J-S26040-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EARL GALE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3128 EDA 2022

Appeal from the PCRA Order Entered November 10, 2022

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

No(s): CP-23-CR-0006569-1992

BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 3, 2023

Earl Gale appeals pro se from the order denying his Post Conviction 

Relief Act (“PCRA”) petition as untimely. See 42 Pa.C.S.A. §§ 9541-9546. We 

affirm.

A jury found Gale guilty of the first-degree murder of Frank Burton, who 

was shot during a drive-by shooting. The court sentenced Gale to life 

imprisonment.

1 We affirmed the judgment of sentence, and the Pennsylvania 

Supreme Court denied Gale’s petition for allowance of appeal in November 

1995. Gale filed PCRA petitions in 1997, 2000, and 2012, none of which 

resulted in relief. 

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1 The court also sentenced Gale to two consecutive terms of 10 to 20 years’ 

imprisonment for the aggravated assaults of the surviving victims, and two 

concurrent sentences for the related convictions.
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Gale’s instant petition — his fourth — was docketed on September 12, 

2022. The certificate of service is dated May 20, 2022, and as discussed below, 

Gale argues he filed the petition on May 20 or May 24, 2022.

Gale asserted he had “newly discovered evidence support[ing] his claim 

of ineffective assistance of counsel as well as prosecutorial misconduct, which 

was not available during trial and the first PCRA proceeding.” PCRA Pet., 

9/12/22, at 3 (unpaginated). Gale attached the affidavit of another inmate, 

Theordore R. Williams, dated September 1, 2021. Williams stated in the 

affidavit that a third person, Steve Barber, told Williams during a telephone 

call in 1992 that a sheriff escorting him to a holding cell in the courthouse 

during Gale’s trial asked Barber “if the district attorney in those guys trial can 

go into [their] jury room while they are deliberating[.]” Gale’s Br., Ex. A, Aff. 

of Theodore R. Williams, 9/1/21, at 1 (unpaginated). Barber was allegedly 

referring to the jury in Gale’s case. Barber answered in the negative. The 

affidavit further stated Williams had not personally known Gale until they met 

in prison in June of 2021. Aff. at 1.

The PCRA court issued notice of its intent to dismiss the petition as 

untimely. Gale responded,

2 arguing that it was impossible for him to know the 

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2 The notice gave Gale 20 days to respond. See Pa.R.Crim.P. 907. The docket 

lists the date of service for the order as September 19, 2022, making the 

deadline Sunday, October 9, 2022. Gale’s response was dated the next day, 

Monday, October 10, 2022. Although Gale’s response was not entered on the 

docket until October 18, 2022, the court did not find it untimely and the 

Commonwealth does not argue it was untimely. We will consider it timely

(Footnote Continued Next Page)
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information in Williams’ affidavit before he received it in September 2021, he 

had acted with due diligence, and filed his petition within the following year. 

Objection to Notice of Intent, 10/28/22, at 2-3. He asserted that his petition 

“was filed via inmate mail box rule on May 20th, 2022” and the date the court 

docketed it – September 12, 2022 – “was incorrect and would be deemed 

governmental interference.” Id. at 1, 3.

The court dismissed the petition. Without addressing Gale’s contention 

that he mailed his PCRA petition in May 2022, the court deemed the petition 

untimely filed on September 12, 2022. See PCRA Court Opinion, filed 1/30/23, 

at 4-5. The court also found the petition untimely because the newly 

discovered facts on which it was premised were hearsay, and pursuant to 

precedent, inadmissible hearsay cannot meet the “new facts” exception. Id. 

at 4.3

Gale appealed. He raises the following issues:

I. [Did Gale] timely [file] his after-discovered evidence [claim] 

under the new Pennsylvania Statute?

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pursuant to the prisoner mailbox rule. See Commonwealth v. Patterson, 

931 A.2d 710, 714 (Pa.Super. 2007) (finding notice of appeal timely under 

prisoner mailbox rule where notice was dated two days before filing deadline 

and received by court on first business day following deadline); 

Commonwealth v. Saunders, 946 A.2d 776, 780 n.7 (Pa.Super. 2008) 

(finding Rule 1925(b) statement timely under prisoner mailbox rule based on 

date of proof of service).

3 The court also concluded that the petition did not state grounds for relief 

because the affidavit did not constitute after-discovered evidence. PCRA Ct. 

Op. at 5. We do not reach this issue as the petition was untimely.
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II. [Did t]he government [interfere] with [Gale’s] timely filing of 

his P.C.R.A.?

III. Is the declaration made by Theodore R. Williams a[n] 

exception to the hearsay rule?

