Com. v. Shearer, T.

J-S46028-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TIMOTHY SHEARER :

:

Appellant : No. 93 EDA 2019

Appeal from the PCRA Order Entered December 14, 2018

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

No(s): CP-51-CR-1104241-1998

BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 27, 2019

Appellant, Timothy Shearer, appeals pro se from an order entered on

December 14, 2018, which dismissed his petition for collateral relief filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

On a previous appeal, we summarized the facts of this case as follows:

In September of 2000, [Appellant] was convicted of third-degree

murder, violations of the Uniform Firearms Act, possessing an

instrument of crime, and aggravated assault. His convictions

arose out of the following facts:

On September 20, 1998, the victim, Terrance Adams, and

his cousin, Richard Adams, encountered Appellant and an

argument ensued. The disagreement concerned Appellant’s

former girlfriend, Tishira Fauntleroy, who had become

engaged to [one of the Adams’ cousins]. Two days later, the

Adams’ cousins saw Appellant at the corner of Paxon and

Arch Streets in Philadelphia[, Pennsylvania]. When Terrance

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* Retired Senior Judge assigned to the Superior Court.

J-S46028-19

Adams told Appellant that he wanted to speak to him,

apparently to inform Appellant that he did not want to fight

over Ms. Fauntleroy, Appellant stated “you ain’t got to tell

me shit,” displayed a chrome semi-automatic gun and fired

a shot into the air. Terrance and Richard ran, and Appellant

gave chase as he fired at the two men. Terrance ran

between two parked cars and yelled to Richard to keep

running. Richard heard a gunshot and turned to witness

Appellant approach Terrance with an outstretched arm.

Terrance was pronounced dead at the scene from multiple

gunshot wounds. Yvette Gray, a bystander, [was also]

wounded by one of Appellant’s gunshots.

Appellant was initially tried in May of 2000, but that trial resulted

in a hung jury. Accordingly, he was retried in September of that

same year, after which he was convicted of the above-stated

crimes and sentenced to an aggregate term of seventeen and

one-half to thirty-five years’ imprisonment.

Commonwealth v. Shearer, __A.2d__, 2147 EDA 2008 (Pa. Super. 2010)

(unpublished memorandum), at 1-15 (citation omitted).

This Court affirmed Appellant’s judgment of sentence on January 25,

2005. See Commonwealth v. Shearer, __A.2d__, 2511 EDA 2003 (Pa.

Super. 2005) (unpublished memorandum), at 1-7 (citation omitted). Our

Supreme Court subsequently denied allocatur. Commonwealth v. Shearer,

877 A.2d 461 (Pa. 2005). On October 4, 2005, Appellant filed his first pro se

PCRA petition, raising several ineffective assistance of counsel claims. See

Commonwealth v. Shearer, __A.2d__, 2147 EDA 2008 (Pa. Super. 2010)

(unpublished memorandum), at 1-15 (citation omitted). On July 1, 2008, the

PCRA court dismissed Appellant’s petition. See id. On December 20, 2010,

this Court affirmed the PCRA court’s dismissal order. See id. Thereafter, our

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Supreme Court denied allocatur. See Commonwealth v. Shearer, 26 A.3d

1102 (Pa. 2011).

On September 2, 2014, Appellant filed the current PCRA petition. See

Appellant’s Second PCRA Petition, 9/2/14, at 1-23. Subsequently, Appellant

filed two supplemental amended petitions on November 13, 2014 and August

12, 2016. See Appellant’s Amended Second PCRA Petition, 11/13/14, at 1-3;

Appellant’s Amended Second PCRA Petition, 8/12/16, at 1-3. On September

18, 2018, the PCRA court issued notice that it intended to dismiss Appellant’s

PCRA petition in 20 days without holding a hearing, as the petition was

untimely. See PCRA Court Order, 9/18/18, at 1; see also Pr.R.Crim.P.

