J-S25022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID MICHAEL SHADLE

                            Appellant                No. 1543 WDA 2014


                 Appeal from the Order dated August 15, 2014
            In the Court of Common Pleas of Westmoreland County
               Criminal Division at No: CP-65-CR-0001469-2006


BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED JUNE 29, 2015

        Appellant David Michael Shadle pro se appeals from the August 15,

2014 order1 of the Court of Common Pleas of Westmoreland County (“PCRA

court”), which dismissed as untimely Appellant’s request for collateral relief

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.

Upon review, we affirm.

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

of this case as follows.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  We changed the caption to reflect that Appellant appealed the August 15,
2014 order of the PCRA court. Appellant also appealed the August 28, 2014
order of the PCRA court, which denied his pro se request to conduct PCRA
discovery by deposing Dr. Cyril Wecht. Given our conclusion below that the
PCRA court lacked jurisdiction to entertain Appellant’s instant PCRA petition,
we need not address the discovery issue.
J-S25022-15


               On March 16, 2007, Appellant was convicted by a jury of
       first-degree murder and related charges for the death of his ex-
       girlfriend. On June 11, 2007, Appellant was sentenced to life in
       prison. Appellant’s judgment of sentence was affirmed by this
       Court on October 27, 2008. See Commonwealth v. Shadle,
       964 A.2d 445 (Pa. Super. 2008) (unpublished memorandum).
              On October 7, 2009, Appellant filed a timely pro se PCRA
       petition. Counsel was appointed and an amended petition was
       filed on December 9, 2009, raising two claims: 1) whether trial
       counsel was ineffective for failing to object to the introduction of
       prior bad acts and/or request a limiting instruction; and, 2)
       whether appellate counsel was ineffective for failing to file a
       petition for allowance of appeal to the Supreme Court following
       the October 27, 2008 memorandum. A hearing on the petition
       was held on January 25, 2010. On June 8, 2010, the PCRA court
       granted Appellant’s request to file a petition for allowance of
       appeal to the Supreme Court nunc pro tunc, but denied
       Appellant relief on his other issue. Appellant filed a petition for
       allowance of appeal nunc pro tunc to the Supreme Court and a
       notice of appeal to this Court from the PCRA order. This Court
       quashed the appeal concluding that “[b]ecause the PCRA court
       granted Appellant reinstatement of his right to file a petition for
       allowance of appeal nunc pro tunc, the court’s consideration of
       Appellant’s additional issue did not result in a disposition
       Appellant could appeal.” Commonwealth v. Shadle, 1106
       WDA 2010, unpublished memorandum, at 3 (Pa. Super. filed
       March 8, 2011). Accordingly, this Court directed Appellant to
       “raise claims of ineffective assistance of counsel by filing another
       PCRA petition following the disposition of his petition for
       allowance of appeal.” Id. Our Supreme Court denied the
       petition for allowance of appeal on March 16, 2011.[2]
       Commonwealth v. Shadle, 20 A.3d 487 (Pa. 2011).
              On April 25, 2011, Appellant filed [another] PCRA petition
       alleging that trial counsel was ineffective for failing to object to
       the introduction of prior bad acts and/or request a limiting
       instruction, and also that appellate counsel was ineffective for
       failing to raise the issue in Appellant’s initial direct appeal. The
       PCRA court denied the petition on May 6, 2011[.]
____________________________________________


2
  To the extent the PCRA court suggests Appellant’s judgment of sentence
became final on April 16, 2011, thirty days after March 16, 2011, we
disagree. Appellant’s judgment of sentence became final on June 16, 2011,
ninety days following our Supreme Court’s denial of his petition and the
time for Appellant to file a petition for writ of certiorari with the United
States Supreme Court had expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.
Sup. Ct. R. 13. Appellant had one year from June 16, 2011 to file his PCRA
petition. See 42 Pa.C.S.A. § 9545(b).



                                           -2-
J-S25022-15



Commonwealth v. Shadle, No. 830 WDA 2011, unpublished memorandum

at 1-3 (Pa. Super. filed December 30, 2011). On appeal, the prior panel of

this Court affirmed the PCRA court’s denial of Appellant’s PCRA petition. Id.

at 5.    Appellant appealed the panel’s ruling to our Supreme Court, which

denied    his   petition   for    allowance    of   appeal   on   July   23,   2012.

Commonwealth v. Shadle, 49 A.3d 443 (Pa. 2012).

        On September 20, 2012, Appellant pro se filed the instant PCRA

petition, alleging, inter alia, that the mathematical formula used by Dr. Cyril

Wecht conflicted with Newton’s Second Law of Motion. Recognizing that his

PCRA petition was untimely, Appellant raised the newly-discovered evidence

exception to the PCRA time-bar.         In support, Appellant argued he did not

discover Dr. Wecht’s use of the incorrect mathematical formula until August

20, 2012, when a “jailhouse lawyer” reviewed the formula in question.

