J

- S37006

- 22

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

v.

RONALD CLARK

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

PENNSYLVANIA

No. 2142 EDA 2021 Appeal from the PCRA Order Entered October 14, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 1241151

- 1993

BEFORE: BOWES, J., LAZARUS, J., and OLSON, J. MEMORANDUM BY BOWES, J.: FILED FEBRUARY 22, 2023 Ronald Clark appeals from the order entered on October 14, 2021 , wherein the trial court dismissed the PCRA petition as untimely. We affirm. On December 2, 1994 , a jury convicted Appellant of murder, possessi ng instrument s of crime (“PIC”), and criminal conspiracy in relation t o the October 7, 1993 shooting of Aineis Sunn Life after an argument in a Philadelphia delicatessen

. Following a penalty

- phase hearing, t he jury sentenced Appellant to death. Our Supreme Court affirmed the judgment of
sentence on April 2, 1998

. See Commonwealth v. Clark , 710 A.2d 31 (Pa. 1998). Appellant timely file d a PCRA petition asserting, inter alia , that Philadelphia Police Homicide Detective Manuel Santiago coerced a witness, Sherry Taggart , to identify him as t he assailant in a photographic array

. SeeJ

- S37006

- 22

- 2

-

Commonwealth v. Clark , 961 A.2d 80, 90 (Pa. 2008) F ollowing an evidentiary hearing, the PCRA court rejected th at claim but awarded Appellant

a new penalty

- phase hearing

. Our Supreme Court affirmed the denial of PCRA relief on the guilt

- phase claims. See Id . (“ Taggart specifically testified that she remembered no coaching by police in connection with the photo array.

. . . We conclude there was no error in the PCRA court ’ s credibility

- based findings ”). Thereafter, the Commonwealth elected to for e g o a capital
sentence , and on August 16, 2011, the trial court imposed life imprisonment for murder and concurrent term s of six to twelve months and three to six
years for PIC and criminal conspiracy, respectively

. Appellant did not file a direct appeal from his new judgment of sentence

. O n March 30, 2018 , Appellant filed pro se the instant PCRA petition invoking newly

- discovered fact s concerning al leged misconduct in an unrelated case by Detective Santiago and Detective Frank Jastrzembski , who also assisted in Appellant’s murder investigation. Essentially, Appellant pled that he discovered the pertinent allegations of police corruption and prosecutorial misconduct in that unrelated case on February 20, 2018, after reading an article published the preceding day in the Philadelphia Daily News

. The article report ed on the potential effects of the 2016 exone ration of Anthony Wright and his civil suit against Philadelphia and the eleven police detectives that investigated him

. Detective Santiago was identified in the 2018 article and both detectives were named in Mr. Wright ’ s 2016 civilJ

- S37006

- 22

- 3

-

complaint. The PCRA c ourt initially dismissed the pro se petition without a hearing, but this C ourt vacated that order, appointed counsel, and remanded the matter to the PCRA court for further proceedings

. Commonwealth v. Clark , 2762 EDA 2019 , Order filed 9/11/20. On February 1, 2021, with the assistance of counsel, Appellant filed an amended petition that raised a substantive claim assert ing that he is entitled to a new trial based upon newly

- discovered evidence that
Detectives Jastrzembski and Santiago corrupt ed M r. Wright’s criminal investigation. Re

- asserting the merits of his prior unsuccessful claim relating to the alleged coercion of Sherry Taggart, as well a s new claims of coercion relating to two other Commonwealth witnesses, Appellant argued that “[ t ] he prior PCRA court and appellate courts relied on the other witness statements but did not have any of the newly

- discove r[ed] evidence regarding the corrupt detectives” when it previously rejected his claims. See Amended PCRA Petition, 2/1/21, at 5

- 6 , 14

- 15

. The documents attached to th e amended petition included Mr. Wright’s 2016 c ivil complaint, which was laden with various allegations of police corruption in cases unrelated to Appellant’s murder conviction , including
averment s that D etective Santiago invoked his Fifth Amendment right against self

- incrimination while testifying in the criminal prosecution of Percy St. George and that Detectives Jastrzembski and Santiago concealed exculpating evidence in a case against Jimmy Dennis

. See id . Exhibit B atJ

- S37006

- 22

- 4

-

22

- 23. While none of the new facts related directly to Appellant’s murder conviction, t he amended petition also asserted a n unspecified Brady 1 c laim , ostensibly based up on the Commonwealth ’ s supposed failure to disclose to him the detect iv es’ alleged corruption in the various unrelated case s . Id

. at 6, 10

- 12. As if an afterthought, the amended petition also asserted , “Based on the pleadings, Petitioner ’ s PCRA Petition is timely filed based upon newly

discovered evidence.” Id

. at 13. 2 Following the Commonwealth ’ s response, and proper notice pursuant to
Pa.R. Crim .P. 907, the PCRA court dismissed the PCRA petition as both meritless and untimely filed wi thout exception to the PCRA time bar

