Lead Opinion
AND NOW, this 20th day of August, 2012, the order of the Court of Common Pleas of Lehigh County denying appellant’s second request for collateral relief is hereby AFFIRMED, as appellant’s petition is time-barred.
A PCRA petition must be filed within one year of the date judgment becomes final, unless a petitioner alleges and proves one of the following:
(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.
42 Pa.C.S. § 9545(b)(1). Furthermore, “[a]ny petition invoking an exception ... shall be filed within 60 days of the date the claim could have been presented.” Id., § 9545(b)(2). Because these “timeliness requirements are mandatory and jurisdictional in nature, no court may properly disregard or alter them in order to reach the merits of the claims raised in a PCRA petition that is filed in an untimely manner.” Commonwealth v. Murray,
Here, appellant cannot prove an exception to the PCRA time-bar. Information related to trial counsel’s disciplinary issues was publicly available for years, including when appellant’s first PCRA petition was being prepared. As these facts were easily discoverable and in the public record for longer than 60 days before this petition was filed, the petition is time-barred, and we lack jurisdiction to address the merits.
Jurisdiction relinquished.
Justice ORIE MELVIN did not participate in the decision of this case.
Chief Justice CASTILLE files a concurring statement.
Justice McCAFFERY files a concurring statement.
Justice SAYLOR does not wholly agree with the terms of the per curiam order and, therefore, would simply enter a per curiam affirmance.
Concurrence Opinion
concurring.
I join the Court’s per curiam affirmance of the denial of PCRA
On the time-bar question, appellant describes the documentation concerning disciplinary proceedings against his trial counsel as “newly discovered evidence” that “came to light only after new counsel was appointed to represent [appellant]” following completion of appellant’s first round of PCRA review, which concluded eight years ago, in 2004. Appellant declares that this evidence was “never before available to [appellant] or his counsel.” Piling speculation upon supposition, appellant declares that the fact of the disciplinary investigation alone proves that trial counsel’s performance was hampered by an “actual” conflict of interest because counsel supposedly “rushed forward” with trial without sufficient investigation and preparation; did so in order to obtain “substantial counsel fees” before being suspended from the practice of law; and “tread[ed] lightly” in handling appellant’s trial in anticipation of needing a favorable reference from the Lehigh County prosecutor’s office. Appellant’s Brief at 7-8.
The Commonwealth responds that appellant’s petition was untimely, noting that the relevant disciplinary documentation became publicly available in, variously, 1989 (seven years before trial), 1997 (one year after trial, while appellant’s direct appeal was under way), and 2003 (during the pendency of appellant’s first round of PCRA review, which concluded in July 2004). The Commonwealth cites testimony of the attorney who prosecuted appellant’s first PCRA petition, who was aware that disciplinary action had been taken against appellant’s trial counsel, and who evidently did not determine such action to be a basis to allege an actual conflict of interest in appellant’s first PCRA petition. The Commonwealth argues that as a matter of law, information that has been public record for years simply cannot be deemed “new” for purposes of the PCRA time-bar, and particularly not with “newness” being measured by the moment appellant or new collateral counsel stumbles upon the public record. Commonwealth’s Brief at 15-19.
In reply, appellant does not rely upon this Court’s on-point decisional law concerning “new facts” and public records, but instead depends upon inapposite federal decisional law construing the “due diligence” provision of the federal Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See 28 U.S.C. § 2244(d)(1)(D). Thus, appellant cites Wilson v. Beard,
For purposes of the PCRA time-bar, the question is whether records of disciplinary proceedings against appellant’s trial counsel may be considered facts unknowable to appellant until the day, years later, that one of his subsequent lawyers decided to look for the information. Our decisional law, which appellant ignores, counsels that the answer clearly is “No.” We have repeatedly held that once sixty days elapsed from the public dissemination of the information forming the basis for the Batson claim in the Philadelphia jury selection cases, the nature and circumstances of the allegations could no longer be considered previously unavailable facts. Commonwealth v. Fahy,
Commonwealth v. Fisher,
This Court has also found that “new facts” arising from other matters of public judicial record are insufficient to trigger the new facts exception to the PCRA time-bar, even when those matters were not as widely publicized as the Batson jury selection allegations involved in Wilson. In Commonwealth v. Hawkins,
As [the ADA] did testify at [the informant’s] 1991 public sentencing, the testimony was in public records. While the 1990 and 1991 testimony did not reveal details of an “agreement,” the facts upon which the claim is predicated are obviously present in the 1990 and 1991 testimony discussed above, and were certainly discoverable with any diligence at all. Since [the ADA’s] 2003 deposition testimony simply reflects the same information [Hawkins] had known since 1990 and 1991, we reject [Hawkins’s] claim that the facts in the 2003 deposition were previously unknown to [him] and could not have been obtained a decade earlier with the exercise of due diligence.