Appellant’s PCRA Petition, 9/24/12, at 4. Alternatively, Appellant also raised

the governmental interference exception, arguing “the Commonwealth

refused [Appellant] Notice of this ‘expert’ testimony (in physics) and left,

unchecked, the fraud, albeit unintentional or otherwise, committed upon the

court, and [Appellant].”         Id. at 6.    On the same day, the PCRA court

appointed James Robinson, Esquire, to represent Appellant. On January 7,

2014, Attorney Robinson filed a no-merit letter and an attendant motion to

withdraw as PCRA counsel.          Following a hearing, the PCRA court granted

Attorney Robinson’s motion to withdraw on May 22, 2014.




                                         -3-
J-S25022-15



       On August 15, 2014, the PCRA court dismissed Appellant’s PCRA

petition without a hearing, concluding it was facially untimely under the

PCRA and did not meet any timeliness exceptions.        The PCRA court found

Appellant filed the PCRA petition on September 20, 2012, even though he

had one year from June 16, 2011 to file the petition.         The PCRA court

addressed, inter alia, Appellant’s newly-discovered evidence exception

argument. In so doing, the PCRA court concluded Dr. Wecht’s testimony

was a matter of public record that cannot be said to be “unknown.”3 PCRA

Court Opinion, 8/15/14, at 10 (citing Commonwealth v. Taylor, 67 A.3d

1245, 1248-49 (Pa. 2013)). The PCRA court noted:

       Dr. Wecht’s testimony occurred in 2007 at the time of trial. The
       trial transcript has been available since at least 2008, when his
       case was before the Pennsylvania Superior Court. The laws of
       physics and motion have been in existence for many, many
       years prior to that. The fact that this “issue” was not discovered
       and raised by [Appellant] or any of his previous counsel does not
       mean that it could not have been discovered or raised. Both
       facts are matters of public record and cannot be considered to
       have been unknown.


PCRA Court Opinion, 8/15/14, at 10.              Accordingly, the PCRA court

determined it lacked jurisdiction over Appellant’s PCRA petition because

Appellant failed to satisfy the newly-discovered evidence requirements of




____________________________________________


3
  Testimony offered at a public sentencing hearing was a matter of public
record ascertainable in the exercise of due diligence. See Commonwealth
v. Hawkins, 953 A.2d 1248, 1255 (Pa. 2006).




                                           -4-
J-S25022-15



Section 9545(b)(1)(ii).4 Appellant timely appealed to this Court. Following

Appellant’s filing of a Pa.R.A.P. 1925(b) statement of errors complained of

on appeal, the PCRA court issued a Pa.R.A.P. 1925(a) opinion on October 14,

2014, incorporating its August 15, 2014 opinion dismissing Appellant’s PCRA

petition.

       On appeal,5 Appellant essentially repeats the same issues.       After

careful review of the parties’ briefs, the record on appeal, and the relevant

case law, we conclude that the PCRA court’s August 15, 2014 opinion

authored by the Honorable Rita Donovan Hathaway, thoroughly and

adequately disposes of Appellant’s appeal.        See PCRA Court Opinion,

8/15/14, at 8-13.       We direct that a copy of the PCRA court’s August 15,

2014 opinion be attached to any future filings in this case.

       Order affirmed.




____________________________________________


4
  The PCRA court also rejected Appellant’s governmental inference exception
argument, concluding that Appellant “failed to establish how the government
interfered with and impeded his ability to raise the evidence of Dr. Wecht’s
misstatement of Newton’s Second Law of Motion under the PCRA in a timely
fashion.” PCRA Court Opinion, 8/15/14, at 12.
5
  “In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).




                                           -5-
J-S25022-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2015




                          -6-
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         IN THE COURT OF COMMON PLEAS OF WESTMORELAND                              COUNTY,
                     PENNSYLVANIA - CRIMINAL DIVISION


 COMMONWEALTH OF PENNSYLVANIA                           )
                                                        )
                        vs.                             )       No.     1469 C 2006
                                                        )
            DAVID M. SHADLE,                            )
                                        Defendant.      )


                                        ORDEROF COURT

        AND NOW, this~~                of August, 2014, upon consideration of the defendant's pro-

 se Motion for Post Conviction Collateral Relief, after hearing Defendant's argument presented in

 open court, the written pleadings filed by both the Defendant and the Commonwealth, and upon

 consideration of the comprehensive No-Merit letter submitted by PCRA counsel, James E.

Robinson, Esq., (a copy of which has been attached to this Order) and after a thorough review of

the record in this case, it appears to this Court that there are no genuine issues of material fact, no

entitlement to relief and no purpose to be served in further proceedings.

PROCEDURALHISTORY

        The defendant, David M. Shadle ("Shadle") was charged by Criminal Information filed

on April 26, 2006, at No. 1469 C 2006 in the Court of Common Pleas of Westmoreland County,

Pennsylvania with Murder of the First Degree ( 18 Pa.C.S. 2502(a)), Criminal Homicide (18

Pa.C.S. §2501 (a)), Theft by Unlawful Taking (18 Pa.C.S. §3921 (a)), Receiving Stolen Property

(18 Pa.C.S. §392S(a)) and Access Fraud Device (18 Pa.C.S. §4106 (a)(l)(ii)).

