Com. v. Burton, S.

Opinion

J-S18010-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SEAN BURTON : : Appellant : No. 2163 EDA 2022

Appeal from the PCRA Order Entered August 9, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0003894-2010

BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 7, 2023

Sean Burton, who is currently serving a life sentence for a murder

conviction, brings this appeal from the denial of his third petition filed under

the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We affirm.

Burton was arrested in June 2010 for the murder of James Stropas, the

paramour of Burton’s estranged wife. Stropas had been stabbed more than

seventy times. On March 25, 2011, a jury convicted Burton of murder of the

first degree and possession of an instrument of crime (“PIC”). On May 24,

2011, the trial court sentenced Burton to serve a term of life imprisonment

for the murder conviction and a consecutive term of incarceration of six to

twenty-three months for the PIC conviction.

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* Former Justice specially assigned to the Superior Court. J-S18010-23

On March 28, 2012, a panel of this Court affirmed the judgment of

sentence. See Commonwealth v. Burton, 1582 EDA 2011, 47 A.3d 1258

(Pa. Super. filed March 28, 2012) (unpublished memorandum). Burton filed a

petition for allowance of appeal with the Pennsylvania Supreme Court, which

was denied on August 28, 2012. Burton did not file a petition for writ of

certiorari with the United States Supreme Court.

On February 23, 2021, Burton filed this, his third, PCRA petition. The

PCRA court dismissed the petition on August 9, 2022. This timely appeal

followed in which Burton raises claims challenging the PCRA court’s

determination that his PCRA petition was untimely filed.

Our standard of review for an order denying PCRA relief is whether the

record supports the PCRA court’s determination, and whether the PCRA court’s

determination is free of legal error. See Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record. See id.

A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. See 42 Pa.C.S.A. § 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.A. § 9545(b)(3). This time requirement is mandatory

and jurisdictional in nature and goes to a court’s right or competency to

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adjudicate a controversy. See Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa. 2003) (citations omitted).

Our review of the record reflects that Burton’s judgment of sentence

became final on November 26, 2012, ninety days after the Pennsylvania

Supreme Court denied his petition for allowance of appeal and the time for

filing a petition for review with the United States Supreme Court expired. See

42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13. To be timely, Burton needed to

file the instant PCRA petition on or before November 26, 2013. Burton did not

file this PCRA petition until February 23, 2021. Accordingly, Burton’s PCRA

petition is patently untimely, and we lack jurisdiction to consider its merits

unless he pleaded and proved a timeliness exception.

Section 9545 of the PCRA provides three exceptions that allow for review

of an untimely PCRA petition: (1) the petitioner’s inability to raise a claim

because of governmental interference; (2) the discovery of previously

unknown facts that would have supported a claim; and (3) a newly recognized

constitutional right. See id. A PCRA petition invoking one of these statutory

exceptions must be filed within the time constraints set forth at 42 Pa.C.S.A.

§ 9545(b)(2). “The PCRA petitioner bears the burden of proving the

applicability of one of the exceptions.” Commonwealth v. Spotz, 171 A.3d

675, 678 (Pa. 2017) (citation omitted).

In his brief to this Court, Burton alleges that two of the timeliness

exceptions apply. See Appellant’s Brief at 26-31. Burton argues the timeliness

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exception under section 9545(b)(1)(ii), claiming he had newly discovered

evidence in the form of a mental health records belonging to Stropas, which

reflected a struggle with PTSD and an alleged propensity towards violence. In

addition, Burton attempted to invoke the governmental interference exception

under section 9545(b)(1)(i). Burton baldly alleges that somehow the

Commonwealth hid the records from him, which amounts to a Brady

violation.1

We cannot ignore that Burton was required to exercise due diligence in

obtaining the information that forms the basis for his PCRA petition. This issue

was addressed by our Supreme Court in Commonwealth v. Stokes, 959

A.2d 306 (Pa. 2008). In Stokes, the appellant was convicted of three counts

of first-degree murder and related charges in 1983. The appellant then filed a

timely direct appeal and a timely PCRA petition, which were unsuccessful.

In February of 2004, the appellant in Stokes initiated federal habeas

corpus proceedings and obtained files from the United States Postal Service

and the Philadelphia Police Department. He then filed a second PCRA petition

alleging a Brady violation, in that the Commonwealth failed to disclose

documents in the files, which contained exculpatory evidence. The appellant

in Stokes claimed that he satisfied the “newly discovered fact” and

“government interference” exceptions to the PCRA’s timeliness requirements.

1 Brady v. Maryland, 373 U.S. 83 (1963).

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The PCRA court found the PCRA petition to be untimely and denied his petition

without a hearing, and our Supreme Court ultimately affirmed on appeal.

