J-S38007-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARCEL COOK : : Appellant : No. 317 WDA 2017
Appeal from the PCRA Order February 3, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000391-1986, CP-02-CR-0000530-1986
BEFORE: BOWES, J., NICHOLS, J., and STRASSBURGER*, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 19, 2018
Marcel Cook appeals pro se from the February 3, 2017 order dismissing
his fourteenth petition seeking post-conviction relief as untimely. After
thorough review, we affirm.
On December 30, 1985, Appellant and his girlfriend broke into the home
Donald Stoker shared with his mother and uncle, and during the course of a
robbery, Appellant’s girlfriend shot Mr. Stoker in the head. Mr. Stoker died
the next day. The victim’s mother and uncle, eyewitnesses to the shooting,
positively identified Appellant from a photographic array.
Appellant was arrested and charged with one count of criminal homicide
at criminal information No. 8600391; one count each of burglary, robbery,
and conspiracy, two counts of Uniform Firearms Act violations, and other
firearms offenses, at No. 8600530. All charges arose from the December 30,
____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S38007-18
1985 incident. Following his arrest, Appellant made incriminating statements
to police that he later moved to suppress. The suppression motion was not
litigated because Appellant entered a negotiated guilty plea to second-degree
murder and robbery on July 22, 1986. In exchange for the plea, the
Commonwealth agreed to recommend that firearms, conspiracy, and burglary
charges be dismissed, and that Appellant be sentenced to the mandatory term
of life imprisonment for second-degree murder.
Two days after pleading guilty, on July 24, 1986, Appellant filed a pro
se motion to withdraw his guilty plea, alleging that it was his understanding
at the time of the plea that he would receive a sentence of ten to twenty years
incarceration. At sentencing on September 29, 1986, the court denied the
motion, and sentenced Appellant to the mandatory term of life imprisonment.
Thereafter, the court appointed new counsel for post-sentencing proceedings.
Appellant filed a counseled motion to withdraw the guilty plea as
involuntarily and unknowingly entered. He alleged that counsel was
ineffective for failing to properly advise him prior to entry of the plea, and in
failing to file a formal motion to withdraw the plea when he was asked to do
so.1 Following an evidentiary hearing at which trial counsel testified that he ____________________________________________
1 This proceeding occurred under the PCHA. The 1995 amendments provided that an appellant whose judgment became final on or before January 16, 1996, which is the case herein, shall be deemed to have filed a timely petition if his first petition is filed within one year of the effective date of the amendments, on or before January 16, 1997. It also occurred prior to Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), wherein the Supreme Court ruled that claims of ineffective assistance of counsel would be deferred to collateral review under the PCRA.
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advised Appellant that life imprisonment was the mandatory sentence for
second-degree murder, the court denied the motion to withdraw the plea.
On appeal, this Court affirmed. Commonwealth v. Cook, 547 A.2d
435 (Pa.Super. 1988) (unpublished memorandum). We noted that, prior to
the court’s acceptance of the plea, Appellant initialed and signed a seven-page
written guilty plea colloquy and participated in an on-the-record oral guilty
plea colloquy. Id. Furthermore, the record established that Appellant was
advised during the colloquy that second-degree murder carried a mandatory
life sentence, and he acknowledged that he understood the sentence. Id.
Finally, we found no basis to disturb the trial court’s determination that
counsel advised Appellant that the mandatory penalty for second-degree
murder was life imprisonment.
Appellant did not seek allowance of appeal in the Supreme Court. On
February 9, 1990, Appellant filed a pro se PCRA petition, his first, and counsel
was appointed. Appellant claimed that he should have been convicted, at
most, of third-degree murder, and that he should not have received a
sentence of life imprisonment. He also alleged that trial counsel was
ineffective in withdrawing and abandoning a meritorious motion to suppress,
and further, that the court and counsel failed to apprise him that by entering
a plea, he was foregoing the right to seek suppression of his statement to
police. Appellant contended that his plea was not voluntary and knowing as
he was unaware of the elements of second-degree murder, or that it carried
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a sentence of mandatory life imprisonment. Finally, he claimed that counsel
abandoned him by failing to file a requested petition for allowance of appeal
to our Supreme Court. He asked that he be allowed to withdraw his plea, or
in the alternative, that he be permitted to plead to third-degree murder.
