Com. v. Gibson, J.

J-S69035-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JEROME GIBSON

Appellant No. 584 EDA 2014

Appeal from the PCRA Order entered January 21, 2014

In the Court of Common Pleas of Bucks County

Criminal Division at No: CP-09-CR-0005119-1994

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY STABILE, J.: FILED JANUARY 16, 2015

Jerome Gibson is serving a life sentence for his conviction of first-

degree murder and related offenses. He appeals from an order dismissing

as untimely his second petition under the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-46. Because the PCRA court correctly concluded that

the petition fails to meet the exceptions to the PCRA’s time bar, we affirm.

On September 29, 1994, Gibson shot and killed 76-year-old Robert

Berger during a robbery in Bristol Borough, Bucks County.

[That] morning . . . , Gibson sought to obtain an automobile, as

his car had recently broken down. He asked a friend, Sean

Hess, for $200 so that he could purchase a new vehicle. When

Hess refused, Gibson spoke of “making a move,” meaning that

he would commit a robbery.

At approximately noon on that same day, Gibson went to an

automobile dealership in Bristol Township to look for a

replacement vehicle. Although he expressed an interest in

purchasing a vehicle that was shown to him by salesman Glen

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Kashdan, he did not have the necessary funds. He told

Kashdan, however, that his mother maintained sufficient funds

in a bank account in Bristol Borough to pay for the vehicle. After

Kashdan drove Gibson to the bank in a fruitless effort to

withdraw the non-existent funds, he dropped Gibson off at a

shopping center in Bristol Township, about one mile from the

eventual scene of the crime. Gibson was wearing a dark hooded

sweatshirt and jeans.

Melissa Paolini, who worked at the bank where Kashdan had

taken Gibson, observed the two men enter the bank at

approximately 1:15 p.m. Gibson’s picture was taken by the

bank’s monitor camera and was later identified by Paolini at trial.

The picture clearly depicted Gibson wearing a dark hooded

sweatshirt.

Shortly before 2:00 p.m., Gibson met Paulinda Moore, a long-

time acquaintance, in the shopping center. Gibson showed

Moore a handgun that was tucked into the waistband of his

pants and stated that he needed money and was going to rob

somebody. He added that if his prospective victim saw his face,

he would shoot him. Gibson and Moore then parted company

and Gibson continued on foot to Bristol Borough.

Kevin Jones, another acquaintance, encountered Gibson a little

while later. Gibson informed Jones that he knew “a guy that had

money,” whom he was going to rob, killing him if necessary.

At approximately 2:00 p.m., Vera DuBois, Gibson’s aunt, saw

Gibson on foot in Bristol Borough and noticed that he was

wearing a dark hooded sweatshirt. At 2:20 p.m., Gibson entered

a jewelry store. Leonard Wilson, the store’s proprietor, became

suspicious of Gibson when he noticed that Gibson appeared to be

observing the store itself, rather than looking at jewelry. After a

brief conversation with Wilson, Gibson left the store.

Between 2:30 and 3:00 p.m., Kimberly Rankins, another

acquaintance, nearly hit Gibson with her car as he was crossing

Mill Street in the direction of the Ascher Health Care Center

(“Ascher Health”) in Bristol Borough. The last time that Rankins

observed Gibson that day, he was wearing a dark blue

sweatshirt and was approximately twenty-five feet away from

the entrance of Ascher Health, walking towards it.

Shortly before 3:00 p.m., Michael Segal, a shopkeeper at a store

directly across the street from Ascher Health, heard a gunshot

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from inside Ascher Health. Segal looked across the street and

saw Robert Berger, the proprietor of Ascher Health, struggling

with an assailant behind the store counter. When Segal

observed that the assailant had a gun, he dialed “911.” While on

the telephone, he heard two more gunshots. He looked across

the street and saw Berger lying on the floor while the assailant

rifled through the cash register drawers. Segal then observed

the assailant leave the store, stuffing items into his pants, and

walk up Mill Street towards an apartment building. Segal was

unable to see the assailant’s face, but he did observe that the

man was wearing a dark blue hooded sweatshirt. Segal later

testified at trial that the man’s size, build and complexion

matched those of Gibson.

Alfonso Colon, who was in a second floor apartment above

Ascher Health that afternoon, walked downstairs and went

outside after hearing the three gunshots. He saw Gibson, whom

he positively identified at trial, leaving Ascher Health and

walking toward him while stuffing an object that appeared to be

a handgun into his pants. Upon seeing Colon, Gibson crossed

Mill Street and headed in a different direction.

