J

- A27030

- 19

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

v.
TERRENCE FITZPATRICK,

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1034 EDA 2019 Appeal from the PCRA Order Entered March 5, 2019 In the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP

- 48

- CR

- 0000713

- 2007

BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J. * MEMORANDUM BY SHOGAN, J.: FILED MARCH 06, 2020 Appellant, Terrence Fitzpatrick , appeals f rom the order denying his third petition for relief filed pursuant to the Post Conviction Relief Act ( “ PCRA ” ), 42 Pa.C.S. §§ 9541

- 9546. We af firm. The PCRA court summarized the procedural history of this case as follows: On March 13, 2008, [Appellant] was convicted by a jury of two counts of attempted murder, 2 two counts of aggravated assault, 3 conspiracy to commit murder, 4 conspiracy to commit aggravated assault, 5 and firearms not to be carried without a license. 6 On June 9, 2008, [Appellant] was sentenced to twenty to forty years in prison on the first count of attempted murder and a concurrent term of nine to eighteen years on the second att empted murder count. [Appellant] was also sentenced to concurrent terms of nine to eighteen years for conspiracy to commit criminal homicide, four to eight years for conspiracy to commit aggravated assault, and four to eight years for carrying a

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

- A27030

- 19

- 2

-

firearm w ithout a license, for an aggregate sentence of twenty to forty years in state prison.

2 18 Pa.C.S.A. § 901; 18 Pa.C.S.A. § 2502.

3 18 Pa.C.S.A. § 2702 (amended Oct. 24, 2012, effective Dec. 24, 2012, amended Dec. 18, 2013, effective Jan. 1, 2014).

4 18 Pa.C.S.A. § 903; 18 Pa.C.S.A. § 2502.

5 18 Pa.C.S.A. § 903; 18 Pa.C.S.A. § 2702 (amended Oct. 24, 2012, effective Dec. 24, 2012, amended Dec. 18, 2013, effective Jan. 1, 2014).

6 18 Pa.C.S.A. § 6105 (amended Oct. 17, 2008, effective Dec. 16, 2008, am ended Nov. 3, 2016, effective Jan. 3, 2017). [Appellant] filed post

- sentence motions, which the court denied in an order fi l ed on October 16, 2008. [Appellant] filed an appeal to the Superior Court from that order, and, on March 8, 2010, the Superior Cou rt affirmed the sentence of this court. [Appellant] thereafter filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which was denied on August 31, 2010. On October 31, 2011, [Appellant] filed a “ Motion for Post

Conviction Collatera l Relief ” ( “ First PCRA Petition ” ). On November 9, 2011, the court en tered an order appointing Brian M. Monahan, Esquire to represent [Appellant] with regard to his First PCRA Petition. On March 23, 2012, Attorney Monahan filed a no

merit letter, pursuant to the mandates of Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988). That same day, the court filed a “ Notice of Intention to Dismiss P.C.R.A. Petition without a Hearing and Grant Petition to With draw Appearance, ” based upon Attorney Monahan ’ s no - merit letter. A copy of the notice was sent to [Appellant] by certified mail. When [Appellant] did not file a response to the notice within twenty days, on April 16, 2012, the court entered an order dism issing [Appellant ’ s] First PCRA Petition, pursuant to Rule of Criminal Procedure 907(1), and an additional order granting Attorney Monahan leave to withdraw his appearance.J

- A27030

- 19

- 3

- On May 8, 2012, [Appellant] filed an appeal to the Superior Court from the court ’ s order dismissing his First PCRA Petition. On February 1, 2013, the Superior Court affirmed the court ’ s order dismissing [Appellant ’ s] First PCRA Petition. [Appellant] then petitioned the Supreme Court of Pennsylvania for allowance of appeal, which was de nied on July 2, 2013. On August 28, 2015, [Appellant] filed a “ Petition for Post