. This timely appeal followed. The trial court did not order Appellant to file a concise statement of errors complained of on appeal pursuant to Pa. R.A.P . 1925(b) , but it filed a fourteen

- page opinion explaining its de cision on the merits

. Appellant presents one question for review: 1. Did the PCRA court err in dismissing Appellant ’ s PCRA Petition without a hearing because Appellant presented ongoing newly

discovered evidence relating to continued habitual practices of investigative corruption and corruption of the judicial process by Detectives Frank Jastrzembski and Manuel Santiago , detectives that organized the tainted case against Appellant, and these

_________________ __________ ______ ____ _______ 1 Brady v. Maryland , 373 U.S. 83 (1963)

.
2 The a m ended PCRA petition cites to “Ex. A” in support of proposition that the “newly

- discovered evidence” allowed him to circumvent the time

- bar

. T h e purported exhibit is not attached to any of the three copies of the amended petition included in the certified record

.J

- S37006

- 22

- 5

-

nefarious practices were never disclosed to Appellant by the Commonwealth? Appellant ’ s brief at 4. We begin with a review of the applicable legal principles. The standard of review of an order dismissing a PCRA petition is whether that determination is supported by the evidence of record and is free of legal error

. The PCRA court ’ s findings will not be disturbed unless there is no support for the findings in the certified rec ord. Further, a PCRA court has discretion to dismiss a PCRA petition without a hearing if the court is satisfied that there are no genuine issues concerning any material fact; that the defendant is not entitled to post

- conviction collateral relief; and th at no legitimate purpose would be served by further proceedings. Commonwealth v. Cruz , 223 A.3d 274, 277 (Pa.Super. 2019) (cleaned up). “It is an appellant ’ s burden to persuade us that the PCRA court erred and that relief is due.” Commonwealth v. Stansb ury , 219 A.3d 157, 161 (Pa.Super. 2019) (internal quotation marks omitted). It is well

- settled that, “[b]ecause the PCRA time limitations implicate our jurisdiction and may not be altered or disregarded in order to address the merits of a petition, we m ust start by examining the timeliness of Appellant ’ s petition.” Commonwealth v. Davis , 86 A.3d 883, 887 (Pa.Super. 2014). Indeed, “no court has jurisdiction to hear an untimely PCRA petition.” Commonwealth v. Ballance , 203 A.3d 1027, 1031 (Pa.Super. 201 9). The PCRA provides as follows regarding the time for filing a PCRA petition: Any petition [filed pursuant to the PCRA], including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petitio n alleges and the petitioner proves that:J

- S37006

- 22

- 6

- (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 Constitu tion 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 recog nized 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). Further, any petition invoking an excepti on to the

one - year time bar “shall be filed within one year of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). 3 Appellant ’ s judgment of sentence became final in 201 1, after he declined to appeal the imposition of life imprisonment following re

- sentencing

. Appellant filed the PCRA petition that is the subject of the instant appeal o n March 30, 2018 . Hence, it was facially untimely and , therefore, barred unless he pled and proved one of the aforementioned exceptio ns to the PCRA time requirement.

_________________ __________ ______ ____ _______ 3 E ffective December 24, 2018, for claims arising one year prior to that date, i. e. , December 24, 2017, o r later the period to file a petition invoking one of the three exceptions to the time

- bar was extended from sixty days to one year. 42 Pa.C.S. § 9545(b)(2). As Appellant filed his petition on March 30, 2018 . He had one year to invoke the exception.J

- S37006

- 22

- 7

-

Appellant ’ s assertions relating to his February 20 18 discovery of the alleged corruption of Detectives Jastrzembski and Santiago in the criminal prosecution of Mr. Wright effectively raises the newly

- discovered facts exception to the PCRA time

- bar. See 42 Pa.C.S. § 9545(b)(1) (ii)

. This timeliness exception “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 dilig ence.” Commonwealth v. Medina , 92 A.3d 1210, 1216 (Pa.Super. 2014) ( en banc ) (cleaned up). Due diligence requires a petitioner
to both take reasonable steps to protect his interests and explain why he could not have learned of the new evidence earlier. S ee Commonwealth v. Brensinger , 218 A.3d 440, 448

- 49 (Pa.Super. 2019) ( en banc )

. Appellant ’s amended petition and appellate brief fashion mostly

substantive , after

- discovered evidence argument s supporting his entreaty for a new trial. To the extent that he invokes the newly

- discovered fact exception to the time bar, Appellant failed to satisfy either facet of the due diligence element

