J-S42010-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GREGORY CAMPBELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3430 EDA 2018

Appeal from the PCRA Order Entered October 24, 2018

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0104481-1985

BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 05, 2019

Gregory Campbell appeals, pro se, from the order entered October 24, 

2018, in the Philadelphia County Court of Common Pleas, dismissing as 

untimely his serial petition for collateral relief filed pursuant to the Post 

Conviction Relief Act (“PCRA”).1 Campbell seeks relief from the judgment of 

sentence of life imprisonment, imposed on December 2, 1986, following his 

jury conviction of murder in the first degree, burglary, possession of an 

instrument of crime, and conspiracy.2 On appeal, he asserts the PCRA court 

erred in dismissing the petition as untimely because he received ineffective 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546.

2 18 Pa.C.S.A. §§ 2502(a), 3502, 907, and 903, respectively. 
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assistance of counsel, there was a miscarriage of justice, and he has newly 

discovered facts. For the reasons discussed below, we affirm.

As we write primarily for the parties, a detailed factual and procedural 

history is unnecessary. We briefly note, on November 20, 1984, Campbell, 

along with co-defendants Veleda Broaddus and Bernard Jackson forcibly 

entered the apartment of Alvin Gass, and shot and murdered him in front of 

his wife and child. Gass and his family had a prior relationship with Campbell. 

At trial, Gass’ daughter Lydia positively identified Campbell as the shooter. 

Gass’ wife, Freda Dowling was unable to identify which of the two men was 

the shooter but identified Campbell as one of the individuals involved. The 

jury convicted Campbell of the aforementioned charges on December 21, 

1985. On December 2, 1986, the trial court sentenced Campbell as noted 

above.

Following reinstatement of Campbell’s appellate rights, this Court 

affirmed the judgment of sentence on August 28, 1991. See 

Commonwealth v. Campbell, No. 1993 Philadelphia 1990 (Pa. Super. filed 

Aug. 28, 1991) (unpublished memorandum). Campbell did not seek leave to 

appeal to the Pennsylvania Supreme Court.

In January 1997, Campbell filed a PCRA petition, which the court 

dismissed on November 13, 1998. Campbell did not appeal its dismissal to 

this Court.
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On August 25, 2016, Campbell filed the instant PCRA petition 

accompanied by a memorandum of law. On May 16, 2017, Campbell filed a 

supplemental amended PCRA petition. On April 17, 2018, the PCRA court 

issued notice of its intent to dismiss the petition pursuant to Pennsylvania Rule 

of Criminal Procedure 907(1). The PCRA court granted Campbell’s request for 

a continuance and he filed responses to the Rule 907 notice in the fall of 2018. 

On October 24, 2018, the PCRA court dismissed the petition as untimely filed. 

This timely appeal follows.3

“In reviewing the denial of PCRA relief, we examine whether the PCRA 

court’s determination is supported by the record and free of legal error.” 

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016) 

(internal punctuation and citation omitted). Here, the PCRA court determined, 

inter alia, Campbell’s petition was untimely. We agree. A petitioner must file 

a PCRA within one year of the date the underlying judgment becomes final. 

See 42 Pa.C.S.A. § 9545(b)(1).

The PCRA timeliness requirement, however, is mandatory and 

jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d 

1035, 1038 (Pa. Super.2007), appeal denied, 597 Pa. 715, 951 

A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1, 

753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s 

untimeliness and reach the merits of the petition. Id.

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3 The PCRA court did not order Campbell to file a concise statement of errors 

complained of on appeal. On December 21, 2018, the PCRA court filed an 

opinion. 
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Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied, 

572 U.S. 1151 (2014).

Campbell’s judgment of sentence became final on September 27, 1991, 

30 days after this Court affirmed the judgment of sentence and Campbell

failed to seek leave to appeal to the Pennsylvania Supreme Court. See 42 

Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 113(a). Therefore, he had until September 

27, 1992, to file a timely PCRA petition. His second petition, filed August 25, 

2016, is patently untimely.

Nevertheless, we may still consider an untimely PCRA petition if one of 

the following three exceptions applies:

(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)(i-iii). 