In reaching its decision, our Supreme Court held that both exceptions

mandate compliance with the time constraints set forth at 42 Pa.C.S.A. §

9545(b)(2), which “requires a petitioner to plead and prove that the

information on which he relies could not have been obtained earlier, despite

the exercise of due diligence.” Stokes, 959 A.2d at 310. Accordingly, the

proper questions with respect to timeliness in Stokes were “whether the

government interfered with [the a]ppellant’s access to the […] files, and

whether [the a]ppellant was duly diligent in seeking those files.” Id.

The Court in Stokes concluded the record established that the appellant

had been aware of the existence of the files prior to seeking them, and he did

not claim that the Commonwealth prevented him from accessing the files

earlier. Since Stokes was aware of the existence of the files prior to filing his

PCRA petition, and he did not explain why he did not seek them earlier, he

failed to satisfy the due diligence requirement of the time constraints set forth

at 42 Pa.C.S.A. § 9545(b)(2). Stokes, 959 A.2d at 311.

In addressing Burton’s claim that these exceptions to the timeliness

requirement of the PCRA apply here, the PCRA court stated the following:

[Burton] claims the newly discovered fact is the January 21, 2021 “discovery” of the VA medical records of Victim Stropas. The newly discovered facts exception requires a petitioner to allege and prove there were facts unknown to the petitioner and they could not have been ascertained through due diligence. The timeliness exception under the PCRA is not satisfied when the

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facts are not actually new or newly discovered, and the information could [] have been obtained earlier with the exercise of due diligence. Commonwealth v. Graves, 197 A.3d 1182 (Pa. Super. 2018); Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008). The PCRA’s newly discovered facts exception does not apply in [Burton’s] case, and even if it does, [Burton] has not shown the VA records he now possesses constitutes a newly discovered fact. The parties knew about Victim’s VA records before trial began; in fact, [Burton] before trial sought the records in an effort to discern information concerning Victim Stropas’ potential PTSD and treatment and considered using the records to promote a claim of self-defense; [Burton] also stipulated the records should not be used during trial and agreed to the submission and sealing of the records. This court concluded there was [nothing] new about the existence of the VA records and [Burton] did not satisfy the newly discovered facts exception to the time limitation for filing a petition under the PCRA.

Concerning an allegation of governmental interference as an exception for a failure to timely file a PCRA petition, a petitioner must show: the failure previously to raise this claim resulted from interference by government officials. Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008). Petitioner makes the accusation the Commonwealth improperly withheld the VA records in violation of Brady v. Maryland, 373 U.S.83 (1963). The record absolutely belies [Burton’s] allegations: the existence of the VA records were known to [Burton] (and the Commonwealth and the Court) in 2011, and [Burton] agreed the records should be submitted to and sealed by the trial court. [Burton] cannot and did not prove by any evidence, let alone by a preponderance of the evidence, the Commonwealth denied access to the records and he cannot show he exercised due diligence in discovering the information before 2021.

Trial Court Opinion, 10/13/22, at 5-6.

Likewise, our review of the record reflects that Burton did not lack

knowledge of, nor was he obstructed in obtaining Stropas’s medical records

from the VA, which were the subject of a motion to compel production filed on

August 31, 2010, and attendant hearing held on September 14, 2010. On

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October 6, 2011, Burton filed a praecipe withdrawing his motion to compel

production of Stropas’s mental health records. Consequently, Burton has

failed to establish that the records amount to previously unknown facts.

Moreover, Burton does not offer an explanation why he did not

investigate or seek production of the records prior to the filing of the instant

PCRA petition. In his reply brief filed with this Court, Burton states: “Mr.

Burton’s claim speaks more of his trial attorney’s sloth or ignorance than a

careful assessment of the facts. … Mr. Stropas was dead, and he was in no

position to assert the privilege. Mr. Burton obtained the Stropas medical

records himself. Upon Mr. Burton’s request, the VA mailed Mr.

Stropas’[s] medical records to Mr. Burton.” Appellant’s Reply Brief, at 7-

8 (emphasis added). This admission by Burton establishes that the records

were readily available from the VA. Accordingly, we conclude that Burton has

failed to establish that he satisfied the time constraints set forth at 42

Pa.C.S.A. § 9545(b)(2), that the information he relied upon in filing his PCRA

petition could not have been obtained earlier by the exercise of due diligence.

See 42 Pa.C.S.A. § 9545(b)(2); Stokes, 959 A.2d at 310.

Burton has not carried his burden to properly plead and prove the

applicability of one of the exceptions. Consequently, the PCRA court did not

commit any error in dismissing Burton’s petition as untimely. Hence, this

Court has no jurisdiction to address the merits of Burton’s claims. See

Robinson, supra.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/07/2023

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