       At the trial held before Judge Richard E. McC0tmick, Jr., Shadle was represented by

attorneys Chris Haidze and Gregory Cecchetti.         He was convicted by the jury on March 16,

2007 at all counts. Shadle was sentenced on June 11, 2007 to the mandatory sentence of life
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     imprisonment.     Because he expressed a desire to raise claims of ineffective assistance of counsel

     against his trial attorneys,   Judge McCormick         agreed to appoint new counsel to represent               the

     defendant. (ST 21-25).1     Attorney Jeffrey Monzo, Esq. was appointed to represent Shadle the

     following day.

            Shadle, through his new attorney, filed post-sentence motions for a new trial on June 21,

    2007.    Therein, Shadle claimed that he was entitled to a new trial because the verdict was

    contrary to the weight of the evidence, and claimed that his trial counsel were ineffective for

    failing to call forensic psychiatrist Dr. Donald P. Breneman as a witness for the defense

    regarding a report that he had authored as to intoxication/diminished capacity as a defense, and

    for failing to develop the defense of heat of passion as to First Degree Murder. A hearing was

    held before Judge McCormick on October 17, 2007, at which time Attorney Cecchetti and

    Attorney Haidze testified. Shadle's Motion for a New Trial was denied by Judge McCormick on

    November 7, 2007.

            Shadle thereafter filed a timely notice of appeal to the Superior Court, raising the issue of

    counsels' ineffectiveness for failing to call Dr. Breneman.                His conviction and judgment of

    sentence were affirmed by the Superior Court of Pennsylvania by memorandum Order issued on

    October 27, 2008. No subsequent Petition for Allowance of Appeal was filed.

            Shadle filed a pro-se PCRA petition on October 7, 2009 raising claims of ineffective

assistance of trial counsel as follows:

                     l. Failed to put a professional witness on the stand.
                     2. Did not have murder trial experience.
                     3. Didn't bring out "information" on cross-examination of Commonwealth's
                        witnesses (unspecified issue).
                     4. Misguided him not to take the stand.
                     5. Failed to prepare character witnesses.

I
  Numerals in parenthesis preceded by the letters "ST" refer to specific pages of the transcript of the sentencing held
in this matter on June 11, 2007 before Judge Riachrd E. McCormick, Jr., and made a part of the record in this case.


                                                           2
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                    6. Failed to "use the defense I told them to use."

    He also raised the following claims of ineffective assistance of post-sentence/appellate counsel

    Jeffrey Monzo, Esq.:

                    1. Failed to file direct appeal; instead, elected to file a PSM alleging ineffective
                       assistance of counsel.
                    2. Only used one issue to establish ineffective assistance of counsel.
                    3. Failed to communicate with defendant during appeal.
                    4. Failed to appeal Superior Court decision to Supreme Court.
                    5. Failed to give defendant copies of transcripts.
                    6. Failed to show "provocation" in appeals.

           Judge McCormick appointed Jeffrey Miller, Esq., to represent the defendant in his first

    PCRA proceeding.i After reviewing the case, Attorney Miller filed an Amended PCRA Petition

    on December 9, 2009.        Therein, the defendant raised two issues: whether trial counsel was

    ineffective for failing to object to the introduction of prior bad acts evidence and for failing to

request a limiting instruction regarding that evidence; and, whether post-sentence/appellate

counsel was ineffective for failing to file a Petition for Allowance of Appeal to the Pennsylvania

Supreme Court following the Superior Court's                      October 27, 2008 Memorandum Order.

Following a hearing, this court granted in part and denied in part Shadle's first PCRA petition,

granting Shadle's right to file a Petition for Allowance of Appeal to the Supreme Court, but

denying his claim to post-collateral relief on the issue of trial counsel's failure to object to the

introduction of prior bad acts evidence and failure to request a limiting instruction regarding that

evidence.3


2
    The case was reassigned to the undersigned on November 25, 2009.
3
   Based upon the evidence presented at the evidentiary hearing, the court was unable to find that Jeffrey Monzo,
Esq. was ineffective for failing to file a Petition for Allowance of Appeal Nunc Pro Tune in this matter. However,
given the severity of the crimes for which the defendant was convicted and the mandatory life sentence which was
imposed in this case, in the interests of justice, the court granted the defendant's requested relief and permitted him
to file a Petition for Allowance of Appeal to the Supreme Court of Pennsylvania Nuno Pro Tune, appealing the
decision of the Superior Court filed on October 27, 2008.



