Com. v. Murray, B

J-S28006-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

BRAY JIBRIL MURRAY :

:

Appellant : No. 631 EDA 2021

Appeal from the PCRA Order Entered March 1, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0402931-1982

BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 24, 2021

Bray Jibril Murray appeals pro se from the order that dismissed as

untimely his serial petition filed pursuant to the Post Conviction Relief Act

(“PCRA”). We affirm.

Appellant is serving a sentence of life imprisonment without parole for

first-degree murder. After his judgment of sentence became final in 1985,

Appellant engaged in repeated prior efforts to obtain post-conviction relief,

through the PCRA and its predecessor the Post Conviction Hearing Act

(“PCHA”). None was successful. Appellant filed the instant PCRA petition on

November 19, 2018, raising multiple claims of ineffective assistance of trial

counsel. See PCRA Petition, 11/19/18, at Attachment to Page 3. He alleged

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* Retired Senior Judge assigned to the Superior Court.

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that the PCRA court had jurisdiction to entertain the petition pursuant to 42

Pa.C.S. § 9545(b)(1)(ii) and (iii) and our Supreme Court’s decision in

Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018). See id. at 7;

Memorandum of Law, 11/19/18, at 1.

On December 23, 2020, the PCRA court issued notice of its intent to

dismiss the petition as untimely pursuant to Pa.R.Crim.P. 907, and ultimately

followed through on dismissal by order dated March 1, 2021. Appellant filed

a timely notice of appeal. The PCRA court did not order Appellant to file a

Pa.R.A.P. 1925(b) statement, but it did supply an opinion in accordance with

Pa.R.A.P. 1925(a).

Appellant states the following questions for our consideration:

1. Whether pursuant to 42 Pa. C.S. § 9545(b)(1) Appellant’s

first petition was required to filed within one-year his judgment of

sentence became final and under [Peterson, supra] should he

be permitted to file a second petition beyond the one-year time

bar pursuant to section 9545(b)(1)(ii), if ineffectiveness per se

completely foreclosed review of collateral claims regarding

abandonment on direct appeal and also the untimely filing of first

petition by same counsel?

2. Whether the non-constitutional/watershed decision of

[Peterson, supra] triggers the retroactive provision of 42 Pa.C.S.

§ 9545(b)(1)(iii) to the PCRA, requiring that it be applied to long-

ago cases of ineffectiveness per se, where unbeknownst to

Appellant court appointed counsel that had failed to file direct

appeal, instead filed an untimely and unauthorized PCHA petition,

that completely foreclosed review of collateral claims?

3. Whether prior to Commonwealth v. Peterkin, 722 A2d

638 (Pa. 1998), and/or [Peterson, supra] the PCRA filed by

Appellant pro se on January 10, 1997, qualify as the first validly

filed postconviction collateral petition, if the PCHA court lacked

any statutory and/or judicial authority to entertain and determine

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the PCHA petition filed by counsel as defective and untimely, if it

was neither signed or verified by affidavit from Appellant nor

authorized for counsel to file it on his behalf?

Appellant’s brief at 4 (unnecessary capitalization and quotation marks

omitted).

We begin our assessment with a review of the pertinent legal principles.

“This Court’s standard of review regarding an order denying a petition under

the PCRA is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error.” Commonwealth v. Rizvi, 166

A.3d 344, 347 (Pa.Super. 2017). “It is an appellant’s burden to persuade us

that the PCRA court erred and that relief is due.” Commonwealth v.

Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019) (cleaned up).

It is well-established that, “[b]ecause the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition, we must start by examining the timeliness of

Appellant’s petition.” Commonwealth v. Davis, 86 A.3d 883, 887

(Pa.Super. 2014). Indeed, “no court has jurisdiction to hear an untimely PCRA

petition.” Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa.Super.

2019). The PCRA provides as follows regarding the time for filing a petition:

Any petition [filed pursuant to the PCRA], 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

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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.