Conviction Collateral Relief ” ( “ Second PCRA Petition ” ). On November 3, 2016, the court filed an “ Order of Court and Notice of Intention to Dismiss [Appellant ’ s] Petition with out a Hearing. ” On November 21, 2016, [Appellant] filed a “ Brief in Opposition ” to the court ’ s notice. On December 5, 2016, the court entered an order dismissing [Appellant ’ s] Second PCRA Petition pursuant to Rule of Criminal Procedure 907(1). On Se ptember 25, 2017, [Appellant] filed an appeal to the Superior Court from the court ’ s order dismissing his Second PCRA Petition. On May 25, 2018, the Superior Court affirmed the court ’ s order dismissing [Appellant ’ s] Second PCRA Petition. [Appellant] did not petition the Supreme Court of Pennsylvania for allowance of appeal. On December 27, 2018, [Appellant ] filed his Third PCRA Petition, in which he raises three issues. First, he argues that he received ineffective assistance of counsel during the trial and post

conviction stages of his case. Second, [Appellant] argues that his co - defendant ’ s Sixth Amendme nt rights were violated when the Commonwealth obtained a search warrant to remove a bullet from the victim ’ s body while the co

- defendant remained in prison without counsel. Thus, [Appellant] argues that his conviction was based on an unconstitutional sear ch, since that bullet was ultimately used to implicate [Appellant ’ s] guilt. Lastly, [Appellant] argues that his trial and his co

- defendant ’ s trial should have been severed. He further asserts that these arguments are timely in light of Commonwealth v. Be nnett , 930 A.2d 1264 (Pa. 2007). PCRA Court Opinion, 2/1/19 , at 2

- 5. On February 1, 2019, the PCRA court issued a notice of intent to dismiss the petition without a hearing. Appellant filed a response, and on March 5 , 2019, the PCRA court dismissed App ellant ’ s petition. Appellant filed a noticeJ

- A27030

- 19

- 4

-

of appeal on April 1, 2019. Appellant and the trial court complied with Pa.R.A.P. 1925. 1 On appeal, Appellant presents the following issues for our review:
I. Whether the underlying trial and post conviction proceedings were so fundamentally unfair that it deprived Appellant of due process?
II. Whether the facts surrounding the violation of co

defendant ’ s, Brandon Fleming, Sixth Amendment rights were unknown to Appellant, and, as a consequence, interfered wi th Appellant ’ s ability to timely raise his claims for relief under the PCRA?
III. Whether the underlying judges and detectives interfered with Appellant ’ s ability to timely raise his claims for relief under the PCRA?
IV. Whether the trial court failed to protect Appellant from a prejudicial joinder trial after the discovery of the second bullet?
V. Whether Appellant received layered ineffective assistance of counsel? Appellant ’ s Brief at 5. When reviewing the propriety of an order denying PCRA relief, we consider the record “ in the light most favorable to the prevailing party at the PCRA level. ” Commonwealth v. Stultz , 114 A.3d 865, 872 (Pa. Super. 2015) (quoting Commonwealth v. Henkel , 90 A .3d 16, 20 (Pa. Super. 2014) ( en banc )). This Court is limited to determining whether the evidence of

_________________ __________ ______ ____ _______ 1 The PCRA court filed a “ Statement ” pursuant to Pa.R.A.P. 1925(a) , and in it relied on the reasoning for the dismissal in its Notice of Intention to Dismiss filed February 1, 2019.J

- A27030

- 19

- 5

-

record supports the conclusions of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Robinson , 139 A.3d 178, 185 (Pa. 2016). The PCRA court ’ s findings will not be disturbed unless there is no support for them in the certified record. Commonwealth v. Lippert , 85 A.3d 1095, 1100 (Pa. Super. 2014). A PCRA petition must be filed within one year of the date that the judgment of sen tence becomes final. 42 Pa.C.S. § 9545(b)(1). This time requirement is mandatory and jurisdictional in nature, and the court may not ignore it in order to reach the merits of the petition. Commonwealth v. Hernandez , 79 A.3d 649, 651 (Pa. Super. 2013). A judgment of sentence

