Com. v. Abu-Jamal, No. 485 CAP.

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: Eakin
• Citation: 941 A.2d 1263
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Mumia ABU-JAMAL, Appellant.
• Decision Date: 19 February 2008
• Docket Number: No. 485 CAP.

941 A.2d 1263 COMMONWEALTH of Pennsylvania, Appellee,
v.
Mumia ABU-JAMAL, Appellant. No. 485 CAP. Supreme Court of Pennsylvania. Submitted July 3, 2007. Decided February 19, 2008.

[941 A.2d 1265]

Judith L. Ritter, Esq., Widener University School of Law, Paul M George, Esq., McKinney & George, for Mumia Abu1-Jamal.

Amy Zapp, Esq., Hugh J. Burns, Jr., Esq., Philadelphia District. Attorney's Office, for Commonwealth of Pennsylvania.

BEFORE: CASTILLE, C.J., and SAYLOR, EAKIN, BAER, TODD and McCAFFERY, JJ.

OPINION

Justice EAKIN.

Mumia Abu-Jamal appeals from the order dismissing his third petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, as untimely. We affirm.

Appellant was sentenced to death in 1983 for the brutal shooting death of a Philadelphia police officer. This Court affirmed, Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989),¹ and the United States Supreme Court denied certiorari. Abu-Jamal v. Pennsylvania, 498 U.S. 881, 111 S.Ct. 215, 112 L.Ed.2d 175 (1990). In 1995, appellant filed a PCRA petition,² which was denied following evidentiary hearings. This Court affirmed, Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79 (1998), and certiorari was denied. Abu-Jamal v. Pennsylvania, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999).³ Appellant filed a second PCRA petition in 2001, which was dismissed as untimely;⁴ this Court affirmed, Commonwealth v. Abu-Jamal, 574 Pa. 724, 833 A.2d 719 (2003), and certiorari was denied. Abu-Jamal v. Pennsylvania, 541 U.S. 1048, 124 S.Ct. 2173, 158 L.Ed.2d 742 (2004).

On December 8, 2003, appellant filed a third PCRA petition, alleging he had new evidence that two key Commonwealth witnesses perjured themselves at trial. Specifically, appellant presented the affidavit of Yvette Williams, dated January 28, 2002. Williams stated she was in jail in December, 1981 with Cynthia White,⁵ one of the Commonwealth's eyewitnesses. Williams stated White told her she testified appellant was the shooter because the police threatened her;⁶ she had not actually seen the shooting. Williams further stated she contacted appellant's counsel with this information in December, 2001.

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Appellant also presented the unworn declaration of Kenneth Pate, dated April 18, 2003. Pate, appellant's fellow inmate, stated he had a telephone conversation in late 1983 or early 1984 with hospital security guard Priscilla Durham, who testified appellant confessed to the crime when he was brought to the hospital after the shooting for treatment of his own injuries. According to Pate, Durham said the police told her she was part of their "brotherhood," and she had to testify she heard appellant say he killed the police officer.

Appellant argued his third PCRA petition fell within 42 Pa.C.S. § 9545(b)(1)(ii)'s timeliness exception; the evidence was unknown to him and could not have been ascertained by the exercise of due diligence because its discovery was dependent on Williams and Pate coming forward.⁷ Appellant also argued his petition fell within § 9545(b)(1)(i)'s exception; his failure to raise the claim previously was the result of interference by government officials. Appellant asserted he was prevented from raising his claims earlier, claiming the prosecution's failure to disclose "that it was providing false evidence that implicated [appellant] in the homicide" constituted a Brady⁸ violation. PCRA Petition, 12/8/03, at 24.

Because Williams' and Pate's declarations were not made until the, appeal from the denial of appellant's second PCRA petition was pending, appellant claimed he was precluded from filing his third petition until after the appeal of the second petition was decided, pursuant to Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000) (when PCRA appeal is pending, subsequent PCRA petition cannot be filed until resolution of review of pending PCRA petition by highest state court in which review is sought, or at expiration of time for

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seeking such review). Having filed his petition 60 days after this Court decided the appeal of his second petition October 8, 2003, appellant asserted the petition was timely. See 42 Pa.C.S. § 9545(b)(2) (petition invoking timeliness exception shall be filed within 60 days of date claim could have been presented).

The PCRA court scheduled a hearing on the issue of whether appellant's third petition fell within the timeliness exceptions of § 9545(b)(1)(i)-(ii). Prior to the hearing, this Court decided Commonwealth v. Johnson, 580 Pa. 594, 863 A.2d 423 (2004), which held § 9545(b)(1)(ii)'s exception focused on newly-discovered facts, not on a newly-discovered or newly-willing source for previously known facts. Id., at 427. In Johnson, the defense theory was the Commonwealth's key witness conspired with the police to give false testimony. After the judgment of sentence was affirmed on direct appeal and the defendant's first PCRA petition was denied on its merits, the defendant filed a second PCRA petition that was untimely. He argued the petition fell within § 9545(b)(1)(i)-(ii)'s timeliness exceptions because the Commonwealth violated Brady by withholding impeachment evidence that the witness was a drug dealer who colluded with the police. In support of this claim, the key witness signed an affidavit stating he was a gang member and the police came to him for information. This Court affirmed the dismissal of the petition as untimely, holding there was no Brady violation because the information the defendant cited was available to him and could have been discovered with reasonable diligence. Johnson, at 426-27. We rejected the defendant's argument that even if the information was available to him prior to execution of the affidavit, the witness's subsequent admission to the facts transformed them into newly-discovered evidence: "a witness' admission of evidence previously available to a petitioner cannot resurrect an untimely PCRA claim...." Id., at 427.

The PCRA court rescheduled appellant's hearing so the parties could brief the issue of whether, under Johnson, the court lacked jurisdiction to consider the petition because it was untimely. See PCRA Court Order, 1/6/05. Following briefing, the court issued notice of its intention to dismiss the petition without a hearing, pursuant to Pa.R.Crim.P. 909(B)(2)(a). The court agreed with appellant that Lark precluded filing the current petition until the appeal of the second petition was decided October 8, 2003, and appellant had filed the current petition within 60 days of that date; however, the court concluded, under Johnson, the current petition was untimely because the evidence appellant advanced did not qualify under § 9545(b)(1)(ii). See PCRA Court Opinion, 5/27/05, at 11, 13-14. The court noted appellant's third petition did little more than reiterate the claims in his two prior petitions; the only "new" claim was that two new witnesses, Williams and Pate, came forward to testify to the previously raised claim of fabricated testimony. Id., at 14. Accordingly, the PCRA court dismissed appellant's petition as untimely; appellant now appeals.

On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are "supported by the record and without legal error. Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 97 n. 4 (2001). A second or subsequent request for PCRA relief will not be entertained unless the petitioner presents a strong prima facie showing that a miscarriage of justice may have occurred. Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d 154, 160 (1999). The PCRA's timeliness requirements are jurisdictional in nature and must be strictly construed; courts may not address the

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merits of the issues raised in a petition if it is not timely filed. See, e.g., Commonwealth v. Beasley, 559 Pa. 604, 741 A.2d 1258, 1261 (1999); Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 222 (1999); Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 641 (1998). It is the petitioner's burden to...