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         Shadle appealed the June 8, 2010 Order of Court denying his requested relief to the

 Superior Court, and simultaneously    filed a Petition for Allowance of Appeal in the Supreme

 Court of Pennsylvania.      The Superior Court quashed his appeal, noting that they had no

jurisdiction   to reach a conclusion on the merits of the issue raised by Shadle regarding trial

 counsel's ineffectiveness as his right to seek review in the Supreme Court had been granted. The

 Superior Court specifically noted that "Appellant may raise claims of ineffective assistance of

 counsel by filing another PCRA Petition following the disposition of his petition for allowance

of appeal."      His Petition for Allowance   of Appeal was denied by the Supreme Court of

Pennsylvania     on March 16, 2011, and his judgment of sentence became final thirty days

thereafter.

         Shadle, through attorney Miller, filed a second PCRA Petition on April 25, 2011, raising

those same allegations of the ineffective assistance of counsel as he had previously raised. This

PCRA, which was treated by the court as a first PCRA given the procedural history of the case,

was denied by Order of Court dated May 6, 2011.           Shadle appealed the denial of his PCRA

Petition, and the Superior Court affirmed this court's denial of his request for relief under the

PCRA on December 12, 2011. His subsequent Petition for Allowance of Appeal was denied by

the Pennsylvania    Supreme Court on July 23, 2012.

        Shadle filed a pro-se PCRA Petition on or about September 30, 2012. Even though this

was a second or subsequent       PCRA Petition,       Attorney James Robinson   was appointed   to

represent him.     After receiving numerous extensions of time within which to file an Amended

PCRA Petition or a No-Merit letter, Attorney Robinson filed a comprehensive No-Merit letter on

November 7, 2014. A hearing was held following Shadle's submission of s pro-se "Objection to

the No-Merit Letter filed by Attorney Robinson.




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     FACTUAL      HISTORY

            The facts presented at trial established the following:

            David M. Shadle was involved in a romantic relationship with Jessica Aaron, a 19 year-

    old sophomore at Indiana University of Pennsylvania from approximately September 2005

    through January 2006. The initially loving relationship eventually deteriorated into what was

    described by Jessica's roommate, Nicole Hofrichter, as "more fighting, more intensity in

    fighting, a lot of yelling, screaming." (TT 80-81 ). 4 Hofrichter testified that Jessica had left their

    dorm room on the morning of January 24, 2006 to pick up David Shadle. When Jessica returned

    at approximately 5:30 p.m., she was hysterical, and took Hofrichter to see her car windshield,

    which had been smashed. (TT 83-84). Hofrichter never saw Shadle with Jessica again. (TI 85).

           Trooper Douglas Snyder testified that he was dispatched to the Advance Auto Supply in

    Indiana, Pa., for a report of a boyfriend/girlfriend dispute and a broken windshield. (TT 287-288)

    He testified that he observed Shadle in Jessica's car, spoke with him, and that he admitted to

breaking the windshield. (TT 289-291 ). He transported Shadle to the State Police Barracks in

Indiana and issued him a non-traffic citation for the damage to the windshield. Shadle pled

guilty to that citation and paid a fine on February 7, 2006. (TT 291-297).

           Nicole Hofrichter testified that she knew that Shadle called Jessica repeatedly on her cell

phone after the January 24, 2006 incident. She testified that Jessica would sometimes answer the

phone, sometimes she would hang up, and eventually, she ignored Shadle's calls. (TI 85-88).

Hofrichter indicated that the last time she saw Jessica Aaron was about 6:30 p.m. on February

27, 2006. (TT 89).


4
 Numerals in parenthesis preceded by the letters "TT" refer to specific pages of the transcript of the trial in this
mater, held before Judge Richard E. McConnick, Jr., and made a part of the record herein.


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                                                                                          Circulated 06/16/2015 11:27 AM




          Shadle resided at the time with his uncle, George Cline, in Slickville, Westmoreland

 County, Pennsylvania.         (IT 98-99).   Cline testified that he was familiar with Jessica Aaron, knew

 what type of car she drove, and knew that she was Shadle's              girlfriend. (TT 102-103).   Cline

 stated that Shadle and Jessica came into his Slickville house around 6:00 p.m., spent some time

 there, and then left for dinner. (IT 104-105).        He testified that he was watching television when

 they returned       around    10:30 p.m. and went straight to Shadle's     room.   Cline heard the two

 arguing in Shadle's          room, so he turned up the volume on the television and eventually        fell

 asleep. (TT 108-109).

         Cline saw Shadle emerge from his room at about 1 :00 p.m. He told Cline that he would

 return in an hour, and then drove away in Jessica's car. He never again returned to the residence.

                 5
 (TT 115-116).        Cline testified that as he sat down to eat dinner, he recalled that Jessica had not

left with Shadle, so he thought to wake her up and see if she wanted something to eat. When

Jessica did not answer his knocks on the door, Cline unlocked the door and discovered Jessica's

body lying on the floor of Shadle's bedroom. (TT 117-119). He recalled that she had a sleeping

bag over her body, and that her head was covered with a plastic grocery bag. Cline and his

girlfriend immediately called 9-1-1. He believed that it was approximately 4:30 p.m. when he

discovered Jessica's body. (TT 119-121).