Here, Campbell first claims he received ineffective assistance of all prior 

counsel. However, this claim does not fall within any of the statutory 

exceptions. First, the PCRA provides, “for purposes of this subchapter, 

‘government officials’ shall not include defense counsel, whether appointed or 
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retained.” 42 Pa.C.S.A. § 9545(b)(4). Therefore, Campbell’s claim does not 

fall within the “governmental interference” exception. 42 Pa.C.S.A. § 

9454(b)(1)(i). Second, our Supreme Court has held “a conclusion that 

previous counsel was ineffective is not a newly discovered ‘fact’ entitling 

Appellant to the benefit of the exception for [newly-discovered facts].” 

Commonwealth v. Gamboa–Taylor, 753 A.2d 780, 785 (Pa. 2000). 

Therefore, Campbell’s claim does not satisfy the newly discovered fact 

exception. 42 Pa.C.S.A. § 9545(b)(1)(ii). Finally, Campbell’s ineffectiveness 

claim does not implicate the PCRA’s exception for a newly recognized 

constitutional right that applies retroactively. 42 Pa.C.S.A. § 9545(b)(1)(iii).

Campbell also argues his conviction resulted from a fundamental 

miscarriage of justice. However, this assertion of “manifest injustice” and 

“miscarriage of justice” fails to overcome the PCRA time bar. 

Commonwealth v. Fahy, 737 A.2d 214, 222-223 (Pa. 1999) (rejecting 

petitioner’s assertion that miscarriage of justice standard permitted court to 

reach merits of untimely PCRA petition).

Lastly, Campbell attempts to invoke the previously unknown facts 

exception set forth in Subsection 9545(b)(1)(ii). Until recently, a petitioner 
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invoking an exception had to file his petition within 60 days of the date he or 

she could have presented the claim.

4

 

This Court has previously explained the interplay between the newly 

discovered facts exception to the timeliness requirements and a substantive 

collateral claim of after-discovered evidence as follows:

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 

demands 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 this 

exception is on the newly discovered facts, not on a newly 

discovered or newly willing source for previously known facts. 

The timeliness exception set forth at Section 9545(b)(1)(ii) has 

often mistakenly been referred to as the “after-discovered 

evidence” exception. This shorthand reference was a misnomer, 

since the plain language of subsection (b)(1)(ii) does not require 

the petitioner to allege and prove a claim of “after-discovered 

evidence.” Rather, as an initial jurisdictional threshold, Section 

9545(b)(1)(ii) requires a petitioner to allege and prove that there 

were facts unknown to him and that he exercised due diligence in 

discovering those facts. Once jurisdiction is established, a PCRA 

petitioner can present a substantive after-discovered-evidence 

claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be 

eligible for relief under PCRA, petitioner must plead and prove by 

preponderance of evidence that conviction or sentence resulted 

from, inter alia, unavailability at time of trial of exculpatory 

evidence that has subsequently become available and would have 

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4 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. § 

9545(b)(2), and now provides that a PCRA petitioner invoking a timeliness 

exception must file the petition within one year of the date the claim could 

have been presented, for all claims arising after December 24, 2017. See Act 

2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.
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changed outcome of trial if it had been introduced). In other 

words, the “new facts” exception at:

[S]ubsection (b)(1)(ii) has two components, which 

must be alleged and proved. Namely, the petitioner 

must establish that: 1) the facts upon which the 

claim was predicated were unknown and 2) could not 

have been ascertained by the exercise of due

diligence. If the petitioner alleges and proves these 

two components, then the PCRA court has jurisdiction 

over the claim under this subsection.

Thus, the “new facts” exception at Section 9545(b)(1)(ii) does not 

require any merits analysis of an underlying after-discoveredevidence claim. 

Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015) (some 

citations and quotation marks omitted, emphases in original), appeal denied, 

125 A.3d 1197 (Pa. 2015). Accordingly, before we may consider whether 

Campbell’s substantive claim of after-discovered evidence merits relief, we 

must first determine whether he has established “there were facts unknown 

to him and that he exercised due diligence in discovering those facts.” Id. at 

176. Here, Campbell has failed to do so.

Campbell may be asserting appellate counsel’s failure to file for 

permission for leave to appeal to the Pennsylvania Supreme Court constituted 

a newly discovered fact. In Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 

2007), the Pennsylvania Supreme Court determined counsel’s failure to file an 

appellate brief and perfect the appeal, which resulted in this Court’s dismissal 

of the appeal, constituted abandonment as it was “the functional equivalent 
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of having no counsel at all.” Id. at 1273. Our Supreme Court further

concluded counsel’s abandonment could serve as a newly discovered fact, as

allowing such claims to go forward would not eviscerate the time 

requirements crafted by the Legislature [in the PCRA]. Rather, 

subsection (b)(1)(ii) is a limited extension of the one-year time 

requirement under circumstances when a petitioner has not had 

the review to which he was entitled due to a circumstance that 

was beyond his control.