At 2:58 p.m., the police responded to Segal’s call. They entered

Ascher Health and found Berger lying dead on the floor from

gunshot wounds. A cash drawer was open and there was an

empty gun holster on the floor. Berger was pronounced dead

upon arrival at the hospital at approximately 3:45 p.m. An

autopsy revealed that he had suffered three gunshot wounds: a

fatal wound to the left chest, a wound to the upper right chest,

and a wound to the upper left arm. Two .32 caliber projectiles

were removed from the body. It was later determined that

approximately $1,400 in cash had been stolen during the

robbery, along with a .38 caliber handgun belonging to Berger.

There was no evidence that Berger’s gun had been fired during

the robbery.

Shortly after 3:00 p.m. on the day of the shooting, Gibson

arrived at the home of his cousin, Pamela Harrison. When

Harrison responded to Gibson’s knock on her door, she observed

that he was wearing a dark hooded sweatshirt and was

sweating. Harrison also heard police sirens. Gibson asked to

come into the house and Harrison admitted him, noticing that he

was carrying a handgun. After hiding his sweatshirt in Harrison’s

basement, Gibson left the house. He returned later that evening

and retrieved the sweatshirt without Harrison’s permission.

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After leaving Harrison’s house, Gibson met his friend, Sean Hess,

in the shopping center where Gibson had been earlier that day.

Gibson told Hess that he had shot a man three times and taken

his money. Gibson also stated that the victim had a gun, but

that he had used his own gun.

The following day, while at a bar, Gibson admitted to Bernard

Mc[L]ean that he had shot the old man in Bristol three times,

explaining that he had been broke and needed the man’s money.

He later told his friends, Herman Carroll and Eddie Jones, that he

had robbed and killed the victim. He also told Edward Gilbert,

another friend, that he had killed the victim to obtain money

with which to purchase a vehicle. He gave Gilbert the .32 caliber

handgun, along with Berger’s .38 caliber handgun, to keep for

him. Berger’s gun was later recovered at a motel in Bristol

Township, but Gibson’s gun was never located.

On October 2, 1994, three days after the murder, two detectives

from the Bucks County District Attorney’s Office, who had

received information implicating Gibson in the murder, went to

the apartment where Gibson was staying and waited outside in

their car. Shortly thereafter, Gibson and some other individuals

came out of the apartment. Gibson approached the detectives

and asked them if they wished to speak with him. In response

to Gibson’s inquiry, the detectives told him that they wished to

talk to him about a murder that had occurred on Mill Street on

September 29, 1994. Gibson asked if he was under arrest and

the officers replied that he was not. They suggested, however,

that Gibson speak with them at the Bristol Borough Police

Station, since there were other people nearby. The detectives

made it clear that Gibson could proceed to the station by his own

transportation, that he would be free to leave the station at any

time, and that he could terminate the conversation whenever he

wished. Gibson acquiesced and followed them to the police

station in his own vehicle, which he had purchased the day after

the shooting.

Upon arriving at the police station, the detectives led Gibson to

an interview room, where another detective and a Bristol

Borough police officer joined them. Gibson was again advised

that he was not under arrest and could leave the station at any

time. When the detectives told Gibson that they wanted to

discuss the robbery and murder of Berger, he indicated that he

wanted to clear the matter up and would speak with them. The

interview lasted for a little over two hours, during which Gibson

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not only denied any culpability for the shooting, but also denied

having been in Bristol Borough at any time after August 2, 1994.

Following the interview, Gibson agreed to a search of his vehicle

and signed a consent form. During the search, Gibson initiated a

conversation with one of the detectives, asking him a

hypothetical question regarding what would happen if someone

were attacked by a man with a gun and shot and killed his

attacker. Gibson then left the police station in his vehicle.

On October 6, 1994, Gibson was arrested and charged with the

robbery and murder of Berger, as well as possession of

instruments of crime.[1] Bail was denied, and while Gibson was

incarcerated pending trial, he admitted to inmates Glenn Pollard,

Kenneth Johnson and Kevin Jones that he had committed the

crimes. Prior to trial, Gibson moved to suppress his statements

to the police during the October 2, 1994 interview, as well as the

statement that he made to the detective during the search of his

car. The motion was denied following a hearing, and the case

proceeded to trial.

During the guilt phase of trial, the Commonwealth presented the

testimony of the numerous witnesses who had seen or spoken

with Gibson either immediately before or after the shooting,

including the testimony of those witnesses to whom Gibson had

inculpated himself. Additionally, several detectives and police

officers testified for the Commonwealth concerning their

observations of the crime scene, the collection of evidence, and

the statements that Gibson made during the course of his

interview, as well as his hypothetical question concerning the

shooting.

