Com. v. Cole, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOHN COLE :
:
Appellant : No. 313 MDA 2020
Appeal from the PCRA Order Entered January 17, 2020
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0003789-2005
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 15, 2021
John Cole appeals, pro se, from the order, entered in the Court of
Common Pleas of Berks County, denying as untimely his petition filed pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon
careful review, we affirm.
On January 18, 2007, following a jury trial, Cole was convicted of first-
degree murder,1 aggravated assault,2 possession of an instrument of crime
(PIC),3 recklessly endangering another person (REAP),4 and criminal
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1 18 Pa.C.S.A. § 2502(a).
2 18 Pa.C.S.A. § 2702(a)(1).
3 18 Pa.C.S.A. § 907(b).
4 18 Pa.C.S.A. § 2705.
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conspiracy,5 for his role in the May 10, 2005 murder of fifteen-year-old Tiffany
Colon in Reading. On February 2, 2007, the court sentenced Cole to life in
prison and a consecutive aggregate sentence of 20 to 40 years’ incarceration.
Cole filed a post-sentence motion, which the court denied. This Court affirmed
his judgment of sentence on August 28, 2008. See Commonwealth v. Cole,
888 MDA 2007 (Pa. Super. filed August 28, 2008) (unpublished memorandum
decision). Our Supreme Court denied Cole’s petition for allowance of appeal
on December 12, 2008. See Commonwealth v. Cole, 963 A.2d 467 (Pa.
2008) (Table).
Thereafter, Cole filed a pro se PCRA petition on February 26, 2009,
which appointed counsel subsequently amended. After an evidentiary
hearing, the PCRA court dismissed Cole’s petition on December 30, 2011. This
Court affirmed the PCRA court’s dismissal on September 12, 2012. See
Commonwealth v. Cole, 223 MDA 2012 (Pa. Super. filed Sept. 12, 2012)
(unpublished memorandum decision). Our Supreme Court denied Cole’s
petition for allowance of appeal on March 27, 2013. See Commonwealth v.
Cole, 63 A.3d 1243 (Pa. 2013) (Table).
On April 30, 2018, Cole filed the instant PCRA petition, his second, pro
se. On November 30, 2018, the PCRA court issued notice of its intent to
dismiss Cole’s petition pursuant to Pa.R.Crim.P. 907(1); Cole subsequently
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5 18 Pa.C.S.A. § 903(a).
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filed a response to the Rule 907 notice on February 15, 2019. On May 6,
2019, the PCRA court conducted a Grazier6 hearing, where Cole requested
additional time to hire an attorney. On November 4, 2019, the court
conducted another Grazier hearing, at which Cole stated that he wished to
proceed pro se.7 On January 17, 2020, the PCRA court dismissed Cole’s
petition as untimely. Cole filed a pro se notice of appeal.8 Following our grant
of an extension of time ordering Cole to file his brief no later than November
9, 2020, see Order, 10/22/20, Cole filed his brief on November 10, 2020.9
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6 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
7Cole has omitted the transcripts of both Grazier hearings from the record,
nevertheless, our review of his appeal is not impeded.
8 The trial court received Cole’s notice of appeal on February 18, 2020—two
days after the expiration of the 30-day appeal period. See Pa.R.A.P. 903(a).
Nevertheless, given that February 16, 2020, was a Sunday, and February 17,
2020, was President’s Day—a federal holiday—Cole’s appeal was timely
received on the next day the courts were open. 1 Pa.C.S.A. § 1908 (for
computations of time, if last day of any such period shall fall on Saturday,
Sunday, or legal holiday, such day shall be omitted from computation);
Pa.R.A.P. 121(a) (setting forth appellate rules for filing and service). See
Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa. Super. 2007) (even
without postmark definitively noting date of mailing, panel may avoid quashal
where date of receipt indicates appellant likely placed notice of appeal in hands
of prison authorities before expiration of thirty days); but see
Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super. 2004) (appellant’s
post-sentence motion filed one day late deemed untimely where previous day
was neither weekend nor holiday).
9Our dockets indicate that Cole’s brief was submitted on November 23, 2020,
yet our Middle District Prothonotary’s briefing letter to the Commonwealth
ordered its appellee’s brief due on December 10, 2020, evidencing that this
docket date is incorrect. See Briefing Letter to Appellee, 11/18/20 (“Please
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On appeal, Cole presents the following issues for our review:
(1) Did the [PCRA] court abuse its discretion in holding that
[Cole] did not meet the threshold requirements to invoke
the PCRA [c]ourt’s jurisdiction pursuant to 42 Pa.C.S.[A.] §
9545(b)(1)(ii)?
