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2018 PA Super 47

COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. ROBERT FENNELL, Appellant No. 1119 EDA 2016

Appeal from the PCRA Order of March 22 , 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0406281

- 2005

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,

SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., DUBOW, J. OPINION BY OLSON, J.: FILED MARCH 02, 2018 Appellant, Robert Fennell, appeals from the order entered on March 22, 2016 by the Court of Common Pleas of Philadelphia County dismissing as untimely Appellant’s March 19, 2014 serial petition filed pursuant to the Post

Conviction Relief Act (PCRA)

. 1 Appellant seeks relief from the judgment of sentence imposed on December 4, 2006, following his jury convictions of unlawful restraint, aggravated assault, robbery of a motor vehicl e, kidnapping, and criminal conspiracy. 2 On appeal, Appellant contends that the PCRA court erred in dismissing his claim asserting the newly discovered fact exception to

____________________________________________ 1 42 Pa. C.S.A. §§ 9541

- 9546.

2 18 Pa. C.S.A. §§ 2902, 2702(a)(1), 3702(a)(1)(ii), 2901 and 903, respectively.J

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the PCRA’s timeliness requirement. 3 After careful consideration, we conclude that th e PCRA court lack ed jurisdiction to c onsider the claims raised in the untimely PCRA petition. Accordingly, we affirm

. On February 25, 2005, Appellant and his two co

- conspirators kidnapped the victim, his family and two neighbors i n order to rob a check

- c ashing business where the victim’s wife worked. On September 22, 200 6 , a jury convicted Appellant of the above

- mentioned crimes. The trial court sentenced Appellant on November 15, 2006 to an aggregate term of imprisonment of ten to 20 years

. Sentence O rder, 11/15/06. A panel of this Court affirmed the judgment of sentence on July 16, 2008, and the Pennsylvania Supreme Court denied Appellant’s petition for allowance of appeal on April 1, 2009. Commonwealth v. Fennell, 959 A.2d 961 (Pa. Super. 2008) (un published memorandum), appeal denied , 968 A.2d 231 (Pa. 2009). Following the judgment of sentence , Appellant filed three PCRA petitions

on November 19, 2007, November 19, 2008, and November 8, 2010

. None of these petitions provided Appellant with relief. Appellant filed the present
pro se petition, his fourth, on March 19, 2014. After determining that the current petition was untimely, the PCRA court denied relief without a hearing on March 22, 2016. 4 On appeal, a divided panel of this Court reversed t he

____________________________________________ 3 42 Pa.C.S.A. § 9545(b)(1)(ii).

4 The record reveals that the PCRA court did not issue a Pa.R.Crim.P. 907 notice before it dismissed Appellant’s fourth petition. Nonetheless, AppellantJ

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PCRA court’s order dismissing Appellant’s petition. Specifically, the majority concluded that Appellant pled sufficient facts to invoke the newly discovered fact exc e ption to the PCRA’s time

- bar . Thus, the case was remanded for a hearing to permit Appellant to prove that he acted with due diligence in filing his fourth PCRA petition and, if able to do so, to demonstrate the merits of his underlying issue. The Commonwealth filed a petition for reargument which was granted on April 26, 2017. 5 Fol lowing the submission of substituted briefs and oral argument before this Court en banc , the case is ripe for decision. Appellant raises the following issue for our review:
1. Did the PCRA [c]ourt err in dismissing [A]ppellant’s serial PCRA [p]etition witho ut a hearing as untimely and declining to address [A]ppellant’s claim on the merits, specifically, whether [A]ppellant satisfied the newly

- discovered facts exception to the PCRA time

- bar pursuant to 42 Pa. C. S . § 9545(b)(1) ( ii) and 42 Pa. C.S. § 9545(b)(2) , on [A]ppellant’s claim of a juror’s allegedly disqualifying criminal record? Appellant’s Substituted Brief at 4. As our Supreme Court recently articulated:

____________________________________________ did not challenge the lack of Rule 907 notice on appeal, which consti tutes waiver of any rule

- related claim. See Commonwealth v. Boyd , 923 A.2d 513, 514, n.1 (Pa. Super. 2007), appeal denied , 932 A.2d 74 (Pa. 2007).

