J-S04007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 TONY CURTIS YOHE, JR.                    :
                                          :
                    Appellant             :   No. 1525 MDA 2018

            Appeal from the PCRA Order Entered August 24, 2018
     In the Court of Common Pleas of Union County Criminal Division at
                      No(s): CP-60-CR-0000029-2002


BEFORE:    SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                  FILED: MAY 24, 2019

      Appellant, Tony Curtis Yohe, Jr., appeals pro se from the order denying

his fourth petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

      A prior panel of this Court summarized the factual and procedural history

of this case as follows:

            This matter arises out of an incident which occurred on
      August 31, 2001, at which time Appellant and his co-defendants
      broke into the home of a married couple, confronted them in their
      bed, robbed them at gunpoint and bound them with duct tape
      before absconding. This Court set forth the facts and procedural
      history herein in a prior memorandum decision affirming
      Appellant’s judgment of sentence as follows:

                  Appellant appeals the judgment of sentence
            entered on December 23, 2002, in the Union County
            Court of Common Pleas. Appellant was convicted of
            one count of criminal conspiracy to commit robbery,[1]
            one count of criminal solicitation to commit robbery,[2]
            two counts of robbery,[3] one count of burglary,[4] one
____________________________________
* Former Justice specially assigned to the Superior Court.
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            count of theft,[5] two counts of unlawful restraint,[6]
            two counts of making terroristic threats,[7] and two
            counts of simple assault[8] by jury verdict on
            September 25, 2002. Upon review, we affirm.

                  Appellant made a signed confession on
            December 14, 2001, and was subsequently convicted
            of the above named offenses by jury verdict on
            September 25, 2002, following a joint trial with a co-
            defendant, Jay Michael Boyer. On December 23,
            2002, Appellant was sentenced to an aggregate
            sentence of 384 months to 1,200 months
            imprisonment.      Appellant filed post[-]sentence
            motions on December 20, 2002, and the trial court
            partially denied them on April 1, 2003. Appellant
            timely appealed the judgment of sentence on May 1,
            2003.
            ______
            1 18 Pa.C.S.A. § 903(a)(1).
            2 18 Pa.C.S.A. § 902(a).
            3 18 Pa.C.S.A. § 3701(a)(1)(ii).
            4 18 Pa.C.S.A. § 3502(a).
            5 18 Pa.C.S.A. § 3921(a).
            6 18 Pa.C.S.A. § 2902(1).
            7 18 Pa.C.S.A. § 2706(a)(1).
            8 18 Pa.C.S.A. § 2701(a)(3).



      Commonwealth v. Yohe, No. 690 MDA 2003, filed March 18,
      2004 at 1-2 (unpublished memorandum). On October 20, 2004,
      our Supreme Court denied Appellant’s petition for allowance of
      appeal. Commonwealth v. Yohe, 580 Pa. 713, 862 A.2d 1255
      (2004).

Commonwealth v. Yohe, 81 A.3d 990, 1457 MDA 2012 (Pa. Super., filed

May 6, 2013) (Non-Precedential Decision).

      On March 24, 2005, Appellant filed his first, counseled PCRA petition.

Appellant’s petition was denied. Appellant filed an appeal from that denial to

this Court, and on July 12, 2006, this Court affirmed the PCRA court’s




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determination. Commonwealth v. Yohe, 907 A.2d 1141, 248 MDA 2006

(Pa. Super., filed July 12, 2006).

      On June 20, 2008, Appellant, pro se, filed a second PCRA petition. In

an order entered December 3, 2009, the PCRA court vacated Appellant’s

sentence, after finding the sentence to be illegal, and reduced his aggregate

sentence. Appellant did not file an appeal from the December 3, 2009 order.

