J-S34026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                        OF PENNSYLVANIA
                             Appellee

                        v.

    RICKY ROUSE

                             Appellant                     No. 1735 WDA 2017


              Appeal from the PCRA Order entered October 6, 2017
               In the Court of Common Pleas of Allegheny County
                Criminal Division at No: CP-02-CR-0004190-2009

BEFORE: BOWES, STABILE, AND STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                            FILED AUGUST 21, 2018

        Appellant, Ricky Rouse, appeals from an order dismissing his third

petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546, as untimely. We affirm.

        In the afternoon of February 24, 2009, Antoine Cooper (“the victim”)

was shot and killed in Northview Heights, a neighborhood in Pittsburgh.

Appellant was seen leaving the crime scene in a vehicle rented by his co-

defendant, Damone Porter. The Commonwealth alleged that Appellant fired

the fatal bullet in retaliation for an earlier shooting.

        Appellant and Porter were charged with criminal homicide.              In

September 2010, a jury found Appellant guilty of first-degree murder1 and

other offenses, and in December 2010, the trial court sentenced him to life
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S.A. § 2502(a).
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imprisonment. Appellant filed a timely direct appeal. On August 6, 2012, this

Court affirmed his judgment of sentence, and on February 13, 2013, the

Supreme Court denied his petition for allowance of appeal. He did not appeal

to the United States Supreme Court.

      In 2014, Appellant filed a timely PCRA petition pro se, and the PCRA

court appointed counsel to represent him. On October 20, 2014, counsel filed

a letter stating that none of the issues in Appellant’s petition had merit. On

October 22, 2014, the PCRA court directed counsel to review the issues

contained in co-defendant Porter’s PCRA petition and determine whether

Porter’s issues applied to Appellant. On January 5, 2015, counsel determined

that Porter’s PCRA claims did not apply to Appellant. On January 14, 2015,

the PCRA court directed Appellant to file a pro se response to counsel’s no-

merit letters. On March 3, 2015, Appellant submitted a pro se response raising

additional claims. On March 11, 2015, the PCRA court issued a notice of intent

to dismiss the claims in Appellant’s 2014 petition and directed counsel to file

a letter addressing Appellant’s additional claims. On March 30, 2015, counsel

submitted a letter stating that Appellant’s additional claims had no merit. On

April 8, 2015, the PCRA court dismissed Appellant’s PCRA petition without a

hearing and granted counsel leave to withdraw. Appellant filed a timely notice

of appeal to this Court, and on September 19, 2016, this Court affirmed.

Commonwealth v. Rouse, 682 WDA 2015 (Pa. Super., Sep. 19, 2016). On

March 29, 2017, the Supreme Court denied Appellant’s petition for allowance

of appeal. Appellant did not appeal to the United States Supreme Court.

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      On March 9, 2015, while Appellant’s appeal at 682 WDA 2016 was

pending in this Court, Appellant filed a second pro se PCRA petition arguing

that Miller v. Alabama, 567 U.S. 460 (2012), applied to him. On March 16,

2016, the PCRA court issued a notice of intent to dismiss this petition. On

May 16, 2016, Appellant filed a supplemental PCRA Petition arguing that

Miller applied to him. On May 19, 2016, the PCRA court ruled that it would

not act on Appellant’s second PCRA petition until the conclusion of appellate

proceedings in his first PCRA petition.

      On April 19, 2017, Appellant filed a third pro se PCRA petition. Appellant

claimed that he had recently learned that Porter had been willing to exonerate

him during trial, but Porter’s counsel prevented Porter from testifying.

Attached to Appellant’s petition was a December 8, 2016 affidavit from Porter

indicating that Appellant did not shoot the decedent and had nothing to do

with his death. Appellant also alleged his prior PCRA counsel was ineffective

for failing to interview Porter in 2014-15, because counsel would have learned

during the interview that Porter had been willing to exonerate Appellant.

      On June 6, 2017, Appellant moved to dismiss his second PCRA petition

for lack of merit. On June 7, 2017, the PCRA court dismissed this petition.

      On June 17, 2017, Appellant filed an amendment to his third PCRA

petition.   On June 28, 2017, the Commonwealth filed an answer to the

amended third petition.      The PCRA court issued an order that it was

contemplating dismissal of the third amended petition and provided Appellant


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an opportunity to respond. On August 31, 2017, the PCRA court issued a

notice of intent to dismiss the amended third petition. On October 6, 2017,

the PCRA court dismissed the amended third petition. On November 13, 2017,

Appellant appealed the order of dismissal to this Court, the appeal presently

before us.2

       Appellant raises two issues in this appeal:

       1.    Whether the PCRA Court erred by denying Appellant’s
       subsequent PCRA petition that included a properly layered claim
       of ineffective assistance of PCRA/trial Counsel?

       2.   Whether the PCRA Court erred by denying Appellant’s
       subsequent PCRA Petition alleging newly-discovered evidence
       without an evidentiary hearing, where Appellant has met the
       “prima facie” [test] needed to be granted an evidentiary hearing,
       with the claim of ineffective assistance of trial counsel in
       conjunction with the claim of newly-discovered evidence?

