J-S10029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BERNARD JACKSON,

Appellant No. 1097 EDA 2015

Appeal from the PCRA Order Entered March 23, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0600971-1985

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 05, 2016

Appellant, Bernard Jackson, appeals pro se from the post-conviction 

court’s March 23, 2015 order dismissing, as untimely, his petition filed under 

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

This Court previously summarized the facts of Appellant’s case, as 

follows:

On November 20, 1984, [A]ppellant, ... along with codefendants, Gregory Campbell and Veleda Broaddus, forcibly 

entered the apartment of Alvin Gass, shot and murdered him. 

Appellant was not the actual triggerman. Present in the 

apartment at the time of the shooting were the victim’s wife, 

Freda Dowling, their thirteen year old daughter, Lydia[,] and 

other children of the couple. Broaddus, known to the victim’s 

family as “Miss Marie,” was positioned outside the apartment 

door. Broaddus asked the victim’s daughter, Lydia[,] whether 

her parents were home. Lydia replied that they were not. Soon 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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thereafter, Broaddus was joined by Campbell, known by the 

victim’s family, and [Appellant], later identified, who were seen 

by the victim’s daughter conversing outside the apartment 

building moments earlier.

Again, following a knock on the door, Lydia was asked 

from outside the apartment door whether her parents were 

home and again she stated that they were not. When Lydia 

refused to open the door to the apartment for the perpetrators, 

the door was kicked open. Appellant was identified as the male 

who entered the apartment and pushed Freda Dowling to the 

floor while his co-defendant, Campbell, fired on the victim, Alvin 

Gass[,] from the doorway.

Appellant was identified by the victim’s wife, Freda 

Dowling, by photo array conducted four days after the shooting. 

... Appellant was again identified by Dowling at the time of the 

trial. 

Commonwealth v. Jackson, No. 3216 Philadelphia 1986, unpublished 

memorandum at 1-2 (Pa. Super. filed May 17, 1988).

Following a jury trial alongside co-defendants Campbell and Broaddus, 

Appellant was convicted of first-degree murder, burglary, and criminal 

conspiracy. 

[Appellant] appealed from the judgment of sentence and on May 

17, 1988, the Superior Court affirmed the judgement of 

sentence. [] Jackson, [supra]. [Appellant] thereafter filed a 

pro se PCRA petition in August [of] 1988. On March 5, 1991, the 

lower court dismissed [Appellant’s] PCRA petition. The Superior 

Court subsequently affirmed the dismissal of [Appellant’s] 

petition. [Commonwealth v. Jackson, No. 00894 Philadelphia 

1991, unpublished memorandum (Pa. Super. filed October 8, 

1992)]. ... On May 23, 2014, [Appellant] filed the current pro se 

PCRA petition. Pursuant to Pennsylvania Rule of Criminal 

Procedure 907, [Appellant] was served with notice of the court’s 

intention to dismiss his PCRA petition on September 26, 2014. 

[Appellant] filed a [pro se] response to the court’s Rule 907 

notice on October 14, 2014. The lower court dismissed 

[Appellant’s] petition as untimely on March 23, 2015. 
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[Appellant] filed the instant, pro se notice of appeal to the 

Superior Court on April 6, 2015.

PCRA Court Opinion (PCO), 4/24/15, at 1-2.

The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal, but the court did issue 

a Rule 1925(a) opinion on April 24, 2015. Herein, Appellant raises five 

issues for our review:

1. Did the []PCRA[] court commit reversible error by failing to 

properly consider the materail [sic] record/facts pertaining to 

Appellant’s submission of newly discovered evidence (affidavit) 

relevant to such claim?

2. Did the PCRA court err and commit reversible error when it 

dismissed Appellant’s petition holding him to the strictures of an 

attorney?

3. Did the PCRA court err and commit reversible error when it 

dismissed Appellant’s petition [and] failing to apply the standard 

set-forth [sic] in the PCRA form page 2 paragraph 4 

subparagraph (v)?

4. Did the PCRA court err and commit reversible error when it 

omitted in its opinion page 4 the facts of record upon which 

Appellant’s claims are predicated and completely failed to 

mention that trial counsel did not file a notice of alibi claims that 

are properly preserved and presented to the court for review?

5. Does the supporting discussion as to Appellant’s diligence to 

obtain the newly discovered evidence merit remand to the PCRA 

court for an evidentiary hearing?

Appellant’s Brief at 3.

This Court’s standard of review regarding an order denying a petition 

under the PCRA is whether the determination of the PCRA court is supported 

by the evidence of record and is free of legal error. Commonwealth v. 

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the 
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timeliness of Appellant’s petition, because the PCRA time limitations 

implicate our jurisdiction and may not be altered or disregarded in order to 

address the merits of a petition. Commonwealth v. Bennett, 930 A.2d 

1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our 

jurisdiction and may not be altered or disregarded to address the merits of 

the petition). Under the PCRA, any petition for post-conviction relief, 

including a second or subsequent one, must be filed within one year of the 

date the judgment of sentence becomes final, unless one of the following 

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies: 

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second 

or subsequent petition, shall be filed within one year of the 

date the judgment becomes final, unless the petition 

alleges and the petitioner proves that: 

(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. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of 

these exceptions “shall be filed within 60 days of the date the claim could 

have been presented.” 42 Pa.C.S. § 9545(b)(2).