“ 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 fo r seeking the review. ” 42 Pa.C.S. § 9545(b)(3). However, an untimely petition may be received when the petition alleges, and the petitioner proves, that any of the three limited exceptions to the time for filing the petition, set forth at 42 Pa.C.S. § 954 5(b)(1)(i), (ii), and (iii), is met. 2 A petition invoking one of these exceptions must be filed within

_________________ __________ ______ ____ _______ 2 The exceptions to the timeliness requirement are: (i) the failure to raise the claim previously was the result of interference by government officials with the presentation of theJ

- A27030

- 19

- 6

-

one year of the date the claim could first have been presented. 3 42 Pa.C.S. § 9545(b)(2). Our review of the record reflects that Appellant was sente nced on June 9, 2008

. Appellant ’ s judgment of sentence was affirmed on March 8, 2010, Commonwealth v. Fitzpatrick , 996 A.2d 540, 3259 EDA 2008, (Pa. Super. filed March 8, 2010), and his petition for allowance of appeal to the Pennsylvania Supreme Court wa s denied on August 31, 2010

. Commonwealth v. Fitzpatrick , 4 A.3d 157, 246 MAL 2010 (Pa. filed August 31, 2010) . Appellant did not seek review with the U.S. Supreme Court. As such, Appellant ’ s judgment of sentence became final for PCRA purposes on

_________________ __________ ______ ____ _______ 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 wer e 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)(i), (ii), and (iii).

3 Until recently, a petition invoking an exception was required to be filed within sixty days of the date the claim could have been presented. However, Act 146 of 2018 amended 42 Pa.C.S. § 9545(b)(2), and Section 9545(b)(2) now provide s that a PCRA petition invoking a timeliness exception must be filed within one year of the date the claim c ould have been presented. See 2018 Pa.Legis.Serv.Act 2018

- 146 (S.B. 91 5), effective December 24, 2018, § 2 and § 3 ( “ [T]he amendment ... shall apply to claims arising on Dec. 24, 2017 or thereafter. ” ). Although applicable to Appellant ’ s instant petition, the change in the law from sixty days to one year does not impact our analysis

.J

- A27030

- 19

- 7

-

November 29, 2010 , ninety days after the Pennsylvania Supreme Court denied allocatur and time expired for Appellant to file an appeal with the United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3) ( “ 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. ” ); U.S. Sup. Ct. R. 13

. Therefore, Appellant had to file the current PCRA petition by November 29, 2011 , in order for it to be timely. See 42 Pa.C.S. § 9545(b)(1) (a PCRA petition must be filed within one year of the date that the judgment of sentence becomes final). Appellant did not file the instant PCRA petition until December 27, 2018 . Thus, Appellant ’ s instant PCRA petition is patently untimely. As previously stated, if a petitioner does not file a timely PCRA petition, his petition may nevertheless be received under any of the three limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. § 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his petition within one year of the date that the exception could be asserted. 42 Pa.C.S. § 9545(b)(2). It is the petitioner ’ s burden to allege and prove that one of the exceptions exists. Commonwealth v. Whitehawk , 146 A.3d 266, 269

– 270 (Pa. Super. 2016). In an effort to establish an exception to the PCRA time

- bar, Appellant argues thatJ

- A27030

- 19

- 8

-

th e first two exceptions to the timely filing requirements of the PCRA have been satisfied: (1) the surreptitious actions of the judges and detectives involved in the deprivation of [co

defendant ’ s] Sixth Amendment rights and the surgically removed bullet n ot only interfered with Appellant ’ s ability to properly defend himself at trial, but also precluded him from timely raising such claims when seeking collateral relief under the PCRA; and (2) the facts surrounding the surgically removed bullet, specifically the deprivation of [co