(2) Did the [PCRA] court abuse its discretion in not appointing
counsel and convening an evidentiary hearing to get Ms.
Deanna Jackson’s [(a/k/a Deanna Bell)] testimony on the
record[,] when the [PCRA] court knew, or should have
known, that [Cole] tried to present [her] testimony in the
first timely PCRA petition[?]
Appellant’s Brief, at vi.
Before we reach the merits of Cole’s claims, we note that this is his
second PCRA petition. Regarding a court’s jurisdiction over a defendant’s
second or subsequent PCRA petition, our Supreme Court has stated that:
[a] second or subsequent request for PCRA relief will not be
entertained unless the petitioner presents a strong prima
facie showing that a miscarriage of justice may have
occurred. The PCRA’s timeliness requirements are jurisdictional
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be advised that the appellant’s briefs have been filed with this office in the
above[-]captioned matter.”); compare Pa.R.A.P. 2185(a)(1) (“The appellee
shall serve and file appellee’s brief within 30 days after service of appellant’s
brief[.]”). From these rules, we deduce that Cole likely filed his brief on
November 10, 2020. Nevertheless, this filing, too, was untimely. We note
that, although Cole appeals pro se, he is still bound by all rules of appellate
procedure. See Commonwealth v. Adams, 882 A.2d 496, 497-98 (Pa.
Super. 2005) (“Although this Court is willing to liberally construe materials
filed by a pro se litigant, pro se status confers no special benefit upon the
appellant.”). However, Cole’s failure to comply with our rules and file a timely
brief—an error that amounts to missing our deadline by only one day—does
not impede our review; therefore, in the interests of justice, we will consider
his appeal on its merits. See Commonwealth v. Henry, 706 A.2d 313, 318
n.4 (Pa. 1997) (although appellate review is best served when parties comply
with the Rules of Appellate Procedure, where disregard of rules does not
preclude appellate review, appellate court may proceed to merits review).
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in nature and must be strictly construed; courts may not address
the merits of the issues raised in a petition if it is not timely
filed. It is the petitioner’s burden to allege and prove that one of
the timeliness exceptions applies.
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267-68 (Pa. 2008)
(internal citations omitted). We have additionally recognized that the PCRA
requires that:
any petition[,] including a second or subsequent petition, shall be
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. Diggs, 220 A.3d 1112, 1116-17 (Pa. Super. 2019)
(quotation marks and brackets omitted).
Here, Cole’s judgment of sentence became final on March 12, 2009, at
the expiration of the time for filing writ of certiorari in the United States
Supreme Court. See 42 Pa.C.S.A. § 9454(b)(3); U.S. Sup. Ct. R. 13.
Therefore, Cole had until March 12, 2010, to file a PCRA petition, including
any second or subsequent petition. See 42 Pa.C.S.A. § 9545(b)(1). The
instant petition, Cole’s second, filed on April 30, 2018—more than eight years
after the PCRA’s jurisdictional deadline—is patently untimely.
However, the PCRA contains three exceptions to the jurisdictional time
requirements: (1) interference by government officials; (2) newly-discovered
facts; and (3) an after-recognized constitutional right. See 42 Pa.C.S.A. §§
9545(b)(1)(i)-(iii). A petitioner must plead an exception within one year of
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the date his claim could have first been raised.10 See 42 Pa.C.S.A. §
9545(b)(2).
Here, Cole raises the newly-discovered facts exception by citation to the
statute in his brief. See Appellant’s Brief, at 1 (“The [PCRA] court did abuse
its discretion in holding that [Cole] did not meet the threshold requirements
to invoke the PCRA [c]ourt’s jurisdiction pursuant to 42 Pa.C.S.[A.] §
9545(b)(1)(ii).”).
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10 On October 24, 2018, the General Assembly amended subsection
9545(b)(2) to enlarge the time in which a petitioner may invoke a PCRA time-
bar exception from 60 days to one year from the date the claim arises. See
Act 2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018].
However, the amendment applies only to claims arising on December 24,
2017, or thereafter. Id. at § 3.
In this case, Cole alleges ineffective assistance of trial counsel for failing to
call witness Jackson. Cole argues that he only learned of his trial counsel’s
ineffectiveness in March of 2018. See Petitioner’s Memorandum of Law,
8/21/18, at 4. Thus, Cole concludes that his petition, filed in April of 2018, is
timely because it was filed within one year of Jackson’s letter to him, which
was dated March 16, 2018. See Appellant’s Brief, at 8.
