Com. v. Rogers, P. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAUL JOSEPH RODGERS
Appellant No. 3356 EDA 2016
Appeal from the PCRA Order October 14, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1133821-1990
BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 25, 2017
Paul Joseph Rodgers appeals from the order, entered in the Court of
Common Pleas of Philadelphia County, dismissing as untimely his fourth
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. § 9541-6546. After careful review, we affirm.
In 1991, following a jury trial, Rodgers was convicted of first-degree
murder and carrying a firearm on a public street. In 1992, the trial court
imposed the mandatory sentence of life imprisonment on the murder
conviction and a concurrent term of incarceration on the weapon offense. In
1993, this court affirmed Rodger’s judgment of sentence, Commonwealth
v. Rodgers, 635 A.2d 207 (Pa. Super. 1993) (Table), and in 1994, our
Supreme Court denied his petition for allowance of appeal.
Commonwealth v. Rodgers, 646 A.2d 1177 (Pa. 1994) (Table). In 1995,
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Rodgers filed his first pro se PCRA petition, which the PCRA court denied;
this Court affirmed the PCRA court’s order denying relief. Rodgers
subsequently filed a second PCRA petition, and this Court again affirmed the
PCRA court’s order denying relief on May 10, 2001. In 2006, Rodgers filed
his third PCRA petition, which the PCRA court dismissed as untimely. This
Court affirmed the dismissal of Rodger’s PCRA petition on March 16, 2010.
On December 20, 2013, Rodgers filed the instant pro se PCRA petition, and
on October 14, 2016, the PCRA court dismissed his PCRA petition as
untimely. On October 21, 2016, Rodgers filed a timely appeal, in which he
raises the following issue:
Did the [PCRA] court [err] by dismissing [Rodger’s] successive
PCRA petition as untimely where his incarcerated/indigent status
impeded his effort to obtain the facts earlier?
Brief of Appellant, at 4.
[T]he timeliness of a PCRA petition is [] a jurisdictional requisite.
A PCRA petition, including a second or subsequent petition, shall
be filed within one year of the date the underlying judgment of
sentence becomes final. A judgment of sentence is deemed 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. The three statutory exceptions to the timeliness
provisions in the PCRA allow for very limited circumstances
under which the late filing of a petition will be excused. To
invoke an exception, a petition must allege and the petitioner
must prove:
(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 law of this Commonwealth or the
Constitution or laws of the United States.
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(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.
Commonwealth v. Zeigler, 148 A.3d 849, 853 (Pa. Super. 2016) (internal
quotations and citations omitted) (emphasis added). See also 42 Pa.C.S.A.
§ 9545(b)(1)(i)-(iii), (3).
A petitioner asserting a timeliness exception must file a petition within
60 days of when the claim could have been presented. 42 Pa.C.S.A. §
9545(b)(2). Additionally, the “newly-discovered facts” exception focuses on
previously unknown facts, not a newly-discovered or a newly-willing
source for previously known facts. Commonwealth v. Abu-Jamal,
941 A.2d 1263, 1267 (Pa. 2008) (emphasis added). See also
Commonwealth v. Smallwood, 155 A.3d 1054 (Pa. Super. 2017).
Instantly, Rodger’s judgment of sentence became final on or about
August 10, 1994, after our Supreme Court denied Rodger’s petition for
allowance of appeal and the period for filing a petition for writ of certiorari in
the United States Supreme Court expired. 42 Pa.C.S.A. § 9545(b)(3).
Rodgers’s pro se petition, filed on December 20, 2013, is therefore patently
untimely by approximately eighteen years. See 42 Pa.C.S.A. § 9545(b)(1).
Moreover, Rodger’s claim that his petition falls under the PCRA
exception, section 9545(b)(1)(ii), is meritless. Rodgers avers that the
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signed affidavit of Eric Purdy, in which Purdy states that he made himself
unavailable for trial due to fear of retaliation, constitutes newly-discovered
facts pursuant to section 9545(b)(1)(ii). See Purdy Aff. ¶ 1. However,
while Purdy’s affidavit reveals his delayed willingness to cooperate, it does
not present any newly-discovered and/or previously unknown facts. Abu-
Jamal, supra. Smallwood, supra. Rather, the affidavit memorializes
observations previously conveyed to the defense and that could have been
ascertained at trial by due diligence. Purdy Aff. ¶ 1 (“[Purdy] stated early on
when the trial first came about to [Rodger’s] attorney or investigator
what I saw[.]”) (emphasis added). Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007) (petitioner must show facts upon which claim is
predicated were unknown to petitioner and could not have been ascertained
by exercise of due diligence). Thus, Rodger’s PCRA petition is not exempt
from the PCRA’s jurisdictional time requirement. Accordingly, the trial court
properly dismissed Rodger’s petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2017
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