- defendant ’ s] Sixth Amendment rights, were unknown to Appellant because he was not present during [co

defendant’s] arraignment proceedings. Appellant ’ s Brief at 11. Appellant further avers that in addition to establishing these two exceptions, he is also able to “ demonstrate that the underlying proceedings were so fundamentally unfair, that the entire process itself should be rendered ‘ presumptively un reliable under the Sixth Amendment. Bennett , supra .[ ’ ] ” Id. at 12. Appellant maintains that there is no difference between the court appointed PCRA attorney at issue in Bennett who failed to timely submit an appellate brief, and the court appointed PCR A attorney at issue in this matter who provides a timely b rief with a blatantly erroneous opinion. This is because the result of such attorneys ’ actions is the same

– i.e., their representation results in the functional equivalent of a complete denial of counsel. Id. at 13 (verbatim)

. Appellant first argues that he has established the exception to the PCRA
time

- bar under subsection 9545(b)(1)(i). Appellant ’ s Brief at 28

- 29. Appellant argues that government officials involved in his case interfered with his claims under the PCRA, as follows: (1) the magistrate judge w ho failed to advise co

- defendant Fleming of his right to counsel; (2) the judge who issued the warrant to allow the search of victim Dowe while co

- defendant Fleming (a primary suspect of the shooting victim) remained inJ

- A27030

- 19

- 9

-

prison without an attorney; and (3) the detective s who obtained the warrant, oversaw the search of victim Dowe, and sent the purported bullet to the Pennsylvania State Police for forensics testing. Id. at 29. Appellant further states that [i]n light of Appellant being unaware of such government officials being involved in the deprivation of his claims involving violation of the Constitution, and also not having the ability to learn (or appreciate the legal si gnificance) of such facts, Appellant submits that t h e first exception to the timely filing requirements under § 9545(b)(1)(i) is

. . . s atisfied in this instance. Id. at 29

- 30. In order to meet the statutory requirements of the “ governmental interfere nce ” exception to the PCRA ’ s one year jurisdictional time

- bar, Appellant was required to plead and prove that his “ failure to raise the claim [or claims] previously was the result of interference by government officials with the presentation of the claim [or claims] in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States

.... ” Commonwealth v. Chester , 895 A.2d 520, 523 (Pa. 2006) (emphasis in original ) (quoting 42 Pa.C.S. § 9545(b)(1)(i) )

. Appel lant ’ s argument under this exception is un clear. To the extent Appellant claims any alleged interference by the magistrate judge, the judge who issued the warrant , and the detective who obtained the warrant , we find no merit to these claims . All of these government officials were involved in Appellant ’ s case pretrial. As such, Appellant was aware of these alleged interferences at the time of trial, and could have raised them at trial, on directJ

- A27030

- 19

- 10

-

appeal, or in his first two PCRA petitions. Thus, Appellant failed to prove that h i s failure to raise these claims previously was as a result of interference by government officials. Chester , 895 A.2d at 523

- 524

. We next address Appellant ’ s assertions that he has established the exception under subsection 9545(b )(1)(ii). Appellant ’ s Brief at 16

- 28. Appellant argues that his conviction was made and upheld on appeal as a result of co

defendant Fleming being denied counsel following his preliminary arraignment as required under the Sixth Amendment and Pa.R.Crim.P. 540(H). While co

- defendant Fleming was held captive in the North ampton County prison, the Palmer Twp. p olice conducted a search of the victim co

- defendant Fleming was charged with attempting to murder, Marvin Dowe. The bullet purportedly recovered from Mr. Dowe would then be used to arrest and convict Appellant. Id. at 16

- 17. Appellant further argue s that neither his trial nor his PCRA counsel questioned “ the blatant violation of co

- defendant Fleming ’ s 6 th Amendment rights as a result of Fleming being unrepresented for over a month after his preliminary arraignment nor did Appellant ’ s prior counsel question whether such a violation impacted the constitutionality of the search of Mr. Dowe. ” Id. at 17. Appe llant continues: “ Mo st importantly, neither counsel questioned whether Appellant was afforded due process under the 5 th and 14 th Amendments of the Constitution when he was convicted to a sentence of twenty (20) to forty (40) years in prison on evidence pr oduced from an
unconstit ut ional search. ” Id.J