Here, Appellant’s judgment of sentence became final on June 16, 

1988, at the expiration of the thirty-day time-period for seeking review with 

the Pennsylvania Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (directing 

that judgment of sentence becomes final at the conclusion of direct review 

or the expiration of the time for seeking the review); Pa.R.A.P. 1113(a) 

(stating, “a petition for allowance of appeal shall be filed with the 

Prothonotary of the Supreme Court within 30 days of the entry of the order 

of the Superior Court sought to be reviewed”). Thus, Appellant’s May 23, 

2014 PCRA petition is patently untimely and, for this Court to have 

jurisdiction to review the merits thereof, Appellant must prove that he meets 

one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S. 

§ 9545(b). 

Instantly, Appellant argues that he meets the after-discovered 

evidence exception of Section 9545(b)(1)(ii) based on an affidavit he 

received from Veleda Broaddus. In that affidavit, notorized on May 19, 

2014, Ms. Broaddus presents an alibi for Appellant (as well as herself), 

claiming that she and Appellant were both in her home, with her three 

children, at the time of the murder of Alvin Gass. She further maintains that 

her attorney failed to proffer her alibi defense, and that Appellant’s trial 

counsel never contacted her or her children about providing an alibi for 
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Appellant. Finally, she stated that she is willing to testify as an alibi witness 

for Appellant if he is afforded a new trial. 

In Commonwealth v. Marshall, 947 A.2d 714 (Pa. 2008), our 

Supreme Court explained that, 

[e]xception (b)(1)(ii) “requires petitioner to allege and prove 

that there were ‘facts' that were ‘unknown’ to him” and that he 

could not have ascertained those facts by the exercise of “due 

diligence.” [] Bennett, ... 930 A.2d [at] 1270–72 ... (emphasis 

added). The focus of the exception is “on [the] newly discovered 

facts, not on a newly discovered or newly willing source for 

previously known facts.” Commonwealth v. Johnson, 580 Pa. 

594, 863 A.2d 423, 427 (2004) (emphasis in original). In 

Johnson, this Court rejected the petitioner's argument that a 

witness's subsequent admission of alleged facts brought a claim 

within the scope of exception (b)(1)(ii) even though the facts 

had been available to the petitioner beforehand. Relying on 

Johnson, this Court more recently held that an affidavit alleging 

perjury did not bring a petitioner's claim of fabricated testimony 

within the scope of exception (b)(1)(ii) because the only “new” 

aspect of the claim was that a new witness had come forward to 

testify regarding the previously raised claim. [Commonwealth 

v.] Abu–Jamal, [941 A.2d 1263,] 1267 [Pa. 2008)]. 

Specifically, we held that the fact that the petitioner “discovered 

yet another conduit for the same claim of perjury does not 

transform his latest source into evidence falling within the ambit 

of [Section] 9545(b)(1)(ii).” Id. at 1269.

Marshall, 947 A.2d at 720 (footnote omitted).

In this case, even if we presume that Ms. Broaddus’ alibi is credible, 

Appellant obviously became aware of the ‘fact’ of this alibi defense on the 

day he was arrested and informed that he was charged with the November 

20, 1984 murder of Alvin Gass. Therefore, Ms. Broaddus’ admission of this 

alibi in her affidavit is merely a new source of a fact that Appellant 

previously knew. See Johnson, 863 A.2s at 602. Likewise, Ms. Broaddus’ 
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statement in her affidavit that Appellant’s counsel never ‘summoned’ her or 

her children to provide alibi testimony is also a ‘fact’ that was known to 

Appellant at the time of trial. While Appellant now contends that his trial 

counsel acted ineffectively by not pursing this alibi defense, “it is well settled 

that allegations of ineffective assistance of counsel will not overcome the 

jurisdictional timeliness requirements of the PCRA.” Commonwealth v. 

Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (citations omitted). We also 

stress that Appellant could have raised counsel’s alleged ineffectiveness on 

direct appeal,1or in his first PCRA petition, yet he failed to do so.

In sum, Appellant has not proven that Ms. Broaddus’ affidavit satisfies 

the timeliness exception of Section 9545(b)(1)(ii). Accordingly, we are 

without jurisdiction to assess the merits of his claims, and the PCRA court 

did not err in dismissing his untimely petition.

Order affirmed.

____________________________________________

1 Appellant’s direct appeal was filed prior to Commonwealth v. Grant, 813 

A.2d 726 (Pa. 2002), in which our Supreme Court held that “as a general 

rule, a petitioner should wait to raise claims of ineffective assistance of trial 

counsel until collateral review.” Id. at 738 (footnote omitted). Therefore, 

Appellant could have asserted, on direct appeal, that his trial counsel 

ineffectively failed to pursue, and/or present, the alibi testimony of Ms. 

Broaddus and her children.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/5/2016