Com. v. Bronson, P. ( 2020 )

J-S69045-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PURCELL BRONSON, :
:
Appellant : No. 1097 EDA 2019
Appeal from the PCRA Order Entered March 14, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0317321-1977
BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED APRIL 20, 2020
Appellant, Purcell Bronson, appeals pro se from the March 14, 2019
Order entered in the Court of Common Pleas of Philadelphia County dismissing
as untimely his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. After careful review, we agree that the petition
was untimely filed, and therefore affirm.
Appellant was convicted of second degree murder, robbery, conspiracy,
and possessing an instrument of crime on February 9, 1979, and sentenced
to life imprisonment. His sentence was affirmed by the Pennsylvania Supreme
Court on May 19, 1982; he did not file a petition for certiorari with the United
States Supreme Court, and his sentence therefore became final 90 days later,
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* Retired Senior Judge assigned to the Superior Court.
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on August 17, 1982. He has since filed six prior PCRA petitions, all of which
were dismissed.
On February 2, 2018, Appellant filed the instant petition, his seventh.
He asserted that the trial court erred by failing to complete a competency
evaluation, and that trial and appellate counsel provided ineffective assistance
by failing to litigate the issue of competency at trial or on direct appeal. On
December 12, 2018, pursuant to Pa.R.Crim.P. 907, the PCRA court issued a
notice of intent to dismiss the petition as untimely. Appellant filed a reply
thereto on December 24, 2018, and on March 14, 2019, the PCRA court
dismissed the petition as untimely; this appeal followed, on April 8, 2019.
Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant now presents the following issues for our review:
1. Did the trial court try an incompetent defendant?
2. Did the trial court required defendant to prove his
incompetence by ‘clear and convincing evidence,’ thus in
violation of Cooper v. Oklahoma, [517 U.S. 48 (1996).]
3. Were issues of material facts in dispute warranting the
scheduling of an evidentiary hearing?
4. Should an incompetent person be responsible for his
incompetent acts?
5. Was [Appellant] deprived of due process, by the [trial
court] proceeding under an unlawful statute 50 P.S. §[§]
7101-7503?
Appellant’s Brief at 4.
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We review the denial of a PCRA petition to determine whether the
record supports the PCRA court’s findings and whether its order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).
However, “[i]t is well-settled that the PCRA’s time restrictions are jurisdictional
in nature.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016)
(citation omitted). Therefore, we must first determine whether we have
jurisdiction to entertain the PCRA petition. Commonwealth v. Albrecht, 994
A.2d 1091, 1093 (Pa. 2010).
Under the PCRA, any petition for post-conviction relief, including a
second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the following exceptions
set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.—
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the date
the judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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
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provided in this section and has been held by that court to
apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within one year of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).1
As the instant petition is patently untimely by more than three and a
half decades, we are without jurisdiction to decide Appellant’s appeal unless
he pled and proved one of the three exceptions provided in Section 9545(b)(1)
and set forth above. Commonwealth v. Derrickson, 923 A.2d 466, 468
(Pa. Super. 2007).
Appellant argues that his petition satisfies section 9545(b)(1)(ii). His
claim is predicated upon the newly discovered ‘fact’ that a pre-trial
competency examination that was ordered in 1979 was never completed,
which he contends is demonstrated by the fact that the county court probation
department does not have a copy of the post-exam evaluation. He asserts
that after reading our Supreme Court’s decision in Commonwealth v. Cruz,
852 A.2d 287 (Pa. 2004),2 he immediately attempted, unsuccessfully, to
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1 Appellant alleges his claim arose on or about January 6, 2018, and he filed
his petition on February 2, 2018.
2 In Commonwealth v. Cruz, our Supreme Court held that “mental
incompetence at the relevant times, if proven, may satisfy the requirements
of Section 9545(b)(1)(ii), in which case, claims defaulted by operation of that
incompetence may be entertained.” 852 A.2d 287, 288 (Pa. 2004). The
appellant in Cruz had suffered brain damage from a self-inflicted gunshot
wound, and the trial court accepted his plea of nolo contendere without a
determination of whether he was competent. Appellant does not compare
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obtain a copy of the evaluation, and following his discovery, on or about
January 6, 2018, that no record exists to substantiate his competency to stand
trial, he filed his PCRA petition on February 2, 2018. Appellant further argues
that other than bald hearsay statements, the Commonwealth has offered no
evidence that a mental health evaluation was completed.