- A27030

- 19

- 11

-

This Court has stated the following in outlining the exception under Section 9545(b)(1)(ii) :

The timeliness exception set forth in Section 9545(b)(1)(ii) requires a petitioner to demonstrate he did not know the facts upon which he based his petition and could not have learned those facts earlier by the exercise of due diligence. Due diligence dem ands that the petitioner take reasonable steps to protect his own interests. A petitioner must explain why he could not have learned the new fact(s) earlier with the exercise of due diligence. This rule is strictly enforced. Additionally, the focus of t his exception “ is on the newly discovered facts, not on a newly discovered or newly willing source for previously known facts. ” Commonwealth v. Brown , 111 A.3d 171, 176 (Pa. Super. 2015) (internal citations omitted)

. Furthermore, Appellant ’ s claims const itute assertions of trial and PCRA counsel ineffective ness . Generally, a claim of ineffectiveness does not
constitute a “ fact ” for purposes of the timeliness exception allowed by 42 Pa.C.S.A. § 9545(b)(1)( ii)

. See Commonwealth v. Gamboa - Taylor , 7 53 A.2d 78 0, 785 (Pa. 2000) ( “ a claim for ineffective assistance of counsel does not save an otherwise untimely petition for review on the merits. ” ) (citing Commonwealth v. Lark , 746 A.2d 585, 589

– 5 90 ( Pa. 2000) ) (holding that couching argument in terms of ineffectiveness cannot save a petition that does not fall into an exception to the jurisdictional time

- bar ). Accordingly, these claims of ineffectiveness do not constitu te an exception to the PCRA tim e - bar.
In an effort to circumvent this line of cases, Appellant relies on Bennett , 930 A.2d at 1268, and asserts “ that the entire process itself should be rendered ‘ presumptively unreliable under the Sixth Amendment. ’” Appellant ’ sJ

- A27030

- 19

- 12

-

Brief at 12. Appellant maintains that PCRA counsel ’ s conclusion that introduction at trial of a second bullet removed from the victim ’ s car did not put Appellant ’ s interests at direct odd s with his co

- defendant ’ s defense was

erroneous. Id. at 12

- 13. He posits that counsel was therefore ineffective and submits herein that there is no difference between the court appointed PCRA attorney at issue in Bennett who failed to timely submit an appellate brief, and the court appointed PCRA attorney at issue in this matter who provides a timely brief with a blatantly erroneous opinion. This is because the result of such attorneys ’ actions is the same

– i.e., their representation results in the functional equivalent of a complete denial of counsel. A s recognized under Bennett , a denial of counsel mandates the presumption of prejudice because the process itself has been rendered presumptively unreliable under the Sixth Amendment. When the process is rendered presumptively unreliable, a petitioner

- defe ndant such as Appellant is to be afforded leeway in the preservation of his PCRA claims. Id. at 13

- 14 (internal quotation marks and citations omitted)

. In Bennett , our Supreme Court acknowledged the line of cases holding that an allegation of PCRA counsel ’ s ineffectiveness could not be invoked as a newly discovered “ fact ” for purposes of subsection 9545(b)(1)(ii)

. Bennet t , 930 A.2d at 1272 (citing Gamboa – Taylor , 753 A.2d at 785 ; Commonwealth v. Pursell , 749 A.2d 911, 916 (Pa. 2000) )

. The Bennett Court distinguished those cases from the procedural scenario before it , explaining that “ [t] hose cases, however, have no relevance when the claim emanates from the complete denial of counsel. ” Bennett , 930 A.2d at 1273. The Court further explained: Consi stent with this jurisprudence, this Court has recognized a distinction between situations in which counsel has narrowed theJ

- A27030

- 19

- 13

-

ambit of appellate review by the claims he has raised or foregone versus those instances, as here, in which counsel has failed to fi le an appeal at all.