As noted infra, because Cole was first aware of Jackson’s potentially
exculpatory testimony in 2009, the 60-day time limit applies to this claim.
See Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011)(time
limit related to Section 9545(b)(2) runs from date petitioner first learns of
alleged newly-discovered fact). Additionally, we note that Cole raised a
second claim in the PCRA court, which he does not address directly on appeal,
alleging that the unavailability at trial of Commonwealth witness, Robert
Davidson, effectively prevented him from cross-examining Davidson regarding
Davidson’s identification of Cole as the perpetrator. See Trial Court Order and
Notice of Intent to Dismiss, 11/30/18, at 5-6. Because Cole abandons the
newly-discovered fact exception with respect to this claim on appeal, we
decline to address it. Moreover, as discussed infra, Cole fails to plead any
exception to the PCRA’s time bar for either claim.
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In order to overcome the PCRA’s jurisdictional hurdle, under the newly-
discovered facts exception, see 42 Pa.C.S.A. § 9545(b)(1)(ii), the petitioner
“must 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. If the petitioner alleges and proves these two components,
then the PCRA court has jurisdiction over the claim under [section
9545(b)(1)(ii)].” Commonwealth v. Brown, 111 A.3d 171, 177 (Pa. Super.
2015) (citing Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007))
(emphasis in original).
Regarding the due diligence required under this standard, we have
previously stated that:
Due diligence demands the petitioner to take reasonable steps to
protect her [or his] own interests. This standard, however,
entails neither perfect vigilance nor punctilious care, but rather it
requires reasonable efforts by a petitioner, based on the particular
circumstances, to uncover facts that may support a claim for
collateral relief. Thus, the due diligence inquiry is fact-sensitive
and dependent upon the circumstances presented. A petitioner
must explain why she [or he] could not have learned the
new fact earlier with the exercise of due diligence. This rule is
strictly enforced.
Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa. Super. 2017).
Here, Cole has failed to plead and prove any exception to the one-year
time bar. See 42 Pa.C.S.A. § 9545(b)(1)(i-iii). In essence, Cole’s claim is
that the PCRA court erred in applying section 9545(b)(2)’s time limitation to
his case as follows:
[A]ccording to the [PCRA] court, [Cole] loses out on the benefit of
[presenting Jackson as a] potentially exculpatory witness []
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because [Cole’s appointed PCRA counsel] was unable to produce
[Jackson in 2009 when Cole filed his first PCRA petition.] More
damaging is the fact that if [Cole] went forward with the issue of
[trial counsel’s misinforming him regarding witness Jackson in his
first PCRA petition] in 2009, the issue would have been meritless
because [Jackson] was not [] present [in 2009]; only a statement
[was available. Later], when [Jackson was willing to testify] in
2018, the issue would have been denied as previously litigated; a
judicial estoppel. Now that [Cole] has [secured Jackson’s
willingness to testify, Jackson’s] affidavit[,] what [Jackson] would
testify to[,] and a statement of [her] willingness to testify[—]all
presented to the PCRA [c]ourt within 60 days of discovery[—t]he
PCRA [c]ourt says that it does not have jurisdiction because [Cole]
knew of [Jackson] nine years ago. What!?!
Appellant’s Brief, at 3-5. This argument fails to meet the newly-discovered
fact exception insofar as it does not show that Cole was unaware of the content
of Jackson’s testimony until 2018. See Brown, supra. Indeed, Cole’s
supporting memorandum of law concedes this very point; Cole found out
about the content of Jackson’s potentially exculpatory testimony when he
received his file from the Berks County Public Defender’s Office in 2009. See
Appellant’s Memorandum of Law in Support of the Amended Post Conviction
Relief Act Petition, at 3-411 (“When the Berks County Public Defender’s Office
[gave Cole] a copy of the discovery and trial transcripts [sometime in 2009,
Cole, for] the first time[,] personally discovered [Jackson] was a witness and
that she described someone other than [Cole] as the perpetrator of the crime
[for which Cole] was convicted.”). Moreover, Cole has failed to demonstrate
that he exercised due diligence to procure Jackson’s testimony between 2009
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11Despite the Memorandum of Law’s title, Cole’s instant petition was never
amended.
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and 2018. See Brown, supra; see also Shiloh, supra. Cole must do more
than baldly assert that his attorney “could no[t] find” Jackson in 2009,
Appellant’s Brief, at 4, or that Jackson was difficult to locate after “a long and
exhausting search.”12 Id. Therefore, we conclude that the PCRA court’s
determination that Cole was aware of Jackson’s potentially exculpatory
testimony, at least since 2009, is supported by the record. See
Commonwealth v. Granberry, 644 A.2d 204, 207 (Pa. Super. 1994) (“The
findings of the post-conviction court will not be disturbed unless they have no
support in the record.”); see also Trial Court Order and Notice of Intent to
Dismiss, 11/30/18, at 5 (finding Cole was first aware of Jackson’s potentially
exculpatory testimony in 2009).