Following an evidentiary hearing concluding on June 30, 1994, post-
conviction relief was denied. The court found that all claims were either
waived or previously litigated. Appellant timely appealed pro se, and filed
motions in this Court seeking in forma pauperis status, transcripts from the
PCRA evidentiary hearing, and appointment of counsel. All motions were
granted. On May 9, 1995, the appeal was dismissed for failure to file a brief.
Appellant filed a second PCRA petition in 1996, which was denied. On
appeal, this Court affirmed, finding all claims to be related to the guilty plea
and previously litigated. See Commonwealth v. Cook, 712 WDA 1996
(Judgment Order). Thereafter, Appellant filed a series of petitions for writ of
habeas corpus and/or PCRA petitions, which were dismissed for lack of
jurisdiction either due to pending appeals or due to their untimeliness, and
affirmed on appeal. Throughout, Appellant repeatedly sought orders from the
PCRA court, as well as this Court, compelling discovery from the
Commonwealth. Appellant consistently maintained that he had not received
transcripts, documents, and alleged Brady material necessary to establish his
entitlement to relief.
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On December 12, 2016, Appellant filed the instant petition, his
fourteenth, styled as a petition for habeas corpus relief. He alleged therein
that 18 Pa.C.S. § 1102(b), which provides for a sentence of life imprisonment
for a person convicted of second-degree murder, is unconstitutionally vague
as it does not give fair notice that life imprisonment is life imprisonment
without parole. The PCRA court gave notice of its intent to dismiss the petition
as untimely pursuant to Rule 907, and Appellant filed a response reiterating
that the relief sought was not obtainable under the PCRA, and that habeas
corpus was a proper remedy. The court dismissed the petition as an untimely
PCRA petition on February 3, 2017, and this pro se appeal ensued.
Appellant was ordered to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. He sought several extensions and an
evidentiary hearing based on receipt of responses to his right-to-know
requests, and the alleged unavailability of transcripts. On May 18, 2017, the
court entered an order denying Appellant’s motion for an evidentiary hearing
on the right-to-know responses, that Appellant alleged were newly-discovered
facts. However, by order dated September 29, 2017, the court entered an
order giving Appellant until January 3, 2018 to file an amended petition for
post-conviction relief.
On December 4, 2017, Appellant filed a rambling amended petition for
habeas corpus relief in which he pled that governmental interference with his
access to transcripts, such as the transcript of the coroner’s inquest, had
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violated his constitutional right to appellate review. He also alleged, inter alia,
that the search and arrest warrants were invalid, that he exercised due
diligence in discovering materials in the public domain, and that an evidentiary
hearing was required. He reiterated that his sentence was illegal, that all
counsel had abandoned him, and that he should have been permitted to
withdraw his plea, all of which were claims that he had previously litigated.
Attached to the amended petition were responses he received to requests that
he made pursuant to the Right-To-Know Law, specifically a Department of
Corrections sentence status summary, what he called an “information or
indictment” for criminal homicide, and a response from Allegheny County
seeking an extension to provide a response to Appellant’s request for coroner’s
inquest information.
Despite several extensions, Appellant failed to file the ordered concise
statement of errors.2 The PCRA court penned its Rule 1925(a) opinion urging
this Court to affirm since Appellant’s failure to comply with Pa.R.A.P. 1925(b)
resulted in the waiver of all claims on appeal.
Appellant presents three questions for our review:
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2 In seeking an extension to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, Appellant represented that he needed “transcripts” in order to file the statement. He also filed an application in this Court seeking an order compelling the trial court to furnish transcripts. This Court entered a February 22, 2018 order, granting Appellant leave to raise the lack of records in his appellate brief. Without specifics, Appellant argues that governmental interference denied him access to records and transcripts that would prove his claims of error.