. . . Accordingly, following our prior case law, we hold that the analysis set forth in Gamboa – Taylor and subsequent case law does not apply to situations when counsel abandons his client for purposes of appeal.
Bennett , 930 A.2d at 1273 (emphasis added)

. As a result, the Court held that “ [ the a] ppellant ha [d] made sufficient allegations that counsel abandoned him for purposes of his first PCRA appeal by failing to file an appellate brief and that [ the a] ppellant ’ s relief under subsection (b)(1)(ii) is not controlled by the Gamboa – Taylor line of case law. ” Id. Furthermore, the Court stated that h aving concluded that the a ppellant ’ s allegations bring his claim within the ambit of subsection (b)(1)(ii), he must sti ll prove that the facts were

“ unknown ” to him and that he could not have uncover ed them by exercis ing

“ due diligence. ” Id. at 1274. Concluding that s uch questions require d further fact

- finding and the PCRA court, acting as fact

- finder, should determine

w hether Appellant met the “ proof ” requirement under 42 Pa.C.S. § 9545(b)(1)(ii) , the Court remanded the matter t o the Superior Court for remand to the PCRA court for further consideration. Id. at 1275. Thus, we disagree with Appellant ’ s assertion that Bennett support s his claim that his PCRA petition meets the exception to the PCRA time

- bar under subsection 9545(b) (1) (ii). In the case sub judice , there is no evidence that Appellant ’ s trial or PCRA counsel abandoned him. Thus, Bennett does not apply on that basis

.J

- A27030

- 19

- 14

-

Additionally, o ur Supreme Court subsequently clarified Bennett , explaining that : The Bennett Court emphasized that any petitioner requesting a nunc pro tunc appeal based on an abandonment theory had to show due diligence and establish that t he petition was filed in accordance with subsection (b)(2). We did not authorize courts to grant post
- conviction relief in every instance where a petitioner has been abandoned by appellate counsel, and we neither stated nor implied that petitioners could circumvent the statutory filing deadline by citing Bennett as an independent basis for a new claim of ineffectiveness. Commonwealth v. Watt , 23 A.3d 980, 986 (Pa. 2011). Accordingly, even if Appellant could establish that counsel had abandoned him, he wo uld also have to prove that these facts were unknown to him and that he could not have discovered these facts earlier exercising du e diligence

. Watt , 23 A.3d at 986; Bennett , 930 A.2d at 1274. Moreover, he would have to establish a timely filing of that petition pursuant to subsection 9545(b)(2). Id. In the case herein, Appellant neither argue s n or prove s when he first learned of these newly discovered facts, wh y these facts could not have be en discovered earlier by exercising due diligence, or that he timely filed the petition in relation to those newly discovered facts

. Furthermore, we note that Appellant would have been aware of what arguments his trial and previous PCRA counsel had made o r failed to make at the time of their respective filings. Moreover, any alleged actions regarding co

- defendant Fleming and his representation or lack thereof occurred in 2006

- 2007. Appellant ’ s Brief at 18

- 23. Appellant has failed to establish why he cou ld not have uncovered thoseJ

- A27030

- 19

- 15

-

facts earlier by the exercise of due diligence

. A ccordingly, Appellant is unable
to invoke an exception on the basis of Bennett

. Accordingly, Appel lant ’ s claims amount to nothing more than assertions of trial a nd PCRA counsel ineffectiveness . As a result, Appellant ’ s claims fail to establish an exception to the PCRA time

- bar. Gamboa - Taylor , 7 53 A.2d at 785; Lark , 746 A.2d at 589

– 5 90

. Consequently, because the instant PCRA petition was untimely and no exceptions apply, the P CRA court lacked jurisdiction to address the claims presented and grant relief. See Commonwealth v. Fairiror , 809 A.2d 396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear untimely petition). Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/6/20