      On April 10, 2010, Appellant pro se filed his third PCRA petition. Counsel

was appointed.    Following a hearing, Appellant’s third PCRA petition was

denied by the PCRA court on August 6, 2012. Appellant filed an appeal to this

Court. On May 6, 2013, this Court affirmed the PCRA court’s order denying

Appellant’s petition. Yohe, 1457 MDA 2012 (Non-Precedential Decision).

      Appellant filed the current PCRA petition, his fourth, pro se, on July 9,

2018. On August 2, 2018, the PCRA court issued a notice of intent to dismiss

pursuant to Pa.R.Crim.P. 907. Appellant filed a response, and the PCRA court

denied the PCRA petition on August 24, 2018.        Appellant filed a notice of

appeal on September 11, 2018. No Pa.R.A.P. 1925(b) statement was ordered.

The PCRA court filed a “Statement in Lieu of Opinion Pursuant to Pa.R.A.P.

1925(a),” indicating that the reasons for its decisions were set forth in the

“Notice of Intention to Dismiss dated August 2, 2018.” PCRA Court Order,

9/24/18, at 1.

      Appellant presents the following issue for our review:     “Whether the

PCRA court err’d [sic] in dismissing Appellant’s PCRA [petition] without an


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evidentiary hearing under the auspice that Appellant[’s] PCRA [petition] was

untimely filed and did not meet the exceptions under 42 Pa.C.S.A.

§9545(b)(1)(ii)(iii)(2)?” Appellant’s Brief at 6. Our standard of review of an

order denying PCRA relief is whether the record supports the PCRA court’s

determination and whether the PCRA court’s determination is free of legal

error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011). The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Id. “With respect to the PCRA court’s decision

to deny a request for an evidentiary hearing, or to hold a limited evidentiary

hearing, such a decision is within the discretion of the PCRA court and will not

be overturned absent an abuse of discretion.” Commonwealth v. Mason,

130 A.3d 601, 617 (Pa. 2015).

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final.      42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.    Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). 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.

§ 9545(b)(3).




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       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and

(iii), is met.1 A petition invoking one of these exceptions must be filed within

one year of the date the claim could first have been presented. 2 42 Pa.C.S.

§ 9545(b)(2).




____________________________________________


1   The exceptions to the timeliness requirement are:

       (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.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
2 Until recently, a petition invoking an exception was required to be filed within
sixty days of the date the claim could have been presented. However, Act
146 of 2018 amended 42 Pa.C.S. § 9545(b)(2), and Section 9545(b)(2) now
provides that a PCRA petition invoking a timeliness exception must be filed
within one year of the date the claim could have been presented. See 2018
Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018, § 2 and
§ 3 (“[T]he amendment ... shall apply to claims arising on Dec. 24, 2017 or
thereafter.”). Although applicable to Appellant’s instant petition, the change
in the law from sixty days to one year does not impact our analysis.



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       Our review of the record reflects that Appellant was sentenced on

December 23, 2002.         Appellant filed a direct appeal.   This Court affirmed

Appellant’s judgment of sentence on March 18, 2004, Commonwealth v.

Yohe, 850 A.2d 17, 690 MDA 2003 (Pa. Super., filed March 18, 2004) (Non-

Precedential Decision), and our Supreme Court denied his petition for

allowance of appeal on October 20, 2004. Commonwealth v. Yohe, 862

A.2d 1255, 305 MAL 2004 (Pa., filed October 20, 2004).               Accordingly,

Appellant’s judgment of sentence became final on January 18, 2005, when the

time for seeking certiorari from the United States Supreme Court expired.3

See 42 Pa.C.S. § 9545(b)(3) (providing that “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.”). Therefore, Appellant had to file

the current PCRA petition by January 18, 2006, in order for it to be timely.

See 42 Pa.C.S. § 9545(b)(1) (a PCRA petition must be filed within one year

of the date that the judgment of sentence becomes final). Appellant did not

file the instant PCRA petition until July 9, 2018.     Thus, Appellant’s instant

PCRA petition is patently untimely.




