Com. v. Breakiron

Decision Date26 September 2001
Citation566 Pa. 323,781 A.2d 94
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Mark BREAKIRON, Appellant.
CourtPennsylvania Supreme Court

Stuart Brian Lev, Philadelphia, James Milton Anderson, for Mark Breakiron.

Marianne Kreisher Fogelsanger, Robert A. Graci, Harrisburg, for Com.



ZAPPALA, Justice.

This is a direct appeal from the denial of Appellant's second petition for post-conviction relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The common pleas court found that the petition was untimely and dismissed it for lack of jurisdiction. For the reasons that follow, we affirm.1

On April 13, 1988, Appellant was convicted of first-degree murder and robbery and was subsequently sentenced to death. On March 14, 1990, our Court affirmed Appellant's conviction and sentence, Commonwealth v. Breakiron, 524 Pa. 282, 571 A.2d 1035 (1990), and the United States Supreme Court denied certiorari. Breakiron v. Pennsylvania, 498 U.S. 881, 111 S.Ct. 224, 112 L.Ed.2d 179 (1990). In 1996, Appellant filed a pro se motion for post-conviction relief. Counsel was appointed and an amended petition was filed. Evidentiary hearings were held and the trial court denied post-conviction relief in 1998. Our Court subsequently affirmed the denial of relief, Commonwealth v. Breakiron, 556 Pa. 519, 729 A.2d 1088 (1999), and the United States Supreme Court again denied certiorari. Breakiron v. Pennsylvania, 528 U.S. 1169, 120 S.Ct. 1193, 145 L.Ed.2d 1098 (2000).

The Governor subsequently signed a death warrant setting April 6, 2000, as Appellant's execution date. On February 14, 2000, Appellant's new counsel filed a Motion for Stay of Execution in federal court. The next day, United States District Judge William Standish issued an order granting a stay of execution and ordered Appellant to file a petition for writ of habeas corpus.

On March 24, 2000, Appellant filed the instant Petition for Habeas Corpus Relief Pursuant to Article I, Section 14 of the Pennsylvania Constitution and Statutory Post Conviction Relief Under 42 Pa.C.S. § 9542 et seq. and Consolidated Memorandum of Law.2 The common pleas court held a hearing solely on the issue of the timeliness of Appellant's petition. The court found that Appellant's petition, which was filed nearly ten years after his conviction became final, was untimely and that he failed to establish any exception to the one year filing requirement. It concluded that it therefore lacked jurisdiction to determine the merits of the petition and dismissed it with prejudice.

On appeal to this Court, Appellant raises eleven issues for review.3 Before reaching the merits of any issue, however, we must determine the propriety of the common pleas court's dismissal of the petition on the ground that it is untimely.4 The PCRA time restrictions are jurisdictional in nature. Commonwealth v. Peterkin, 722 A.2d 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 the petition from application of section 9545 of the PCRA. Commonwealth v. Banks, 556 Pa. 1, 726 A.2d 374, 376 (1999). This section provides that any PCRA petition, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment becomes final at the conclusion of direct review or at the expiration of time for seeking the review. Id. at 9545(b)(3).

Appellant concedes that the present petition was filed outside the mandatory one year filing requirement. Direct review of Appellant's judgment concluded on October 1, 1990, when the United States Supreme Court denied the petition for a writ of certiorari. Appellant's second PCRA petition, the subject of this appeal, was filed on March 24, 2000, almost ten years later. The petition is therefore untimely unless Appellant is able to demonstrate that one of the following exceptions applies:

(i) the failure to raise the claim 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.

Id. at § 9545(b)(1)(i)-(iii).

A petition invoking one of the above exceptions must be filed within 60 days of the date the claim could have been presented. Id. at 9545(b)(2). Appellant argues that his petition is timely and therefore should be addressed on the merits because issue (a), as set forth in footnote three supra, satisfies the governmental interference exception of section 9545(b)(1)(i), and issue (b) satisfies the after-discovered evidence exception of section 9545(b)(1)(ii). Appellant further contends that the remainder of his claims should be addressed on the merits because they involve the "gross ineffectiveness" of counsel for failing to raise them.

We first discuss the claim involving allegations of governmental interference. Specifically, Appellant contends that the Commonwealth violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by concealing material exculpatory evidence regarding Commonwealth witness, Ellis Price. According to Appellant, the Commonwealth: (1) failed to disclose Price's complete criminal record to the defense at the time of trial; (2) failed to correct Price when he falsely testified about his record; (3) failed to reveal that Price had a non-final criminal conviction at the time of trial, giving him a substantial incentive to "curry favor" with the Commonwealth; and, (4) failed to disclose that Appellant admitted to Price that he (Appellant) was "out of it" on the night of the murder.

Appellant argues that the failure to previously raise these claims was the result of interference by government officials, i.e., the Commonwealth's violation of its continuing obligation to disclose Brady material.5 Although a properly plead Brady claim may fall within the governmental interference exception, Commonwealth v. Beasley, 559 Pa. 604, 741 A.2d 1258, 1261 (1999), a petition invoking the exception must be filed within 60 days of the date the claim could have been filed pursuant to section 9545(b)(2). Id. at 1261-1262. In the instant case, Appellant failed to set forth any evidence as to when and how he discovered the Brady material that the Commonwealth allegedly withheld from him. He fails to offer a reasonable explanation as to why this information, with the exercise of due diligence, could not have been obtained earlier.6 See Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581, 590 (1999) (60 day requirement of section 9545(b)(2) not satisfied where defendant fails to explain why information in statements at issue could not, with the exercise of due diligence, been obtained earlier); Commonwealth v. Vega, 754 A.2d 714, 718 (Pa.Super.2000) (60 day requirement of section 9545(b)(2) not met when defendant failed to provide date on which he learned of evidence giving rise to after-discovered evidence claim).

Instead, Appellant argues that the claims are timely because they were filed within 60 days of the date the United States Supreme Court denied certiorari from our Court's affirmance of the denial of his first PCRA petition. He relies on our recent decision in Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000). In Lark, the trial court dismissed as untimely the defendant's second PCRA petition, which raised a claim pursuant to the newly discovered evidence exception to the one-year filing requirement. On appeal to our Court, the defendant argued that his petition was timely because it was filed within sixty days of this Court's order denying relief pursuant to his first PCRA petition. We agreed, noting that the defendant could not have filed his second PCRA petition in the trial court while his first petition was still pending before our Court. We ruled that under those circumstances, our Court, rather than the trial court, possessed jurisdiction over issues related directly to the case. We held

that when an appellant's PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review.

Id. at 588 (emphasis added).7

Here, Appellant attempts to extend the tolling period to the date the United States Supreme Court denied certiorari. This is contrary to the clear language in Lark and to the underlying rationale. As noted, the tolling arises from the trial court's lack of jurisdiction to entertain a second PCRA petition while the first petition is on appeal to our Court. The same jurisdictional dilemma, however, does not arise when an appellant seeks discretionary review of the matter in federal court. See generally Pa. R.A.P.1701 (after appeal taken, trial court may no longer proceed further in the matter). Here, our Court decided Appellant's first PCRA appeal on April 9, 1999, and reargument was denied on April 16, 1999. Thus, review of the pending PCRA petition "by the highest state court" concluded at that time. Appellant's instant petition, filed March 23, 2000, does not fall within 60 days thereafter and his Brady claims are therefore untimely.

Appellant next contends that his death sentence is based on outside influences on the jury's deliberations and the jury's...

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