J-E04003-17

2018 PA Super 47

COMMONWEALTH OF PENNSYLVANIA, 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 PostConviction 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 vehicle, 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 

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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. 
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the PCRA’s timeliness requirement.3 After careful consideration, we conclude 

that the PCRA court lacked jurisdiction to consider 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 in order to rob a check-cashing 

business where the victim’s wife worked. On September 22, 2006, 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 Order, 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 Super. 2008) (unpublished 

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 the 

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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, Appellant 
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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 exception 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 Following 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 without 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:

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did not challenge the lack of Rule 907 notice on appeal, which constitutes 

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 

limited 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).

“Crucial 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.3d 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 judgment, 

unless 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.” Chimel, 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 petition 
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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 Court 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 Court 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 June 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 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 
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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). 

Whether the petitioner meets his burden to allege and prove that one of 

the PCRA timeliness exceptions applies is 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)(ii) 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 

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. 

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

denied, 125 A.3d 1197 (Pa. 2015) (internal quotes and citations omitted) 

(emphasis added). 

A review of Appellant’s most recent PCRA petition reveals that 

Appellant’s allegations touch upon the newly discovered fact exception set 
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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 voir 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 

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6 Appellant’s PCRA petition does not expressly allege 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 information 

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 

December 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 information 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 untimely 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). 
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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 obtaining 

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 PCRA 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 Attorney 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. Although these allegations are 

made, the only pertinent letter attached to the petition is a letter dated 

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8

In its original brief, the Commonwealth asserted that Appellant’s “entire 

claim is based on a glaring factual error” as the criminal 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 was, 

in fact, convicted of a crime that would disqualify him from serving on a jury.
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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 attorney, 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 codefendant’s discovery. Also, if your family has access to the 

criminal justice 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 

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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 from 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 deficiency 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 juror #2.
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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-defendant’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 

December 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. Waiting over one year to contact either his co-defendant or his codefendant’s counsel to request 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 14th 2014 Murphy sent [Appellant] a copy of [j]uror #2[‘s] . . . 

docket sheet. [Appellant] promptly filed this PCRA after discovered [sic] that 

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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 information that Attorney O’Keefe was unable to produce.
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[juror #2] lied.” Id. In support of this allegation, Appellant attaches a handwritten document entitled “Affidavit” dated February 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 gave [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) (emphasis 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 

there 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 discovered facts upon which he now 

relies. As this Court stated in Brown, “[a] petitioner must explain why he 

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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 (10th 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. 
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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 at 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 record 

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. 

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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?
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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 the attachments to 

Appellant’s November 19, 2008 petition, we can only conclude 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 

offenses 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 

answers 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. Appellant’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 voir 
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of the 2006 jury voir dire transcript in support of his previous November 2008 

PCRA petition 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 investigating 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 exception 

to the PCRA time-bar and, as such, Appellant’s March 19, 2014 PCRA petition 

is untimely. Accordingly, the PCRA court lacked jurisdiction to consider the 

merits of the petition. 

Order affirmed.

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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 statements 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).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/2/18