Com. v. Lawrence, B. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BREON LAWRENCE
Appellant No. 305 EDA 2022
Appeal from the PCRA Order January 10, 2022
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005326-2014
BEFORE: LAZARUS, J., KUNSELMAN, J., MURRAY, J.
MEMORANDUM BY LAZARUS, J. FILED APRIL 5, 2023
Breon Lawrence appeals from the order, entered in the Court of
Common Pleas of Delaware County, dismissing as untimely his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. After review, we affirm.
On April 11, 2014, Lawrence shot and killed Jahkil Swain over an alleged
“beef” between the two. Lawrence was arrested and charged with first-degree
murder, recklessly endangering another person, possession of an instrument
of crime, and persons not to possess a firearm.
Following a two-day jury trial, held August 4 and 5, 2015, Lawrence was
convicted of the above-named offenses. On September 11, 2015, the court
sentenced Lawrence to life imprisonment without the possibility of parole for
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first-degree murder and to an aggregate consecutive term of six-to-twelve
years of imprisonment for the remaining convictions.
This Court affirmed Lawrence’s judgment of sentence on June 24, 2016.
See Commonwealth v. Lawrence, 2016 WL 4719983 (Pa. Super. filed June
24, 2016) (unpublished memorandum decision). Lawrence did not file a
petition for allowance of appeal with the Pennsylvania Supreme Court.
On April 26, 2017, Lawrence filed his first PCRA petition, pro se.
Privately-retained counsel filed an amended petition. Following an evidentiary
hearing, the PCRA court denied relief by order dated April 17, 2018, which
was affirmed by this Court on January 2, 2019. See Commonwealth v.
Lawrence, 1347 EDA 2018 (Pa. Super. filed Jan. 2, 2019) (unpublished
memorandum decision). The instant petition, Lawrence’s second, was filed
pro se on January 26, 2021. In this petition, Lawrence asserted that Jabri
Green had come forward and provided him with a statement dated August 31,
2020, in which Green alleged that Swain had pointed a gun at Lawrence before
Lawrence shot him. The PCRA court appointed counsel, who filed an amended
petition raising the same newly-discovered evidence claim as Lawrence’s pro
se petition. On January 7, 2022, the PCRA court denied Lawrence’s petition
as untimely. Lawrence filed a timely notice of appeal, and both Lawrence and
the PCRA court have complied with Pa.R.A.P. 1925. On appeal, Lawrence
asserts that the PCRA court erred in denying his petition as untimely after
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concluding that Lawrence did not prove the existence of a “newly-discovered
fact.” See Brief for Appellant, at 11.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015), quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc). This Court is limited to determining whether the evidence of record
supports the conclusions of the PCRA court and whether the ruling is free of
legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super.
2012). We grant great deference to the PCRA court’s findings that are
supported in the record and will not disturb them unless they have no support
in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014).
A PCRA petition, including a second or subsequent petition, must be filed
within one year of the date that the judgment of sentence becomes final,
except as otherwise provided by statute. See 42 Pa.C.S.A. § 9543(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 time for seeking the
review.” Id. at § 9545(b)(3). The PCRA timeliness requirement is mandatory
and jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d 1035,
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1038 (Pa. Super. 2007). The court cannot ignore the petitioner’s untimeliness
and reach the merits of the petition. Id.As noted above, Lawrence was sentenced on September 11, 2015, and
this Court affirmed his judgment of sentence on June 24, 2016. Lawrence did
not seek allowance of appeal and, thus, his judgment of sentence became final
on July 25, 2016.1 See 42 Pa.C.S.A. § 9545(b)(3) (“[A] judgment becomes
final at the conclusion of direct review . . . or at the expiration time for seeking
review.”). Thus, any PCRA petitions had to be filed on or before July 25, 2017.