Gibson presented five witnesses whose testimony supported his

alibi defense and contradicted the testimony of certain inmates

who had testified concerning his inculpatory statements. Gibson

also took the stand and testified that he was not on Mill Street

on the afternoon of the murder, but did admit that he had been

with Kashdan, the car salesman, at the bank in Bristol Borough

earlier that day. Gibson further admitted that he had lied to the

police concerning his whereabouts on the day of the murder.

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1

18 Pa.C.S.A. §§ 2502(a), 3701, and 907.

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Commonwealth v. Gibson (Gibson I), 720 A.2d 473, 476-78 (Pa. 1998).

The jury convicted Gibson of all three counts. After a penalty phase,

the jury returned a verdict that Gibson be sentenced to death, and the trial

court duly imposed the sentence. On direct appeal, our Supreme Court

affirmed the conviction and death sentence, and the Supreme Court of the

United States denied Gibson’s petition for writ of certiorari on October 4,

1999. Gibson v. Pennsylvania, 528 U.S. 852 (1999).

Following direct review, on October 29, 1999, Gibson filed pro se a

timely first PCRA petition. Current PCRA counsel assumed representation of

Gibson and filed an amended PCRA petition and two supplements. Among

other, numerous claims, Gibson raised Brady2 violations. He contended the

Commonwealth failed to turn over material that could have been used to

impeach its witnesses, including Edward “Eddie” Jones, Glenn Pollard, Cyril

“Moo Moo” Thomas, Kevin Jones, Edward Gilbert, Herman Carroll, and

Bernard McLean. See Commonwealth v. Gibson (Gibson III), 959 A.2d

962, No. 1778 EDA 2008, unpublished memorandum at 5-15 (Pa. Super.

filed July 8, 2008). On May 22, 2002, the PCRA court denied guilt-phase

relief, but granted Gibson a new penalty-phase hearing. The parties cross-

appealed to the Supreme Court, which remanded for an evidentiary hearing

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2

Brady v. Maryland, 373 U.S. 83 (1963) (holding that the Due Process

Clause of the Fourteenth Amendment requires prosecutors to give

defendants any materially exculpatory evidence in their possession).

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in light of the then-recent decision Atkins v. Virginia, 536 U.S. 304 (2002),

under which the mentally retarded, i.e., the intellectually disabled, cannot be

executed.

On remand, Gibson attempted to add a new claim to his PCRA petition

regarding the legality of his arrest by police. The PCRA court denied

Gibson’s request, but found that Atkins barred his execution. The case

returned to the Supreme Court, which affirmed the PCRA court’s finding that

Gibson is intellectually disabled. Commonwealth v. Gibson (Gibson II),

925 A.2d 167 (Pa. 2007). The Supreme Court modified Gibson’s sentence to

life without parole and transferred the case to this Court for adjudication of

the remainder of Gibson’s appeal. Id. at 171.

This Court affirmed the denial of PCRA relief in all respects except one:

a layered ineffective assistance of counsel3 claim regarding Gibson’s

competency to stand trial. Gibson III, 959 A.2d 962 (Pa. Super. 2008)

(unpublished memorandum), appeal denied, 966 A.2d 570 (Pa. 2009). We

vacated and remanded to the PCRA court for a hearing on that claim.

Because Gibson challenged the effectiveness of PCRA counsel, the trial court

appointed separate counsel to litigate the competency claim. On remand,

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3

In a layered ineffectiveness claim, a PCRA petitioner claims that a prior

lawyer was ineffective for failing to raise the effectiveness of another prior

lawyer. See Commonwealth v. McGill, 832 A.2d 1014, 1022-23 (Pa.

2003) (setting forth the framework for layered ineffectiveness claims).

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separate counsel withdrew the competency claim at Gibson’s behest. See

generally N.T. PCRA Hearing on Remand, 11/5/09, at 3-17.

On January 29, 2010, Gibson, again represented by PCRA counsel,

filed a habeas corpus petition in the United States District Court for the

Eastern District of Pennsylvania, Gibson v. Beard, docketed at No. 10-CV-

0445. The federal district court granted Gibson’s motion for discovery. In

response, the Bucks County District Attorney’s Office provided over 990

pages of material to PCRA counsel. In an accompanying affidavit, counsel

for the Commonwealth averred:

Pursuant to [the federal habeas c]ourt’s [o]rder of September

16, 2011, I have reviewed the entire contents of the Bucks

County District Attorney’s criminal case file in Commonwealth v.

