Com. v. Brooks, G. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
GEORGE WAYNE BROOKS, : No. 1602 WDA 2017
:
Appellant :
Appeal from the PCRA Order, September 26, 2017,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0008889-1975
BEFORE: STABILE, J., MUSMANNO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 02, 2018
George Wayne Brooks, a/k/a George Rahsaan Brooks, appeals pro se
from the September 26, 2017 order dismissing his untimely serial petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. After careful review, we affirm.
The relevant facts and procedural history of this case are as follows. On
May 18, 1976, a jury found appellant guilty of the second-degree murder and
robbery1 of Michael Miller. On September 17, 1980, appellant was sentenced
to an aggregate term of life imprisonment, and our supreme court affirmed
his judgment of sentence on November 5, 1981. See Commonwealth v.
Brooks, 445 A.2d 96 (Pa. 1981) (per curiam order). Between 1980 and
1 18 Pa.C.S.A. §§ 2502(b) and 3701(a), respectively.
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2015, appellant filed ten PCRA petitions, all of which were unsuccessful.2 Most
recently, on June 24, 2016, a panel of this court affirmed the PCRA court’s
April 20 and November 5, 2015 orders denying appellant relief under the
PCRA. See Commonwealth v. Brooks, 153 A.3d 1119 (Pa.Super. 2016)
(unpublished judgment order). Undaunted, appellant filed the instant pro se
PCRA petition, his eleventh, on October 5, 2016. On November 8, 2016, the
PCRA court provided appellant with notice of its intention to dismiss his
petition without a hearing, pursuant to Pa.R.Crim.P. 907(1). Appellant filed a
response to the PCRA court’s Rule 907 notice on December 3, 2016.
Thereafter, on September 26, 2017, the PCRA court dismissed appellant’s
petition as untimely. Appellant filed a timely pro se notice of appeal on
October 11, 2017. Although not ordered to do so, appellant filed a rambling
and largely incoherent 15-page Pa.R.A.P. 1925(b) statement on October 13,
2017. On October 23, 2017, the PCRA court filed a one-page
Pa.R.A.P. 1925(a) opinion.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
2 The record reflects that appellant was represented by counsel during the
course of his first, second, third, and fifth PCRA petitions.
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certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). “This Court grants great deference to the findings of the
PCRA court, and we will not disturb those findings merely because the record
could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d
136, 140 (Pa.Super. 2002) (citation omitted). Additionally, we note that,
“[a]lthough this Court is willing to liberally construe materials filed by a pro se
litigant, pro se status confers no special benefit upon the appellant[.]”
Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super. 2005) (citation
omitted).
All PCRA petitions, including second and subsequent petitions, must be
filed within one year of when a defendant’s judgment of sentence becomes
final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment 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
the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). If a PCRA
petition is untimely, a court lacks jurisdiction over the petition.
Commonwealth v. Callahan, 101 A.3d 118, 120-121 (Pa.Super. 2014).
Here, in a 2006 appeal from denial of his fifth PCRA petition, a panel of
this court concluded that appellant’s judgment of sentence became final on
February 5, 1982. See Commonwealth v. Brooks, 898 A.2d 1124(Pa.Super. 2006) (unpublished memorandum). Because appellant’s judgment
of sentence became final prior to January 16, 1996, the effective date of the
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PCRA amendments, he had until January 16, 1997 to file a timely PCRA
petition. See Commonwealth v. Davis, 916 A.2d 1206, 1208-1209
(Pa.Super. 2007) (explaining that the 1995 amendments to the PCRA provide
that if a judgment of sentence became final before the effective date of the
amendments, a PCRA petition will be considered timely if filed within one year
of the effective date, or by January 16, 1997; however, this grace period
applies only to first PCRA petitions). Appellant’s PCRA petition, his eleventh,
was filed on October 5, 2016, and was neither his first nor was it filed within
one year of the date the amendment took effect; accordingly, it is patently
untimely. As a result, the PCRA court lacked jurisdiction to review appellant’s
petition, unless appellant alleged and proved one of the statutory exceptions
to the time-bar, as set forth in Section § 9545(b)(1).
The three narrow exceptions to the one-year time bar are as follows:
(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.
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42 Pa.C.S.A. § 9545(b)(1)(i-iii); Commonwealth v. Brandon, 51 A.3d 231,
233-234 (Pa.Super. 2012).
Here, the crux of appellant’s claim is that he satisfied the governmental
interference and newly-discovered-fact exceptions to the PCRA time-bar
because he recently discovered that the indictment in the certified record is
fake and the Commonwealth deliberately concealed this fact in violation of
Brady v. Maryland, 373 U.S. 83 (1963).3 (Appellant’s brief at 9-30.) As a
result, appellant contends that he was never lawfully indicted for felony
murder and “is actually innocent of that charge.” (Id. at 10.) These claims
are meritless.
3 We note that,
[u]nder Brady and subsequent decisional law, a
prosecutor has an obligation to disclose all
exculpatory information material to the guilt or
punishment of an accused, including evidence of an
impeachment nature. To establish a Brady violation,
an appellant must prove three elements: (1) the
evidence at issue was favorable to the accused, either
because it is exculpatory or because it impeaches;
(2) the evidence was suppressed by the prosecution,
either willfully or inadvertently; and (3) prejudice
ensued.
Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013) (citation and
indentation omitted), cert. denied, 135 S.Ct. 56 (2014). “As to Brady claims
advanced under the PCRA, a defendant must demonstrate that the alleged
Brady violation so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” Commonwealth
v. Cam Ly, 980 A.2d 61, 76 (Pa. 2009) (citation and internal quotation marks
omitted).
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Contrary to his contention, appellant has known since as early as
December 1975 that he was charged with, inter alia, murder generally under
18 Pa.C.S.A. § 2502. “An information need not specify a degree of murder or
the degrees of manslaughter in order to sustain the verdict of second degree
murder.” Commonwealth v. Chambers, 852 A.2d 1197, 1199 (Pa.Super.
2004) (citation and footnote omitted), appeal denied, 871 A.2d 188 (Pa.
2005). Additionally, appellant has failed to present a scintilla of verifiable
evidence to support his contention that the indictment was fraudulent or the
Commonwealth willfully concealed anything from him in violation of Brady.
Based on the foregoing, we conclude that appellant has failed to properly
invoke any of the statutory exceptions to the PCRA time-bar and the PCRA
court lacked jurisdiction to review his claims. See Callahan, 101 A.3d at 123
(holding, if a PCRA petition is untimely on its face, or fails to meet one of the
three statutory exceptions to the time-bar, we lack jurisdiction to review it).
Accordingly, we discern no error on the part of the PCRA court in dismissing
appellant’s serial PCRA petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/2018
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