        Members of the Pennsylvania State Police arrived at the Cline residence in response to

the 9-1-1 call. Trooper Stepinski testified that he processed and photographed the scene on

February 28, 2006. He testified that his examination of Jessica's body showed that the bag

which covered her head was actually tied tightly, "pulled tight and tied to a knot on the left

cheek ... it was tight around her neck." (TT 191). The bag was filled with blood, and Jessica's

.s There was additional evidence that established that Shadle had used Jessica's S&T bank card in Delmont,
 Westmoreland County on Febrnary 28, 2006 at approximately 7:55 p.m, as captured through ATM camera
surveillance. He withdrew $300.00 in cash from Jessica's account. (TI 4 78-486).


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    face and head showed signs of trauma, including lacerations            and bruising. (TI 192-193).         An

    autopsy was performed      by Dr. Cyril Wecht, who opined that although Jessica had sustained

    injuries to her head which resulted in a fracture of her skull and swelling in her brain, the cause

    of her death was asphyxiation    due to manual strangulation and smothering. (TT 399-400, 404).

             Shadle was arrested by Pennsylvania      State Police officers on March 1, 2006.         Following

    his arrest, Shadle made numerous verbal and written statements regarding the death of Jessica

    Aaron.   All of Shadle's statements consistently related that he and Jessica had had an argument

    on the evening of February    27th.   He stated that Jessica became enraged and came after him and

    started to claw and scratch at him. He stated that Jessica jumped at him, but that he moved out of

    the way and Jessica hit her head on a piece of fumiture.6                She started to bleed and was

    unresponsive. Shadle then reported that he shook her to wake her up, but she was not breathing.

    He stated that he placed the plastic bag under her head to catch the blood, and, eventually, he left

    the residence. (TT129-130, 307-309, 334-335, 346-348, 351-353).                   Joseph Lee Cline, Jr.,

    Shadle's cousin, testified that Shadle had called him on February 281h and told him that he was

going to stop at his house at about 1 :30 p.m. Indeed, Shadle arrived as he said he would, driving

Jessica's car. The two watched television and played video games until they went out to get beer

and cigarettes. Joseph Lee Cline Jr., testified that Shadle told him that Jessica had jumped off

the bed at him and hit her head, and she went limp. He told him that Jessica was hurt. When he

was told to call the police for help, he stated that he was scared and, eventually, asked for Cline

Jr. 's help to "get rid of" Jessica's car and her body. (TT 161-175).




6
  To Tpr. Danny Moy, he stated that Jessica hit her head on an end table. (TI 309). To Cpl. Kenny Karas, he stated
that it was the dresser. (IT 334). In a letter written to his uncle George Cline, it was the TV stand. (TT 129).


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 DISCUSSION:

        Shadle's present Petition for post-conviction    relief under the Post-Conviction   Relief Act

 (42 Pa.C.S. §9541, et. seq.) is his third such petition, his second since his judgment of sentence

became final. Any petition filed under the Post-Conviction Relief Act, including second and

subsequent petitions, must be filed within one year of the date that the judgment of sentence

becomes final. 42 Pa.CS. §9545(b)(2).           To be eligible for post-conviction relief, a PCRA

petition, including second and subsequent Petitions, must be filed within one year from the date

that the judgment became final. 42 Pa.CS §9545(b)(l); Pa.RiCrim.P. Rule 901. "A judgment

becomes final at the conclusion of direct review or at the expiration of time for seeking the

review." Commonwealth v. Breaklron, 566 Pa. 323, 329, 781 A.2d 94, 97 (2001) (citing 42

Pa.C.S. §9545(b)(3)). Shadle's judgment of sentence became final on March 16, 201 L The first

PCRA Petition, filed on April 25, 2011, was therefore timely. The instant PCRA Petition, filed

on September 20, 2012, is clearly untimely; therefore, unless an exception applies, Shadle is not

eligible for relief     Indeed, unless such an exception applies, this court lacks jurisdiction to

entertain Shadle's untimely-filed second PCRA petition.

       Certain exceptions set forth in the Post-Conviction Relief Act can act to excuse the

untimely filing of a PCRA 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;




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                    (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.

42 Pa.CS.A. §9545(b).

         "It is imperative to note that the timeliness requirements of the PCRA are jurisdictional

in nature. Statutory time restrictions may not be altered or disregarded to reach the merits of the

claims raised in the petition." Commonwealth v. Harris, 972 A.2d l I 96, 1199 (Pa.Super.2009)

(internal citations omitted). See also, Commonwealth v. McKeever, 947 A.2d 742 (Pa.Super.

2008).

         Further,

            Title 42 Pa.C.S.A. § 9545(b)(I) requires that any PCRA petition,
            including a second or subsequent petition, must be filed within one year of
            the date that the petitioner's judgment of sentence becomes final, unless a
            petitioner pleads or proves that one of the exceptions to the timeliness
            requirement enumerated in 42 Pa.C.S.A. § 954S(b)(l)(i)-(iii) is applicable.
            The timeliness requirement is mandatory and jurisdictional; therefore, no
            court may disregard, alter, or create equitable exceptions to the timeliness
            requirement in order to reach the substance of a petitioner's arguments.
            See Commonwealth v. Davis, 916 A.2d 1206 (Pa.Super.2007).