Jerome Gibson, Bucks County Case No. 5119 of 1994 for any

information that qualifies under Brady v. Maryland, 373 U.S. 83

(1963), for subsequent disclosure to Petitioner of any Brady

information not previously provided to Petitioner.

While the undersigned believes that all discoverable and/or

Brady materials have been previously provided to [Gibson]

through his trial and/or post-conviction counsel, either formally

or informally, in an abundance of caution, the undersigned has

made, and is forwarding to [Gibson’s] counsel, a complete copy

of all discoverable and Brady materials contained within the

Gibson file.

Affidavit of Karen A. Diaz, Esq., Deputy District Attorney (Diaz Affidavit),

10/14/11, ¶¶ a-b.4 On Gibson’s request, the Commonwealth also provided

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4

In his brief, Gibson selectively quotes the Diaz Affidavit, giving the

impression that the Commonwealth admitted it was turning over previously-

undisclosed Brady material:

(Footnote Continued Next Page)

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copies of police report interviews of two witnesses from the file of an

unrelated homicide (the Turner Rogers case),5 and all police incident reports

between 1993 and 1995 for trial witness Eddie Jones. Gibson then filed a

supplemental habeas petition, and the federal court granted his motion to

stay habeas proceedings so Gibson could return to state court to exhaust his

claims.

On December 13, 2011, Gibson filed a PCRA petition entitled

“Protective Petition for Habeas Corpus Relief Pursuant to Article I Section 14

of the Pennsylvania Constitution and Statutory Post-Conviction Relief under

_______________________

(Footnote Continued)

On October 14, 2011, the Commonwealth of Pennsylvania

produced over 990 pages of documents to Appellant’s counsel

and filed an affidavit of counsel. According to the affidavit,

the Commonwealth produced “Brady information not

previously provided to Petitioner” and “all discoverable and

Brady materials contained in the Gibson file” including “every

police report, witness statement, laboratory reports, all criminal

histories and other documents in connection to same that are

contained within the file.”

Appellant’s Brief at 5 (quoting Diaz Affidavit) (emphasis added). The

Commonwealth averred no such thing. A candid, forthright quotation of the

Diaz Affidavit shows the Commonwealth merely averred that it searched the

file to determine whether any undisclosed Brady material existed.

5

Commonwealth v. Turner Rogers, No. CP-09-CR-0005296-1994 (C.P.

Bucks), judgment aff’d, 685 A.2d 1047 (Pa. Super. 1996) (unpublished

memorandum), appeal denied, 698 A.2d 593 (Pa. 1997). The killing in the

Turner Rogers case coincidentally happened on the same day as the murder

in this case. As reflected in this Court’s memorandum affirming the

judgment of sentence, Turner Rogers was convicted of involuntary

manslaughter for killing Jermaine Brown during an argument.

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42 Pa.C.S. § 9542 et seq. and Consolidated Memorandum of Law,” which we

shall call Gibson’s second PCRA petition. Gibson stated his belief that his

case belongs in federal habeas court, but, citing nonspecific vagaries of

PCRA law, claimed the second PCRA petition was necessary to protect his

rights. See Second PCRA Petition, 12/13/11, ¶¶ 2-3. Gibson asserted he

had received a number of the federal habeas discovery documents for the

first time, and that they constituted Brady material. The Brady violations

are based on the alleged suppression of impeachment material regarding the

Commonwealth’s witnesses at trial. In all Gibson advanced 12 separate

Brady claims based on 19 documents. See PCRA Court Rule 1925(a)

Opinion, 5/14/14, at 11. Those 19 documents were entered into evidence at

the PCRA hearing as Exhibits D-5 to D-23.

PCRA Hearing Exhibits D-5 to D-10 pertain to Eddie Jones. Jones

testified at trial that Gibson, while possessing a .38 caliber pistol, told other

people he had killed a “cracker” during a robbery when the “cracker” pulled

a gun. Id. at 11-12. Exhibits D-5 to D-9 are Bristol Township Police

Department incident reports regarding Eddie Jones.6 Id. The incident

reports show that Eddie Jones gave a false name to police, and was involved

in domestic disturbances, but was not arrested or convicted of any crimes.

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6

The Bristol Township Police Department did not arrest or charge Gibson,

or participate in his prosecution. As the robbery and murder occurred in

Bristol Borough, the Bristol Borough Police Department prosecuted Gibson.

See PCRA Court Rule 1925(a) Opinion, 5/14/14, at 12-13 & n.5.

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Exhibit D-10 is another Bristol Township Police incident report found in the

case files of James “Jim Jim” Walker, Andre Mitchell a/k/a Andre Warren,

Daniel “Bucky” Harris, and Cyril “Moo Moo” Thomas, each of whom was

charged with attempting to murder Jones. Id. at 13-14. Exhibit D-10

reports that a person heard that Jones chased Walker while brandishing a

shotgun following an argument. Id.

