The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
REUBEN BROWN :
:
Appellant : No. 133 EDA 2018
Appeal from the PCRA Order November 28, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0207261-1995
BEFORE: LAZARUS, J., OLSON, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 24, 2019
Reuben Brown appeals, pro se, from the order, entered in the Court of
Common Pleas of Philadelphia County, denying his fifth petition filed pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After
our careful review, we affirm.1
On October 28, 1996, a jury convicted Brown of first-degree murder,
two counts of robbery, possession of an instrument of crime (PIC), and
criminal conspiracy. The court sentenced Brown that same day to life
imprisonment for first-degree murder, five-to-ten years’ imprisonment for
each of the two counts of robbery, five-to-ten years’ imprisonment for criminal
conspiracy, and six-to-sixty months’ imprisonment for PIC. This Court
affirmed the judgment of sentence on July 27, 1999, and our Supreme Court
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1The Commonwealth, despite this Court’s grant of two extension requests,
has not filed a brief.
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* Retired Senior Judge assigned to the Superior Court.
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denied review on January 5, 2000. See Commonwealth v. Brown, 742 A.2d
1140 (Pa. Super. 1999) (unpublished memorandum), appeal denied, 749 A.2d
465 (Pa. 2000).
Brown filed a pro se PCRA petition on January 27, 2000, his first. On
June 1, 2000, the court appointed Attorney David Rudenstein to represent
Brown. On July 19, 2000, Attorney Rudenstein filed an amended petition, in
which he raised an issue regarding a recanting witness. The PCRA court
allowed Attorney Rudenstein time to locate the recanting witness in order to
hold a hearing. Ultimately, Attorney Rudenstein was unable to locate the
recanting witness, and, on February 28, 2001, the PCRA court dismissed
Brown’s first PCRA petition.
On September 5, 2003, Brown filed his second PCRA petition, which the
court dismissed as untimely. Brown filed a third PCRA petition on June 15,
2009, which was also dismissed as untimely.
On March 19, 2012, Brown filed a fourth PCRA petition, alleging that his
facially untimely petition satisfied the newly recognized constitutional right
exception to the PCRS’s timeliness requirements. See 42 Pa.C.S.A. §
9545(b)(1)(iii).2 On March 24, 2014, the PCRA court dismissed Brown’s
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2 Section 9545(b)(1) provides:
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
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fourth PCRA petition as untimely, and this Court affirmed. Commonwealth
v. Brown, 935 EDA 2014 (Pa. Super. filed Feb. 10, 2015) (unpublished
memorandum). We concluded that the case on which Brown relied, Maples
v. Thomas, 565 U.S. 266 (2012), which held petitioner’s abandonment of
counsel claim was an extraordinary circumstance that enabled him to bypass
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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
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)(iii). Additionally, a PCRA petition invoking one of
these statutory exceptions must “be filed within 60 days of the date the claim
could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). Brown’s judgment
of sentence became final on April 4, 2000, when the ninety-day period for
filing a writ of certiorari with the United States Supreme Court expired. See
Sup.Ct.R. 13; 42 Pa.C.S.A. § 9545(b)(3). Therefore, Brown had to file any
and all PCRA petitions by April 4, 2001. The instant petition, filed on October
9, 2015, is patently untimely and will be addressed only if he has satisfied his
burden of pleading and proving that one of the enumerated exceptions
applies. See Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2008);
Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).
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the state procedural ban to his federal habeas corpus petition, did not create
a new constitutional right applicable to him. Brown, supra at *3. Further,
we stated that even had the Maples holding provided Brown with a new
constitutional right, neither the Pennsylvania Supreme Court nor the United
States Supreme Court has ever held that Maples applies retroactively. Id.,
citing 42 Pa.C.S.A. § 9545(b)(1)(iii) (“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.”). See
Commonwealth v. Abdul–Salaam, 812 A.2d 497, 501 (Pa. 2002).
In this, his fifth petition, Brown alleged that he recently discovered that
retired Detective Frank Jastrzembski (Jastrzembski), who investigated the
murder, had engaged in misconduct in unrelated cases. In support of his
claim that Jastrzembski had a pattern of fabrication and misplacement of
evidence, Brown attached to his petition various newspaper articles as well as
an article published on March 2, 2015 by Rolling Stone Magazine. That article
asserted that Detective Jastrzembski concealed evidence in an unrelated case.
The PCRA court, pursuant to Pa.R.Crim.P. 907, advised Brown on October 11,
2017 of its intent to dismiss the petition without a hearing. Brown filed a
response on November 1, 2017 and, on November 28, 2017, the PCRA court
dismissed Brown’s petition as untimely. On appeal, Brown argues the newly-
discovered fact exception, 42 Pa.C.S.A. § 9545(b)(1)(ii), and/or the
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governmental interference exception, 42 Pa.C.S.A. § 9545(b)(1)(i), save his
petition from the statutory time-bar.
This Court’s standard of review regarding a PCRA court’s order is
whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Great deference is
granted to the findings of the PCRA court, and these findings will
not be disturbed unless they have no support in the certified
record. Moreover, a PCRA court may decline to hold a hearing on
the petition if the PCRA court determines that a petitioner’s claim
is patently frivolous and is without a trace of support in either the
record or from other evidence.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted).
Our Supreme Court addressed a similar situation in Commonwealth v.
Castro, 93 A.3d 818 (Pa. 2014). In Castro, the petitioner relied upon a
newspaper article to establish after-discovered evidence for use in a post-
sentence motion. Our Supreme Court held that while a newspaper “article
[may] contain allegations that suggest [exculpatory] evidence may exist, [ ]
allegations in the media, whether true or false, are no more evidence than
allegations in any other out-of-court situation.” Id. at 825. Although
magazine and newspaper “articles can alert a party to the possible existence
of evidence, [ ] the party must do more than attach the article [to establish]
the evidence that will meet the [test for newly-discovered facts . . . . A
petition] must, at the very least, describe the evidence that will be presented
at the hearing.” Id. at 837. We note that Castro has since been applied to
the newly-discovered fact exception to the PCRA. See Commonwealth v.
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Jamie Brown, 141 A.3d 491 (Pa. Super. 2016). Thus, we conclude the
Rolling Stone article is not a newly-discovered fact under section
9545(b)(1)(ii).3
Because Brown’s petition is facially untimely, and because he has not
established that any exceptions to the timeliness requirements apply, the
PCRA court did not err in dismissing his petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/19
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3 In his October 9, 2015 petition, Brown checked all three exceptions to the
statutory time bar. See PCRA Petition, 10/9/15, at 2; 42 Pa.C.S.A. §
9545(b)(1)(i-iii). In his brief on appeal, however, Brown invokes only the
newly-discovered facts exception. See Appellant’s Brief, at 9. Therefore, we
do not address the interference by governmental officials exception, 42
Pa.C.S.A. § 9545(b)(1)(i), or the newly recognized constitutional right
exception, 42 Pa.C.S.A. § 9545(b)(1)(iii).
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