Appellant’s Brief at 4. Appellant claims that (1) Porter would have exonerated

Appellant had Porter testified during trial; (2) Porter’s attorney prevented him



____________________________________________


2 Both the PCRA court and the Commonwealth claim that this appeal is
untimely because Appellant filed it more than thirty days after entry of the
October 6, 2017 order of dismissal. The exhibits attached to Appellant’s reply
brief demonstrate that the Clerk of the Court of Common Pleas of Allegheny
County did not mail the order of dismissal to Appellant until October 17, 2017,
and the order was not delivered to Appellant’s correctional facility until
October 19, 2017. We view this delay as a breakdown in the operations of
the court, because it prevented Appellant from receiving the order for almost
half of the appeal period. Commonwealth v. Coolbaugh, 770 A.2d 788,
791 (Pa. Super. 2001) (appellant may file appeal nunc pro tunc when delay
was caused by breakdown in operation of trial court). Accordingly, we deem
Appellant’s appeal period to have begun on the date he received the order,
October 19, 2017, and we will treat his appeal as filed within thirty days after
commencement of the appeal period.

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from testifying; and (3) Appellant’s PCRA attorney during 2014-15 was

ineffective for failing to interview Porter, because counsel would have learned

during the interview that Porter’s attorney prevented Porter from testifying.

      Appellant’s claim is untimely.         The PCRA contains the following

restrictions governing the timeliness of any PCRA petition.

      (b) Time for filing petition.--

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:

            (i) 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;

            (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.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could
      have been presented.

      (3) For purposes of this subchapter, a judgment 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.A. § 9545(b) (emphasis added).          The timeliness requirement of

Section 9545(b)(1) is jurisdictional; we cannot address the merits of an

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untimely petition. Commonwealth v. Abu Jamal, 941 A.2d 1263, 1267–68

(Pa. 2008).

      Here, Appellant’s judgment of sentence became final on May 14, 2013,

ninety days after our Supreme Court denied his petition for allowance of

appeal in his direct appeal. 42 Pa.C.S.A. § 9545(b)(3). Appellant filed his

present petition on April 19, 2017, almost four years after his judgment of

sentence became final. Thus, it is untimely on its face.

      Appellant’s petition fails to satisfy any of the three exceptions to the

PCRA’s timeliness requirements in 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Appellant

attempts to invoke the newly-discovered facts exception, which required him

to prove “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.”   42 Pa.C.S.A. § 9545(b)(1)(ii).     Our Supreme Court has held,

however, that petitioners cannot satisfy the newly-discovered facts exception

by alleging ineffectiveness of PCRA counsel.           In Commonwealth v.

Gamboa–Taylor, 753 A.2d 780 (Pa. 2000),

      the defendant in a capital case instructed his trial counsel not to
      defend against the charges and not to present mitigating evidence
      at the penalty stage, but later claimed that his counsel was
      ineffective for failing to override the defendant’s decisions. The
      PCRA court concluded that counsel was not ineffective. The
      defendant subsequently filed a second PCRA petition, in which he
      alleged that his first PCRA counsel was ineffective. After the PCRA
      court dismissed the second petition as untimely, this Court
      affirmed, noting that the defendant’s “attempt to interweave
      concepts” of ineffective assistance and newly-discovered facts was
      insufficient to establish jurisdiction . . . This Court explained that
      “a conclusion that previous counsel was ineffective is not a newly

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      discovered ‘fact’ entitling Appellant to the benefit of the exception
      for [newly-discovered facts]. In sum, a conclusion that previous
      counsel was ineffective is not the type of [newly-discovered fact]
      encompassed by the exception.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1284-85 (Pa. 2016) (citing

Gamboa-Taylor, 753 A.2d at 785).         Allowing these claims to go forward

would “[cause] the timeliness requirements crafted by the legislature [to]

effectively be eviscerated by any petitioner who was willing to file serial PCRA

petitions alleging ineffective assistance of counsel.”     Commonwealth v.

Howard, 788 A.2d 351, 355 (Pa. 2002) (citing Gamboa–Taylor).

      Here, Appellant cannot satisfy the due diligence element of the newly-

discovered facts exception. He fails to present a valid reason why he did not

procure Porter’s affidavit until December 2016, well over three years after his

judgment of sentence became final.          Perhaps recognizing this fact, he

attributes this delay to ineffectiveness of PCRA counsel. Counsel, he says,

failed to interview Porter in 2014-15 and thus failed to learn at that time that

Porter would have exonerated Appellant during trial had Porter’s counsel not

prevented him from testifying. Through this argument, Appellant attempts to

interweave ineffectiveness and newly-discovered facts concepts, precisely

what our Supreme Court refused to permit in Gamboa-Taylor. Permitting

such claims would encourage endless series of petitions accusing PCRA

counsel of ineffectiveness under the guise of the newly-discovered facts

exception. In accordance with Gamboa-Taylor, we hold that PCRA counsel’s




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alleged ineffectiveness in failing to interview Porter is not a fact encompassed

by the newly-discovered facts exception to the PCRA’s one-year time bar.

      In addition, Appellant’s third PCRA petition was untimely because more

than sixty days elapsed between the date of Porter’s affidavit (December 18,

2016) and the date of Appellant’s third PCRA petition (April 19, 2017).

42 Pa.C.S.A. § 9545(b)(2) (petitioner must invoke exception to PCRA’s

timeliness requirements within sixty days after the claim first could have been

presented).

      For these reasons, we agree with PCRA court’s determination to dismiss

as untimely Appellant’s third PCRA petition for want of jurisdiction.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2018




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