Exhibits D-11 to 13 pertain to Glenn Pollard, who was incarcerated

with Gibson while Gibson was awaiting trial. Pollard testified he overheard

Gibson say he had to shoot a person during a robbery attempt gone

“haywire.” Id. at 15 (quoting N.T. Trial, 3/10/95, at 396-401). In exchange

for his testimony, the Commonwealth agreed to transfer Pollard out of

maximum security—an agreement that was revealed at trial. Exhibits D-11

and 12 are letters Pollard sent to Commonwealth agents regarding the quid

pro quo for his testimony, and are similar to another letter introduced at the

first PCRA proceedings. Id. at 15-16. Exhibit D-13 is a transcript of

Pollard’s interview by Bristol Township Police in an unrelated case in which

Pollard admitted to selling drugs.

Exhibits D-14 to 17 pertain to Cyril “Moo Moo” Thomas, who testified

at trial that he received a .38 caliber handgun from Eddie Gilbert (who in

turn had received it from Gibson) and hid it in a motel, where it was later

recovered. Id. at 19. Thomas also admitted that he was hoping his

testimony would help regarding charges of attempted murder and

aggravated assault pending in juvenile court. Id. (quoting N.T. Trial,

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3/9/95, at 302-03, 309, 313). The PCRA court noted all four of these

exhibits were contained in Thomas’s juvenile clerk of courts file, which was

admitted into evidence at the hearing on Gibson’s first PCRA petition. Id.

Exhibit D-18 pertains to Eric Jones, Kevin Jones’s twin brother. Kevin

Jones testified at trial that Gibson made known his plans to rob and kill, if

necessary, an “old guy” and a “white devil.” Id. at 22 (quoting N.T. Trial,

3/9/95, at 267-70, 272-75, 280-81). Kevin Jones admitted at trial that he

was a serial felon. Id. Exhibit D-18 is a Bristol Township Police detective’s

notes of his interview of Eric Jones—who did not testify at Gibson’s trial—

during which Eric Jones inquired if his twin brother could get a deal for

testifying against Gibson. Id. at 23.

Exhibits D-19 and 20 pertain to Edward Gilbert, who saw Gibson

driving a blue Ford Thunderbird bought with the robbery money. Id. at 24-

25. As noted above, Gilbert also testified that Gibson gave him two

firearms: Gibson’s and the victim’s. Id. Both D-19 and D-20 are police

reports regarding Gilbert’s possible involvement in the Turner Rogers case.

Id. at 26.

Exhibit D-21 is a Bucks County detective’s report relating to the

subpoena of Herman Carroll. Id. at 28-29. Carroll, a career criminal with a

record dating to the 1970s, testified that Gibson made various inculpatory

statements. Id. (quoting N.T. Trial, 3/9/95, at 369-75). The report states

Carroll was reluctant to testify at trial against Gibson, and the detective told

Carroll to contact the district attorney to arrange plea negotiations. Id.

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Exhibits D-22 and 23 concern Bernard McLean, who testified that

Gibson was driving a blue Thunderbird, said the police were looking for him,

and admitted that he murdered a “white guy” for money. Id. at 30 (quoting

N.T. Trial, 3/9/95, at 229-37). Exhibit D-22 is a report from the Turner

Rogers case noting that McLean gave police a false name. Exhibit D-23

post-dates Gibson’s trial, and is another Bristol Township Police report in

which McLean denied previous statements he made to police. Id.

The Commonwealth moved to dismiss Gibson’s PCRA petition as time-

barred. The PCRA court limited the hearing’s scope to whether Gibson could

meet one of the exceptions to the PCRA’s time bar. After two days of

hearings, and after receiving briefs from the parties, the PCRA court found

Gibson’s PCRA petition time-barred, and dismissed it for lack of jurisdiction.

This appeal followed.

On appeal, Gibson raises five issues:

1. Was [Gibson] denied his right to due process of law by the

Commonwealth’s introduction of false testimony and its

failure to disclose Brady material because of suppression [of]

individual pieces of evidence and [the] cumulative effect of

the suppression of evidence?

2. Did the combination of counsel’s ineffectiveness and the

Commonwealth’s due process violations prejudice [Gibson]?

3. Was Gibson’s [second PCRA petition] timely filed pursuant to

42 Pa.C.S. § 9545(b)(1)(i) and (ii) and because [Gibson]

showed a prima facie case of miscarriage of justice?