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I. Did the lower court, the District Attorney, and the Allegheny County coroner non-disclosure of discovery, criminal investigative files under “Brady Rule,” and lack of access to the records violated their obligation under the United State[s] Fourteenth Amendment Constitution, and Pennsylvania’s Article 1 Section 9 of Pennsylvania Constitution?
II. Did Appellant’s after-discovered facts under the Right-To- Know-Law[,] 65 P.S. section 67.708(b)(6)[,] pursuant to section 9764 Information required upon commitment from DC-300D. included; DC-16E-Sentence status summary; the initial information or indictment filed under first degree murder 2502(A); and the trial court Judge G.H. Ross sentencing order. Provided to him by the Department of Correction granting him his right-to-know request. Did Appellant’s after-discovery facts of being sentenced to an illegal [sentence] pursuant to 18 Pa.C.S. section 1106. And under 18 Pa.C.S. section 1102(b) and 104(3)(4), triggered one of the exception[s]to the PCRA timed-barred rule under 42 Pa.C.S. section 9545(b)(1)(2)(ii)?
III. Did layered abandonment of counsels of records created and caused absolute prejudice to Appellant’s absolute right to effective assistance of counsel protected to him by the United States 6th and 14th Amendments Constitutions, and Article 1 Section 9, and V section 9 of Pennsylvania Constitution when Appellant desireously [sic] requested layered abandonment counsels of records to file various motion, and ineffectiveness against each other and did abandoned his requests?
Appellants brief at 1 (unnecessary capitalization omitted).
On appeal from the denial of PCRA relief, our standard of review calls
for us to determine whether the ruling of the PCRA court is supported by the
record and free of legal error. Commonwealth v. Lesko, 15 A.3d 345, 358
(Pa. 2011). We will review an order dismissing a PCRA petition in the light
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most favorable to the prevailing party at the PCRA level. Commonwealth v.
Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012).
The trial court found that Appellant waived all issues because he failed
to file a court-ordered Rule 1925(b) concise statement by January 3, 2018.
The Commonwealth candidly admits that there may have been confusion
surrounding the due date for the concise statement. Although a September
29, 2017 court order permitted Appellant to file an amended petition by
January 3, 2018, it neglected to mention the new due date for the concise
statement. The Commonwealth urges us to affirm on the alternative ground
that the petition is time barred. Due to the apparent confusion surrounding
the extended due date for Appellant’s concise statement, we decline to find
waiver of all issues based on Rule 1925(b) non-compliance. Rather, we will
examine whether Appellant’s petition was timely filed as it implicates our
jurisdiction.
Generally, a petition for post-conviction relief, including a second or
subsequent petition, must be filed within one year of the date the judgment
is final, unless the petitioner alleges and proves that one of the three
exceptions to the time bar applies. “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.” Commonwealth v. Hernandez,
79 A.3d 649, 650 (Pa.Super. 2013). Since the time bar is jurisdictional, we
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may not ignore it in order to reach the merits of the petition. Id.; see also
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (reiterating
that merits of a PCRA petition cannot be addressed unless the PCRA court has
jurisdiction).
Appellant concedes that his petition is patently untimely under 42
Pa.C.S. § 9545(b), but maintains that he pled and proved the applicability of
the exceptions to the PCRA time-bar set forth in § 9545(b)(1)(i) and (ii):
(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
....
42 Pa.C.S. § 9545(b)(1).
It is the petitioner’s burden to allege and prove that one of the timeliness
exceptions applies. See Commonwealth v. Smallwood, 155 A.3d 1054,
1060 (Pa.Super. 2017). In addition, a petitioner invoking one or more of the
exceptions must file his petition within sixty days of the date the claim first
could have been presented. 42 Pa.C.S. § 9545(b)(2). The law is well settled
that, “[q]uestions regarding the scope of the statutory exceptions to the
PCRA’s jurisdictional time-bar raise questions of law; accordingly, our
standard of review is de novo.” Commonwealth v. Robinson, 185 A.3d
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1055, 1059 (Pa.Super. 2018) (en banc) (quoting Commonwealth v.