5 This Court’s order of April 26, 2017 granting reargument en banc also directed the Court of Common Pleas of Philadelphia County to appoint counsel for Appellant for purposes of this appeal. Order, 4/26/17. Counsel was appointed and represented Appellant for purposes of the reargument before the Court en banc

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Our review of a PCRA court’s decision is limited to determining whether the PCRA court’s findings of fact are supported by the record, and whether its conclusions of law are free from legal error. Our review of questions of law is de novo . Our scope is l imited to the PCRA court’s findings and the evidence of record, viewed in the light most favorable to the Commonwealth as the prevailing party. Commonwealth v. Chimel , 2017 WL 5616233, *5 (Pa. Nov. 22, 2017) ( internal citations and quotes omitted). “Cru cial 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.3 d 757 (Pa. 2012). The PCRA contains a jurisdictional time

- bar, which is subject to limited statutory exceptions. This time

- bar demands that “a PCRA petition, including a second or subsequent petition, must be filed within one year of a final j udgment,

u nless the petitioner alleges and proves that he is entitled to one of three exceptions to this general rule, and that the petition was filed within 60 days of the date the claim could have been presented .” C himel, supra (citation omitted) ; 42 Pa.C.S.A. § 9545(b)

. A judgment is deemed 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 review.” 42 Pa.C.S.A. § 9545 (b)(3). Further, since the time

- bar implicates the subject matter jurisdiction of our courts, we are required to determine first the timeliness of a petitionJ

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before we consider the underlying claims. Commonwealth v. Taylor , 67 A.3d 1245, 1248 (Pa. 2013), cert. denied , 134 S.Ct. 2695 (2014) (“The PCRA timeliness requirement . . . is mandatory and jurisdictional in nature. ... The court cannot ignore a petition’s untimeliness and reach the merits of the petition.”) In this case, the Pennsylvania Supreme Cou rt denied Appellant’s petition for allowance of appeal on April 1, 2009. Commonwealth v. Fennell , 968 A.2d 231 (Pa. 2009) ( per curiam ). Therefore, Appellant’s judgment of sentence became final on June 30, 2009, 90 days after the Pennsylvania Supreme Cour t denied his petition for allowance of appeal and the time for filing a petition for review with the United States Supreme Court expired. See 42 Pa.C.S.A. 9545(b)(3); U.S.Sup.Ct.R. 13. As such, to be timely, Appellant had to file his PCRA petition by Jun e 30, 2010 . Appellant’s present PCRA petition was filed on March 19, 2014 ; therefore, it is patently untimely. Nevertheless, an untimely PCRA petition may be considered if one of the following exceptions applies: (i) the failure to raise the claim previo usly 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 predicat ed 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 CourtJ

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of Pennsylvan ia 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). Whether the petitioner meets his b urden to allege and prove that one of the PCRA timeliness exceptions applies i s a threshold inquiry that must be resolved prior to considering the merits of the petition. Commonwealth v. Edmiston , 65 A.3d 339, 346 (Pa. 2013). In this case, Appellant alleges that the newly discovered fact exception set forth in Section 9545(b)(1)(i i) applies. As this Court has stated: 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), appeal denied , 125 A.3d 1197 (Pa. 2015) (internal quotes and citatio ns omitted) (emphasis added). A review of Appellant’s most recent PCRA petition reveals that Appellant’s allegations touch upon the newly discovered fact exception setJ

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forth in Section 9545(b)( 1 )(ii). 6 Specifically, Appellant alleges that he discovered that one of the jurors from his trial provided false information regarding that juror’s criminal background during voi r dire and the juror’s perjured statement violated Appellant’s constitutional rights as the juror’s conviction would have constituted a valid basis to strike him for cause

. PCRA Petition, 3/19/14, at 15, 18

- 19 (unpaginated). 7 Appellant asserts that he was

____________________________________________ 6 Appellant’s PCRA petition does not expressly a llege or reference the newly discovered fact exception. Instead, the petition alleges “equitable tolling .” PCRA Petition, 3/19/14, at 19 (unpaginated). Specifically, Appellant asserts that he diligently pursued his claims; however, correctional officers improperly confiscated and destroyed his petitions, notes of testimony and other evidence. Thus, he argues that the “PCRA statute is . . . subject to equitable tolling.” Id. As our Supreme Court has made clear, “the period for filing a PCRA petition is not subject to the doctrine of equitable tolling; instead the time for filing a PCRA petition can be extended only by operation of one of the statutorily enumerated exceptions to the PCRA time

- bar.” Commonwealth v. Robinson , 139 A.3d 178, 185 (Pa. 2016) (internal citations and quotes omitted). Because of this, we could dismiss this most recent PCRA petition for failure to assert properly the newly discovered fact exception. However, since the petition does allege that Appellant did not receive informati on regarding juror #2 until December 31, 2013 and February 14, 2014, we agree that Appellant’s petition sufficiently raises the newly discovered fact exception

.