4. Did the [PCRA court] err in not granting [Gibson] discovery?

5. Did the [PCRA court] err in denying the claims in the [second

PCRA petition] without a full hearing?

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Appellant’s Brief at 2 (some up-style capitalization removed).

We must address Gibson’s third issue (the timeliness of the second

PCRA petition) first. Timeliness is jurisdictional, and cannot be disregarded

to reach the merits of a PCRA petition. Commonwealth v. Taylor, 67 A.3d

1245, 1248 (Pa. 2013); Commonwealth v. Abu-Jamal, 941 A.2d 1263,

1267-68 (Pa. 2008) (“The PCRA’s timeliness requirements are jurisdictional

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.”). “Questions

regarding the scope of the statutory exceptions to the PCRA’s jurisdictional

time-bar raise questions of law; accordingly, our standard of review is de

novo.” Commonwealth v. Fahy, 959 A.2d 312, 315 (Pa. 2008); accord

Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014).

A PCRA petitioner must file any PCRA petition “within one year of the

date the judgment [became] final.” 42 Pa.C.S.A. § 9545(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. § 9545(b)(3). Three narrow exceptions exist, including claims

frustrated by governmental interference and claims based on previously

unknown facts. Id. § 9545(b)(1)(i) and (ii). Any petitioner invoking one of

the exceptions must file a PCRA petition within 60 days of the date on which

the claim could have been brought. Id. § 9545(b)(2). “[I]t is the

appellant’s burden to allege and prove that one of the timeliness exceptions

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applies.” Commonwealth v. Edmonson, 65 A.3d 549, 560 (Pa. 2013)

(internal citation omitted).

In this case, Gibson’s judgment of sentence became final on the date

the Supreme Court of the United States denied his certiorari petition,

October 4, 1999.7 Gibson concedes the untimeliness of his second PCRA

petition, which he filed more than ten years later. Gibson nevertheless

claims he meets the governmental interference and previously unknown

facts exceptions to the PCRA’s time bar. He claims the Commonwealth’s

discovery disclosure in the federal habeas case allows him to invoke those

exceptions. As such, Gibson notes that he filed the current PCRA petition

within 60 days of receiving those documents.

Gibson spends the vast majority of his brief discussing the merits of

his Brady claims.

But the law is clear that neither of the statutory exceptions to

the timeliness requirement can begin with a discussion of the

merits of a Brady claim; rather, [Gibson] must begin with a

discussion of why the instant petition was timely filed. As [our

Supreme] Court has explained, the latter inquiry is separate and

distinct from the former. See Abu–Jamal, [941 A.2d] at 1268

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7

The vacation of Gibson’s death sentence does not restart the PCRA clock

for his claims, none of which concerns his resentencing to life in prison. Cf.

Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011) (holding PCRA

petitioner’s right to file “new” first PCRA extended only to the portion of his

judgment disturbed by a federal habeas court, i.e., his resentencing to life,

and not any guilt-phase claims). Even if the clock were restarted, Gibson

filed his second PCRA petition years after our Supreme Court vacated his

death sentence in Gibson II, i.e., outside of the 60-day window.

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(noting that the merits of an underlying Brady claim [are] not

relevant to resolving a timeliness issue under either

§ 9454(b)(1)(i) or (ii)).

Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).

Gibson confuses the merits of a Brady claim with the PCRA’s

jurisdictional prerequisites. A Brady violation—on the merits—requires

proof that (1) the prosecutor suppressed evidence; (2) the evidence is

helpful and exculpatory or impeaching; and (3) the suppression of evidence

prejudiced the defendant. Commonwealth v. Reid, 99 A.3d 470, 496 (Pa.

2014). In addition, “[t]o obtain a new trial based on the Commonwealth’s

failure to disclose evidence affecting a witness’s credibility, a defendant must

demonstrate that the reliability of the witness may be determinative of the

defendant’s guilt or innocence.” Id.

The previously unknown facts “exception does not contain the same

requirements as a Brady claim . . . .” Abu-Jamal, 941 A.2d at 1268. Nor

does the governmental interference exception. See Commonwealth v.

Hawkins, 953 A.2d 1248, 1253 (Pa. 2008) (Opinion Announcing the

Judgment of the Court (OAJC)). In contrast to the merits of a Brady claim,

the previously unknown facts exception requires a PCRA petitioner to plead

and prove he could not have discovered those facts earlier through the

exercise of due diligence. Commonwealth v. Edmiston, 65 A.3d 339, 345

(Pa. 2013). Similarly, “[a]lthough a Brady violation may fall within the

governmental interference exception, the petitioner must plead and prove

that the failure to previously raise these claims was the result of interference

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by government officials, and that the information could not have been

obtained earlier with the exercise of due diligence.” Hawkins, 953 A.2d at

1253 (OAJC); see also Edmiston, 65 A.3d at 345.