Gale’s Br. at 5 (unpaginated) (underlining and suggested answers omitted).

Gale argues he discovered new evidence – Williams’ affidavit – on 

September 1, 2021. Gale claims the affidavit “revealed that the district 

attorney, in his case, made several visits to the juror’s ju[r]y room during 

trial.” Id. at 8. He argues it would have been impossible for him to learn this 

information earlier, and that he timely filed his PCRA petition within one year 

of his discovery, on May 20, 2022. He argues any delay in the docketing of 

his instant petition constitutes governmental interference with the timely 

presentation of his claim. 

Gale also argues the information in the affidavit should not be 

considered hearsay because the “declarant is deceased and is unavailable to 

testify to the facts stated in his declaration.” Id. at 12 (citing Pa.R.E. 

804(a)(4)). Gale does not specify whether the deceased declarant is Williams 

or Barber.4

Ultimately, Gale argues the court should have granted him an 

evidentiary hearing as “the members of the jury and sheriffs at the court at 

the time of the trial . . . are still available for further inquiry to support the 

declarant’s statements.” Id. Gale asserts it “would be a massive miscarriage 

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4 Presumably, Gale is not referring to the unidentified sheriff as the declarant.
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of justice if [he] is not afforded the opportunity at an evidentiary hearing to 

investigate the matters stated in the declaration.” Id.

“Our standard of review is well settled.” Commonwealth v. Anderson, 

234 A.3d 735, 737 (Pa.Super. 2020). “When reviewing the denial of a PCRA 

petition, we must determine whether the PCRA court’s order is supported by 

the record and free of legal error.” Id. (quoting Commonwealth v. Smith, 

181 A.3d 1168, 1174 (Pa.Super. 2018)).

The time restrictions of the PCRA are jurisdictional, and we therefore

lack jurisdiction to address the substantive claims of an untimely petition. Id.

To be timely, the petition must be filed within one year of the date the 

petitioner’s judgment of sentence became final, i.e., within one year after the 

conclusion of direct appeal or the expiration of time to seek direct review. Id.

at 737-38 (citing 42 Pa.C.S.A. § 9545(b)(1)). A petitioner filing a petition after 

that date must plead and prove one of three enumerated exceptions:

(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, the petitioner must 

file the petition within one year of the date the claim could have been 

presented. Id. at § 9545(b)(2).

Here, Gale filed his petition well after his judgment of sentence became 

final in 1996. See Commonwealth v. Gale, No. 3418 EDA 2013, unpublished 

memorandum at 3 (Pa.Super. filed Sept. 30, 2014). However, Gale claims his 

petition was timely under the “new facts” exception, alleging the facts in the 

affidavit were unknown to him until 2021 and could not have been ascertained 

earlier by the exercise of due diligence. 42 Pa.C.S.A. § 9545(b)(1)(ii). He also 

claims he filed his petition within the year following his discovery. Id. at § 

9545(b)(2). 

We need not determine whether Gale filed his petition within one year 

of the date the claim could have been presented. We agree with the trial court 

that the affidavit at best offers inadmissible hearsay that cannot meet the 

“new facts” exception.

When hearsay is offered to establish a newly discovered fact for the 

purposes of the PCRA time restrictions, the hearsay must be admissible 

through some exception. Commonwealth v. Brown, 141 A.3d 491, 501 

(Pa.Super. 2016). “A claim which rests exclusively upon inadmissible hearsay” 

will not meet the timeliness exception for previously unknown facts. Id.

(quoting Commonwealth v. Yarris, 731 A.2d 581, 592 (Pa. 1999)).

Here, the affidavit asserts Barber told Williams that a sheriff implied a 

prosecutor had entered the jury room during deliberations at Gale’s trial. Even 
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if Williams were to testify to this, and even if Barber is deceased – or even if 

both Williams and Barber are deceased – the statement by the sheriff is 

hearsay, not subject to an exception, and insufficient to plead or prove the 

“new facts” exception.

Nor did the court err in declining to hold an evidentiary hearing. A PCRA 

petitioner must shoulder the burden of pleading and proving the facts 

establishing timeliness. Commonwealth v. Pew, 189 A.3d 486, 488 

(Pa.Super. 2018). An evidentiary hearing “is for the presentation of evidence, 

not the potential discovery of evidence,” and “is not meant to function as a 

fishing expedition for any possible evidence that may support some 

speculative claim.” Commonwealth v. Heaster, 171 A.3d 268, 273-74 

(Pa.Super. 2017) (cleaned up). 

Order affirmed.

Date: 11/03/2023