Com. v. Jones, G. (memorandum)

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J-S21038-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. GERALD JONES Appellant No. 2300 EDA 2013 Appeal from the PCRA Order July 17, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0607981-1979 BEFORE: SHOGAN, J., ALLEN, J., and OTT, J. MEMORANDUM BY OTT, J.: FILED JUNE 24, 2014 Gerald Jones appeals, pro se, from the order entered July 17, 2013, in the Philadelphia County Court of Common Pleas, dismissing his seventh petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Jones seeks relief from the judgment of sentence of an aggregate term of life imprisonment imposed on April 15, 1981, after he was convicted of first degree murder (three counts), arson (two counts), causing or risking catastrophe, and criminal conspiracy1 for his participation of the firebombing of two houses in December of 1977. On appeal, Jones contends the PCRA court erred in dismissing his petition as untimely filed ____________________________________________ 1 18 Pa.C.S. §§ 2502, 3301, 3302, and 903, respectively. J-S21038-14 when he presented a valid claim of newly discovered evidence. For the reasons set forth below, we affirm. summarized by the PCRA court as follows: Court on November 5, 1986.[2] Petition for allowance of appeal was not sought in the Pennsylvania Supreme Court. [Jones] filed his first post-conviction relief act (PCRA) petition on January 4, 1988. On January 14, 1992, [the PCRA court] dismissed the petition. On February 23, 1993, the Superior Court affirmed the dismissal. Commonwealth v. Jones, 627 A.2d 202 (Pa. Super. 1993). On March 22, 1994, the Supreme Court denied allocatur. Commonwealth v. Jones, 644 A.2d 733 (Pa. 1994). [Jones] filed a second PCRA petition on November 6, 1996. On May 29, 1997, the PCRA court dismissed the petition. The Supreme Court again denied allocatur. Commonwealth v. Jones, 718 A.2d 858 (Pa. Super. 1998) (unpublished memorandum), appeal denied, 556 Pa. 688, 727 A.2d 1118 (1998). On April 12, 2002, [Jones] filed a third PCRA petition. On July 11, 2003, the PCRA court dismissed the petition. On July 8, 2004, the Superior Court again aff order.[3] A fourth PCRA petition was filed on January 11, 2005 and was dismissed as untimely on February 23, 2006; again the ____________________________________________ 2 Commonwealth v. Mason direct appeal was consolidated with those of his co-defendants. 3 Commonwealth v. Jones, 859 A.2d 831 (unpublished memorandum) (Pa. Super. 2004). -2- J-S21038-14 Superior Court affirmed the dismissal.[4] On December 5, 2007, [Jones] filed a fifth PCRA petition. On February 20, 2009, the Superior Court affirmed the dismissal.[5] On March 18, 2009, [Jones] filed a sixth petition for postconviction collateral relief. On July 16, 2009, this court dismissed the petition. On May 27, 2010, the Superior Court [6] again affirm Undaunted, on May 21, 2012, [Jones] filed another PCRA petition, his seventh. PCRA Court Opinion, 7/17/2013, at 1-2. Thereafter, Jones filed an amended petition on May 21, 2012, and a supplement to the amended petition on June 26, 2012. On July 17, 2013, 7 This appeal followed.8 ____________________________________________ 4 Commonwealth v. Jones, 918 A.2d 787 (unpublished judgment order) (Pa. Super. 2006). 5 Commonwealth v. Jones, 970 A.2d 471 (unpublished judgment order) (Pa. Super. 2009). 6 Commonwealth v. Jones, 4 A.3d 207 (unpublished judgment order) (Pa. Super. 2010). 7 providing notice of its intent to dismiss pursuant to Pa.R.Crim.P. 907. Although Rule 907 notice is mandatory, this Court has previously held that when, as here, an appellant fails to object to the lack of notice, the issue is waived. Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa. Super. 2007), appeal denied, 932 A.2d 74 (Pa. 2007). See also Commonwealth v. Pursell, 749 A.2d 911, error in failing to provide appellant with notice of its intent to dismiss PCRA petition, but declining to provide review since petition was untimely filed). 8 The PCRA court did not order Jones to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). -3- J-S21038-14 On appeal, Jones argues the PCRA court erred in dismissing his petition as untimely filed because he invoked an exception to the time-forfiling requirements, namely, the newly discovered evidence exception. He investigating grand jury, and he only recently learned that a grand jury indictment based upon perjured testimony is invalid. When reviewing an order dismissing a PCRA petition, we must determine whether the ruling of the PCRA court is supported by record evidence and is free of legal error. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2 of the PCRA court, and these findings will not be disturbed unless they have Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation omitted). The PCRA ma subsequent petition, shall be filed within one year of the date the judgment a court may not address the merits of the issues raised if the petition was not timely filed. The timeliness requirements apply to all PCRA petitions, regardless of the nature of the individual claims raised therein. Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (internal citations of sentence became final is patently untimely. -4- See Commonwealth v. J-S21038-14 Jones, 4 A.3d 207 (Pa. Super. 2010) (unpublished judgment order) (finding However, the PCRA provides three exceptions to the one year time bar.9 In his pro se petition, Jones attempts to invoke the newly discovered evidence exception, which permits the untimely filing of a petition when (1) ( witness lied during their testimony before the investigating grand jury. He claims he just recently learned that perjured testimony cannot support a grand jury indictment. In support of this assertion, he avers that he attended an April 4, 2012, seminar at the prison, where he learned that a grand jury indictment based upon false testimony is invalid. Amended Petition Pursuant to the Post Conviction Act, 5/21/2012, at 4, Exhibit A. In addition, he attached to his June 26, 2012, supplemental petition a June 19, 2012, Philadelphia Newspaper article in which a victim/witness in a recent, non-related case was charged with perjury by the Philadelphia District ____________________________________________ 9 See 42 Pa.C.S. § 9545(b). -5- J-S21038-14 who shot him. Letter Amend Brief, 6/26/2012, Exhibit N. We fail to see how discovered facts. The same witnesses who testified during his investigating grand jury also testified at his trial. In fact, he does not aver that they provided different testimony before the grand jury than at the time of trial. Therefore, Jones simply cannot demonstrate why he could not have discovered this purported false testimony previously. Moreover, we note that Jones does not provide any support for his allegation that the testimony was false, save for statements to police, which, as noted, he certainly would have had access to in the preceding 24 years. Furthermore, the fact that he recently learned perjured testimony cannot support an indictment is irrelevant, and does not constitute newly discovered facts. The same is true for the June 2012 newspaper article that involves an unrelated witness in an unrelated case. Accordingly, we agree with the PCRA court that Jones has failed to properly invoke one of the time-for-filing exceptions, and his petition is, therefore, manifestly untimely. Order affirmed. -6- J-S21038-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/24/2014 -7-

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