907(1). Appellant filed a response on September 26, 2018. The PCRA court

dismissed Appellant’s petition on December 14, 2018. See PCRA Court’s

Order, 12/14/18, at 1. Appellant timely appealed, raising two issues.1

However, “[c]rucial to the determination of any PCRA appeal is the timeliness

of the underlying petition. Thus, we must first determine whether the instant

PCRA petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766,

768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).

The timeliness requirement for PCRA petitions “is mandatory and

jurisdictional in nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248

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1Appellant raises the following issues on appeal: (1) whether the PCRA court

committed reversible error by failing to conduct a hearing before dismissing

Appellant’s petition, and (2) whether the PCRA court committed reversible

error by “fail[ing] to recognize a timely presented miscarriage of justice.” See

Appellant’s Brief at iv.

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(Pa. 2013) (citation omitted). A PCRA petition is timely if it is “filed within one

year of the date the judgment [of sentence] becomes 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.” 42 Pa.C.S.A. §§ 9545(b)(3). Here, Appellant’s

judgment of sentence became final on September 19, 2005, 90 days after the

Pennsylvania Supreme Court denied allocatur and the time to file a petition

for writ of certiorari in the United States Supreme Court elapsed. See U.S.

Sup.Ct. Rule 13. Hence, Appellant’s petition is manifestly untimely.

Therefore, unless one of the statutory exceptions to the time-bar applies, no

court may exercise jurisdiction to consider this petition.

Pursuant to 42 Pa.C.S.A. §9545(b), there are three statutory exceptions

to the timeliness provision that allow for very limited circumstances under

which the late filing of a PCRA petition will be excused. To invoke an

exception, a petition must allege and prove one of the following:

(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.

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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). If an exception applies, a PCRA petition

may be considered if it is filed “within 60 days of the date the claim could have

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

The statements and arguments within Appellant’s pro se brief are

disorganized and unclear. However, after reviewing his PCRA petition, as well

as his pro se brief, we conclude that Appellant apparently relies upon the

newly-discovered facts exception3 to assert that his petition is not

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2 Effective December 24, 2018, the legislature amended Section 9545(b)(2)

to read: “Any petition invoking an exception provided in paragraph (1) shall

be filed within one year of the date the claim could have been presented.” See

42 Pa.C.S.A. §9545(b)(2) (effective December 24, 2018). However, the

amendment to Section 9545(b)(2) only applies to “claims arising on

[December] 24, 2017 or thereafter.” See id. at Comment. Appellant filed his

current petition on September 7, 2014; thus, the amended Section 9545(b)(2)

does not apply to Appellant’s claim.

3 In Appellant’s PCRA petition, he attempted to invoke the newly-discovered

fact exception in part “by alleging that the Pennsylvania Supreme Court[s]

decision in Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014) served as a

newly-discovered fact[].” PCRA Court’s Opinion, 3/29/19, at 4. However,

Appellant’s claim is waived because he failed to develop this argument in his

appellate brief. See Commonwealth v. Luktisch, 680 A.2d 877, 879 n.1

(Pa. 1996) (holding that an issue is waived where the defendant failed to

develop an argument in his appellate brief and cited no authority). Moreover,

Appellant’s argument is meritless as judicial decisions are not generally

considered to be new facts. See Commonwealth v. Watts, 23 A.3d 980,

987 (Pa. 2011). Finally, Walker involved the consideration of whether a trial

court may permit expert testimony in the area of eye witness identification

under Rule 702 of the Pennsylvania Rules of Evidence. See id. As such, it

would not trigger the exception found at § 9545(b)(1)(iii).

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time-barred. 4 See Appellant’s Brief at 6. To properly invoke this exception,

petitioners must prove that the facts upon which their claim is based were

unknown to them and could not have been discovered previously through the

exercise of due diligence. See Commonwealth v. Marshall, 947 A.2d 714,

720 (Pa. 2008). We conclude that Appellant failed to properly invoke this

statutory exception.