42 Pa.C.S. § 9545(b)(1). Further, any petition invoking an exception to the

one-year time bar “shall be filed within one year of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

Appellant acknowledges that his judgment of sentence became final in

1985 when no direct appeal was filed. See Appellant’s brief at 11.1 Appellant

filed the PCRA petition that is the subject of the instant appeal decades later.

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1 The certified record does not include all filings in this case dating back to its

inception, but rather contains only documents filed in 2012 and later.

Appellant filed an objection to the abridged nature of the certified record in

which Appellant claimed that he had not earlier received the record inventory

list to enable him to comply with his duty to ensure that the record was

complete. Prior to the assignment of the appeal to this panel, this Court

construed Appellant’s objection as an application to correct the certified record

and declined to grant Appellant relief, suggesting without expressly stating

that the omitted filings are not pertinent to the question of the timeliness of

the instant PCRA petition. See Order, 6/14/21 (citing Commonwealth v.

Alcorn, 703 A.2d 1054, 1057 (Pa.Super. 1997) (concerning the jurisdictional

nature of the PCRA’s timeliness requirements)). Since we conclude that the

certified record contains all filings necessary to dispose of the appeal, we need

not order supplementation of the record pursuant to Pa.R.A.P. 1926(b)(1)

(providing, inter alia, that this Court may order the correction of omissions

from the certified record sua sponte at any time).

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Thus, it was facially untimely. As noted above, Appellant attempted to invoke

the PCRA court’s jurisdiction by referencing our Supreme Court’s decision in

Peterson both in the context of the newly-discovered facts exception and the

newly-recognized, retroactive constitutional right exception. The PCRA court

concluded that Peterson was unavailing to establish jurisdiction, as judicial

decisions are not “facts” for purposes of § 9545(b)(1)(ii), and Peterson did

not recognize a new constitutional right that the Court held was retroactively

applicable. See PCRA Court Opinion, 3/11/21, at 1.

Before addressing Appellant’s claims of error, we examine our High

Court’s Peterson decision. In that case, counsel for a defendant who was,

like Appellant, serving a pre-PCRA sentence, filed a PCRA petition in 1997 one

day beyond the deadline established by the new statutory scheme. After some

preliminary activity, the case sat dormant until 2012 when the defendant

wrote to the court asking about the status of his case. The PCRA court

addressed the merits of the petition but denied relief. On appeal, this Court

affirmed the denial of relief not on the merits, but on the basis that the petition

was untimely and the PCRA court lacked jurisdiction to grant relief.

The defendant promptly filed a second PCRA petition, seeking

reinstatement of his right to appeal the denial of his first PCRA petition, on the

basis that PCRA counsel had been ineffective in filing the petition late. The

PCRA court held that the fact that the prior petition was late was a fact that

the defendant first discovered at the time that this Court decided the appeal,

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and that he exercised due diligence in making that discovery. Although

concluding that the merits of the petition were thus properly before it, the

PCRA court again denied relief for the reasons it initially identified. On appeal,

this Court held that the exception did not apply because, unlike the defendant

in Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa. 2007), counsel

took some, albeit necessarily fruitless, actions on his client’s behalf, and thus

did not completely deprive the defendant of PCRA review through

abandonment.2 Our Supreme Court reversed, explaining as follows:

In the present case, counsel’s untimely filing of Peterson’s

first PCRA petition constituted ineffectiveness per se, as it

completely deprived Peterson of any consideration of his collateral

claims under the PCRA. As a result, pursuant to Bennett, the

Superior Court erred in reversing the PCRA court’s ruling that

Peterson, when filing his second PCRA petition, had successfully

invoked the subsection 9545(b)(1)(ii) exception to the time bar.

Counsel’s ineffectiveness per se in connection with Peterson’s first

PCRA petition was a newly discovered “fact” and the PCRA court

made factual findings that Peterson did not know about the

untimely filing and could not have ascertained this fact through

the exercise of due diligence. Peterson filed his second PCRA

petition within sixty days after he learned of the untimely-filed

petition.