Commonwealth v. McKeever, 947 A.2d 782, 784-785 (Pa.Super. 2008). Although this second

PCRA Petition is untimely filed, Shadle argues that the newly discovered evidence exception

excuses the untimely filing. 42 Pa.CS.A. §9545(b)(J)(ii).

         In support of this theory, Shadle suggests that Dr. Cyril Wecht's testimony at trial, which

referenced Newton's Second Law of Motion, discredited Shadle's account of the events that




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 transpired in the Cline household that led to the death of Jessica Aaron. Shadle contends that Dr.

 Wecht misstated Newton's Second Law of Motion, and that this incorrect recitation of Newton's

 formula caused the jury to disbelieve his explanation of these events. Absent this testimony, he

believes, the jury would not have convicted him of first degree murder.

        Assuming, arguendo, that Dr. Wecht did misstate the formula that is Newton's Second

Law of Motion, it is clear that the newly discovered evidence exception to the timeliness

requirements of the PCRA does not apply here. In order to qualify for the exception set forth in

42 Pa.C.S.A. §9545(b)(l)(ii),

            to constitute facts which were unknown to a petitioner and could not have
            been ascertained by the exercise of due diligence, the information must not
            be of public record and must not be facts that were previously known but
            are now presented through a newly discovered source.

        Commonwealth v. Edmiston, 619 Pa. 549, 570-571, 65 A.3d 339, 352 (Pa. 2013). It is

abundantly clear that Shadle's claim cannot meet this requirement. The Pennsylvania Supreme

Court has repeatedly found that matters of public record cannot be said to be "unknown." See

Commonwealth v. Taylor, 67 A.3d 1245 (Pa.2013); Commonwealth v. Lopez, 51 A.3d 195, 196

(Pa.2012) ( per curiam ); Commonwealth v. Chester, 586 Pa. 468, 895 A.2d 520, 523 (2006);

Commonwealth v. Fisher, 582 Pa. 276, 870 A.2d 864 (2005). Commonwealth v. Whitney, 572

Pa. 468, 817 A.2d 473, 476 (2003); Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 588 n.

4 (2000). Dr. Wecht's testimony occurred in 2007 at the time of trial. The trial transcript has

been available since at least 2008, when his case was before the Pennsylvania Superior Court.

The laws of physics and motion have been in existence for many, many years prior to that. The

fact that this "issue" was not discovered and raised by Shadle or any of his previous counsel does

not mean that it could not have been discovered or raised. Both facts are matters of public record

and cannot be considered to have been unknown. Therefore, Shadle cannot meet the



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    requirements of the time-bar exception found in 42 Pa.C.S .A. §9545(b )(1 )(ii), and this court does

 not have jurisdiction to entertain his petition for Post-Conviction              Relief.'

           In the alternative, Shadle suggests that his untimely filing of the PCRA should be

 excused based upon governmental interference exception to the timeliness requirement set forth

in 42 Pa.C. S.A. §9545(b )(1 )(i). This is so because, he contends, "the Commonwealth refused

defendant Notice of this 'expert' testimony (in physics) and left, unchecked, the fraud, albeit

unintentional or otherwise, committed upon the court, and defendant."                            However, Shadle's

argument in the regard fails as well. As stated previously, any claims under the PCRA must be

raised within one year of the date that the judgment of sentence became final, or by April 15,

2012.       The governmental interference that is contemplated is not alleged prosecutorial




7
  Even if Shadle could overcome the jurisdictional hurdle in this matter, his claim for relief based upon "newly-
discovered evidence" is meritless.

               [The PCRA petitioner] must demonstrate that the evidence: (I) could not have been
               obtained prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is
               no! merely corroborative or cumulative; (3) will not be used solely to impeach the
               credibility of a witness; and (4) would likely result in a different verdict if a new trial
               were granted.

Commonwealth v. Medina, 92 A.3d 1210, 1218 (Pa.Super.,2014) (citing Commonwealth v. Pagan, 597 Pa. 69, 950
A.2d 270, 292 (2008), cert. denied, Pagan v. Pennsylvania, 555 U.S. 1198, 129 s.o. 1378, 173 L.Ed.2d 633
(2009); accord Commonwealth v. Castro, 55 A.3d 1242, 1246 (Pa.Super.2012) (en bane), appeal granted, 65 A.3d
291 (Pa.2013)).

         Dr. Wecht testified that the cause of death in this case was asphyxiation due to manual strangulation and
smothering. (TT 399-400, 404). While it is true that he noted that Jessica Aaron had sustained injuries to her head
which resulted in a fracture of her skull and swelling in her brain, these injuries were not the cause of death. The
statement or misstatement of Newton's Second Law of Motion was in no way determinative of his expert opinion as
to cause of death. Had Shadle pointed out an error in his recitation of the Law of Motion, it would have served only
to impeach Dr. Wecht's credibility at trial, and would not have resulted in a different verdict given the volume of
evidence against Shadle.