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12 Cole argues in his brief that the following due diligence was adequate:
In 2009, when [Cole] learned [of Jackson’s existence as a
potential witness], he presented her name to the court in his
timely pro se PCRA [p]etition. Appointed counsel could not locate
[Jackson] so the claim could not be raised in the amended PCRA
[p]etition. [Cole] even added PCRA counsel’s name to the witness
certification of the [instant] PCRA [p]etition so counsel could come
to court and testify as to his efforts in attempting to locate
[Jackson] for the first PCRA [p]etition [in 2009].
Appellant’s Brief, at 3-4. We find this explanation of Cole’s due diligence
efforts in locating and securing Jackson as a witness to be woefully inadequate
where Cole has failed to include any explanation of the details of his effort.
See Shiloh, supra; see also Commonwealth v. Williams, 35 A.3d 44, 53
(Pa. Super. 2011) (“A petitioner must explain why he could not have learned
the new fact(s) earlier with the exercise of due diligence. This rule is strictly
enforced.”) (citation omitted).
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Because the PCRA’s time limit rules are jurisdictional in nature, see
Abu-Jamal, supra, and the PCRA court was required to apply them to this
case, we discern no error. See also Commonwealth v. Cruz, 852 A.2d 287,
292 (Pa. 2004) (finding PCRA time limits constitutional); Commonwealth v.
Taylor, 933 A.2d 1035, 1038 (Pa. Super. 2007) (“[N]o court has jurisdiction
to hear an untimely PCRA petition.”).13
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13 Additionally, we note that Cole’s brief refers to newly-discovered facts, see
42 Pa.C.S.A. § 9545(b)(1)(ii), and after-discovered evidence, see 42
Pa.C.S.A. § 9543(a)(2)(vi)—which are separate and distinct concepts—within
the argument section of his first jurisdictional issue. See Appellant’s Brief, at
1-2 (“The PCRA [c]ourt’s reasoning for stating that it did not have jurisdiction
over this after-discovered evidence claim [was that Cole was made aware
of Jackson’s potentially exculpatory testimony in 2009.]”) (emphasis added).
Cole later argues that his claim qualifies as “after-discovered evidence” under
the argument heading for his second claim on appeal. See Appellant’s Brief,
at 5-6. Nevertheless, our Supreme Court has explained how these concepts
differ:
To qualify for an exception to the PCRA’s time limitations
under subsection 9545(b)(1)(ii), a petitioner need only establish
that the facts upon which the claim is based were unknown to him
and could not have been ascertained by the exercise of due
diligence. However, where a petition is otherwise timely, to
prevail on an after-discovered evidence claim for relief
under subsection 9543(a)(2)(vi), a petitioner must prove that (1)
the exculpatory evidence has been discovered after trial and could
not have been obtained at or prior to trial through reasonable
diligence; (2) the evidence is not cumulative; (3) it is not being
used solely to impeach credibility; and (4) it would likely compel
a different verdict.
Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017) (citation omitted).
Here, Cole has not met the exception for the time bar; therefore, there is no
jurisdiction to address the issue of after-discovered evidence. See
Commonwealth v. Cox, 146 A.3d 221, 227-30 (Pa. 2016) (appellant must
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Order affirmed.14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/15/2021
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invoke PCRA court’s jurisdiction prior to review of eligibility for relief under
subsection 9543(a)(2)(vi)).
14 We need not reach Cole’s second issue on appeal given that the PCRA court
lacked jurisdiction to hear his petition in the first place. Moreover, given that:
(1) Cole fails to present a genuine issue of material fact; (2) his petition
warrants no relief; and (3) no purpose would be served by any further
proceedings, the PCRA court’s dismissal of Cole’s petition, without a hearing,
was supported by the record and free of legal error. See Commonwealth v.
Shaw, 217 A.3d 265, 269 (Pa. Super. 2019) (“[A] petitioner is not entitled to
a PCRA hearing as a matter of right; the PCRA court can decline to hold a
hearing if there is no genuine issue concerning any material fact, the petitioner
is not entitled to PCRA relief, and no purpose would be served by any further
proceedings.”). Here, Cole has failed to plead and prove that an evidentiary
hearing was required, or that the interests of justice required appointment of
counsel. See Pa.R.Crim.P. 904(D), (E).
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