7 Title 42, Section 4502(a)(3) provides, in pertinent part: (a) General rule.

– Every citizen of this Commonwealth who is of the required minimum age of voting for State or local officials and who resides in the county shall be qualified to serve as a juror therein unless such citizen:

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not able to obtain the transcript of the September 18, 2006 jury voir dire until
D ecember 31, 2013 at which time he saw that juror #2 stated under oath that he was never convicted of a crime. Id. at 19 (unpaginated). Moreover, Appellant alleges that it was not until February 14, 2014 that he obtained the criminal background informatio n regarding juror # 2 which revealed that this juror lied under oath as he had been convicted of a crime and, therefore, was unqualified to serve on the jury. Id. As the current PCRA petition was filed on March 19, 2014, less than 60 days after he learned of the juror’s criminal conviction, Appellant argues that he properly invoked an exception to the
time

- bar. Moreover, Appellant argues that he was “duly diligent in obtaining the voir dire notes of testimony of September 18, 2006, which he contends

were obtained on December 31, 2013” and was “duly diligent when obtaining juror #2’s criminal record, which [A]ppellant obtained from a fellow inmate on or about February 14, 2014.” Appellant’s Substituted Brief at 10. After a careful review of the record, we conclude that Appellant’s March 19, 2014 petition was un timely as Appellant did not act diligently in obtaining

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(3) has been convicted of a crime punishable by imprisonment for more than one year and has not been granted a pardon or amnesty therefor. 42 Pa.C.S.A. § 4502(a)(3).J

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the alleged information regarding juror #2. 8 Additionally, Appellant did not file his PCRA petition within the requisite 60 days after first o btaining information regarding juror #2’s voir dire testimony. Accordingly, Appellant failed to establish the applicability of the newly discovered fact exception which would confer subject matter jurisdiction on the PCRA court. Attached to the instant PC RA petition is a hand

- written statement prepared by Appellant in which he alleges that he wrote to his trial counsel Attorney Scott J. O’Keefe (now Judge O’Keefe) on September 23, 2006 (shortly after the conclusion of the jury trial in which Appellant was found guilty) and requested his files. PCRA Petition, 3/19/14, at 15 (unpaginated). On September 29, 2006, Attorney O’Keefe allegedly sent a letter with one trial transcript and indicated that was all he had. Id. Appellant claims he did not believe Atto rney O’Keefe’s representation that that was all he had, so Appellant alleges he sent a letter to Attorney O’Keefe every 15 days from October 10, 2006 until November 18, 2007 asking for copies of all of his paperwork and each request was ignored. Id. Alth ough these allegations are made, the only pertinent letter attached to the petition is a letter dated

____________________________________________ 8 In its original brief, the Commonwealth asserted that Appellant’s “entire claim is based on a glaring factual error” as the crimina l history provided to Appellant by a fellow prison inmate did not apply to juror #2 but to another individual. Appellee’s Brief at 12, n. 4. As we conclude that Appellant’s PCRA petition is untimely, we need not get into the merits of whether juror #2 wa s, in fact, convicted of a crime that would disqualify him from serving on a jury.J

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October 11, 2012 from Emily Cherniack, Esquire (Appellant’s second lawyer) to Appellant. 9 This letter reads in relevant part:
Enclosed is a copy of your transcripts in the above

- captioned matter which I have retained. I do not have the discovery in your matter. I will check again but I believe Mr. O’Keefe as your trial attorney may have retained a copy. As I was relieved as your court appointed attorne y, I have no ability to request your discovery for you. I can make two suggestions to you. First, if Mr. O’Keefe no longer has the file, Mr. Ostriak may have a copy of your co defendant’s discovery . Also, if your family has access to the criminal justic e center, some or much of the police paperwork may be in the file as exhibits in the court file. Id. at 14 (unpaginated) (emphasis added). Thus, as early as October 11, 2012, Appellant was advised by his second counsel that she did not have the documents requested and that, if Attorney O’Keefe did not have the