Chester, 895 A.2d 520, 522 n.1 (Pa. 2006)).
In his initial PCRA petition, Appellant did not invoke any of the
exceptions to the PCRA time-bar. See Commonwealth v. Burton, 936 A.2d
521, 525 (Pa.Super. 2007) (“[e]xceptions to the time-bar must be pled in the
PCRA petition, and may not be raised for the first time on appeal”). However,
in his amended petition, Appellant pled that the governmental interference
and newly-discovered facts exceptions rendered his petition timely. He
alleged that the government denied him access to records, transcripts, and
Brady3 material that would have permitted him to prove errors on appeal, but
he did not specifically identify those errors or the underlying claims that he
was unable to present. In addition, he claimed that he recently discovered
new facts through responses received under the Right–To-Know Law that
indicated that his sentence is illegal.
We turn first to Appellant’s claim that his petition was timely filed
because government officials interfered with his ability to raise the claim
previously. Appellant contends that the Commonwealth denied him discovery
and Brady material that effectively precluded him from raising his claims
3Brady v. Maryland, 373 U.S. 83 (1963) (holding government’s suppression of material evidence favorable to an accused is a violation of due process).
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earlier. He does not identify the Brady materials, or demonstrate how they
support his claims of error.4
The Commonwealth characterizes Appellant’s claims that the
government did not provide discovery and Brady material as bald assertions
insufficient to establish the governmental interference timeliness exception.
It directs our attention to Commonwealth v. Marshall, 947 A.2d 714, 720-
21 (Pa. 2008), where our High Court ruled that unsupported bare assertions
that the Commonwealth concealed information, not evidence, were insufficient
to prove the applicability of the governmental interference exception. See
also Commonwealth v. Dickerson, 900 A.2d 407, 411 (Pa.Super. 2011)
(rejecting as speculative claim that Commonwealth violated Brady by
concealing an eyewitness’s statement as there was no evidence that a
statement was given, or, if given, that it would have constituted Brady
material).
To the extent that Appellant is suggesting that the recently-received
right-to-know responses constitute the heretofore withheld Brady material
and discovery, his position lacks merit. The Department of Corrections
(“DOC”) sentence status summary, and what appears to be a copy of a docket
4 In pursuing post-conviction relief, Appellant has repeatedly decried his lack of transcripts and records. However, the record reflects that, in several prior proceedings, the courts have granted his requests for transcripts. Appellant is not entitled to discovery in PCRA proceedings “except upon leave of court after a showing of exceptional circumstances.” Pa.R.Crim.P. 902(E)(1). No such showing was made herein.
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sheet, were not Brady material nor discoverable items. The sentencing
summary was created by the DOC after his conviction and sentencing, and it
has no bearing on his guilt or innocence. The docket sheet is a matter of
public record. Furthermore, Appellant has not demonstrated how its alleged
non-disclosure impeded his ability to timely present his claims of error, or that
he asserted the claim within sixty days of obtaining access to that material.
Moreover, Appellant has neither pled nor proved that he filed the instant
petition within sixty days of receiving access to the previously withheld
documents.5 Appellant’s brief with respect to the applicability of the
governmental interference exception consists of citations to legal authorities
and oft-cited legal principles; absent are specifics and developed argument.
See Pa.R.A.P. 2119(a) (requiring parties to articulate their question, discuss
it, and cite to pertinent authorities). Thus, we find that Appellant failed to
establish the applicability of the governmental interference exception.
Appellant’s argument regarding the newly-discovered fact exception is
better articulated, but also woefully deficient. Appellant contends that it was
only due to the responses to his right-to-know requests that he recently
“discovered facts of his illegal sentencing order by the trial [court].” See
5 Appended to Appellant’s brief are copies of his requests directed to the Department of Corrections, the Office of the District Attorney of Allegheny County, the Allegheny County Coroner’s Office, and the Pennsylvania State Police under the Right-to-Know Law. Appellant’s brief at Exhibit C. Also appended is the Sentence Status Summary received from the DOC, and what appears to be a docket sheet from the Clerk of Courts’ Office.
