J-S19043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
              v.                           :
                                           :
JOSEPH E. WALLACE, III,                    :
                                           :
                   Appellant               :           No. 2868 EDA 2014

           Appeal from the PCRA Order entered on September 24, 2014
                in the Court of Common Pleas of Chester County,
                 Criminal Division, No. CP-15-CR-0001266-2000

BEFORE: STABILE, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED MARCH 31, 2015

        Joseph E. Wallace, III (“Wallace”), pro se, appeals from the Order

dismissing his first Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm.

        The PCRA court set forth the relevant factual and procedural history as

follows:

              On February 28, 2000, [Wallace] stabbed his wife Eileen as
        she slept in her bed. Eileen Wallace died as a result of her
        wounds. On December 6, 2000, [Wallace] entered a plea of
        guilty but mentally ill to the charges of third[-]degree murder,
        possessing an instrument of crime and tampering with physical
        evidence. He was sentenced that day to a term of imprisonment
        of twenty-three and one-half to forty-seven years. [Wallace] did
        not appeal his sentence. On September 3, 2013, [Wallace] filed
        a pro se PCRA [P]etition. Because this was [Wallace’s] first
        PCRA [P]etition, [the PCRA court] appointed Robert Brendza,
        Esquire [“Attorney Brendza”] as [Wallace’s] counsel. [Attorney]
        Brendza reviewed [Wallace’s] claims and court file, determined

1
    See 42 Pa.C.S.A. §§ 9541-9546.
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     that [Wallace’s] PCRA [Petition] was not timely, and moved to
     withdraw his appearance as PCRA counsel. [The PCRA court]
     also reviewed the file and record, [and] also determined that
     [Wallace’s] PCRA [Petition] was untimely, and on June 18, 2014,
     [the PCRA court] gave [Wallace] [N]otice of [the court’s] intent
     to dismiss his [P]etition without a hearing. [Wallace] responded
     to this [N]otice with two pro se filings. On July 17, 2014, [the
     PCRA court] directed that [Attorney] Brendza review these
     submissions, and inform the [c]ourt of his findings. [Attorney]
     Brendza complied with this [O]rder, and after [the PCRA court’s]
     review revealed that [Wallace] was entitled to no post-conviction
     relief, [the court] dismissed [Wallace’s] PCRA [P]etition on
     September 24, 2014 [and granted Attorney Brendza’s Motion to
     withdraw].

PCRA Court Opinion, 11/25/14, at 1-2 (footnote omitted).

     Wallace, acting pro se, filed a timely Notice of Appeal and a court-

ordered Concise Statement of Matters Complained of on Appeal.

     On appeal, Wallace raises the following issues for our review:

     1. Did the [PCRA] court commit legal error in failing to
        acknowledge, respond to, and/or grant Wallace’s request to
        invoke his right to self-representation?

     2. Did the [PCRA] court commit legal error in failing to
        adequately and exclusively consider and respond to Wallace’s
        pro se claims/requests: (unlawfully-induced guilty plea claim,
        after-discovered evidence claim, request for the appointment
        of a psychopharamacologist, and request for an evidentiary
        hearing)?

Brief for Appellant at 2 (capitalization omitted).   We will review Wallace’s

claims together, as they both require a determination as to whether the

PCRA court properly concluded that Wallace’s Petition is untimely, and that

he failed to plead and prove any exception to the PCRA’s timeliness bar.

           We review an order dismissing a petition under the PCRA
     in the light most favorable to the prevailing party at the PCRA


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        level. This review is limited to the findings of the PCRA court
        and the evidence of record. We will not disturb a PCRA court’s
        ruling if it is supported by evidence of record and is free of legal
        error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

        Initially, under the PCRA, any PCRA petition “shall be filed within one

year of the date the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1)

(emphasis added). 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.”       Id. § 9545(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.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

        Here, Wallace’s judgment of sentence became final on January 5,

2001, when the thirty-day period of time in which to file an appeal with our

Court    expired.     See   42   Pa.C.S.A.   §   9545(b)(3);   Pa.R.A.P   903(a).

Accordingly, Wallace had until January 7, 2002, to file the instant PCRA

Petition, but he did not do so until September 3, 2013.          Thus, Wallace’s

Petition is facially untimely.

        Pennsylvania courts may consider an untimely PCRA petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(1). Any PCRA petition invoking one of these


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exceptions “shall be filed within 60 days of the date the claim could have

been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.

     In this case, Wallace has invoked the exception provided by section

9545(b)(1)(ii), pertaining to newly-discovered evidence. Brief for Appellant

at 7. This exception requires Wallace to allege and prove that there were

facts that were unknown to him, and that he could not have ascertained

those facts by the exercise of due diligence.     See Commonwealth v.

Marshall, 947 A.2d 714, 720 (Pa. 2008); see also id. (stating that the

focus of the exception is “on [the] newly discovered facts, not on a newly

discovered or newly willing source for previously known facts.”) (citation

omitted).

     Here, Wallace asserts that one of the defense psychologists who

evaluated him, Dr. Gerald Cooke (“Dr. Cooke”), was unaware of the

prescription medications that Wallace was taking when he murdered his

wife, including Ambien, Ritalin and Paxil.   Brief for Appellant at 10-11.

Wallace has presented the supplemental opinion of Dr. Cooke, wherein Dr.

Cooke posits that the medication may have exacerbated Wallace’s psychosis,

and may provide Wallace with a partial defense of involuntary intoxication.

Brief for Appellant at 11; see also Supplemental Opinion, 8/4/14, at 1-2.

However, Dr. Cooke defers to a psychopharmacologist to provide expert

opinion on this issue. Id. We conclude that these are not “newly discovered

facts,” but merely “a newly willing source for previously known facts.” See



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Marshall, 947 A.2d at 720.     Such a claim does not invoke the timeliness

exception at section 9545(b)(1)(ii). Therefore, we conclude that the PCRA

court properly dismissed Wallace’s Petition as untimely.

     Order affirmed.

     Stabile, J., joins the memorandum.

     Jenkins, J., concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/31/2015




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