The opinion
J-S14033-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BERNARD BENNETT :
:
Appellant : No. 2411 EDA 2024
Appeal from the PCRA Order Entered July 26, 2024
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0307361-1996
BEFORE: DUBOW, J., BECK, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 30, 2025
Appellant, Bernard Bennett, appeals pro se from the July 26, 2024,
Order denying his sixth Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546,
(hereinafter “PCRA”) petition as untimely. Following careful review, we affirm.
The relevant factual and procedural history of the case is as follows: On
September 24, 1997, following trial by jury, Appellant was convicted of first-
degree murder1 (relative to the shooting of off-duty Philadelphia Police Officer
Robert Porter), attempted murder2 (relative to off-duty Philadelphia Police
Officer Kyle Bey), criminal conspiracy 3, and possession of an instrument of
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 2502(a).
2 18 Pa.C.S.A. § 901.
3 18 Pa.C.S.A. § 903.
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crime4. At trial, the Commonwealth adduced, inter alia, testimony from one
Jermaine Brute a/k/a Yassin Mohamad a/k/a “Boogie” (hereinafter “Mr.
Mohamad”), whose testimony recounted certain statements made to him,
while incarcerated, concerning the murder of Officer Porter. On November 10,
1997, Appellant was sentenced to life imprisonment on the charge of first-
degree murder, with consecutive sentences relative to the attempted murder
and conspiracy charges, and no further penalty imposed on the charge of
possession of an instrument of crime. Appellant’s judgment of sentence was
affirmed by this Court on April 7, 1999, and our Supreme Court denied
allocatur on September 30, 1999. Appellant did not file a petition for writ of
certiorari to the United States Supreme Court, the time for so filing having
expired on December 29, 1999. Appellant’s judgment of sentence therefore
became final on that date, and any PCRA petition was required to be filed
within one year thereafter. See U.S. Sup. Ct. R. 13; 42 Pa.C.S.A. §
9545(b)(1).
Appellant subsequently filed five PCRA petitions prior to the petition sub
judice, only the first of which was timely. Of particular note is Appellant’s
fourth PCRA Petition, addressed by this Court in the appeal docketed at 682
EDA 2012, filed on November 14, 2011. In that petition, Appellant contended
the Commonwealth’s witness, Mr. Mohamad, had recanted his trial testimony.
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4 18 Pa.C.S.A. § 907.
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Appellant produced an affidavit signed by Mr. Mohamad which set forth
allegations that certain members of law enforcement investigating the murder
of Officer Porter had promised conjugal visits in exchange for testimony
consistent with the law enforcement officers’ instructions. Mr. Mohamad
averred that he accepted that offer, and that his trial testimony regarding the
statements made by the conspirators while incarcerated was entirely false.
In an Order dated February 10, 2012, the PCRA Court dismissed
Appellant’s petition as untimely where Appellant filed his petition nearly twelve
years after his judgment of sentence had become final, and Appellant had
failed to plead and prove any exception to the timeliness requirements of the
PCRA. This Court affirmed that ruling on November 26, 2012, on the basis
that, while Appellant never explicitly named the newly discovered fact
exception, he had indeed argued it. However, we affirmed on the basis that
he included in his pleading “absolutely no indication” of when exactly he had
become aware of Mr. Mohamad’s recantation and allegation of police
misconduct; therefore, Appellant had failed “to demonstrate that predicate
requirement that the instant claim was raised within sixty days of the date it
first could [have been] presented.” No. 682 EDA 2012, slip op. (Pa. Super.
Nov. 26, 2012).5
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5 In the interest of clarity, this Court notes that the relevant time frame has
in the interim been increased from sixty days to one year. See Act No. 2018-
(Footnote Continued Next Page)
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Here, Appellant has raised the same underlying claim in his Sixth
Petition as he did in his fourth. Despite his most recent petition stating “the
instant claim is not previously litigated,” it most certainly is. PCRA Petition
at 6 (filed January 2, 2022). Consider the title of the petition: “Petition for
Post-Conviction Relief Requesting a New Trial Based Upon Inter Alia
Government Interference Where the Prosecution Knowingly Presented
Perjurious Testimony at Petitioner’s Trial.” Id. at 1. The perjurious
testimony at issue is the identical testimony by Mr. Mohamad as was
addressed by the fourth petition, and the instant petition makes the same
allegations of police misconduct in eliciting that testimony. In point of fact,
Appellant includes a footnote regarding Mr. Mohamad’s 2011 recantation,
acknowledging that “[t]his proffer was presented to the Courts via a
successive PCRA and the Court denied the claim as untimely,” before
describing Appellant’s efforts to continue investigating that claim after this
Court’s prior dismissal. In doing so, Appellant inadvertently reveals that he
was aware of and investigating this claim as far back as 2006, five years prior
to the filing of his untimely 2011 petition, stating “since 2006, Petitioner was
seeking to discover this secret agreement between the prosecution and its
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146, S.B. No. 915 (amending 42 Pa.C.S. § 9545(b)(2) from “60 days” to “one
year.”).
