Commonwealth v. Burno

• Decision Date: 28 February 2023
• Docket Number: 1444 EDA 2022,J-S03011-23
• Parties: COMMONWEALTH OF PENNSYLVANIA v. KENNETH HAROLD BURNO JR. Appellant
• Court: Superior Court of Pennsylvania

1

COMMONWEALTH OF PENNSYLVANIA v. KENNETH HAROLD BURNO JR. Appellant

No. 1444 EDA 2022

No. J-S03011-23

Superior Court of Pennsylvania

February 28, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered June 3, 2022 In the Court of Common Pleas of Montgomery County Criminal Division at No(s) CP-46-CR-0000330-2003

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM

BOWES J.

Kenneth Harold Burno, Jr. appeals pro se from the June 3 2022 order dismissing his second petition for relief pursuant to the Post Conviction Relief Act ("PCRA") as untimely. We affirm.

On April 26, 2004, Appellant was convicted of first-degree murder, unsworn falsification to authorities, and criminal conspiracy in connection with the shooting death of John Irwin Davis, Jr. On September 27, 2004, Appellant was sentenced to life imprisonment without the possibility of parole. Post-sentence motions were denied and a timely direct appeal followed. On July 25, 2005, this Court affirmed Appellant's judgment of sentence. See Commonwealth v. Burno, 883 A.2d 685 (Pa.Super. 2005) (unpublished memorandum). Appellant filed a petition for allowance of appeal ("PAA"), which was denied on December 8, 2005. See Commonwealth v. Burno, 889 A.2d 1213 (Pa. 2005).

Appellant filed a timely pro se PCRA petition, claiming trial counsel had provided ineffective assistance. Appointed counsel submitted an amended petition and the court held an evidentiary hearing. Following the hearing, the PCRA court denied Appellant's petition. Appellant appealed and this Court affirmed the PCRA court's order denying the petition. See Commonwealth v. Burno, 34 A.3d 221 (Pa.Super. 2011) (unpublished memorandum). Appellant subsequently filed a PAA, which was also denied. See Commonwealth v. Burno, 49 A.3d 441 (Pa. 2012).

On March 25, 2022, Appellant pro se filed a second PCRA petition, which is the subject of this appeal. The PCRA court issued Rule 907 notice of its intent to dismiss the petition without a hearing after concluding that it was untimely filed. After reviewing Appellant's objections to the Rule 907 notice, the PCRA court dismissed the petition as untimely. See Order, 6/3/22, at 1. This appeal followed.^[1] Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

1. Whether the prosecuting attorney carries a special aura of legitimacy, whereas the prosecutor's opinion carries with it the imprimatur of the government and induce the jury to trust the government's judgment rather than its own?

2. Whether the second PCRA petition was timely filed pursuant to United States v. Johnson[, 12 F.3d 1548 (10th Cir. 1993)]?

Appellant's brief at 3.

We begin with the pertinent legal principles. "This Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error." Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa.Super. 2018). We grant great deference to the PCRA court's findings that are supported in the record and will not disturb them unless they have no support in the certified record. See Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.Super. 2014). However, we apply a de novo standard of review to the PCRA Court's legal conclusions. See Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).

Pursuant to the PCRA, any petition "including a second or subsequent petition, shall be filed within one year of the date the judgment [of sentence] becomes final[.]" 42 Pa.C.S. § 9545(b)(1). A judgment of sentence becomes final "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S. § 9543(b)(3). The PCRA's timeliness requirements are jurisdictional in nature, and a court may not address the merits of the issues raised if the PCRA petition was not timely filed. See Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017).

The time bar can "only be overcome by satisfaction of one of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)-(iii)." Id. The three narrow exceptions to the one-year time bar are as follows: "(1) interference by governmental officials in the presentation of the claim; (2) newly-discovered facts; and (3) an after-recognized constitutional right." Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa.Super. 2012). Additionally, a PCRA petitioner must present his claim within one year of the date the claim first could have been presented. See 42 Pa.C.S. § 9545(b)(2).

