441 (Pa. 2012).

On March 25, 2022, Appellant pro se filed a second PCRA petition, which

is the subject of this appeal. The PCRA court issued Rule 907 notice of its

intent to dismiss the petition without a hearing after concluding that it was

untimely filed. After reviewing Appellant’s objections to the Rule 907 notice,

the PCRA court dismissed the petition as untimely. See Order, 6/3/22, at 1.

This appeal followed.1 Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

1. Whether the prosecuting attorney carries a special aura of legitimacy, whereas the prosecutor’s opinion carries with it

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1 Appellant filed his notice of appeal after the PCRA court had announced that his petition was dismissed, but before the court entered the order dismissing the petition on the docket. The Pennsylvania Rules of Appellate Procedure instruct us that “[a] notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof.” Pa.R.A.P. 905(a)(5). Accordingly, we treat the prematurely filed notice of appeal as timely filed after the entry of the final order.

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the imprimatur of the government and induce the jury to trust the government’s judgment rather than its own?

2. Whether the second PCRA petition was timely filed pursuant to United States v. Johnson[, 12 F.3d 1548 (10th Cir. 1993)]?

Appellant’s brief at 3.

We begin with the pertinent legal principles. “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.

Diaz, 183 A.3d 417, 421 (Pa.Super. 2018). 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. See

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.Super. 2014). However,

we apply a de novo standard of review to the PCRA Court’s legal conclusions.

See Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).

Pursuant to the PCRA, any petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment [of sentence]

becomes final[.]” 42 Pa.C.S. § 9545(b)(1). A judgment of sentence 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 time for seeking the review.” 42 Pa.C.S. § 9543(b)(3).

The PCRA’s timeliness requirements are jurisdictional in nature, and a court

may not address the merits of the issues raised if the PCRA petition was not

timely filed. See Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017).

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The time bar can “only be overcome by satisfaction of one of the three

statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)-(iii).” Id. The

three narrow exceptions to the one-year time bar are as follows:

“(1) interference by governmental officials in the presentation of the claim;

(2) newly-discovered facts; and (3) an after-recognized constitutional right.”

Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa.Super. 2012).

Additionally, a PCRA petitioner must present his claim within one year of the

date the claim first could have been presented. See 42 Pa.C.S. § 9545(b)(2).

Appellant’s petition, filed more than sixteen years after his judgment of

sentence became final, is patently untimely. However, Appellant avers that

he can overcome the PCRA time bar by the application of the governmental

interference and newly discovered facts exceptions. See Appellant’s brief at

7-8; see also PCRA petition, 3/25/22, at 3, 5-6. We disagree.

The governmental interference exception permits an otherwise untimely

PCRA to be filed if a petitioner pleads and proves that “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[.]” 42 Pa.C.S.

§ 9545(b)(1)(i). In other words, Appellant was required to show that but for

the interference of a government actor “he could not have filed his claim

earlier.” Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).

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Here, Appellant contends that the Commonwealth committed

government interference during closing arguments at his trial, when the

prosecutor suggested that Appellant was guilty of the crimes charged. See

Appellant’s brief at 7; see also PCRA petition, 3/25/22, at 4-5. Additionally,

Appellant avers that he filed the petition within sixty days of discovery of the

illegality.2 Id. The PCRA court found that Appellant’s reliance on the

governmental interference exception was misplaced, since his allegations

“have nothing to do with his failure to file a timely PCRA petition.” See PCRA

Court Opinion, 10/21/22, at 14. We agree. Our review of the record confirms

that Appellant has never averred that the government interfered with his

ability to file a timely PCRA petition. Thus, the governmental interference

exception does not apply.

Next, Appellant asserts that he has pled a newly discovered fact

exception in order to overcome the PCRA time-bar.3 See PCRA Petition,

2 As of December 2018, the Pennsylvania legislature extended the sixty-day period to assert an exception to one year. 42 Pa.C.S. § 9545(b)(2).

3 Appellant appears to have conflated the newly discovered fact exception to the PCRA time bar with a substantive after-discovered evidence claim. See 42 Pa.C.S. § 9543(a)(2)(vi). However, these are distinct analyses. Satisfaction of the newly discovered fact exception is a prerequisite to a successful substantive after-discovered evidence claim. See Commonwealth v. Diggs, 220 A.3d 1112, 1117 (Pa.Super. 2019) (explaining that we must first discern whether we have jurisdiction before proceeding to an analysis of the merits of an after-discovered evidence claim). Accordingly, insofar as Appellant argues he met the after-discovered evidence exception, we interpret his argument to include an averment that the newly discovered fact exception applies.

