Com. v. Rock, G.

• Court: Superior Court of Pennsylvania
• Decided: May 15, 2018
• Docket: 1605 MDA 2017
• Status: Unpublished

Opinion

J-S09038-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : GARY LEE ROCK : : Appellant : No. 1605 MDA 2017

Appeal from the PCRA Order September 25, 2017 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-MD-0000283-1977

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED MAY 15, 2018

Appellant, Gary Lee Rock, appeals pro se from the order entered in the

Franklin County Court of Common Pleas, which dismissed as untimely his

serial petition for collateral relief (labeled a petition for writ of habeas

corpus), per the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. In May 1978, a jury convicted Appellant of six counts of attempted

murder and two counts of first-degree murder. The court sentenced

Appellant in September 1980, to life imprisonment, and our Supreme Court

affirmed the judgment of sentence in 1981. In 1984, Appellant obtained

habeas corpus relief in federal court. Following a new trial, a jury convicted

Appellant on January 22, 1985, of four counts of attempted murder and two

counts each of first-degree murder and aggravated assault. On March 26,

1986, the court again sentenced Appellant to life imprisonment. This Court

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S09038-18

affirmed the judgment of sentence on April 16, 1987, and our Supreme

Court denied allowance of appeal on July 8, 1988. See Commonwealth v.

Rock, 526 A.2d 1235 (Pa.Super. 1987) (unpublished memorandum), appeal

denied, 519 Pa. 653, 546 A.2d 58 (1988). Appellant sought no further direct

review, so the judgment of sentence became final sixty days later, on

September 6, 1988. See U.S.Sup.Ct.R. 20.1 (effective 1984 to 1990).

Between 1988 and 2001, Appellant unsuccessfully litigated a petition

for habeas corpus relief in federal court and two PCRA petitions. On June 8,

2015, Appellant filed his third pro se PCRA petition, arguing police records

sealed during his 1978 trial might contain exculpatory evidence. The PCRA

court dismissed the petition as untimely on September 3, 2015; this Court

affirmed on April 1, 2016, concluding Appellant failed to show he exercised

due diligence to obtain the sealed police records. See Commonwealth v.

Rock, 143 A.3d 770 (Pa.Super. 2016) (unpublished memorandum).

On June 16, 2017, Appellant filed the current pro se petition for writ of

habeas corpus, which the PCRA court deemed a fourth PCRA petition. In the

petition, Appellant recast the argument from his third PCRA petition in light

of Commonwealth v. Burton, 121 A.3d 1063 (Pa.Super. 2015) (en banc),

aff’d, 638 Pa. 687, 158 A.3d 618 (2017). The PCRA court issued Rule 907

notice on September 15, 2017; Appellant filed a pro se response on

September 22, 2017. On September 25, 2017, the PCRA court dismissed

the petition. Appellant filed a timely pro se notice of appeal and voluntary

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Rule 1925(b) statement on October 13, 2017.

Preliminarily, any petition for post-conviction collateral relief will

generally be considered a PCRA petition, even if captioned as a request for

habeas corpus relief, if the petition raises issues for which the relief sought

is available under the PCRA. See Commonwealth v. Peterkin, 554 Pa.

547, 722 A.2d 638 (1998); 42 Pa.C.S.A. § 9542 (stating PCRA shall be sole

means of obtaining collateral relief and encompasses all other common law

and statutory remedies for same purpose). As well, the timeliness of a PCRA

petition is a jurisdictional requisite. Commonwealth v. Zeigler, 148 A.3d

849 (Pa.Super. 2016). A PCRA petition must be filed within one year of the

date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A

judgment is “final” at the conclusion of direct review or at the expiration of

time for seeking review. 42 Pa.C.S.A. § 9545(b)(3). The exceptions to the

PCRA time-bar allow for very limited circumstances under which the late

filing of a petition will be excused; a petitioner asserting an exception must

file a petition within 60 days of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(1-2). The timeliness exception at

Section 9545(b)(1)(ii), known as the newly-discovered facts exception,

requires a petitioner to plead and prove he: (1) did not know the facts upon

which he based his petition; and (2) could not have learned those facts

earlier by the exercise of due diligence. Commonwealth v. Shiloh, 170

A.3d 553 (Pa.Super. 2017). Generally, Pennsylvania courts presume that

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information of public record is not “unknown” for purposes of the Section

9545(b)(1)(ii) exception. Commonwealth v. Chester, 586 Pa. 468, 895

A.2d 520 (2006). Pennsylvania courts, however, do not apply a public

record presumption to pro se incarcerated PCRA petitioners; but, a pro se

incarcerated petitioner is still required to plead and prove the petitioner’s

due diligence. Burton, supra at ___, 158 A.3d at 638; Shiloh, supra at

559. Additionally, to be eligible for relief under the PCRA, a petitioner must

plead and prove, inter alia, his allegations of error were not previously

litigated. 42 Pa.C.S.A. § 9543(a)(3).

Instantly, Appellant claims police records sealed during his 1978 trial

might contain exculpatory evidence. As presented, Appellant’s claim is

cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(vi). Thus, the

PCRA court properly treated this most recent prayer for relief as a PCRA

petition. Nevertheless, Appellant’s judgment of sentence became final on

September 6, 1988, upon expiration of the time to file a petition for writ of

certiorari in the United States Supreme Court. See U.S.Sup.Ct.R. 20.1

(effective 1984 to 1990). Appellant filed the current PCRA petition on June

16, 2017, which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).

Appellant attempts to invoke the newly-discovered facts exception, insisting

police records sealed during his 1978 trial might contain exculpatory

evidence. In his third PCRA petition, Appellant litigated a substantially

identical claim based on the same exception, which failed for lack of due

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diligence in seeking access to the same sealed records. Appellant cannot

now rely upon Burton to resurrect a claim previously decided against him in

his third PCRA petition. See 42 Pa.C.S.A. § 9543(a)(3). Thus, Appellant’s

petition remains time-barred, and the PCRA court lacked jurisdiction to

review it. See Zeigler, supra. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/15/18

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