Appellant's petition, filed more than sixteen years after his judgment of sentence became final, is patently untimely. However, Appellant avers that he can overcome the PCRA time bar by the application of the governmental interference and newly discovered facts exceptions. See Appellant's brief at 7-8; see also PCRA petition, 3/25/22, at 3, 5-6. We disagree.

The governmental interference exception permits an otherwise untimely PCRA to be filed if a petitioner pleads and proves that "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[.]" 42 Pa.C.S. § 9545(b)(1)(i). In other words, Appellant was required to show that but for the interference of a government actor "he could not have filed his claim earlier." Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).

Here, Appellant contends that the Commonwealth committed government interference during closing arguments at his trial, when the prosecutor suggested that Appellant was guilty of the crimes charged. See Appellant's brief at 7; see also PCRA petition, 3/25/22, at 4-5. Additionally, Appellant avers that he filed the petition within sixty days of discovery of the illegality.^[2] Id. The PCRA court found that Appellant's reliance on the governmental interference exception was misplaced, since his allegations "have nothing to do with his failure to file a timely PCRA petition." See PCRA Court Opinion, 10/21/22, at 14. We agree. Our review of the record confirms that Appellant has never averred that the government interfered with his ability to file a timely PCRA petition. Thus, the governmental interference exception does not apply.

Next, Appellant asserts that he has pled a newly discovered fact exception in order to overcome the PCRA time-bar.^[3] See PCRA Petition, 3/25/22, at 6; Appellant's brief at 8-10. The newly discovered fact exception set forth at § 9545(b)(1)(ii) has two components, which must be alleged and proven as an initial jurisdictional threshold. Commonwealth v. Diggs, 220 A.3d 1112, 1117 (Pa.Super. 2019). Namely, the petitioner must establish that: (1) the facts upon which the claim was predicated were unknown to the petitioner; and (2) they could not have been ascertained by the exercise of due diligence. See 42 Pa.C.S. § 9545(b)(1)(ii); see also Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007). In this context, "[d]ue diligence demands that the petitioner take reasonable steps to protect his own interests" and explain why he could not have learned the new facts earlier with the exercise of due diligence. Commonwealth v. Burton, 121 A.3d 1063, 1069 (Pa.Super. 2015).

Appellant asserts that from February 18, 2022 until March 10, 2022, he conducted research and reviewed the trial transcripts pertaining to his case with the assistance of a legal assistant at the prison library. See Appellant's brief at 8; see also PCRA petition, 3/25/22, at 6. On March 15, 2022, the legal assistant discovered alleged evidence of trial counsel's ineffectiveness, wherein counsel "failed to object to the prosecutor expressing his personal opinions about the guilt and credibility of [Appellant]" during closing arguments. See Appellant's brief at 8. Since Appellant was unaware of counsel's oversight until the legal assistant discovered it, Appellant argues that the testimony contained in the trial transcript should be deemed newly discovered facts. Id. at 10. Appellant further contends that he has shown the necessary due diligence because he filed his PCRA petition within sixty days of discovering counsel's alleged ineffectiveness.^[4] Id. at 4.

After reviewing the record, the PCRA court disagreed, explaining:

The allegations which [Appellant] asserts do not rise to the level of newly discovered facts, as the focus on this exception is on the newly discovered facts, not on a newly discovered or newly willing source for previously known facts.

In the case at bar, this Court finds that [Appellant] was previously aware of all of the prosecutor's remarks since he was in the courtroom during his jury trial at the time those comments were made. One does not have to be a trained attorney with a degree in criminal law, as suggested by [Appellant], to conclude whether any comments made by the prosecutor were inappropriate or attempted to use "undue influence" on the jury. As such, [Appellant] was aware of the prosecutor's comments well in advance of his alleged recent "discovery" of the transcripts.

In fact, the transcripts merely reflect what happened in court, in [Appellant's] presence, and were not a newly discovered fact. Rather, they were a new source of information previously known to [Appellant]. Once again, the information used as a basis for the "newly discovered evidence" argument has been available to [Appellant] for [eighteen] years. [Appellant] also failed to provide a valid explanation as to why he could not have obtained the transcripts earlier with due diligence.

PCRA Court Opinion, 10/...