Both exceptions therefore require Gibson to show he exercised due

diligence in trying to uncover the alleged Brady material. Stokes, 959 A.2d

at 309-10. “Due diligence demands that the petitioner take reasonable

steps to protect his own interests.” Commonwealth v. Monaco, 996 A.2d

1076, 1080 (Pa. Super. 2010) (internal citations omitted). A PCRA

petitioner must show why he could not have presented the claim earlier with

the exercise of due diligence. See id.

Upon review, we agree with the PCRA court that Gibson cannot meet

the exceptions to the PCRA’s time bar. The alleged Brady material does not

qualify for either exception, and Gibson has failed to show that he exercised

due diligence to uncover the evidence. Many of the documents have been

public record since 1995. Several others were entered as exhibits at the

hearing on Gibson’s first PCRA petition in 2001. All of those documents were

discoverable for more than 60 days before Gibson filed his second PCRA

petition.

First, the documents contained in the Turner Rogers and Cyril “Moo

Moo” Thomas court files (Exhibits D-14 to 17, 19, 20, and 22) were matters

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of public record.8 Therefore, they cannot qualify as previously unknown

facts. Information in the public record is not “unknown” under 42 Pa.C.S.A.

§ 9454(b)(1)(ii).9 Taylor, 67 A.3d at 1248-49 (holding that trial counsel’s

alleged conflict of interest was not unknown where the predicate information

had been in the file of the clerk of courts for over 15 years). Moreover,

those documents cannot qualify for the governmental interference exception.

We are unable to conceive how the Commonwealth could have interfered

with Gibson’s access to documents in the public record. At any rate, Gibson

has offered no evidence that the Commonwealth did so.

Similarly, we agree with the PCRA court that Gibson cannot invoke the

timeliness exceptions based on documents (Exhibits D-10 and 13 to 17) he

possessed as early as 2001. At the PCRA hearing, Gibson’s investigator

admitted she saw those documents in 2001. N.T. PCRA Hearing, 1/4/13, at

116-17. As Gibson was aware of those documents’ existence in 2001, his

second PCRA petition is untimely even under the exceptions to the time bar.

42 Pa.C.S.A. § 9545(b)(2) (requiring PCRA petitions invoking an exception

to be filed “within 60 days of the date the claim could have been

presented”). Gibson could have raised claims related to those documents

____________________________________________

8

One of Gibson’s trial counsel, John J. Fioravanti, Jr., Esq., also represented

Turner Rogers in 1995. See N.T. PCRA Hearing, 1/4/13, at 130-32.

9

Also, a Brady claim fails on the merits if the alleged Brady material is

equally accessible to the defense, which certainly applies to matters of public

record. See Commonwealth v. Weiss, 81 A.3d 767, 783 (Pa. 2013).

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over a decade ago, when he actually received those documents. Cf.

Stokes, 959 A.2d at 311-12 (holding PCRA petition was untimely when

petitioner was aware of facts underlying claim but waited several years to

request files forming basis of his Brady claim).

Gibson fails to show the time bar exceptions apply to the remaining

documents (Exhibits D-5 to D-9, D-11, D-12, D-19, D-20, and D-22). He

has not established that the Commonwealth interfered with his access to

those documents—a necessary prerequisite to invoke the governmental-

interference exception. Indeed, there is no evidence that the

Commonwealth was even aware of these documents, which were in the

possession of the Bristol Township Police Department, and some of which

involved police contact with witnesses or potential witnesses not resulting in

an arrest or conviction. Gibson baldly claims the Commonwealth hid the

documents from him when the trial prosecutor allegedly claimed in 2001

that no other Brady material existed.10 Hiding requires knowledge that the

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10

Gibson offers another misleading quotation in support:

At the initial PCRA hearing [in 2001], [Gibson] requested any

additional Brady material and discovery from the

Commonwealth. In response, the Commonwealth claimed

“no such thing exists.”

Appellant’s Brief at 10; Reply Brief at 3 (emphasis added). In context, it is

clear that the prosecutor merely stated his belief that all potential Brady

material had been turned over at that time. Gibson’s quotation of the

Commonwealth is actually is from his own counsel:

(Footnote Continued Next Page)

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thing to be hidden exists. Gibson did not show governmental interference

regarding the alleged Brady material, which was in the possession of a

police department not involved with Gibson’s prosecution. As the

Commonwealth notes, Gibson offers no authority to support his proposition

that a district attorney’s office must actively scour the police records of

every department within its jurisdiction to uncover any reports of police

contact between potential witnesses even where the police contact resulted

in neither arrest nor conviction. Additionally, Gibson cannot meet the

previously unknown facts exception. For both timeliness exceptions, Gibson

had the burden to show due diligence in uncovering such information.