                                                            11
                 ... ; ·,·.~~.:-.,··    .
                                                                                                                                                                                               Circulated 06/16/2015 11:27 AM




 misconducfattrial.
       :-;.,·:
        ::··,·   ·:·
                    Rather, in order to establish the requirements under the exception set forth in
                                       ..   :.   ,·;}::,   ...



 42 Pa.ds.A.:§9545(b)Cl)(i),
     .: . :'. :\·.i<.~:.· .. . : > ·.
         , , ;:\.th~:jJetitioner must plead and prove that the failure to previously raise
          . ; :,'·'::>                      thesf
                              claims was the result of interference by government officials, and
                 ,\:v::tlia{the'.information could not have been obtained earlier with the exercise
             • _}if:';Sf\i~~diligence.       ·

 Co#,~:ljw~JjJkv. Hawkins,                                                                             598 Pa. 85, 93, 953 A.2d 1248, 1253 (2006). Shadle has failed to
       -.;: /3iWiI'?\]-;\:::, . :. _
 estabH~K}fow:the\iovernrnent interfered with and impeded his ability to raise the evidence of Dr.
     -: . :· :/:''.·>\\/:\:/:'.:.(i.\·:.;· ·./·:·,:
 Wecht;·i&ffiissf~iefuent of Newton's Second Law of Motion under the PCRA in a timely fashion.
         - · - ;,'., ::'!},cj:/:);:',;::~:'.{                              -
 Furthef;')pjsj@tili:has                                                        previously determined that this fact, alleged as "newly-discovered"                                                            by
  .       .•.·-, - -::.·;.·._:<.:-: ='.x . .-w. ,~>:~-/;.:.-irt .,:< ·.·        .

 Sha41~,\iit!bi£i0~~ht;eJhat could not have been discovered by him or any of his prior counsel
       -_- • l\S?E{:&'.ii:-J:~tiifl() ::' .-
 witlrlii:ili&Ji '.!,,;,:tH.Af                                   Ba~ allowable under the PCRA.                                                    8

      ' -.:, : ::f{(ft . .                                  Ji{f':(,                                   ·- .
           :·,: sh:aa1e::$jfiict:si.iggests that he is entitled to review of his post-conviction claims due to an
        · ,::;1/\:?:Itt(:11:tfJs:?ffii\f?X> _                                                     .-                                                        .        ,
 alleged;,gµ''''"' 'JV/'J•\'i'·:yered"                                                              conflict of interest on the part of Jeffery Monzo, Esq.                                              Shadle
     ._: :,<· \\\···it:(        :._:i/:.: /· ·:·> . ·.·..

, coriJ~~i}}W-;,~                                                     :',fn~(to post-conviction                                          relief because Attorney Monzo was employed by

                                                                           tiit{law firm that also represented the W estrnoreland County Prison. In
                                                                            {,-/~-...:          .                                             I



                                                                               ',-Jlie
                                                                           '.<:·,<:,: . .>:
                                                                                                  Commonwealth's
                                                                                                              .
                                                                                                                                           Brief in Opposition to PCRA Petition, Shadle

                                                                      ; ,tlf:-llowever,- for the same reasons set forth previously, Belden Law's




                                                                      ·i,1f
                                                                      1;:t~preland County Prison was a matter of public record and certainly

                                                                                                                        gh an exercise of due.diligence. See, e.g., Commonwealth v.

                                                                                    ,:i\¥.Q.!})(counsel' s representation of third party in unrelated matters was
                                                                                    ~HfZ~\-k:?-~<.-,~. _ . .                                                     -
                                                                                    , , , ';;Bl~
                                                                                           ··   · •.    c.7'.',·,    .· v
                                                                                                                            With the clerk of court, and readily available; therefore, the
                                                                                                                               •




                                                                                                                    -:::,~)iis post-sentence motion, in his direct appeal, or in either of his two
                                                                                                                    !f?f;error has been waived. A defendant is not eligible for post-conviction
                                                                                                                    'gor has been previously raised and litigated or has been waived. 42 Pa. C.S.
                                                                                                                    /'.if           the petitioner could have raised it but failed to do so before trial, at trial,
                                                                                                                    J)?:or
                                                                                                                     :.,.-.- . . ·.
                                                                                                                                      state postconviction proceeding.': 42 Pa.C.S.A. § 9544(b).


                                                                                                                                         12
                                                                                       Circulated 06/16/2015 11:27 AM




 evidence presented would not meet the requirement the information be unknown at the time the

petition was filed). Therefore,      even had Shadle not withdrawn         this issue, this court lacks

jurisdiction to entertain the merits of this claim.

         Finally, Shadle contends that he is entitled to post-conviction     relief because he was not

afforded credit for time served on his sentence of life in prison without the possibility of parole.

