Com. v. Pearson, I. ( 2021 )

J-S33043-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ISAAC BILAL PEARSON :
:
Appellant : No. 862 EDA 2021
Appeal from the PCRA Order Entered March 31, 2021
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0004988-2015
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 30, 2021
Isaac Bilal Pearson appeals pro se from the order dismissing his petition
filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Pearson maintains that the PCRA court erred in dismissing his petition
as untimely. We affirm.
The facts of this case are well known to the parties and have been set
forth in a prior decision of this Court. See Commonwealth v. Pearson, 2116
EDA 2018, unpublished memorandum (Pa.Super. filed Mar. 28, 2019). Briefly,
a jury convicted Pearson in 2016 of two counts of Trafficking in Individuals,
and one count each of Promoting Prostitution and Criminal Use of a
Communication Facility.1 The court imposed an aggregate sentence of 17 to
34 years of imprisonment.
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1 See 18 Pa.C.S.A. §§ 3011(a), 5902(b)(3), and 7512(a), respectively.
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On April 18, 2017, this Court affirmed Pearson’s judgment of sentence.
Our Supreme Court denied his petition for allowance of appeal on August 22,
2017. In January 2018, Pearson filed a timely first PCRA petition. The court
appointed counsel, who filed a no-merit letter. After a hearing, the court
granted counsel’s petition to withdraw and permitted Pearson to proceed pro
se at the evidentiary hearing. Following the hearing, the PCRA court denied
Pearson relief. Pearson filed a timely pro se appeal. In March 2019, this Court
affirmed the PCRA court’s denial of relief. See id.
On November 17, 2020, Pearson filed the instant, pro se, petition for
post-conviction relief. The PCRA court issued notice of its intent to dismiss the
petition as untimely. See Pa.R.Crim.P. 907(1). Pearson responded to the
notice of intent to dismiss, and on March 31, 2021, the court dismissed
Pearson’s petition. This timely appeal followed.
Pearson raises three issues on appeal.
1. Was Isaac Pearson’s PCRA petition dismissed prematurely after a
showing of newly discovered psychiatric records? Did Isaac
Pear[s]on’s untreated mental illness cause a structural defect in
trial commensurate with miscarriage of justice?
2. Was the court’s sentence illegal by improperly imposing a
consecutive sentence where a merger should have ensued? The
court incorrectly considered the maximum penalty for violent prior
where none exist.
3. Did trial judge Maria L. Dantos ‘erroneously’ terminate Isaac
Pearson’s self-representation during his cross-examination of
Commonwealth witness Kelli Favazza?
Pearson’s Br. at 5.
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Prior to reaching the merits of Pearson’s claims on appeal, we must first
consider the timeliness of his PCRA petition. See Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014).
Crucial to the determination of any PCRA appeal is the timeliness
of the underlying petition. Thus, we must first determine whether
the instant PCRA petition was timely filed. The timeliness
requirement for PCRA petitions is mandatory and jurisdictional in
nature, and the court may not ignore it in order to reach the merits
of the petition. The question of whether a petition is timely raises
a question of law. Where the petitioner raises questions of law,
our standard of review is de novo and our scope of review plenary.
A PCRA petition is timely if it is “filed within one year of the date
the judgment [of sentence] becomes final.” 42 Pa.C.S.A. §
9545(b)(1). “[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.”
42 Pa.C.S.A. § 9545(b)(3). . . .
Commonwealth v. Brown, 141 A.3d 491, 499 (Pa.Super. 2016) (case
citations and some quotation marks omitted).
Pearson’s judgment of sentence became final on November 20, 2017,
90 days after our Supreme Court denied allowance of appeal and Pearson did
not petition the United States Supreme Court for a writ of certiorari. See 42
Pa.C.S.A. § 9545(b)(3) (judgment of sentence becomes final “at the
conclusion of direct review . . . or at the expiration of time for seeking the
review”); U.S. Sup. Ct. R. 13. Accordingly, Pearson had until November 20,
2018, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). He filed
the instant petition on November 17, 2020. Therefore, it was patently
untimely and the PCRA court lacked jurisdiction to review it unless Pearson
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successfully pleaded and proved one of the statutory exceptions to the PCRA
time-bar.
The PCRA provides three exceptions to its time-bar:
(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.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “[Our Supreme] Court has repeatedly
stated it is the appellant’s burden to allege and prove that one of the
timeliness exceptions applies.” Commonwealth v. Hawkins, 953 A.2d 1248,
1253 (Pa. 2008).
In his petition, Pearson attempts to invoke both the government
interference and the new fact exceptions to the PCRA time-bar.
The government interference exception requires a petitioner to establish
that the government interfered with a petitioner’s ability to present a claim.
See 42 Pa.C.S.A. § 9545(b)(1)(i). The new fact exception requires a petitioner
to establish that 1) “the facts upon which the claim [was] predicated were
unknown” and 2) “could not have been ascertained by the exercise of due
diligence.” Id. at § 9545(b)(1)(ii). Further, a “petitioner must explain why he
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could not have obtained the new fact(s) earlier with the exercise of due
diligence.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super.
2010). “[T]he general rule remains that mental illness or psychological
condition, absent more, will not serve as an exception to the PCRA’s
jurisdictional time requirements.” Id. at 1081 (citation omitted).
Here, Pearson claims to be eligible for the new fact exception on account
of his mother newly discovering medical documentation showing that he was
diagnosed with ADHD. See Pearson’s Br. at 7. He asserts that he is eligible
for the governmental interference exception because of the difficulty he
experienced in obtaining mental health records. See id. at 9.
We conclude that Pearson has not proven applicability of either the
government interference or the new fact exception. Pearson’s difficulty in
obtaining records of his mental health diagnosis does not constitute
governmental interference with his ability to present his claim. Additionally,
the newly discovered “fact” on which Pearson relies is a document describing
his childhood diagnosis of ADHD. That document is at best new evidence of a
fact, and is not itself a new fact. Moreover, Pearson has not established that
that he was unable to discover the fact of his diagnosis prior to trial despite
having exercised due diligence.
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Accordingly, Pearson’s second PCRA petition was facially untimely and
qualified for no exception to the PCRA time-bar. Therefore, the PCRA court
properly dismissed it.2
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2021
____________________________________________
2 As the PCRA court correctly noted, Pearson’s second claim arguing that his
conviction should have merged for sentencing was already raised on direct
appeal. See Commonwealth v. Pearson, 1158 EDA 2016, unpublished
memorandum (Pa.Super. filed April 18, 2017). Therefore, it was not a basis
for relief under the PCRA. See 42 Pa.C.S.A. § 9543(a)(3).
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