____________________________________________


3  Appellant had ninety days from the date of the Pennsylvania Supreme
Court’s decision on direct appeal to file a petition for a writ of certiorari with
the United States Supreme Court. Commonwealth v. Hackett, 956 A.2d
978, 980 n.4 (Pa. 2008); United States Supreme Court Rule 13.

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       As previously stated, if a petitioner does not file a timely PCRA petition,

his petition may nevertheless be received under any of the three limited

exceptions to the timeliness requirements of the PCRA.               42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within one year of the date that the exception could be asserted. 42

Pa.C.S. § 9545(b)(2). It is the petitioner’s burden to allege and prove that

one of the exceptions exists. Commonwealth v. Whitehawk, 146 A.3d 266,

269–270 (Pa. Super. 2016).

       It appears that Appellant is arguing that the newly discovered fact

exception to the PCRA time-bar is applicable in this case.4 Appellant’s Brief at

6. Appellant argues that “the PCRA Court err’d [sic] in the dismissal of his

nunc pro tunc Motion for [PCRA] Relief wherein the sole issue contained

therein was one of a non-waivable issue that centers around the lack of [a]

mandated jury instruction [that] was never given to his jury.”                Id.

Specifically, Appellant argues that a jury instruction regarding the “Corpus

Delicti Rule”5 should have been given to the jury. Id. at 7. Appellant states:

____________________________________________


4 Appellant’s issue as presented indicates that he is also asserting the
exception under Section 9545(b)(1)(iii). Appellant’s Brief at 6. Appellant,
however, does not present any argument regarding that subsection in his
brief.

5 “The corpus delicti rule is designed to guard against the ‘hasty and
unguarded character which is often attached to confessions and admissions
and the consequent danger of a conviction where no crime has in fact been
committed.’” Commonwealth v. Hernandez, 39 A.3d 406, 410 (Pa. Super.



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“Whether Appellant knew of such a technical aspect of the corpus delicti rule

is of no moment where none of his professional law trained but ineffective

lawyers failed to raise, argue, or preserve this matter on direct appeal, or

during his previous PCRA proceedings.” Id. at 8. Appellant further argues

that “the newly discovered fact doctrine gives the lower court subject matter

jurisdiction to resolve via an evidentiary hearing when in fact Appellant

learned of this Corpus Delicti rule but moreover where this newly discovered

fact falls in that narrow set of unique circumstances.” Id. at 9. Appellant

argues that he filed the instant PCRA petition “within sixty (60) days of

learning of what was not done at or during the course of his trial i.e. [j]ury

[i]nstruction pertaining to the Corpus Delicti Rule under Bruton v. United

States[, 391 U.S. 123 (1968)].”6 Id. at 5.

       “The timeliness exception set forth in Section 9545(b)(1)(ii) requires a

petitioner to demonstrate he did not know the facts upon which he based his


____________________________________________


2012). “The corpus delicti rule is a rule of evidence.” Id. “The corpus delicti
rule places the burden on the prosecution to establish that a crime has actually
occurred before a confession or admission of the accused connecting him to
the crime can be admitted.” Id.

6 This Court has summarized the holding in Bruton as follows: “In Bruton,
the U.S. Supreme Court held that a defendant’s rights under the Confrontation
Clause are violated when a trial court allows the prosecution to admit his non-
testifying co-defendant’s statement that implicates him in the relevant crimes
even if the trial court instructs the jury that they may only use the statement
against the co-defendant.” Commonwealth v. James, 66 A.3d 771, 772 n.5
(Pa. Super. 2013) (citing Bruton, 391 U.S. at 137). Despite Appellant’s
assertion that the Bruton holding pertains to the corpus delicti rule, the
relevance of this holding to Appellant’s case is unclear to this Court.

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petition and could not have learned those facts earlier by the exercise of due

diligence.” Commnowealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).