He alleges that the failure of the court to grant credit for time served renders the sentence illegal.

               The PCRA provides the sole means for obtaining collateral review of a
              judgment of sentence. Commonwealth v. Fowler, 930 A.2d 586, 591
               (Pa.Super.2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008); 42
               Pa.C.S.A. § 9542. "[A] court may entertain a challenge to the legality of
              the sentence so long as the court has jurisdiction to hear the claim. In the
               PCRA context, jurisdiction is tied to the filing of a timely PCRA petition."
              Id. at 592 (quoting Commonwealth v. Berry, 877 A.2d 479, 482
               (Pa.Super.2005) ( en bane ), appeal denied, 591 Pa. 688, 917 A.2d 844
              (2007)). "Although legality of sentence is always subject to review within
              the PCRA, claims must still first satisfy the PCRA's time limits or one of
              the exceptions thereto." Fowler, supra. Pennsylvania law makes clear no
              court has jurisdiction to hear an untimely PCRA petition. Commonwealth
               v. Robinson, 575 Pa. 500, 837 A.2d 1157 (2003). Thus, a collateral claim
              regarding the legality of a sentence can be lost for failure to raise it in a
              timely manner under the PCRA. Commonwealth v. Wojtaszek, 951 A.2d
               1169, 1173 n. 9 (Pa.Super.2008), appeal denied, 600 Pa. 733, 963 A.2d
              470 (2009).

Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.Super. 2013).            Shadle does not set forth any

reason why he could not have raised this issue within one year of the date that the judgment of

sentence became final. For this reason, this court has no jurisdiction to entertain the merits of

this claim.



        NOW THEREFORE,            having determined that the court lacks jurisdiction to entertain the

merits of Shadle's claims based upon the untimely          filing of the instant PCRA Petition, the

following Order shall enter:




                                                      13
                                                                                  Circulated 06/16/2015 11:27 AM




       IN THE COURT       OF COMMON PLEAS OF WESTMORELAND                      COUNTY,
                         PENNSYLVANIA - CRIMINAL DIVISION


COMMONWEALTH OF PENNSYLVANIA                         )
                                                     )
                      vs.                            )      No.     1469 C 2006
                                                     )
            DAVID M. SHADLE,                         )
                                     Defendant.      )


                                     ORDER OF COURT


       AND NOW, this /...Jday of August, 2014, for the reasons set forth in the preceding

Opinion, it is hereby ORDERED as follows:


       I.      For the reasons set forth in the foregoing Opinion, the defendant's pro-se Petition

for Post-Conviction Relief filed pursuant to the Post Conviction Relief Act, (42 Pa.C.S. §9541,

et. seq.) is hereby DISMISSED.


       2.     This court has determined that it lacks jurisdiction to entertain the merits of the

defendant's pro-se PCRA petition, and therefore no further purpose would be served by

affording the Defendant an evidentiary hearing. Further, having reviewed the comprehensive

No-Merit Letter submitted by former PCRA Counsel James E. Robinson, Esq., and having

previously determined that PCRA counsel satisfied the requirements of Commonwealth v.

Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 330 Pa.Super. 313,

479 A.2d 568 (1984) and having granted counsel's request to withdraw as PCRA counsel for the

defendant, and having considered defendant's requests to afford him the time to hire private

counsel, his request for court-appointed counsel is DENIED.


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                                                                                                  Circulated 06/16/2015 11:27 AM




          3.      THE DEFENDANT               IS NOTIFIED                      THAT   ANY APPEAL      TO THE

SUPERIOR COURT OF PENNSYLVANIA FROM THIS COURT'S DISMISSAL OF HIS

SECOND PRO-SE PCRA PETITION MUST BE FILED WITHIN THIRTY (30) DAVS

FROM THE DATE OF THIS ORDER OF COURT.


          4.      The defendant is further advised that based upon this court's determination that

former PCRA counsel satisfied the Turner/Finley requirements, he is not entitled to the

assistance of court-appointed counsel should he elect to appeal this court's decision to dismiss

his PCRA Petition and to permit PCRA counsel to withdraw. The defendant is free to proceed

on appeal pro-se or with private counsel of his choice. Commonwealth v. Turner, supra;

Commonwealth v. Maple, 385 Pa.Super. 314, 559 A.2d 953 (1989). Should he desire to pursue

an appeal pro-se, he should also file the required Motion to Proceed in forma pauperis with this

C0\111.


                                                                            BY THE COURT:



                                              ····-····~-~ ....   -~-----
ATTEST:


Clerk of Courts




cc:       File
          John W. Peck, Esq., District Attorney of Westmoreland County
          James E. Robinson, Esq., former PCRA Counsel for Defendant
          Pamela Neiderheiser, Esq., Court Administrator's Office·
          James M. Shadle, Defendant (#HC-8564)-                                              .   '
                  SCI Graterford, P.O. Box. 244, Gratcrford, PA 19426-0244




                                                                     15
