Com. v. Kubis, G., 482 EDA 2017

Background

On Aug. 23, 2007, appellant George Kubis allegedly entered a hair salon masked, threatened and assaulted the victim, forced him to open the safe, stole money, and fled in a dark Jeep Cherokee; surveillance and a tip led police to Kubis’s Jeep where bandana, knives, and later sunglasses and gloves were recovered.
A photo array compiled by police produced an identification of Kubis by the victim; Kubis was arrested, tried, convicted by jury (Mar. 13, 2008) and sentenced to 25–50 years; this Court affirmed on direct appeal.
Earlier PCRA proceedings contested the Commonwealth’s failure to disclose a police-generated computer image (created by software called “Faces”); the PCRA court denied relief and this Court affirmed, rejecting Brady and discovery claims because Kubis knew of the effort to create the image and it was never shown to or adopted by the victim.
Kubis filed a subsequent, untimely PCRA petition (filed Mar. 30, 2015) arguing governmental interference and newly discovered facts tied to prior PCRA handling and information obtained from the tech company that made the image.
The PCRA court issued notice of intent to dismiss and dismissed the petition for lack of jurisdiction (Dec. 22, 2016); Kubis appealed pro se, and this Court affirmed the dismissal because Kubis failed to plead or prove an exception to the PCRA timeliness bar.

Issues

Issue	Kubis’s Argument	Commonwealth’s Position	Held
Whether the untimely PCRA petition fit an exception to the one-year time bar	Kubis invoked governmental interference and newly discovered facts based on alleged misconduct about the computer-generated image and prior PCRA counsel/court handling	The petition was untimely and allegations of prior counsel’s ineffectiveness or newly discovered sources do not satisfy statutory exceptions	Petition was untimely; exceptions not met and PCRA court lacked jurisdiction
Whether allegations about the Commonwealth’s failure to disclose the computer-generated image constitute Brady or discovery violations warranting relief	The image was allegedly false/misleading and nondisclosure prejudiced Kubis’s defense	Prior rulings show Kubis was aware of the image creation and it was never shown to or adopted by the victim, so no Brady or Rule-based violation	Prior appellate decision upheld no Brady/Rule violation; image would not have changed outcome
Whether ineffective assistance of counsel can excuse untimeliness under governmental-interference exception	Kubis argued appointed counsel’s perfunctory investigation and the court’s refusal to let him proceed pro se contributed to the late filing and prejudiced prior PCRA	Government points to precedent that defense counsel are not ‘‘government officials’’ for §9545(b) purposes	Ineffective assistance of counsel cannot satisfy the PCRA timeliness exceptions
Whether newly discovered facts exception applies where petitioner locates new sources or evidence after prior proceedings	Kubis relied on information from the tech company as newly discovered facts	Court distinguishes new facts from newly discovered sources for previously known facts; mere new source is insufficient	Newly discovered facts exception not met; information was a new source for previously-known issues

Key Cases Cited

Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005) (ineffective assistance cannot overcome PCRA timeliness)
Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000) (defense counsel not ‘‘government officials’’ under §9545(b))
Commonwealth v. Marshall, 947 A.2d 714 (Pa. 2008) (newly discovered facts exception requires new facts, not merely a new source for known facts)
Commonwealth v. Chambers, 35 A.3d 34 (Pa. Super. 2011) (prisoner mailbox rule for filing dates)
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (framework for permitting pro se representation)
Commonwealth v. Chester, 895 A.2d 520 (Pa. 2006) (jurisdictional consequence of untimely PCRA petitions)
Commonwealth v. Kubis, 978 A.2d 391 (Pa. Super. 2009) (direct-appeal decision affirming conviction)