Having failed to show that he did so, Gibson cannot invoke the timeliness

exceptions.

Citing Commonwealth v. Johnson, 64 A.3d 621 (Pa. 2013) (per

curiam), Gibson argues that our Supreme Court has held that information

_______________________

(Footnote Continued)

MR. ANDERSON[, i.e., formerly PCRA counsel]: Similarly, Your

Honor, petitioner requests any other notes, handwritten

materials, memoranda regarding any statements of witnesses or

potential witnesses in this case that weren’t turned over.

Mr. Fritsch [i.e., the prosecutor, and now a judge on the Court of

Common Pleas of Bucks County] indicated, I believe that there

are—no such thing exists.

MR. FRITSCH: No, Your Honor. I believe everything has been

turned over in the case, which certainly by way of witness—

eyewitness statements and so forth and reports.

N.T. First PCRA Hearing, 4/27/01, at 6 (emphasis added).

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discovered during federal habeas proceedings constitutes previously

unknown facts and therefore qualifies for the PCRA’s time-bar exception.

But Johnson is a summary per curiam order—not a merits opinion. The

Supreme “Court has made it clear that per curiam orders have no stare

decisis effect.” Commonwealth v. Thompson, 985 A.2d 928, 937 (Pa.

2009). Thus, Johnson is not binding. Moreover, because of its summary

nature, we find no persuasive value in the Johnson order.

Gibson also argues courts may consider untimely PCRA petitions if the

petitioner shows prima facie that a “miscarriage of justice” may have

occurred. This argument is frivolous. Lawson and Morales, cited by

Gibson, have nothing to do with the PCRA’s time limits. The post-conviction

petitions in those cases predate the 1995 amendment to the PCRA that

added the jurisdictional time bar. Commonwealth v. Morales, 701 A.2d

516, 519 (Pa. 1997) (“On November 15, 1994, petitioner filed his second

[PCRA] petition[.]”); Commonwealth v. Lawson, 549 A.2d 107, 109-110

(Pa. 1988) (noting the appellant’s petition was filed in “March of 1982”).

Gibson fails to acknowledge that—for 15 years—Pennsylvania appellate

courts have repeatedly and unanimously held the PCRA’s time limits are

mandatory and jurisdictional. See, e.g., Edmiston, 65 A.3d at 346 (“The

time requirements established by the PCRA are jurisdictional in nature;

consequently, Pennsylvania courts may not entertain untimely PCRA

petitions.”); Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.

2003) (“This Court has repeatedly stated that the PCRA timeliness

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requirements are jurisdictional in nature and, accordingly, a PCRA court

cannot hear untimely PCRA petitions.”); Commonwealth v. Banks, 726

A.2d 374, 376 (Pa. 1999) (clarifying that the PCRA’s jurisdictional time limits

are mandatory in all cases); Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.

Super. 2014) (“The timeliness of a PCRA petition is a jurisdictional threshold

and may not be disregarded in order to reach the merits of the claims raised

in a PCRA petition that is untimely.”); see also Whitney v. Horn, 280 F.3d

240, 251 (3d Cir. 2002) (“It is now clear that this one-year limitation is a

jurisdictional rule that precludes consideration of the merits of any untimely

PCRA petition . . . .”).

In sum, the PCRA court correctly concluded that Gibson’s second PCRA

petition is untimely, because he failed to show that an exception to the

PCRA’s time bar applies. Therefore, the PCRA court lacked jurisdiction to

adjudicate the merits of Gibson’s petition. Moreover, because the PCRA

court lacked jurisdiction, it had no authority to grant Gibson’s request for

discovery, or to hold a full hearing on the merits. Given our conclusion that

the PCRA court lacked jurisdiction, we do not need to address Gibson’s

remaining issues.11 See Taylor, 67 A.3d at 1249 (“As the PCRA court

____________________________________________

11

Because we do not reach the merits, we do not need to address whether

Gibson’s Brady claims are waived or previously litigated, see 42 Pa.C.S.A.

§ 9543(a)(3), or whether Gibson met the miscarriage of justice standard

that applies to second or subsequent PCRA petitions, see Lawson, 549 A.2d

at 112.

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properly found the petition was untimely, we do not reach, and will not

address, the merits.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/16/2015

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