J-S33013-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WILBERT GAY JR. : : Appellant : No. 1319 EDA 2022
Appeal from the PCRA Order Entered April 29, 2022, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0804412-1976.
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 24, 2022
Wilbert Gay, Jr. appeals pro se from the order denying his ninth
untimely-filed petition pursuant to the Post Conviction Relief Act (“PCRA”). 42
Pa.C.S.A. §§ 9541-46. We affirm.
This Court previously summarized the pertinent facts and protracted
procedural history as follows:
In 1978, at the conclusion of [Gay’s] bench trial, the trial court convicted him of murder of the first degree, and related charges. The charges arose from his July 2, 1976 murder of a male victim underneath the Walt Whitman Bridge in Philadelphia. The court sentenced [Gay] to life in prison. On January 27, 1981, the Pennsylvania Supreme Court affirmed [Gay’s] judgment of sentence. (See Commonwealth v. Gay, 424 A.2d 495 (Pa. 1981)).
On December 15, 1982, [Gay] filed his first petition for post-conviction relief pro se. The court appointed counsel who, after “an exhaustive review” of the record in [Gay’s] case, informed the court that his issues did not merit relief. J-S33013-22
(Commonwealth v. Gay, No. 1675 PHL 1984, unpublished memorandum at *2 (Pa. Super. filed Mar. 15, 1985)). The court dismissed the petition on May 9, 1984. [Gay] appealed to this Court, which affirmed the court’s order, and granted counsel’s petition to withdraw pursuant to [Anders v. California, 386 U.S. 738 (1967)]. (See id. at *3).
Thereafter, [Gay] filed a series of pro se PCRA petitions between December 30, 1986, and February 13, 2012, the last of which was denied on June 25, 2012. A panel of this Court affirmed the PCRA court’s decision on December 19, 2012. (See Commonwealth v. Gay, 64 A.2d 27 (Pa. Super. 2012) (unpublished memorandum).
Commonwealth v. Gay, 151 A.3d 1142 (Pa. Super. 2016), non-precedential
decision at 1-2 (footnote omitted).
Gay filed his eighth pro se PCRA petition on June 21, 2013, and an
amended petition on April 13, 2015, which the PCRA court dismissed as
untimely filed, and we affirmed. Gay, supra.
On April 12, 2021, Gay filed the pro se PCRA petition at issue, his ninth.
On May 3, 2022, the PCRA court issued a Rule 907 notice of its intent to
dismiss Gay’s serial petition as untimely filed. Gay did not file a response. By
order entered April 29, 2022, the PCRA court denied the petition. This timely
appeal followed. The PCRA court did not require Pa.R.A.P. 1925 compliance.
Gay now raises the following three issues, which we cite verbatim:
Whether the PCRA court erred when it dismissed [Gay’s] PCRA/Mandamus petition as untimely under 42 Pa. C.S.A. § 9545(b)(1)(i)-(iii), when there is not time limitation on a claim of fraud upon the court.
Whether the court of common pleas and the PCRA court has allowed their records to be tainted by the continuation of fraud upon the court by the prosecution (1) misrepresenting a convicted felon as an officer of law,
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and prosecuting a case for first degree murder with no witnesses or evidence. And never acquiring subject matter jurisdiction.
Whether the Commonwealth’s prosecuting attorney impeded justice and committed fraud upon the court?
Gay’s Brief at 4 (excess capitalization and emphasis omitted).
Using the applicable standard of review, we must determine whether
the ruling of the PCRA court is supported by the record and is free of legal
error. Commonwealth v. Blakeney, 108 A.3d 739, 749-50 (Pa. 2014)
(citations omitted). We apply a de novo standard of review to the PCRA court’s
legal conclusions. Id.
In addressing his first issue, we consider the PCRA court’s conclusion
that Gay’s ninth PCRA petition was untimely filed, and that he failed to
establish a time-bar exception. The timeliness of a post-conviction petition is
jurisdictional. Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.
2013). Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, that an
exception to the time for filing the petition is met.
The three narrow statutory exceptions to the one-year time bar are as
follows: “(1) interference by government 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)
(citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). In addition, exceptions to the PCRA’s
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time bar must be pled in the petition and may not be raised for the first time
on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.
2007); see also Pa.R.A.P. 302(a) (providing that issues not raised before the
lower court are waived and cannot be raised for the first time on appeal).
Moreover, a PCRA petitioner must file his petition “within one year of date the
claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
Finally, if a PCRA petition is untimely and the petitioner has not pled and
proven an exception “neither this Court nor the [PCRA] court has jurisdiction
over the petition. Without jurisdiction, we simply do not have the legal
authority to address the substantive claims.” Commonwealth v.
Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).