Id. In so holding, the Court distinguished Bennett’s claim of counsel’s 

abandonment from those claims of ineffectiveness that “narrowed the ambit 

of appellate review,” and could not fall within the purview of Section 

9545(b)(1)(ii). Id. at 1273.

Here, however, Campbell has not demonstrated he acted with due 

diligence. We affirmed the judgment of sentence in 1991. Campbell filed a 

PCRA petition in 1997. Thus, presumably, in 1997, he was aware of when his 

judgment of sentence became final. He has failed to explain why he did not 

raise the claim at that juncture. Moreover, even if Campbell was somehow 

unaware counsel had not sought leave to appeal to the Pennsylvania Supreme 

Court, he has utterly failed to explain why he waited over twenty years to 

investigate the matter. “A petitioner must . . . explain why his asserted facts 

could not have been ascertained earlier with the exercise of due diligence.” 

Commonwealth v. Taylor, 933 A.2d 1035, 1041 (Pa. Super. 2007), appeal 

denied, 951 A.2d 1163 (Pa. 2008) (citation omitted). Here, Campbell has 

failed to show he complied with the due diligence requirement of 42 Pa.C.S.A. 
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§ 9545(b)(1)(ii). See Taylor, supra at 1041. Thus, this claim does not merit 

relief.

Campbell also claimed in the memorandum of law, filed with his PCRA 

petition:

he has obtained new and reliable evidence that will absolutely

clear him of a crime he did not commit; further, he can 

demonstrate that [the] [C]ommonwealth’s witnesses, Lydia and 

Freida [sic] Dowling “who framed [defendant]” of a crime,

[defendant] can show and bring forth evidence and new witnesses 

and/or expert testimony that will exonerate him.

Memorandum of Law, 8/25/2016, at 9. However, Campbell did not attach any 

witness statements to his PCRA petition and did not elaborate on this 

contention. Nor did Campbell offer proof of when he discovered the “facts” 

underlying this contention or explain why he could not have ascertained them 

earlier with the exercise of due diligence. 

On appeal, for the first time, Campbell contends that, within sixty days 

of the date he filed his PCRA petition, he received information from an 

unnamed intermediary that his co-defendant Valeda Broaddus told the 

intermediary she lied about Campbell’s participation in the murder to the 

police. Campbell’s Brief, at 10, 24. We have long held an appellant waives 

PCRA issues on appeal that he did not raise in the PCRA petition. See 

Commonwealth v. Lauro, 819 A.2d 100, 103-04 (Pa. Super. 2003), appeal 

denied, 830 A.2d 975 (Pa. 2003) (waiving five issues not in original or 

amended PCRA petition). This includes claims of exceptions to the time-bar. 

Commonwealth v. Lewis, 63 A.3d 1274, 1280 n.3 (Pa. Super. 2013) 
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(argument on appeal, including those seeking exception from PCRA time-bar, 

must be raised and presented to PCRA court). Further, an appellant cannot 

raise a subject for the first time on appeal. See Commonwealth v. Hanford, 

937 A.2d 1094, 1098 n.3 (Pa. Super. 2007), appeal denied, 956 A.2d 432 (Pa. 

2008) (new legal theories cannot be raised for first time on appeal); Pa.R.A.P. 

302(a). Here, Campbell raised his claim about Broaddus’ alleged recantation 

for the first time on appeal, thus, he waived his contention. See Lewis, supra 

at 1280 n.3; Handford, supra at 1098 n.3; Lauro, supra at 103-04.

Accordingly, because we agree with the ruling of the PCRA court that 

Campbell did not timely file his PCRA petition and he failed to establish the 

applicability of any of the time-for-filing exceptions, we affirm the order 

dismissing his petition without first conducting an evidentiary hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/5/19