      Due diligence demands that the petitioner take reasonable steps
      to protect his own interests. A petitioner must explain why he
      could not have learned the new fact(s) earlier with the exercise of
      due diligence. This rule is strictly enforced. Additionally, the focus
      of this exception “is on the newly discovered facts, not on a newly
      discovered or newly willing source for previously known facts.”

Id. (internal citations omitted).

      Here, Appellant mistakenly asserts that the PCRA court had an

obligation to hold a hearing to discern when Appellant learned of the corpus

delicti rule. Appellant’s Brief at 9. It is well settled that “[t]here is no absolute

right to an evidentiary hearing on a PCRA petition, and if the PCRA court can

determine from the record that no genuine issues of material fact exist, then

a hearing is not necessary.” Commonwealth v. Jones, 942 A.2d 903, 906

(Pa. Super. 2008). “To obtain reversal of a PCRA court’s decision to dismiss

a petition without a hearing, an appellant must show that he raised a genuine

issue of fact which, if resolved in his favor, would have entitled him to relief,

or that the court otherwise abused its discretion in denying a hearing.”

Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).

      Furthermore, as outlined, the burden is on Appellant to establish when

he discovered the alleged newly discovered facts and that he could not have

discovered those facts earlier with the exercise of due diligence. Brown, 111

A.3d at 176. Appellant has failed to carry that burden. Appellant does not

assert when he discovered this alleged newly discovered fact that a jury

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instruction regarding the corpus delicti rule had not been given during his trial.

Additionally, Appellant fails to explain why he could not have discovered it

earlier through due diligence. Appellant was present at his trial and at that

time would have been aware of the fact that a jury instruction regarding the

corpus delicti rule was not presented to the jury. Moreover, Appellant has

failed to establish that he raised this exception within one year of his purported

discovery. 42 Pa.C.S. § 9545(b)(2).

        Our courts also “have previously rejected attempts to circumvent the

timeliness    requirements      of    the    PCRA    by     asserting   prior     counsel’s

ineffectiveness for failing timely to raise a claim.”                Commonwealth v.

Edmiston, 65 A.3d 339, 349 (Pa. 2013); see also Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000) (“Fact” that current counsel

discovered prior PCRA counsel had failed to develop issue of trial counsel’s

ineffectiveness was not newly discovered fact qualifying for exception to PCRA

time limitations); Commonwealth v. Pursell, 749 A.2d 911, 915-917 (Pa.

2000) (holding that claims of PCRA counsel’s ineffectiveness do not escape

PCRA one-year time limitation merely because they are presented in terms of

current counsel’s discovery of “fact” that previous attorney was ineffective).

Thus,    Appellant’s   “fact”    of    discovering        previous    counsel’s    alleged

ineffectiveness in failing to raise the issue of the corpus delicti rule jury

instruction does not constitute a newly discovered fact.




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      Furthermore, later-acquired knowledge of a legal principle does not

constitute a newly-discovered fact. It is well established that ignorance of the

law will not excuse a petitioner’s failure to file a PCRA petition within one year

of the publication of the case upon which he is relying in the petition. See

Commonwealth v. Baldwin, 789 A.2d 728, 731 (Pa. Super. 2001) (“Neither

the court system nor the correctional system is obliged to educate or update

prisoners concerning changes in case law.”). It is equally well established that

a judicial opinion does not qualify as a previously unknown “fact” capable of

triggering   the   newly   discovered    fact   exception   under    the   PCRA.

Commonwealth v. Watts, 23 A.3d 980, 986-987 (Pa. 2011).                “[J]udicial

determinations are not facts.” Id. at 986. Accordingly, Appellant has failed

to establish the application of the newly discovered facts exception to the

PCRA time-bar in this case on any basis.

      Consequently, because the instant PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396,

398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear

untimely petition). Likewise, we lack the authority to address the merits of

any substantive claims raised in the PCRA petition. See Commonwealth v.

Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to

a court’s right or competency to adjudicate a controversy.”).

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2019




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