. 4 Namely, he failed to identify the steps he too k to protect his

_________________ __________ ______ ____ _______ 4 To the extent that the facts contained in Wright’s 2016 exoneration and civil suit against Philadelphia were mat t ers of public record, we do not presum e the n - incarcerated Appellant to have knowledge of that information. See Commonwealth v. Burton , 158 A.3d 618, 638 ( Pa. 2017) ( holding, “ the presumption that information which is of public record cannot be deemed “unknown” for purposes of subsection 9545(b)(1)(i i) does not apply to pro se prisoner petitioners. ” ) . Significantly, however, the Supreme Court’s holding (Footnote Continued Next Page)J

- S37006

- 22

- 8

-

inter ests and neglected to provide a ny explanation as to why he could not have obtain ed the relevant information relating to the corruption and misconduct of Detectives Jastrzembski and Santiago with the exercise of due diligence. Indeed, the amended petition is completely silent as to Appe llant’s diligence in searching out evidence of misconduct in the seven years between the 2011 re - sentenc ing and his serendipitous discovery of the Philadelphia Daily News article in 20 18

. 5 For the reasons explained, infra, t his omission is fat al to the claimed exception to the PCRA’s time limitation

.

_________________ __________ ______ ____ _______ in Burton does not alleviate the concomitant requirement to ple a d and prove due diligence

. See id ( PCRA Court must still determine whether “ the facts could have been ascertained by the exercise of due diligence, including an assessment of the petitioner ’ s access to public records. ”)

.
5 That is not to say that Appellant was unaware of Detective Santiago’s involvement in his case

. As noted in the body of this memorandum , in 2008, our High Court affirmed the PC RA court’s decision to reject Appellant’s prior assertion that Detective Santiago coerced the testimony of various witnesses

. Indeed, Appellant ’s instant assertions argue , int er alia , that th e new - found fact s bolster his prior allegations of corruption. See Amended PCRA Petition, 2/1/21, at 5

- 6 ; Appellant’s brief at 11, 22

- 23 (“ Prior PCRA court and appellate courts relied on the other witness statements and detective testimony but did not have any of the newly

- discover[ed] evidence regarding the c orrupt detectives.”)

. As t he merits of the prior a llegations of misconduct have been pre viously litigated, they are not cognizable her ein. See 42 Pa.C.S. § 954 4 ( a) (3). Moreover, r egardless of Appellant’s old assertion s against detective Santiago, the amended petition that is the genesis of the instant appeal, fails to explain why Appellant could not have learned the new fact s implicati ng Detectives Jastrzembski and Santiago earlier through the exercise of due diligence

.J

- S37006

- 22

- 9

-

In Commonwealth v. Fennell , 180 A.3d 778, 782 (Pa.Super. 2018), this C ourt discussed the due diligence prong of the newly

- discovered

- fact exception as follows: Section 9545(b)(1)(ii) requires a petiti oner 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 n ewly willing source for previously known facts. Commonwealth v. Fennell , 180 A.3d 778, 782 (Pa.Super. 2018) (emphasis in original). See also Brensinger , supra (stating, d ue diligence requires petitioner to both take reasonable steps to protect h is interests and explain why he could not have learned of new evidence earlier. ). Hence, u nder the strict interpretation of § 9545(b)(1)(ii) promulgated by our precedent , it was inc umbent upon Appellant to ple a d that he exercised reasonabl e dilige nce in pursui t of salient information implicating the detectives

. While Appellant asserts that he filed the instant petition upon learning o f the Philadelphia Daily News article discussing Mr. Wright’s exoneration and civil suit against Philadelphia, he failed to present any argument that either stat es the reasonable steps that he took to protect his

own interests or explain ed why he could not h ave learne d of the new facts earlier. Hence, the exception fails. See 42 Pa.C.S. § 9545(b)(1)(ii) , Commonwealth v. Porter , 35 A.3d 4, 21

- 22 (Pa. 2012) ( finding BradyJ

- S37006

- 22

- 10

-

allegation raised in serial PCRA petition was untimely and not subject to § 9545(b)(1)(ii) where the petitioner “offered no ex planation of why, with the exercise of due diligence, the information . . . could not have been discovered” in years

- long gap between conviction and revelation). Accordingly, having concluded that the present appeal arises from an untimely filed PCRA pet ition and that no exceptions to the statutory time bar
app ly , we affirm the order dismissing the petition without a hearing. 6 Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/22/2023

_________________ __________ ______ ____ _______ 6 As noted, t he PCRA court dismissed the PCRA petition based upon both untimeliness and a lack of merit . However, the PCRA court’s Rule 1925(a) opinion stated the petition was timely pursuant to the newly

- discovered fact exception and denied relief on the merits

. As noted in the body of this memorandum, the certified record does not support the PCRA court’s volt e face

. As such, we affirm the court’s dismissal on t he basis of untimeliness

. See , e.g. , Commonwealth v. Prater , 256 A.3d 1274, 1285 (Pa.Super. 2021) (“Although the PCRA court did not deny relief for this reason, we may affirm its ruling for any reason supported by the record.”).