We agree with the Superior Court that the present case does

not involve abandonment, as counsel took actions on Peterson’s

behalf to effectuate an appeal from the denial of relief on his first

PCRA petition, including the filing of the first petition (albeit

untimely) and an appellate brief. Abandonment, however, is only

one form of ineffectiveness per se, and our decision in Bennett

did not limit its application to instances of attorney abandonment.

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2 In Bennett, the Court held that discovery upon due diligence of the fact that

PCRA counsel had abandoned his client by failing to file a brief, causing the

appeal to be summarily dismissed, could serve to meet the newly-discovered

facts timeliness exception.

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To the contrary, in Bennett we emphasized that the important

distinction for purposes of application of the subsection

9545(b)(1)(ii) exception is whether counsel’s alleged

ineffectiveness results in a partial deprivation of review . . . or

instead completely deprives his client of review.

....

For these reasons, we conclude that counsel’s untimely filing

of Peterson’s first PCRA petition constituted ineffectiveness per se,

as it completely foreclosed Peterson from obtaining review of the

collateral claims set forth in his first PCRA petition. Accordingly,

as the PCRA court has made the necessary factual findings,

Peterson has plead and proven an entitlement to invoke the

subsection 9545(b)(1)(ii) exception to permit the filing of his

second PCRA petition beyond the one-year time bar.

Commonwealth v. Peterson, 192 A.3d 1123, 1130–32 (Pa. 2018) (cleaned

up).

Appellant maintains that the Peterson holding serves to render the

instant PCRA petition timely pursuant to § 9545(b)(1)(ii). He contends that,

like Mr. Peterson, he has been completely denied collateral review.

Specifically, his initial PCHA petition was filed by counsel without his consent

and was dismissed as untimely in 1988, and his prior pro se PCRA petitions in

which he sought reinstatement of his direct appeal rights were likewise

dismissed as untimely. Hence, because he filed this decision within one year

of the Peterson decision, he is entitled to substantive review of his claims of

ineffectiveness of counsel. See Appellant’s brief at 12-14.

Appellant misapprehends the import of Peterson. The fact that

underpinned the timeliness exception in that case was that Mr. Peterson had

been completely deprived of collateral review due to his counsel’s error. Mr.

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Peterson’s subsequent PCRA petition was filed within the requisite time

following his discovery of that fact, made with the exercise of due

diligence.

The fact upon which Appellant bases his claim, on the other hand, is not

the fact that counsel’s ineffectiveness deprived him of collateral review.

Appellant has known that fact for decades. Instead, Appellant seeks to use

the fact that our Supreme Court ruled in favor of Mr. Peterson as his

underpinning for the timeliness exception. This is not permitted under the

law. As our Supreme Court has succinctly explained,

under appropriate circumstances, a judicial opinion can provide an

independent basis for a new PCRA claim pursuant to 42 Pa.C.S.

§ 9545(b)(1)(iii), which creates a limited exception for new

constitutional rights that have been held to apply retroactively.

But a judicial opinion — even one which may establish a

new theory or method of obtaining relief — does not

amount to a new “fact” under Section 9545(b)(1)(ii) of the

PCRA.

Commonwealth v. Reid, 235 A.3d 1124, 1148 (Pa. 2020) (cleaned up,

emphasis added).

Thus, Appellant cannot evoke the Peterson decision to avoid the reality

that the factual predicate for his claim, namely his counsel’s ineffectiveness,

was discovered by Appellant far beyond one year before he filed the instant

petition. See Commonwealth v. Hackett, 956 A.2d 978, 984 (Pa. 2008)

(“A PCRA petitioner cannot avoid the one-year time bar by tailoring the factual

predicate of the claim pled in his PCRA petition in a way that unmistakably

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misrepresents the actual nature of the claim raised.”). Stated plainly, the

Peterson ruling is not a fact that can satisfy the § 9545(b)(1)(ii) exception.