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3/25/22, at 6; Appellant’s brief at 8-10. The newly discovered fact exception

set forth at § 9545(b)(1)(ii) has two components, which must be alleged and

proven as an initial jurisdictional threshold. Commonwealth v. Diggs, 220

A.3d 1112, 1117 (Pa.Super. 2019). Namely, the petitioner must establish

that: (1) the facts upon which the claim was predicated were unknown to the

petitioner; and (2) they could not have been ascertained by the exercise of

due diligence. See 42 Pa.C.S. § 9545(b)(1)(ii); see also Commonwealth

v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007). In this context, “[d]ue diligence

demands that the petitioner take reasonable steps to protect his own

interests” and explain why he could not have learned the new facts earlier

with the exercise of due diligence. Commonwealth v. Burton, 121 A.3d

1063, 1069 (Pa.Super. 2015).

Appellant asserts that from February 18, 2022 until March 10, 2022, he

conducted research and reviewed the trial transcripts pertaining to his case

with the assistance of a legal assistant at the prison library. See Appellant’s

brief at 8; see also PCRA petition, 3/25/22, at 6. On March 15, 2022, the

legal assistant discovered alleged evidence of trial counsel’s ineffectiveness,

wherein counsel “failed to object to the prosecutor expressing his personal

opinions about the guilt and credibility of [Appellant]” during closing

arguments. See Appellant’s brief at 8. Since Appellant was unaware of

counsel’s oversight until the legal assistant discovered it, Appellant argues

that the testimony contained in the trial transcript should be deemed newly

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discovered facts. Id. at 10. Appellant further contends that he has shown

the necessary due diligence because he filed his PCRA petition within sixty

days of discovering counsel’s alleged ineffectiveness.4 Id. at 4.

After reviewing the record, the PCRA court disagreed, explaining:

The allegations which [Appellant] asserts do not rise to the level of newly discovered facts, as the focus on this exception is on the newly discovered facts, not on a newly discovered or newly willing source for previously known facts.

In the case at bar, this Court finds that [Appellant] was previously aware of all of the prosecutor’s remarks since he was in the courtroom during his jury trial at the time those comments were made. One does not have to be a trained attorney with a degree in criminal law, as suggested by [Appellant], to conclude whether any comments made by the prosecutor were inappropriate or attempted to use “undue influence” on the jury. As such, [Appellant] was aware of the prosecutor’s comments well in advance of his alleged recent “discovery” of the transcripts.

In fact, the transcripts merely reflect what happened in court, in [Appellant’s] presence, and were not a newly discovered fact. Rather, they were a new source of information previously known to [Appellant]. Once again, the information used as a basis for the “newly discovered evidence” argument has been available to [Appellant] for [eighteen] years. [Appellant] also failed to provide a valid explanation as to why he could not have obtained the transcripts earlier with due diligence.

PCRA Court Opinion, 10/21/22, at 6-7 (quotation and citation omitted).

Our review of the certified record confirms the PCRA court’s findings that

Appellant has not uncovered any new facts. Appellant was well aware of the

contents of the prosecutor’s closing argument at the time it was given because ____________________________________________

4 As mentioned above, 42 Pa.C.S. § 9545(b)(2) was amended, effective December 24, 2018, to extend the time for filing a timeliness exception from sixty days to one year. Appellant’s reference to the outdated standard is of no moment in this matter.

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he was present. Thus, the transcripts relied upon by Appellant amount only

to a new source of facts that were known to Appellant at the time of his trial.

See Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (“[T]he

focus of [the § 9545(b)(1)(ii)] exception is on the newly discovered facts, not

on a newly discovered or newly willing source for previously known facts.”

(quotation and citation omitted)). Furthermore, Appellant has offered no

explanation for why he waited eighteen years to pursue this claim. See

Burton, supra at 1069. Accordingly, Appellant has failed to establish the

newly discovered fact exception to the PCRA time-bar.

Based on the foregoing, we find the PCRA court’s conclusion that

Appellant’s petition was untimely to be fully supported by the record and free

of legal error.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/28/2023

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