J-S86001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ERIC RAMBERT                               :
                                               :
                      Appellant                :   No. 90 WDA 2015

                Appeal from the PCRA Order December 19, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0002765-1987


BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED NOVEMBER 29, 2016

        Appellant, Eric Rambert, appeals pro se from the December 19, 2014,

order entered in the Court of Common Pleas of Allegheny County dismissing

his serial petition filed under the PCRA.1 We affirm.

        The relevant facts and procedural history are as follows: On January

27, 1987, a fire broke out at a state correctional institution where Appellant

was an inmate. As a correctional officer attempted to unlock cells and direct

inmates to the yard, Appellant struck the officer from behind, with several

other inmates joining in the attack.           The prisoners beat the correctional


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1
    Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.

*Former Justice specially assigned to the Superior Court.
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officer into unconsciousness and he later required more than seventy-five

stitches.

       A jury convicted Appellant of assault by a prisoner, riot, and

conspiracy, and on November 10, 1987, the trial court sentenced Appellant

to an aggregate of six years to twenty-five years in prison. On November

30, 1988, this Court affirmed Appellant’s judgment of sentence.            See

Commonwealth v. Rambert, 1710 Pittsburgh 1987 (Pa.Super. filed

11/30/88) (unpublished memorandum). Appellant did not file a petition for

allowance of appeal with our Supreme Court.

       Thereafter, Appellant filed serial PCRA petitions, including one filed on

July 9, 2012.    The PCRA court dismissed the petition, and on appeal, this

Court affirmed the dismissal. See Commonwealth v. Rambert, No. 320

WDA 2013 (Pa.Super. filed 11/12/13) (unpublished judgment order).

Specifically, we concluded that there was no indication Appellant was still

serving a sentence for the convictions at issue, and thus, it appeared he was

ineligible for PCRA relief. See id. at 2.    Alternatively, we concluded that

Appellant’s PCRA petition was untimely filed, and Appellant did not meet his

burden of proving that any of the timeliness exceptions applied. See id. at

2-3.




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       On May 15, 2014,2 Appellant filed the instant PCRA petition, and the

PCRA court provided Appellant with notice of its intent to dismiss the petition

without a hearing. Appellant provided a pro se response, and by order filed

on December 19, 2014, the PCRA court dismissed Appellant’s PCRA petition.

This timely pro se appeal followed. The PCRA court directed Appellant to file

a Pa.R.A.P. 1925(b) statement, Appellant timely complied, and the PCRA

court filed a Pa.R.A.P. 1925(a) opinion.3

       Preliminarily, we note that, in order to be eligible for relief under the

PCRA, Appellant must demonstrate that he is currently serving a sentence of

imprisonment, probation, or parole for the convictions at issue.        See 42

Pa.C.S.A. § 9543(a)(1)(i). Instantly, the trial court sentenced Appellant on

November 10, 1987, to six years to twenty-five years in prison. “Nothing in

the record indicates Appellant is still serving the sentence for the convictions

at issue.    Therefore, Appellant appears to be ineligible for PCRA relief.”

Rambert, No. 320 WDA 2013, at 2 (citation omitted).


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2
  Although Appellant’s PCRA petition was docketed on May 28, 2014, we
shall deem it to have been filed on May 15, 2014, when it was handed to
prison authorities. See generally Commonwealth v. Brandon, 51 A.3d
231, 234 n.5 (Pa.Super. 2012).
3
  “Our standard of review of the denial of PCRA relief is clear; we are limited
to determining whether the PCRA court’s findings are supported by the
record and without legal error.” Commonwealth v. Wojtaszek, 951 A.2d
1169, 1170 (Pa.Super. 2008) (quotation and quotation marks omitted).




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      Alternatively, we conclude Appellant’s instant PCRA petition was

untimely filed. Pennsylvania law makes it clear that no court has jurisdiction

to hear an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa.

500, 837 A.2d 1157 (2003).      The most recent amendments to the PCRA,

effective January 19, 1996, provide that a PCRA petition, including a second

or subsequent petition, shall be filed within one year of the date the

underlying judgment becomes final.          42 Pa.C.S.A. § 9545(b)(1).      A

judgment is deemed 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 the time for seeking

review.” 42 Pa.C.S.A. § 9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1).       To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law 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 Pennsylvania after
               the time period provide in this section and has been
               held by that court to apply retroactively.

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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

       “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).

Moreover, “the PCRA limits the reach of the exceptions by providing that a

petition invoking any of the exceptions must be filed within 60 days of the

date the claim first could have been presented.” Commonwealth v.

Walters, 135 A.3d 589, 592 (Pa.Super. 2016) (citations omitted). See 42

Pa.C.S.A. § 9545(b)(2).

       Instantly, there is no dispute that Appellant’s current petition is facially

untimely.    This   Court    affirmed     Appellant’s    judgment    of   sentence   on

November 30, 1988, and Appellant did not file a petition for allowance of

appeal. However, Appellant did not file the instant PCRA petition until May

15, 2014.      Thus, the petition is patently untimely.          See 42 Pa.C.S.A. §

9545(b)(1).

       Appellant attempts to invoke the governmental interference and/or the

newly-discovered facts exceptions.4            In this vein, he argues that he recently

discovered in the “volumes of legal documents” that two of the victim’s
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4
  We are mindful that “although this Court is willing to construe liberally
materials filed by a pro se litigant, pro se status generally confers no special
benefit upon an appellant.” Commonwealth v. Lyons, 833 A.2d 245, 252
(Pa.Super. 2003) (citation omitted). It merits mentioning that Appellant’s
pro se brief is disjointed and difficult to read.



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statements, dated January 27, 1987, and January 28, 1987, which he gave

to Pennsylvania state troopers, contained exculpatory evidence.          Appellant

avers that the Commonwealth committed a Brady5 violation in failing to turn

over the statements prior to Appellant’s trial.

        To the extent Appellant’s argument touches upon the governmental

interference exception of Subsection 9545(b)(1)(i), we note that, to

establish the exception, “the petitioner must plead and prove the failure to

previously raise the claim was the result of interference by government

officials, and the information could not have been obtained earlier with the

exercise of due diligence.”       Commonwealth v. Abu-Jamal, 596 Pa. 219,

941 A.2d 1263, 1268 (2008) (citation omitted).

        To   the   extent   Appellant’s    argument   touches   upon   the   newly-

discovered facts exception of Subsection 9545(b)(1)(ii), we note that, to

establish the exception, the petitioner must prove (1) the fact was unknown

to him and (2) the fact could not have been ascertained previously by the

exercise of due diligence. Commonwealth v. Bennett, 593 Pa. 382, 930

A.2d 1264 (2007).

        With regard to due diligence, we are guided by the following: “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

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5
    Brady v. Maryland, 83 S.Ct. 1194 (1963).



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new fact(s) earlier with the exercise of due diligence.   This rule is strictly

enforced.”    Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super.

2015) (citations omitted).

      In the case sub judice, assuming, arguendo, Appellant presented his

claim within 60-days of when he first learned of the victim’s statements, see

Walters, supra, we conclude Appellant has failed to demonstrate the

necessary due diligence to invoke either the governmental interference or

newly-discovered facts exception. Simply put, inasmuch as Appellant admits

in his brief that trial counsel knew of the statements during trial, and

Appellant discovered the statements simply by reading the “volumes of legal

documents,” Appellant has not explained why he could not have learned of

the existence of the victim’s statements earlier with the exercise of due

diligence.

      For all of the foregoing reasons, we affirm.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2016




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