Moreover, Appellant may not utilize Peterson to satisfy the new

constitutional right exception codified at § 9545(b)(1)(iii). Appellant offers

extensive argument why he believes Peterson is a watershed procedural rule

that abrogates prior precedent, and why the rule should apply retroactively.

See Appellant’s brief at 20-32. However, the plain language of the statute

allows a timeliness exception where “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.” 42 Pa.C.S.

§ 9545(b)(1)(iii) (emphases added). As our Supreme Court summarized:

Subsection (iii) of Section 9545 has two requirements. First,

it provides that the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States or this court

after the time provided in this section. Second, it provides that

the right “has been held” by “that court” to apply retroactively.

Thus, a petitioner must prove that there is a “new” constitutional

right and that the right “has been held” by that court to apply

retroactively. The language “has been held” is in the past tense.

These words mean that the action has already occurred, i.e., “that

court” has already held the new constitutional right to be

retroactive to cases on collateral review. By employing the past

tense in writing this provision, the legislature clearly intended that

the right was already recognized at the time the petition was filed.

Reid, supra at 1154 (quoting Commonwealth v. Abdul-Salaam, 812 A.2d

497, 501 (Pa. 2002)).

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Since Appellant points to no decision from our High Court indicating both

that Peterson recognized a new constitutional right and that it applies

retroactively, he cannot use that decision to meet the § 9545(b)(1)(iii)

exception. See Commonwealth v. Hill, 236 A.3d 1113, 2020 WL 1922517

at *4 (Pa.Super. 2020) (non-precedential decision) (explaining that Peterson

cannot serve as the basis for satisfying § 9545(b)(1)(iii) because the right at

issue in Peterson was “not a new substantive constitutional claim, and it has

not been held by that court to apply retroactively”).3

Appellant also argues that his inability to secure the ruling that Mr.

Peterson was able to obtain, due to the timing of his counsel’s error, results

in an “absolute miscarriage of justice,” and that “fundamental fairness

behoove[s] that PCRA relief be granted on the basis of Peterson.” Appellant’s

brief at 19. However, our Supreme Court has made it clear that “the PCRA

confers no authority upon this Court to fashion ad hoc equitable exceptions to

the PCRA time-bar in addition to those exceptions expressly delineated in the

Act.” Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)

(cleaned up). As such, “the courts of Pennsylvania will only entertain a

‘miscarriage of justice’ claim when the initial timeliness requirement is met.”

Commonwealth v. Burton, 936 A.2d 521, 527 (Pa.Super. 2007).

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3 Although this non-precedential decision is not binding, we may cite it for its

persuasive value. See Pa.R.A.P. 1926(b).

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Finally, Appellant’s third question posits that, since his initial post-

collateral petition filed under the PCHA was defective in that it was not

authorized, signed, or verified by Appellant, his pro se PCRA petition filed in

1997 must “qualify as the first validly filed postconviction collateral petition[.]”

Appellant’s brief at 4. See also id. at 33-41. We fail to see the import of this

question to the issue before us in this appeal, namely, whether the PCRA court

erred in finding that Appellant’s 2018 PCRA petition was subject to any of the

statutory timeliness exceptions. An argument that the 2018 petition is really

Appellant’s third rather than his fourth has no bearing on that discussion. The

2018 petition is untimely either way, and no court has jurisdiction to address

its substance.

In sum, if Appellant’s instant petition had been filed within the requisite

time following the discovery of counsel’s error that wholly deprived him of

review, Appellant may have properly invoked the PCRA court’s jurisdiction

pursuant to § 9545(b)(1)(ii) for the reasons explained in Bennett and

Peterson. That did not happen. Rather, Appellant failed to plead and prove

an applicable timeliness exception to the PCRA’s one-year rule. Therefore,

Appellant has not met his burden of establishing that the PCRA court erred

dismissing his petition as untimely, and no relief is due.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/24/2021

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