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Appellant’s brief at 11. Specifically, he avers that he learned that he was not
charged with second-degree murder, the charge to which he pled guilty, and
therefore, his sentence is illegal. Since the Commonwealth did not amend the
criminal information to charge second-degree murder, Appellant contends that
he was not provided with notice of the charge to which he pled guilty.
We note preliminarily that Appellant failed to state when he learned of
the new fact, and plead and prove specific facts demonstrating that his claim
was raised within the sixty-day time frame.6 Furthermore, assuming that he
did not known the nature of the charges against him, he failed to plead or
prove why he could not have ascertained these facts earlier with the exercise
of due diligence. See Commonwealth v. Bennett, 930 A.2d 1264, 1270-72
(Pa. 2007). A petitioner invoking the newly-discovered facts exception “must
demonstrate that 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. Brown, 111 A.3d 171, 176 (Pa.Super. 2015)
(citations and quotation marks omitted). Appellant has not made the requisite
showing to satisfy the timeliness exception for newly-discovered facts.
Appellant acknowledged in the written and oral colloquies prior to
entering the negotiated plea that he was pleading guilty to second-degree
6 Appellant filed the within petition on December 12, 2016. The newly- discovered fact, upon which he relies in support of the timeliness of the petition, is contained in correspondence from the Pennsylvania Department of Corrections Right-to-Know Office dated four months later on March 7, 2017.
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murder. The DOC sentence summary, which incorrectly states that he pled
guilty to first-degree murder, is not a newly-discovered fact. Appellant is
using incorrect information he received from a newly-discovered source that
contradicts facts of record long known to him. See Commonwealth v.
Graves, __ A.3d __, 2018 PA Super 279 (Pa.Super. 2018) (citing
Commonwealth v Edmiston, 65 A.3d 339 (Pa. 2013) (facts unknown to the
petitioner for purposes of the newly-discovered facts exception cannot be
information previously known and of public record, but merely presented
through a newly-discovered source)). Furthermore, Appellant’s contention
that his sentence is illegal is based on this newly-discovered fact, i.e., that he
was charged with and pled guilty to first-degree murder, is flatly refuted by
the record.
Moreover, Appellant offers no connection between the alleged new fact
and his illegal sentencing claim. See Commonwealth v. Robinson, 185
A.3d 1055, 1062 (Pa.Super. 2018) (en banc) (“[R]ecognizing the nature of
the underlying claim—as distinguished from assessing its merits—is necessary
to determine whether Appellant acted with due diligence in unearthing the
newly-discovered facts.”). Assuming that Appellant demonstrated that he
could not ascertain the nature of the charges against him with due diligence
until his right-to-know responses were received, the claim does not permit
him to circumvent the time-bar. The DOC sentence summary
notwithstanding, the record establishes that Appellant was charged with
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criminal homicide pursuant to 18 Pa.C.S. § 2501(a) (“A person is guilty of
criminal homicide if he intentionally, knowingly, recklessly or negligently
causes the death of another human being.”). He was not charged with first-
degree murder or any specific degree of murder. As the Commonwealth
correctly points out, the criminal information need not specify the degree of
murder in order to sustain a second-degree murder verdict. Commonwealth’s
brief at 21 n.20 (citing Commonwealth v. Chambers, 852 A.2d 1197, 1199
(Pa.Super. 2004)). Stated plainly, neither the DOC sentencing summary nor
the copy of the docket has any bearing on the legality of the sentence that
Appellant is serving. Thus, Appellant’s discovery of those documents is not a
basis for an exception to the statutory requirements.
Thus, having failed to plead and prove the applicability of a timeliness
exception to the one-year PCRA time bar, we find Appellant’s petition was
untimely filed, and hence, properly dismissed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/19/2018
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