It is well-settled that the newly discovered exception to the PCRA time
bar requires that the facts upon which the claim is predicated were not
previously known to the petitioner and could not have been ascertained
through due diligence. Commonwealth v. Burton, 158 A.3d 618, 629 (Pa.
2017). “The focus of the exception is on the newly discovered facts, not on a
newly discovered or newly willing source for previously known facts.”
Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008).
We reject, first, any contention by Appellant that our decision in Cruz
might serve as a newly discovered fact. “[S]ection 9545(b)(1)(i) applies only
if the petitioner has uncovered facts that could not have been ascertained
through due diligence, and judicial determinations are not facts.”
Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011).
Furthermore, Appellant has failed to establish that he could not have
obtained information as to the existence of a 1979 competency evaluation
through the exercise of due diligence. Indeed, the record of this case
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himself to Cruz, but rather suggests that it prompted him to contact the court
for a copy of his record as to his competency determination. Petitioner’s
Objections to the Court’s 12/12/18 Notice to Dismiss.
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demonstrates that Appellant was well aware of events surrounding the
evaluation of his competency to stand trial, beginning in 1977. The
Pennsylvania Supreme Court summarized relevant facts and a portion of the
relevant procedural history as follows:
The jury selection process commenced on July 5, 1977… [o]n
July 6, 1977, [Appellant’s] counsel requested a continuance
to obtain a psychiatric evaluation of his client. Although
[Appellant] had not previously claimed to have any mental
health problems, he had now submitted to his counsel a [p]ro
se memorandum of law in support of such a motion seeking
a mental examination and advising he had informed counsel
that he was not competent to stand trial. The court denied
the motion, and proceeded to take testimony on [a previously
requested] motion to suppress identification. On July 13,
1977, during the jury selection process, [Appellant]
requested medical attention, through counsel, for physical
illness. Seven jurors had been selected by that time. Court
was recessed so [Appellant] could be examined by a
physician, but the examination revealed no physical problem.
Because of [Appellant’s] behavior, the court ordered a
psychiatric evaluation be made forthwith by the Psychiatric
Division of the Probation Department. The following day, the
trial judge noted on the record that an examining psychiatrist
had tentatively diagnosed [Appellant] as psychotic and
incompetent to stand trial and that a thirty-day
hospitalization under the Mental Health Procedures Act of
1976 [ ], was recommended. The court followed this
recommendation.
Because of this development, the seven jurors who had been
chosen were dismissed, and, by agreement, the case was
returned to the calendar room for the purpose of scheduling
a competency hearing. All counsel agreed for the record that
jeopardy had not attached. The competency hearing was
commenced on July 21, 1977. On July 22, the
Commonwealth’s motion for an extension [ ] was granted.
Furthermore, [Appellant’s] counsel withdrew, and new
counsel was appointed to represent him. On September 27,
[Appellant] was declared competent to stand trial.
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Commonwealth v. Bronson, 393 A.2d 453, 453-54 (Pa. 1978). Appellant
subsequently filed a motion to dismiss the charges on the ground of double
jeopardy; the motion was denied, and on appeal, our Supreme Court affirmed
and remanded the case to the trial court to conduct his trial. Id.Appellant’s claims do not meet the newly discovered facts exception; he
has failed to plead and prove that he could not have ascertained information
about his competency to stand trial by the exercise of due diligence, and the
record of his case demonstrates that he was in fact aware that there were
issues concerning his competence in 1977. Appellant does not state that he
learned new facts concerning his mental condition at any later date. The PCRA
court properly concluded that Appellant failed to prove any of the timeliness
exceptions provided in 42 Pa.C.S. § 9545(b)(1), and properly dismissed
Appellant’s petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/20
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