Com. v. Kennedy, D. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DAVID ROBERT KENNEDY :
:
Appellant : No. 1056 WDA 2018
Appeal from the PCRA Order Entered June 20, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000571-2001
BEFORE: PANELLA, P.J., LAZARUS, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 04, 2019
David Robert Kennedy appeals pro se from the order, entered in the
Court of Common Pleas of Allegheny County, denying his fifth petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
We affirm.
On November 21, 2005, a jury convicted Kennedy of first-degree
murder, and the court immediately sentenced him to life imprisonment. This
Court affirmed the judgment of sentence on February 26, 2007. See
Commonwealth v. Kennedy, 924 A.2d 693 (Pa. Super. 2007) (unpublished
memorandum). Kennedy filed four PCRA petitions in 2008, 2009, 2012, and
2014. The PCRA court denied relief in each case and our Court affirmed the
denial of PCRA relief in the related collateral appeals. On February 12, 2018,
Kennedy filed the instant “Notice of Appeal for Post Conviction Collateral
Relief,” which the trial court treated as Kennedy’s fifth PCRA petition. On May
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* Retired Senior Judge assigned to the Superior Court.
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17, 2018, the court issued Pa.R.Crim.P. 907 notice of its intent to dismiss
Kennedy’s petition without a hearing, stating that the petition was time-
barred, that Kennedy had not proven the he was entitled to a timeliness
exception under the PCRA, and that Kennedy had the right to respond to the
notice within 20 days.1 On June 20, 2018, the court dismissed Kennedy’s
petition. Kennedy filed a timely notice of appeal.
On appeal, Kennedy raises five issues for our consideration: (1)
ineffectiveness of trial counsel; (2) Brady violations where the prosecution
suppressed exculpatory information from witnesses; (3) Brady violations
where the prosecution used false testimony and evidence at trial; (4)
prejudicial closing argument by the prosecutor; and (5) the existence of “new
evidence” that would have changed the outcome of trial. Appellant’s Brief, at
1 (rephrased for clarity).
Generally, a petition for PCRA relief, including a second or subsequent
petition, must be filed within one year of the date the judgment is final. See
42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Alcorn, 703 A.2d
1054 (Pa. Super. 1997). There are, however, exceptions to the time
requirement, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i),(ii), and (iii). Where
the petition alleges, and the petitioner proves, that an exception to the time
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1 Kennedy misinterpreted the court’s Rule 907 notice as an order dismissing
his petition and filed a notice of appeal prematurely on June 3, 2018.
However, he filed a timely notice of appeal within 30 days of the date of the
court’s order actually dismissing his petition. Thus, this appeal is timely and
properly before our Court.
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for filing the petition is met, the petition will be considered timely. These
exceptions include interference by government officials in the presentation of
the claim, after-discovered facts or evidence, and an after-recognized
constitutional right. See Commonwealth v. Gamboa-Taylor, 753 A.2d
780, 783 (Pa. 2000). A PCRA petition invoking one of these exceptions must
“be filed within 60 days of the date the claims could have been presented.”
Id.; see also 42 Pa.C.S.A. § 9545(b)(2).2 The timeliness requirements of the
PCRA are jurisdictional in nature and, accordingly, a PCRA court cannot hear
untimely petitions. Commonwealth v. Robinson, 837 A.2d 1157 (Pa.
2003).
Instantly, Kennedy’s judgment of sentence became final on March 31,
2009, after the time expired for him to file a petition for writ of certiorari with
the United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3); Sup. Ct R.
13. Thus, he had until March 31, 2010, to file the instant petition for it to be
deemed timely. Kennedy’s current petition, however, was not filed until
February 12, 2018, almost eight years later. Accordingly, Kennedy’s PCRA is
patently untimely and he must plead and prove a timeliness exception in order
for the court to consider its merits.
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2 Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days
(Dec. 24, 2018), extending the time for filing from sixty days of the date the
claim could have been presented, to one year. The amendment applies to
claims arising on December 24, 2017, or thereafter. See Act 2018, Oct. 24,
P.L. 894, No. 146, § 3.
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First, we note that Kennedy’s claims of ineffective assistance of trial
counsel do not fit within a PCRA section 9545(b)(1) exception. See
Commonwealth v. Robinson, 139 A.3d 178 (Pa. 2016) (couching
petitioner’s claims in terms of ineffectiveness will not save otherwise untimely
filed petition from PCRA time restrictions).
With regard to Kennedy’s remaining claims, we note that in his “PCRA
petition” he does not include the claims and he also does not plead a section
9545(b)(1) exception in his petition to overcome its untimeliness. See Notice
of Appeal for Post-Conviction Relief, 2/16/18. Thus, we find them waived.
Order affirmed.3
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3 However, even if Kennedy had properly preserved the claims, he would not
be entitled to relief. We recognize that the Pennsylvania Supreme Court has
explained that a Brady violation may fall within the governmental interference
exception to the PCRA. In such cases, a petitioner must plead and prove the
failure to previously raise the claim was the result of interference by
government officials, and the information could not have been obtained earlier
with the exercise of due diligence. See 42 Pa.C.A. § 9545(b)(1)(ii). Kennedy
fails to explain how the reports he identifies and attaches to his “petition”
contain material information and does not allege that trial counsel requested
the reports. Most critical, however, is the fact that Kennedy does not prove
how the information could not have been obtained earlier with the exercise of
due diligence, especially in light of the fact that Kennedy had access to his
trial transcripts.
Kennedy next claims prosecutorial misconduct based on the prosecutor
“exceed[ing] his authority during closing arguments through the use of
inflammatory and prejudicial statements, descriptions, and evidence not found
in the record[.]” Appellant’s Brief, at 20. Kennedy fails to explain how this
claim fits within a section 9545(b)(1) exception and how the claim could not
have been presented sooner. Moreover, a prior panel of this court rejected
the same claim that the prosecutor made prejudicial statements in closing
arguments, amounting to prosecutorial misconduct. See Kennedy, No. 1012
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2019
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WDA 2014, at 6 (“Appellant does not attempt to satisfy the PCRA’s 60-day
due diligence requirement [and] fails to assert any reason why he could not
have presented his claims at an earlier time.”). See also Commonwealth
v. Lambert, 57 A.3d 645 (Pa. Super. 2012) (defendant’s claim of
prosecutorial misconduct did not meet PCRA’s “newly-discovered evidence"
exception and overcome petition’s untimeliness; defendant had raised claim
in multiple prior proceedings).
Finally, Kennedy asserts that there is “newly discovered” evidence in the
form of two witness reports that provide two license plate numbers that do
not match his vehicle’s license plate number. Again, Kennedy fails to explain
how he could not have raised this claim sooner. Moreover, a close reading of
his February 2014 PCRA petition shows that he raised this same issue cloaked
in the governmental interference exception. PCRA Petition, 2/26/14, at 1-12.
This Court dismissed the petition as time-barred and found that Kennedy did
not prove a section 9454(b)(1) exception. We agree.
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