J-S10027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROGER BIEROS

                            Appellant                  No. 1572 EDA 2014


               Appeal from the PCRA Order entered April 24, 2014
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0706111-2000


BEFORE: GANTMAN, P.J., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED APRIL 17, 2015

        Appellant, Roger Bieros, appeals from the April 24, 2014 order of the

Court of Common Pleas of Philadelphia County denying relief under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46.        Upon review, we

affirm.

        The PCRA court adequately summarized the factual and procedural

background of this case.          Briefly, in 1999, Appellant was charged with

attempted murder, aggravated assault, and possession of an instrument of

crime.     Throughout the pre-trial motion proceedings and trial, Appellant

represented himself.        On July 24, 2001, a jury convicted Appellant of all

charges.    On January 29, 2002, Appellant was sentenced to an aggregate

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S10027-15



sentence of 12½ to 25 years of incarceration. Appellant did not appeal the

sentence.

       On February 6, 2003, Appellant filed first PCRA petition, which the

PCRA court granted on October 7, 2004, reinstating his direct appeal rights.

After filing his direct appeal, Appellant petitioned for withdrawal of appointed

counsel.    After remand for a Grazier1 hearing, counsel was permitted to

withdraw and Appellant was allowed to proceed pro se. This Court affirmed

the judgment of sentence on April 7, 2008, and denied his request for

reconsideration, on May 19, 2008. Appellant did not petition the Supreme

Court for allowance of appeal.

       On October 6, 2011, Appellant filed the instant pro se petition.

Counsel was appointed on February 28, 2012. On April 11, 2014, Appellant

filed a motion to proceed pro se. The PCRA court dismissed the petition as

untimely, without holding a hearing, on April 24, 2014.            This appeal

followed.

       On appeal, Appellant argues the PCRA court erroneously dismissed his

petition without holding a hearing. Specifically, Appellant argues the PCRA

court erred in “reject[ing] [his] petition based solely on the statute of

limitations.” Appellant’s Brief at 10. According to Appellant, the PCRA court

should have held “an evidentiary hearing to determine the material issues of

____________________________________________


1
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).




                                           -2-
J-S10027-15



fact that the Appellant raised relating to the effects of his medication on him

and on [sic] his case.” Id.

        There is no dispute the instant petition is facially untimely. The only

question is whether Appellant alleged and established the newly discovered

facts   exception     (i.e.,   effects   of    medication   on   Appellant).2   Upon

consideration of the record, the briefs, and the applicable law, we conclude

the PCRA court properly dismissed the instant petition as untimely.

Specifically, we agree with the PCRA court’s analysis and conclusion that

Appellant failed to establish that the side effect of the medication was

previously unknown to him and that it could not have been discovered by

____________________________________________


2
 As we stated in Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.
Super. 2010):

        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 petition and could not have learned
        those facts earlier by the exercise of due diligence.
        Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,
        1271 (2007). Due diligence demands that the petitioner take
        reasonable steps to protect his own interests. Commonwealth
        v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001). A petitioner
        must explain why he could not have obtained the new fact(s)
        earlier with the exercise of due diligence. Commonwealth v.
        Breakiron, 566 Pa. 323, 330-31, 781 A.2d 94, 98 (2001);
        Commonwealth v. Yarris, 557 Pa. 12, 29, 731 A.2d 581, 590
        (1999). This rule is strictly enforced. See [Commonwealth v.]
        Vega, [754 A.2d 714,] 718 [(Pa. Super. 2000)].

Id. at 1080




                                              -3-
J-S10027-15



the exercise of due diligence. The instant petition is, therefore, untimely, as

Appellant fails to establish that the newly discovered facts exception applies

in this matter.

      Additionally, the PCRA court did not err in dismissing the petition

without a hearing. See Commonwealth v. Marshall, 947 A.2d 714, 723

(Pa. 2008). (“As explained supra, we have concluded that [a]ppellant’s

petition was untimely, and accordingly the PCRA court properly determined

that it had no jurisdiction to entertain it. We therefore also must conclude

that the PCRA court did not err in dismissing [a]ppellant’s petition without a

hearing.”).

      Because we dispose of this appeal on the basis of the PCRA court’s

Rule 1925(a) opinion authored by the Honorable Genece E. Brinkley, we

direct that a copy of the PCRA court’s August 1, 2014 Rule 1925(a) opinion

be attached to any future filings in this case.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2015




                                      -4-
Circulated 03/31/2015 04:30 PM
Circulated 03/31/2015 04:30 PM
Circulated 03/31/2015 04:30 PM
Circulated 03/31/2015 04:30 PM
Circulated 03/31/2015 04:30 PM
Circulated 03/31/2015 04:30 PM
Circulated 03/31/2015 04:30 PM
Circulated 03/31/2015 04:30 PM