____________________________________________ 9 Appellant attached copies of other letters to his initial pro se brief, including letters from Attorney O’Keefe dated March 14, 2007 and September 30, 2013, and letters fr om Jason Javie of Michael J. Diamondson, P.C. dated March 18, 2012 and August 20, 2012. These letters were not attached to the March 19, 2014 PCRA petition and, although some of these letters were attached to prior PCRA petitions filed by Appellant, it is not clear that all of the letters were included with earlier PCRA submissions . To the extent that these letters were not made part of the certified record, we cannot consider them. Commonwealth v. Preston , 904 A.2d 1, 7 (Pa. Super. 2006) (if a document is not in the certified record, the Superior Court may not consider it), appeal denied 916 A.2d 632 (Pa. 2007). See also Commonwealth v. Kennedy , 868 A.2d 582, 593 (Pa. Super

. 2006) (Any document not in the certified record is deemed non

- existent, a defic iency which cannot be remedied merely by attaching the missing documents to the brief.). Even if we were to consider these documents, they do not support the conclusion that Appellant acted diligently in ascertaining the newly discovered facts regarding j uror #2.J

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documents (a fact which Appellant knew as he alleged that he repeatedly requested documents from Attorney O’Keefe starting in 2006 and received only one transcript), he should contact his co

- defenda nt’s lawyer to see if he had copies of the desired materials . Apparently, that is what Appellant ultimately did as he alleges in his PCRA petition that he received a copy of the relevant jury voir dire transcript from his co

- defendant, Lamont Childs, on
D ecember 31, 2013, more than one year after he was advised by Attorney Cherniack to contact his co

- defendant’s counsel to see if he had the requested materials. W aiting over one year to contact ei ther his co

- defendant or his co

defendant’s counsel to reque st the relevant transcript does not sufficiently allege that Appellant acted with due diligence. 10 Additionally, Appellant alleges in his petition that, after receiving the pertinent jury voir dire transcript on December 31, 2013, he requested the help of a fellow prisoner, Anthony Murphy, on January 31, 2014. PCRA Petition, 3/19/14, at 19 (unpaginated). Appellant asserts “[t]his prisoner . . . agreed to have his friends run a back ground [ sic ] search of several juror[s]. On February 14 th 2014 Murphy se nt [Appellant] a copy of [j]uror #2[‘s] . . . docket sheet. [Appellant] promptly filed this PCRA after discovered [ sic ] that

____________________________________________ 10 Appellant’s co

- defendant and co

- defendant’s counsel were known to Appellant as potential sources of relevant information as early as the time of trial in 2006. Clearly, then, they should have been investigative targets for any supplemental inf ormation that Attorney O’Keefe was unable to produce.J

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[juror #2] lied.” Id. In support of this allegation, Appellant attaches a hand

written document entitled “Affidavit” dated Febru ary 15, 2014 purportedly signed by Anthony Murphy. 11 That document provides in its entirety: I Anthony Murphy FW0863 hearby [ sic ] declare that the following facts are true and correct to the best of my knowledge & belief[.] On February 15 [ sic ] 2014 I gav e [Appellant] a common pleas docket sheet with the name of [W.C. ] [.] [Appellant] has been asking me to help him to get a background report for over a year but I could not get it until Feb 13 2004 [ sic ] [.] PCRA Petition, 3/19/14 at 10 (unpaginated) (emph asis added). Thus, Appellant’s own petition indicates that he knew about juror #2 and had been seeking a background report on the juror in question for over a year. Moreover, Appellant fails to explain why Anthony Murphy was the sole source of juror #2’s criminal history or why he did not pursue other avenues when the re was a delay in obtaining the requested information from Mr. Murphy. Hence, the record does not support the conclusion that Appellant acted with due diligence in obtaining the newly discov ered facts upon which he now relies. As this Court stated in Brown , “[a] petitioner must explain why he

____________________________________________ 11 Although captioned “Affidavit , ” the document purportedly signed by Anthony Murphy is not an affidavit. An affidavit is “[a] voluntary declaration of facts written down and sworn to by a declarant . . . before an officer authorized to administer oaths.” Black’s Law Dictionary (10 th ed. 2014) (emphasis added). Nothing on the document purportedly signed by Mr. Murphy indicates that Mr. Murphy swore to or affirmed the statements made in the document before an officer authorized to administer oaths.J

