Com. v. Moore, J.

Opinion

J-S50011-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JARED A. MOORE : : Appellant : No. 1670 WDA 2017

Appeal from the PCRA Order November 1, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0018117-2003

BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 11, 2018

Jared A. Moore appeals from the November 1, 2017 order1 that

dismissed his petition filed pursuant to the Post Conviction Relief Act (“PCRA”).

We affirm.

In 2008, following convictions for murder and other crimes, Appellant

was sentenced to, inter alia, life imprisonment without possibility of parole.

This Court denied Appellant relief on direct appeal, and his judgment of

sentence became final in 2010 after our Supreme Court denied his petition for

allowance of appeal. Commonwealth v. Moore, 990 A.2d 49 (Pa.Super.

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1 The order is dated October 26, 2017, was filed on October 30, 2017, and was served on Appellant on November 1, 2017. Accordingly, the date of entry of the order for purposes of this appeal is November 1, 2017. See Pa.R.A.P. 108(a), (d)(1). J-S50011-18

2009) (unpublished memorandum), appeal denied, 992 A.2d 124 (Pa. 2010).

Appellant’s first three PCRA petitions resulted in no relief.

Appellant filed the petition that is the subject of the instant appeal on

October 18, 2016, and a supplement on May 25, 2017. Therein, he claimed

that he is entitled to relief in the form of a new trial because the

Commonwealth concealed information about a plea agreement it had with

Randall Stoddard, a witness who testified against Appellant at trial. PCRA

Petition, 10/18/16, at 6, 12.

On August 31, 2017, the PCRA court issued notice of its intent to dismiss

the petition without a hearing as untimely, to which Appellant responded in

the form of an amended petition. The PCRA court dismissed Appellant’s

petition by order filed on October 30, 2017. The PCRA court did not order

Appellant to file a statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and none was filed. The PCRA court referred this Court to

its notice of intent to dismiss for the reasoning behind its decision.

On appeal, Appellant claims that the PCRA court erred in dismissing his

petition because he satisfied two of the PCRA’s timeliness exceptions.

Appellant’s Brief at 2. He also raises a number of substantive issues. Id.

Before we may address Appellant’s substantive arguments, we must

determine whether his PCRA petition was timely filed, as the timeliness of a

post-conviction petition is jurisdictional. See, e.g., Commonwealth v.

Lewis, 63 A.3d 1274, 1280-81 (Pa.Super. 2013) (quoting Commonwealth

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v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f a PCRA petition is untimely,

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.”).

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

of sentence is final unless the petition alleges, and the petitioner proves, that

an exception to the time for filing the petition is met, and that the claim was

raised within 60 days of the date on which it became available. 42 Pa.C.S.

§ 9545(b).

Appellant acknowledges that the instant petition is facially untimely.

Appellant’s brief at 4. However, Appellant argues that his petition satisfied

the timeliness set forth in 42 Pa.C.S. § 9545(b)(1)(i) and (ii).2 Id.; Amended

PCRA Petition, 10/17/17, at 4-8. Specifically, he contends that the

2 Those exceptions apply if the petitioner raises within sixty days of the date the claim could have been presented, and proves:

(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; [or]

(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[.]

42 Pa.C.S. § 9545(b).

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government interfered with his ability to present the claim previously by

withholding evidence of Stoddard’s lenient plea deal, in violation of Brady v.

Maryland, 373 U.S. 83 (1963). Appellant’s brief at 6-7. Appellant also

suggests that he was unaware of the sentence Stoddard received “until SCI

Greene legal aide Albert T. Greeley asked his mother to go on to the internet

and print Mr. Stoddard’s criminal docket that Appellant discovered Mr.

Stoddard’s criminal case number, guilty plea/sentence.” Id. at 21

(unnecessary capitalization omitted). He contends that only thereafter did he

discover additional documents to support his claim through the Right to Know

Law. Id.

In its notice of intent to dismiss, the PCRA court noted that “the evidence

that [Appellant] cites to support this claim is the public docket sheet.

Stoddard’s plea (which allegedly was in exchange for his testimony against

[Appellant]) occurred on January 26, 2005. [Appellant] claims he discovered

the plea on August 11, 2016.” Notice of Intent to Dismiss, 9/5/17, at 4.

“Since Stoddard's plea was on the docket since 2005, [Appellant] could have

learned this fact earlier through due diligence.” Id. at 5.

We discern no error or abuse of discretion on the part of the PCRA court.

Appellant simply failed to plead facts to show that the government interfered

with his ability to file his claim earlier, or why he waited more than a decade

to begin his investigation into Stoddard’s plea, a fact that was of public record

all along and could have been discovered far earlier by use of the same

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internet search that revealed it to him in 2016. See, e.g., Commonwealth

v. Staton, 184 A.3d 949, 957 (Pa. 2018) (holding petitioner had failed to

meet his burden of establishing due diligence where claim was based upon

information that has been on the court docket sheets since 2002, and noting

the ruling in Commonwealth v. Burton3 does not obviate the prisoner’s duty

to demonstrate that he exercised due diligence in learning the facts at issue).

Accordingly, the PCRA court properly dismissed Appellant’s PCRA petition as

untimely.

Order affirmed.4

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/11/2018

3 “[T]he presumption that information which is of public record cannot be deemed ‘unknown’ for purposes of subsection 9545(b)(1)(ii) does not apply to pro se prisoner petitioners.” Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017) (emphasis omitted).

4 Appellant’s Second Application for Relief and Motion to Dismiss Appeal, in which he requested that this Court strike the Commonwealth’s appellate brief based upon defects therein, vacate his convictions and sentences, and remand for a new trial, is denied.

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