Lawrence’s present petition is facially untimely, having been filed over
3½ years late. However, an untimely PCRA petition may be considered timely
if a petitioner alleges and proves one or more of the following: (1)
governmental interference with the presentation his claims; (2) discovery of
previously unknown facts, upon which the claim is predicated, which could not
have been discovered with due diligence; or (3) an after-recognized
constitutional right given retroactive application. See id. at § 9545(b)(1)(i-
iii). Any petition invoking one of the exceptions must be filed within one year
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1The thirtieth day following this Court’s affirmance of Lawrence’s judgment of
sentence fell on a Sunday. Accordingly, Lawrence had until Monday, July 25,
2016, to petition the Pennsylvania Supreme Court for allowance of appeal.
See 1 Pa.C.S. § 1908 (when last day for computation of time falls on weekend
or legal holiday, that day is omitted from computation).
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of the date the claim could have been presented.2 See id. at § 9545(b)(2).
It is the petitioner’s burden to allege and prove that one of these exceptions
applies. Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010).
Here, Lawrence argues that his petition qualifies for the newly-
discovered-facts exception. Lawrence claims that eyewitness Jabri Green
recanted his trial testimony and executed an affidavit stating that Swain
pointed a firearm at Lawrence and that Lawrence only shot Swain after
observing Swain pointing a firearm at him. Lawrence contends that, pursuant
to Commonwealth v. Medina, 92 A.3d 1210, 1217 (Pa. Super. 2014), “a
key witness’s recantation of incriminating testimony justifies a ‘newly
discovered facts’ petition.” Brief for Appellant, at 18.
The PCRA court concluded that Lawrence failed to establish the
timeliness exception under 42 Pa.C.S.A. § 9545(b)(1)(ii) with regard to his
newly-discovered-fact claim. Specifically, the court found that Lawrence’s
claim was “not based upon a newly[-]discovered fact; instead, it [was] based
upon a purported fact, which by [] Lawrence’s own account, he has known
since the time of the shooting and subsequent trial.” PCRA Court Opinion,
____________________________________________
2 On October 24, 2018, the General Assembly amended section 9545(b)(2) of
the PCRA statute to expand the time for filing a petition from 60 days to one
year from the date the claim could have been presented. The amendment
applies only to claims arising one year before the effective date of this section,
i.e., December 24, 2017, or thereafter, and thus governs the instant petition,
since Lawrence alleges his claims arose in 2020, when Green made his
statement. See Section 3 of Act 2018, Oct. 24, P.L. 894, No. 146, effective
December 24, 2018. See also Amended PCRA Petition, 3/1/21, at ¶ 7.
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8/5/22, at 14-15. Therefore, the PCRA court determined it lacked jurisdiction
to entertain Lawrence’s petition.
The newly-discovered-facts exception provides:
(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:
(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.
42 Pa.C.S.A. § 9545(b)(1)(ii). “[T]he focus of this exception is on the newly[-
]discovered facts, not on a newly[-]discovered or newly[-]willing source for
previously known facts.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.
Super. 2015) (internal quotation marks omitted).
Lawrence’s reliance on Medina, supra, is misplaced, as the facts in that
case are distinguishable from the those before us. In Medina, this Court
found that a key witness’s recantation testimony met the newly-discovered
fact exception where a detective had threatened one of the Commonwealth’s
witnesses, causing him to lie. Id. The Court further reasoned that the
defendant had no way of discovering this evidence through the exercise of
due diligence. Id. Here, unlike Medina, the evidence at issue was
discoverable through the exercise of due diligence because Lawrence was
physically present at the scene of the crime. As the Commonwealth notes in
its brief, Lawrence’s claim that he did not know that he shot Swain in self-
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defense until Green provided his affidavit years later is “wholly non-sensical.”
Commonwealth’s Brief, at 6.
Lawrence’s claim was not based upon a newly-discovered fact, but
instead, a newly-discovered source for a fact which, by Lawrence’s own
account, he has known since the time of the shooting and subsequent trial.
See PCRA Court Opinion, 4/5/22, at 14-15. As such, the PCRA court properly
denied relief. See Brown, supra.Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/05/2023
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