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could not have learned the new fact(s) earlier with the exercise of due diligence. This rule is strictly enforced.” Commonwealth v. Brown, 111 A.3d a t 176 (emphasis supplied). Most troubling of all is that the allegations set forth in Appellant’s March 19, 2014 PCRA petition regarding his inability to obtain the jury voir dire transcript do not appear to be truthful. Contained within the certified re cord is the PCRA petition filed by Appellant on November 19, 2008, just two years after his conviction. Appellant attached to that petition a typed

- written document that contains a section entitled “Basic and Fundamental Error’s [ sic ]

. ” PCRA Petition, 11/19/08 at 35. In that section, Appellant asserts that juror #29, S.C., was stricken for cause based on her testimony that she was a victim of a crime. Id. Appellant then cites to notes of testimony (pages 186

- 187) and quotes the question posed to juror #29 and her answer. 12 Id.

____________________________________________ 12 We note that the quote contained in Appellant’s November 19, 2008 PCRA petition is not identical to the language contained in the notes of testimony from the jury voir dire proceeding on September 18, 2006. Appellant’s PCRA petition states: (The Court) Q. Have you or someone close to you been the victim of a crime? (Juror #29) A. Yes, me, [i]t was a [r]obbery. PCRA Petition, 11/19/08 at 35. The notes of testimony from the voir dire proceeding read : The Court: You or someone close to you has been the victim of a crime?J

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This attachment goes on to reference other jurors who were stricken for cause and cites to the relevant transcript pages. Id. Based on th e attachments to Appellant’s November 19, 2008 petition , we can only concl ude that Appellant had the relevant notes of testimony from the September 18, 2006 jury voir dire proceeding as early as November 2008. 13 Appellant’s possession and use

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Juror #29: Yes. The Court: Who would that have been? Juror #29: Me. The Court: Did it involve the same or similar type of offense or offense s that you heard mentioned here? Juror #29: No. The Court: Was it robbery, assault? Juror #29: it was a robbery. N.T., 9/18/06, at 186

- 187. Although not identical, Appellant’s November 19, 2008 PCRA Petition accurately reflects the contents of the questions and answer s with respect to juror #29 and correctly references the pages of the notes of testimony.

13 In his substituted brief, Appellant acknowledges the argument that Appellant had the September 18, 2006 voir dire transcript prior to November 19, 2008. Appellan t’s Substituted Brief at 11. However, Appellant goes on to argue that he “contends otherwise” and “[f]or this reason alone, an evidentiary hearing is warranted so that the trial court may make its evidentiary determination.” Id. We disagree. It is well established that a hearing is not necessary when a petitioner’s claim is patently frivolous and is without a trace of support in the record or from other evidence. Commonwealth v. Jordan , 772 A.2d 1011, 1014 (Pa. Super. 2001). Here, the certified record belies Appellant’s contention that he first obtained the voirJ

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of the 2006 jury voir dire transcript in support of his previous November 2008
PCRA pet ition wholly undercuts the credibility of his present assertion that he did not obtain the jury voir dire transcript until December 31, 2013. In addition, Appellant’s earlier possession of the jury voir dire transcript advances the trigger date for invest igating claims concerning the veracity of juror #2’s responses to questions posed by the trial judge. 14 For the foregoing reasons, we conclude that Appellant failed to meet his burden of establishing the applicability of the newly discovered fact exceptio n to the PCRA time

- bar and, as such, Appellant’s March 19, 2014 PCRA petition
is un timely. A ccordingly, the PCRA court lacked jurisdiction to consider the merits of the petition. Order affirmed.

____________________________________________ dire transcript on December 31, 2013; therefore, a hearing is not warranted. See Commonwealth v. Eichinger , 108 A.3d 821, 849 (Pa. 2014) (“If a PCRA petitioner’s . . . allegations are refuted by the existing record, an evidentiary hearing is unwarranted.”).

14 Indeed, even the content of Mr. Murphy’s statement strongly supports the conclusion that Appellant has long harbored, but failed to act upon, suspicions that juror #2 made false statemen ts regarding his criminal history. In his statement, Mr. Murphy declared that Appellant had requested his assistance in securing background information “ for over a year .” See PCRA Petition, 3/19/14, at “Affidavit” of Anthony Murphy (emphasis added).J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/2/18