Hawkins,
Finally, in Commonwealth v. Chester,
This Court has held that, for purposes of [Section] 9545(b)(1)(H), information is not “unknown” to a PCRA petitioner when the information was a matter of public record. Here, the fact that trial counsel was arrested for DUI was a matter of public record and, therefore, cannot be said to have been “unknown” to [the defendant] for purposes of the PCRA’s “newly discovered evidence” exception to the PCRA’s one year jurisdictional time-bar. Accordingly, the PCRA court properly determined that [the defendant’s] argument under the “newly discovered evidence” exception fails.
Chester,
No argument has been forwarded by appellant, here or below, to acknowledge, much less distinguish, this Court’s consistent precedent concerning public records and public information. Under this authority, however, which appellant ignores, his serial PCRA petition is plainly time-barred.
Even assuming the petition is not time-barred, appellant’s “new facts” conflict of interest claim is frivolous. The standard for analyzing claims of an attorney’s conflict of interest in the context of criminal defense derives from the U.S. Supreme
In line with Cuyler, this Court has consistently held as follows with regard to claims asserting a criminal defense attorney’s conflict of interest:
An appellant cannot prevail on a preserved conflict of interest claim absent a showing of actual prejudice. Nevertheless, we presume prejudice when the appellant shows that trial counsel was burdened by an actual — rather than mere potential — conflict of interest. To show an actual conflict of interest, the appellant must demonstrate that: (1) counsel actively represented conflicting interests; and (2) those conflicting interests adversely affected his lawyer’s performance.
Commonwealth v. Collins,
Appellant’s allegations concerning the disciplinary investigation of his trial counsel do not even begin to demonstrate an actual conflict of interest. Even accepting the idle speculations that comprise appellant’s conflict argument, there are stressful matters in the personal lives of lawyers that might affect their ability to prepare for and manage a trial: financial difficulties, substance abuse, marital difficulties, sleep disorders, depression, even collateral attacks by other lawyers involving speculation concerning prior cases. But, appellant’s claim here sounds in an “actual conflict of interest,” a theory appellant prefers because he does not have to prove anything more. But, unlike cases that entail clear and direct conflicts, appellant’s trial counsel was not concurrently representing an accomplice or co-defendant; counsel had not represented the victim or the victim’s family before; and the disciplinary investigation did not even involve this case. This is not a case of conflict; it is a case of rank sophistry.
Moreover, any question of whether appellant’s trial counsel was actually conflicted must be measured by the governing law as it existed when this matter was tried. As members of the bar, lawyers are obligated to recognize and avoid actual conflicts in the first instance, just as they are obligated not to pursue baseless or frivolous claims, as here. Appellant’s current counsel is essentially claiming that trial
Notes
. Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
. Appellant effectively seeks to extend the actual conflict principles set forth by the U.S. Supreme Court in Cuyler. Cuyler, a case from 1980, was, of course, governing law at the time of appellant’s trial in 1996. But Cuyler, which involved multiple representation, does not govern. Instead, appellant’s attack upon his trial counsel, based on counsel’s disciplinary proceedings, depends upon non-controlling cases from other jurisdictions, including cases decided long after his trial.
Appellant also cites a Pennsylvania case in existence at the time of trial, Commonwealth v. Duffy,
Concurrence Opinion
concurring.
I agree with the Court that the PCRA requires that petitions for relief be filed within one year of the date a judgment of sentence becomes final, subject to three exceptions. 42 Pa.C.S. § 9545(b). In this case, the PCRA judge held that certain facts contained in internal documents maintained by the Office of Disciplinary Counsel regarding Appellant’s trial counsel could not have been discovered through the exercise of due diligence by Appellant’s prior counsel. Therefore, the judge ruled that the instant petition was timely because it was filed within 60 days of the discovery by current counsel of the contents of those documents.
The Court disposes of this matter on the basis of untimeliness. However, while the Court posits that all of the documents containing the facts upon which Appellant relies were openly available to the public long before the filing of the instant petition, the Court does not address the PCRA judge’s specific finding that certain of the newly discovered facts upon which Appellant relies were contained in internal documents, and that prior counsel was not derelict in his duty of due diligence in failing
The instant petition is Appellant’s second petition for collateral review of his death sentence. Therefore, Appellant bears the burden of making a strong pri-ma facie showing to demonstrate that a miscarriage of justice may have occurred, or that he is actually innocent. Commonwealth v. Beasley,
. Appellate review of a PCRA court’s decision is limited to examining whether the PCRA court’s findings of fact are supported by the record and whether its conclusions of law are free from legal error. Commonwealth v. Colavita,