When denying Gay’s eighth PCRA petition, this Court concluded that
Gay’s “judgment of sentence became final on March 30, 1981, when his time
to file a petition for writ of certiorari with the United States Supreme Court
expired.” Gay, non-precedential decision at 5 (citing former U.S.Sup.Ct.R.
20.1). Because Gay filed his ninth PCRA petition over four decades later, it is
patently untimely unless he has satisfied his burden of pleading and proving
that one of the enumerated exceptions applies. See Hernandez, supra.
After review, we concur with the PCRA court’s conclusion that Gay failed
to plead and prove a time-bar exception. Within his brief, Gay asserts that he
has established the governmental interference exception because the
prosecution committed a violation of Brady v. Maryland, 373 U.S. 83 (1963);
according to Gay, at his trial “you [had] the prosecuting attorney for the
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[C]ommonwealth calling a convicted felon, to the witness stand and
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J-S33013-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WILBERT GAY JR. : : Appellant : No. 1319 EDA 2022
Appeal from the PCRA Order Entered April 29, 2022, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0804412-1976.
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 24, 2022
Wilbert Gay, Jr. appeals pro se from the order denying his ninth
untimely-filed petition pursuant to the Post Conviction Relief Act (“PCRA”). 42
Pa.C.S.A. §§ 9541-46. We affirm.
This Court previously summarized the pertinent facts and protracted
procedural history as follows:
In 1978, at the conclusion of [Gay’s] bench trial, the trial court convicted him of murder of the first degree, and related charges. The charges arose from his July 2, 1976 murder of a male victim underneath the Walt Whitman Bridge in Philadelphia. The court sentenced [Gay] to life in prison. On January 27, 1981, the Pennsylvania Supreme Court affirmed [Gay’s] judgment of sentence. (See Commonwealth v. Gay, 424 A.2d 495 (Pa. 1981)).
On December 15, 1982, [Gay] filed his first petition for post-conviction relief pro se. The court appointed counsel who, after “an exhaustive review” of the record in [Gay’s] case, informed the court that his issues did not merit relief. J-S33013-22
(Commonwealth v. Gay, No. 1675 PHL 1984, unpublished memorandum at *2 (Pa. Super. filed Mar. 15, 1985)). The court dismissed the petition on May 9, 1984. [Gay] appealed to this Court, which affirmed the court’s order, and granted counsel’s petition to withdraw pursuant to [Anders v. California, 386 U.S. 738 (1967)]. (See id. at *3).
Thereafter, [Gay] filed a series of pro se PCRA petitions between December 30, 1986, and February 13, 2012, the last of which was denied on June 25, 2012. A panel of this Court affirmed the PCRA court’s decision on December 19, 2012. (See Commonwealth v. Gay, 64 A.2d 27 (Pa. Super. 2012) (unpublished memorandum).
Commonwealth v. Gay, 151 A.3d 1142 (Pa. Super. 2016), non-precedential
decision at 1-2 (footnote omitted).
Gay filed his eighth pro se PCRA petition on June 21, 2013, and an
amended petition on April 13, 2015, which the PCRA court dismissed as
untimely filed, and we affirmed. Gay, supra.
On April 12, 2021, Gay filed the pro se PCRA petition at issue, his ninth.
On May 3, 2022, the PCRA court issued a Rule 907 notice of its intent to
dismiss Gay’s serial petition as untimely filed. Gay did not file a response. By
order entered April 29, 2022, the PCRA court denied the petition. This timely
appeal followed. The PCRA court did not require Pa.R.A.P. 1925 compliance.
Gay now raises the following three issues, which we cite verbatim:
Whether the PCRA court erred when it dismissed [Gay’s] PCRA/Mandamus petition as untimely under 42 Pa. C.S.A. § 9545(b)(1)(i)-(iii), when there is not time limitation on a claim of fraud upon the court.
Whether the court of common pleas and the PCRA court has allowed their records to be tainted by the continuation of fraud upon the court by the prosecution (1) misrepresenting a convicted felon as an officer of law,
-2- J-S33013-22
and prosecuting a case for first degree murder with no witnesses or evidence. And never acquiring subject matter jurisdiction.
Whether the Commonwealth’s prosecuting attorney impeded justice and committed fraud upon the court?
Gay’s Brief at 4 (excess capitalization and emphasis omitted).
Using the applicable standard of review, we must determine whether
the ruling of the PCRA court is supported by the record and is free of legal
error. Commonwealth v. Blakeney, 108 A.3d 739, 749-50 (Pa. 2014)
(citations omitted). We apply a de novo standard of review to the PCRA court’s
legal conclusions. Id.
In addressing his first issue, we consider the PCRA court’s conclusion
that Gay’s ninth PCRA petition was untimely filed, and that he failed to
establish a time-bar exception. The timeliness of a post-conviction petition is
jurisdictional. Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.
2013). Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, that an
exception to the time for filing the petition is met.