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witnesses, specifically Mr. Mohamad,” and cites to the proffered testimony of
his cousin Russel Spady. Id. at 12.
Mr. Spady states:
“In July of 2006, I ran across [Ephriam Reavis] and I was telling
him about what transpired at the trial of [Appellant]. He had
informed me that he had to check some things out and he had
given me a signed notarize [sic] affidavit to send to [Appellant] at
SCI-Smithfield.
[Appellant] had informed me to reach back out to him and ask
him about a visit he had down at the Police Administration
Building.”
Brief of Appellant, Exhibit C.
Thus, it is plain from review of Appellant’s own filings that this is the
exact same claim Appellant raised in his untimely fourth PCRA petition filed in
2011. Appellant acknowledges the facially untimely filing of the instant
petition, however, he pleads the newly-discovered fact exception as well as
the governmental interference exceptions to the one-year time-bar. In
support thereof, he presents a newly signed affidavit prepared by Mr.
Mohamad attesting to the same allegations as before, and a slew of additional
untitled statements by various other persons. Two of these statements purport
to corroborate Mr. Mohamad’s allegation, and the remainder detail Appellant’s
family members’ efforts to investigate Appellant’s claim.
In analyzing the timeliness of Appellant’s instant petition, we apply the
following well-established precedent.
“The timeliness of a PCRA petition is […] a jurisdictional requisite.
A PCRA petition, including a second or subsequent petition, shall
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be filed within one year of the date the underlying judgment of
sentence becomes final. A judgment of sentence is deemed 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. The three statutory exceptions to the timeliness provisions
in the PCRA allow for very limited circumstances under which the
late filing of a petition will be excused.”
Commonwealth v. Zeigler, 148 A.3d 849, 853 (Pa. Super. 2016)(internal
citations omitted).
Late filing of a petition under the PCRA may only be excused if the
petition alleges, and the petitioner proves either:
(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 provided in this section and
has been held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Further, “[a] petition invoking an exception to the jurisdictional time-
bar must be filed within one year of the date that the claim could have been
presented.” Commonwealth v. Reeves, 296 A.3d 1228, 1231 (Pa. Super.
2023)(citing 42 Pa.C.S.A. § 9545(b)(2)).
Regarding the government interference exception, the plain language of
the Act clearly applies only to claims that Appellant failed to raise. 42 Pa.C.S.A.
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§ 9545(b)(1)(i) (“the failure to raise the claim previously was the result of
interference by government officials.”)(emphasis added). Without reaching
the substance or validity of Appellant’s allegations, the various and sundry
instances of government misconduct or interference Appellant alleges clearly
did not cause him to ‘fail to raise’ his claim; as discussed at length above, the
instant claim was raised in his fourth PCRA petition. As such, the exception
simply does not apply.
Regarding the newly-discovered fact exception, the Pennsylvania
Supreme Court has unequivocally and repeatedly held that the focus of the
exception is “on newly discovered facts, not on a newly discovered or a newly
willing source of previously known facts.” Commonwealth v. Johnson, 863
A.2d 423, 427 (Pa. 2004); see also Commonwealth v. Abu-Jamal, 941
A.2d 1263 (Pa. 2008). More specifically, our Supreme Court directly held that
discovery of “yet another conduit for [a previously time-barred] claim of
perjury does not transform [the] latest source of evidence into falling within
the ambit of Section 9545(b)(1)(ii).” Commonwealth v. Marshall, 947 A.2d
714, 720 (Pa. 2008).
As the entire thrust of Appellant’s petition is the allegedly perjurious
testimony of Mr. Mohamad, and the corroboratory affidavits are not more than
new conduits to the same claim, the date these new affidavits became
available to Appellant is of no moment. Appellant has done nothing more than
re-present a claim that we have already addressed and found to be untimely
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more than a decade ago. As such, in line with the clearly-established
precedent referenced above, we find that the newly-discovered fact exception
does not apply.
Appellant therefore fails to qualify for an exception to the timeliness
requirements of the PCRA, and we hold that the PCRA court properly dismissed
Appellant's PCRA petition as untimely.
Order AFFIRMED.
Date: 5/30/2025
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