In this instance, Appellant contends that during his trial, a certain

Commonwealth witness, John Fuller, committed perjury. See Appellant’s Brief

7. Specifically, Appellant repeatedly argues that the Commonwealth

“suppress[ed]” Mr. Fuller’s perjured testimony. See Appellant’s Brief at 1-15.

However, upon review, we conclude that Appellant intended to claim that the

Commonwealth “suborned” perjured testimony. See Commonwealth v.

Adams, 882 A.2d 496, 498 (Pa. Super. 2005) (explaining that this Court is

“willing to liberally construe materials filed by a pro se litigant”). Accordingly,

per Appellant, this alleged perjury constitutes a newly-discovered fact.

Notably, at trial, John Fuller identified Appellant as the shooter. See

Appellant’s Brief at 1. In particular, Mr. Fuller explained that, while inside his

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4 In the PCRA court’s Rule 907 Notice, it stated that the court “construed

[Appellant’s] argument as a ‘governmental interference’ claim pursuant to 42

Pa.C.S.A. §9545(b)(1)(i).” See PCRA Court Order, 9/18/18, at 1. However,

this exception applies when a governmental agent prevents a petitioner from

filing a petition or learning of the facts necessary to file a petition. See

Commonwealth v. Barrett, 761 A.2d 145, 148 (Pa. Super. 2000) (emphasis

added). Accordingly, because Appellant does not mention any governmental

interference with filing his petition, we conclude that Appellant invoked only

the newly-discovered facts exception to the statutory time-bar on appeal.

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home, he heard four gun shots, and then he went outside to make sure his

brother and son were safe. See id. Thereafter, he saw Appellant rush by

with a gun. See id. at 1-2. On appeal, Appellant makes two claims. First,

Appellant argues that Mr. Fuller’s testimony was false because it “did not

match the ‘scientific evidence’” presented at trial. See id. at 8. Second,

Appellant asserts that Mr. Fuller falsely stated that he attended elementary

school with Appellant’s younger brother when in fact, Appellant “did not have

a younger brother.” Id. at 12. Appellant’s argument fails for multiple reasons.

First, Appellant did not prove that the alleged perjury constitutes a

newly-discovered fact. Indeed, nowhere in Appellant’s brief does he state

that, during his trial, he did not know or understand the substance of Mr.

Fuller’s testimony. To the contrary, Appellant’s petition asserts that his trial

counsel “rigorous[ly] cross-examin[ed]” Mr. Fuller regarding his identification

of Appellant. PCRA Petition, 9/2/14, at 19. Thus, Appellant knew, at the

time of trial, that Mr. Fuller’s testimony appeared inconsistent with other

evidence presented.

Second, a review of Appellant’s earlier appeal indicates that Appellant

knew – either at the time of trial or shortly thereafter - that Mr. Fuller testified

about attending school with Appellant’s younger brother. In fact, Appellant

previously claimed that the trial court erred by not allowing his mother to

“rebut the identification testimony of Commonwealth witness John Fuller.”

Commonwealth v. Shearer, __A.2d__, 2511 EDA 2003 (Pa. Super. 2005)

(unpublished memorandum), at 4 (citation omitted). In particular, Appellant

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sought to introduce testimony from his mother “to establish that she did not

have a younger son.” Id. Thus, the statements made by Mr. Fuller during

his testimony do not qualify as a fact previously unknown to Appellant.

Finally, Appellant failed to file his petition “within 60 days of the date

the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). Because

the information underlying Appellant’s effort to invoke the newly-discovered

facts exception was revealed to Appellant during his trial more than a decade

ago, Appellant clearly has not met the statutory requirements set forth in

Section 9545(b)(2).

We therefore hold that, since Appellant did not satisfy the statutory

requirements for invoking the newly-discovered facts exception, he failed to

overcome the PCRA’s one-year time-bar. We have no jurisdiction to consider

the merits of this petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/27/19

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