The three narrow statutory exceptions to the one-year time bar are as
follows: “(1) interference by government 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)
(citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). In addition, exceptions to the PCRA’s
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time bar must be pled in the petition and may not be raised for the first time
on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.
2007); see also Pa.R.A.P. 302(a) (providing that issues not raised before the
lower court are waived and cannot be raised for the first time on appeal).
Moreover, a PCRA petitioner must file his petition “within one year of date the
claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
Finally, if a PCRA petition is untimely and the petitioner has not pled and
proven an exception “neither this Court nor the [PCRA] court has jurisdiction
over the petition. Without jurisdiction, we simply do not have the legal
authority to address the substantive claims.” Commonwealth v.
Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).
When denying Gay’s eighth PCRA petition, this Court concluded that
Gay’s “judgment of sentence became final on March 30, 1981, when his time
to file a petition for writ of certiorari with the United States Supreme Court
expired.” Gay, non-precedential decision at 5 (citing former U.S.Sup.Ct.R.
20.1). Because Gay filed his ninth PCRA petition over four decades later, it is
patently untimely unless he has satisfied his burden of pleading and proving
that one of the enumerated exceptions applies. See Hernandez, supra.
After review, we concur with the PCRA court’s conclusion that Gay failed
to plead and prove a time-bar exception. Within his brief, Gay asserts that he
has established the governmental interference exception because the
prosecution committed a violation of Brady v. Maryland, 373 U.S. 83 (1963);
according to Gay, at his trial “you [had] the prosecuting attorney for the
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[C]ommonwealth calling a convicted felon, to the witness stand and
masquerading him before the court, and swore him in as a detective.” Gay’s
Brief at 13.1 This claim is meritless.
Although a Brady violation might fall within the governmental
interference exception to the PCRA’s time bar, the statute nevertheless
requires a petitioner to plead and prove: (1) the failure to previously raise the
claim was the result of interference by government officials, and (2) the
information on which he relies could not have been obtained earlier with the
exercise of due diligence. Commonwealth v. Williams, 105 A.3d 1234 (Pa.
Super. 2014).
Gay cannot establish due diligence. In essence, Gay bases his Brady
violation claim on his allegation that, at his 1978 trial, the prosecutor called
Detective William Jones to testify even though she knew that he was a
convicted felon. This claim has been repeatedly raised and rejected in
previous PCRA petitions filed by Gay. Indeed, as this Court explained in
denying his 2008 petition:
Assuming that Detective Jones was, in fact, already convicted at the time of [Gay’s] trial, that information was available to [Gay] and his attorney. [Gay] fails to offer a reasonable explanation why this information, with the exercise of due diligence, could not have been obtained earlier. “There is no Brady violation where the allegedly ____________________________________________
1 In his petition, Gay also asserted the applicability of the newly-recognized constitutional right based upon our Supreme Court’s recent decision in Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020). He has abandoned this claim on appeal as it is not mentioned in his brief.
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withheld records were equally available to the prosecution and the defense.” [Commonwealth v. Palmer, 814 A. 2d 700, 709 (Pa. Super. 2002) (citation omitted)]. “The Commonwealth does not violate the Brady rule when it fails to turn over evidence readily obtainable by, and known to, the defendant.” [Id.].
Commonwealth v. Gay, 974 A.2d 1181 (Pa. Super. 2009), non-precedential
decision at 9.
Moreover, when denying Gay’s eighth PCRA petition, this Court noted
that, in addition to the appeal cited above, this Court had previously rejected
Gay’s attempt to establish a Brady claim as a time-bar exception in his 2012
petition. See Gay, 151 A.2d 1142 (Pa. Super. 2016), non-precedential
decision at 6, n.7. We further found that Gay “himself conceded that he raised
the underlying Brady claim as far back as his first post-conviction petition in
1982. Id. at 7. Notably, Gay has made the same concession again. See
Gay’s Amended PCRA Petition, 9/28/21, at 5. Thus, the PCRA court and this
Court have already rejected Gay’s attempt to establish the government
interference exception.2 His latest attempt likewise fails.
In sum, the PCRA court correctly determined that Gay’s ninth PCRA
petition was untimely filed, and he did not plead or prove an exception to the
PCRA’s time bar. As such, we lack jurisdiction to address the merits of his ____________________________________________
2To the extent that Gay asserts “there is no time limitation on claim of fraud upon the court,” and that the trial court lacked subject matter jurisdiction. See infra at 3. This claim has no merit. We note that “[t]he PCRA confers no authority upon this Court to fashion ad hoc equitable exceptions” to the PCRA’s time bar. Commonwealth v. Medina, 92 A.3d 1210, 1215 (Pa. Super. 2014).
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second and third issues. Derrickson, supra. We therefore affirm the PCRA
court’s order denying Gay post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/24/2022
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