Com. v. Green, J.

Superior Court of Pennsylvania

Com. v. Green, J.

DecidedApril 17, 2020

Docket866 EDA 2019

StatusUnpublished

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Com. v. Green, J., (Pa. Ct. App. 2020).

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Opinion

J-S09043-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN A. GREEN : : Appellant : No. 866 EDA 2019

Appeal from the PCRA Order Entered March 14, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0303591-2001

BEFORE: SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED APRIL 17, 2020

Appellant, John A. Green, appeals, pro se, from the order denying his

second petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We

affirm.

On November 28, 2000, two officers of the Philadelphia Police

Department observed Appellant discharge a firearm at two fleeing individuals,

one of whom died. Appellant and one of the officers exchanged gunfire during

an ensuing chase, and Appellant was apprehended after he was struck in the

foot by a bullet. Appellant proceeded to a non-jury trial in the spring of 2003,

at which his counsel extensively cross examined the officer regarding a prior

incident in which the officer shot an individual in a moving vehicle and was

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J-S09043-20

found to have violated a department directive. On May 30, 2003, the trial

court convicted Appellant of murder of the third degree, criminal conspiracy,

carrying a firearm on a public street, aggravated assault, recklessly

endangering another person, and resisting arrest.2 On October 7, 2003, the

trial court sentenced Appellant to an aggregate sentence of 19 to 38 years of

confinement. Appellant appealed the judgment of sentence, and this Court

affirmed the conviction. Commonwealth v. Green, No. 3340 EDA 2003 (Pa.

Super. filed March 15, 2005) (memorandum decision). Our Supreme Court

denied Appellant’s petition for allowance of appeal. Commonwealth v.

Green, 880 A.2d 1236 (Pa. 2005) (table).

Appellant filed a timely pro se PCRA petition on April 20, 2006. The

PCRA court appointed counsel for Appellant, and counsel filed an amended

PCRA petition on December 18, 2007. The PCRA court dismissed the petition

on April 25, 2008. Appellant appealed, and this Court affirmed the dismissal.

Commonwealth v. Green, No. 1550 EDA 2008 (Pa. Super. filed September

1, 2009) (memorandum decision). Our Supreme Court denied Appellant’s

petition for allowance of appeal. Commonwealth v. Green, 991 A.2d 311

(Pa. 2010) (table).

Appellant filed his second PCRA petition on January 30, 2018. In the

petition, Appellant asserts that his request for PCRA relief was timely under

the newly discovered fact exception to the PCRA’s one-year time bar. PCRA

2 18 Pa.C.S. §§ 2502, 903, 6108, 2702, 2705, and 5104, respectively.

-2- J-S09043-20

Petition, 1/30/08, at 2-3, 5 (citing 42 Pa.C.S. .§ 9545(b)(1)(ii)). As the newly

discovered fact that would support the timeliness exception, Appellant cites to

a January 17, 2017 decision by the federal district court for the Eastern District

of Pennsylvania, Wright v. City of Philadelphia, 229 F.Supp.3d 322 (E.D.

Pa. 2017), in a case asserting federal civil rights and state law actions

concerning the alleged fabrication of evidence, forced confession, and

malicious prosecution of the plaintiff. PCRA Petition, 1/30/08, at 4-6, 12. In

Wright, the district court denied the motion to dismiss brought by the

defendants, the City of Philadelphia and eleven Philadelphia police officers.

Although neither of the officers who arrested Appellant were named in the

Wright suit, Appellant claimed in his PCRA petition that the federal decision

shows that “the Philadelphia City Police has a common pattern, practice and

custom of unconstitutional misconduct, which [Appellant] was in fact

subjected to first hand.” Id. at 5.

On December 12, 2018, the PCRA court filed a notice of its intention to

dismiss the petition without a hearing pursuant to Rule of Criminal Procedure

907. On March 14, 2019, the court dismissed the petition as untimely.

Appellant filed a timely appeal of the PCRA court’s March 14, 2019 order.3

Appellant presents the following issues on appeal:

I. Did the PCRA court err as a matter of law when it failed to hold an evident[i]ary hearing on Appellant’s claim of Newly Discovered [facts] and dismissed the PCRA Petition as being Time-Barred ____________________________________________

3The PCRA court did not order Appellant to file a concise statement of matters complained of on appeal. The court issued an opinion on May 21, 2019.

-3- J-S09043-20

where Appellant pled and met the exception to the PCRA Time- Bar.

II. Is the Appellant entitled to the relief he seeks based on the recent Judicial decisions of both the Pennsylvania Superior and Supreme Court’s concerning the After-Discovered Facts exception to the PCRA Time-Bar.

Appellant’s Brief at 4 (suggested answers omitted). We review the denial of

a PCRA petition to determine whether the record supports the PCRA court’s

findings and whether its decision is free of legal error. Commonwealth v.

Brown, 196 A.3d 130, 150 (Pa. 2018).

The PCRA provides that “[a]ny petition under this subchapter, including

a second or subsequent petition, shall be filed within one year of the date the

judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A PCRA petition may be

filed beyond the one-year period only if the petitioner alleges and proves one

of the following three exceptions:

(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

(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

Id. Any petition attempting to invoke these exceptions “shall be filed within

60 days of the date the claim could have been presented.” 42 Pa.C.S. §

-4- J-S09043-20

9545(b)(2) (former version).4 “The PCRA’s time limitations implicate our

jurisdiction and may not be altered or disregarded in order to address the

underlying merits of a claim.” Commonwealth v. Greco, 203 A.3d 1120,

1124 (Pa. Super. 2019).

Appellant does not dispute that his second PCRA petition is untimely as

it was not filed within one year of the date his conviction became final, but

contends that his petition satisfies the newly discovered fact timeliness

exception based upon the Wright decision. “The newly discovered fact

exception has two components, which must be alleged and proved[:] 1) the

facts upon which the claim was predicated were unknown and 2) could not

have been ascertained by the exercise of due diligence.” Commonwealth v.

Brensinger, 218 A.3d 440, 448 (Pa. Super.

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