Com. v. Beasley

Decision Date09 December 1999
Citation741 A.2d 1258,559 Pa. 604
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Leslie Charles X. BEASLEY, Appellant.
CourtPennsylvania Supreme Court

Robert Brett Dunham, Philadelphia, for Leslie Charles X. Beasley.

Catherine Marshall, Philadelphia, for the Com.

Robert A. Graci, Harrisburg, for Office of Atty. Gen.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

CAPPY, Justice.

This is an appeal from the order of the Court of Common Pleas of Philadelphia County denying appellant's petition seeking relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.1 For the reasons that follow, we dismiss the petition as untimely.2

In 1981, appellant was convicted of murder in the first degree and possession of instrument of crime in connection with the 1980 shooting death of Philadelphia police officer, Ernest Davis. On the evening of the shooting, the officer had arrived at a restaurant in Philadelphia in response to a radio dispatch informing that a man with a gun was present at that location. When the officer arrived at the restaurant, appellant shot and killed him.

At the penalty phase, the jury found no mitigating circumstances and two aggravating circumstances, namely, that the victim was a peace officer who was killed in the performance of his duties3 and appellant had a significant history of felony convictions involving the use or threat of violence to other persons.4 Accordingly, the jury returned a sentence of death. On direct appeal, this court affirmed appellant's conviction and sentence. Commonwealth v. Beasley, 504 Pa. 485, 475 A.2d 730 (1984).

Appellant subsequently filed a pro se petition for collateral relief pursuant to the now repealed Post Conviction Hearing Act, 42 Pa.C.S. § 9541 et seq. (PCHA). That petition was ultimately denied by the trial court. On appeal therefrom, the Superior Court vacated the death sentence and remanded the matter to the trial court for imposition of a life sentence. Commonwealth v. Beasley, 377 Pa.Super. 648, 541 A.2d 1148 (1988). That determination was, however, reversed by this court and appellant's sentence of death was reinstated. Commonwealth v. Beasley, 524 Pa. 34, 568 A.2d 1235 (1990).

Appellant then filed a pro se petition for writ of habeas corpus in the United States District Court, Eastern District of Pennsylvania. The district court granted appellant relief insofar as it ordered that the federal habeas corpus petition be held in abeyance and his execution stayed pending exhaustion of state remedies.5 Next, appellant filed a petition under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. (PCRA) which was ultimately denied without a hearing by the PCRA court. This court affirmed that denial on appeal. Commonwealth v. Beasley, 544 Pa. 554, 678 A.2d 773 (1996).

On January 16, 1997, appellant filed the instant petition for post-conviction relief, his third, wherein he raises twenty-two issues as well as additional subissues.6 The PCRA court ultimately denied the petition without holding an evidentiary hearing. This direct appeal followed.

In 1995, the Legislature amended the PCRA, effective January 16, 1996. Significantly, those amendments included time limitation restrictions on the filing of PCRA petitions. Since appellant's current petition was filed after the effective date of those amendments, the timeliness restrictions apply to this petition. See Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346 (1999)

. Those restrictions dictate that all petitions, including second and subsequent ones, be filed within one year of the date on which the judgment became final, unless one of the three enumerated exceptions, discussed infra, apply. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 641 (1998). The time restrictions are jurisdictional in nature. Id. at 641. Thus, neither the fact that the instant petition is filed in a capital case nor the fact that some of appellant's claims are couched in terms of ineffectiveness, will save this petition from application of section 9545. Id. at 643; Commonwealth v. Banks, 556 Pa. 1, 726 A.2d 374, 376 (1999).

Section 9545(b)(3) provides, in pertinent part, that a judgment becomes final at the conclusion of direct review or at the expiration of the time for seeking such review. Accordingly, since appellant did not seek review in the United States Supreme Court following this court's affirmance on direct appeal of his judgment of sentence, his judgment is deemed to have been final at the expiration of the ninety-day period allowed for the filing for certiorari which would have been on or about June 17, 1984. As the instant petition was not filed until January 16, 1997, more than twelve years later, it is therefor untimely unless appellant has pled and proven that one of the following exceptions applies:

(i) 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).7 A petition invoking one or more of these exceptions must, however, be filed within 60 days of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).

Appellant does not discuss in his brief the issue of timeliness of this third petition for post-conviction relief and, thus, does not specifically allege that any of the exceptions apply. However, since the timeliness issue implicates the jurisdiction of this court to entertain the petition, we shall address the issue sua sponte. See Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581 (1999)

.8 The statute makes clear that where, as here, the petition is untimely, it is the petitioner's burden to plead in the petition and prove that one of the exceptions applies. 42 Pa.C.S. § 9545(b)(1). That burden necessarily entails an acknowledgment by the petitioner that the PCRA petition under review is untimely but that one or more of the exceptions apply. However, since Peterkin was the first decision of this court interpreting the new amendments to the PCRA, and since appellant's PCRA petition and his brief to this court were both filed prior to that decision, we have, in the interest of fairness, reviewed the numerous issues set forth in appellant's brief in an effort to ascertain whether any of those issues arguably fit within one or more of the exceptions. That review discloses several issues which, on their face, appear to fit within an enumerated exceptions. Further analysis reveals, however, that none of those claims meet the statutory requirements for exception.

Appellant claims that the Commonwealth withheld an accurate criminal record for John McDowell, an eyewitness to the shooting. A Brady9 claim such as this seemingly falls within the exception based on interference by government officials. 42 Pa.C.S. § 9545(b)(1)(i). Appellant submits that an affidavit of McDowell reveals that he was not truly an eyewitness to the shooting; that he was promised probation on his open felony drug charges in exchange for his perjured testimony; and that he was told by the prosecution to deny that any promises were made. For several reasons, this claims fails to satisfy the requirements of (b)(1)(i).

First, this precise claim was raised by appellant in a prior PCRA petition and rejected by this court. Specifically, this court found the claim meritless because one, McDowell testified on rebuttal that just after he completed his testimony in the Commonwealth's case in chief, he was sentenced to probation on the outstanding drug charges and, therefore, the jury was aware of the lenient treatment, and two, assuming a constitutional violation did occur, McDowell's testimony was not crucial to the verdict as there were two other witnesses who testified that appellant was the shooter. Beasley, 678 A.2d at 783.

Moreover, even assuming that appellant could successfully establish his Brady claim and, thereby meet the exception found in subsection (b)(1)(i), he has still failed to satisfy the sixty-day time limitation for asserting this exception. As noted above, to qualify for any of the exceptions found in paragraph (b)(1)(i)(iii), one must not only satisfy the substantive requirements of the exception provision, but must also file a petition invoking that exception within sixty days of the date the claim could have been filed. 42 Pa. C.S. § 9545(b)(2). The affidavit on which appellant relies in support of this claims is dated May 23, 1990. As his current petition was not filed until January 16, 1997, appellant has failed to meet the sixty-day requirement.

Appellant also alleges that the Commonwealth again withheld exculpatory evidence when it failed to secure the presence of two key witnesses whom the defense sought to question. More specifically, appellant contends that the two women who were being harassed and threatened by the "man with a gun" inside the restaurant just prior to the shooting both provided statements which implicated one James Churchill and not appellant as the shooter. Appellant submits that trial counsel was aware of these witnesses, but failed to even attempt to locate these witnesses until defense testimony in the trial had begun. At that point, the prosecution was unsuccessful in securing their immediate presence and the court noted that the two witnesses would be permitted to testify only if brought forward...

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