J-S25003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEROME MCDAVIS,

                            Appellant                 No. 1880 WDA 2013


                 Appeal from the PCRA Order October 30, 2013
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0008612-1987


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

MEMORANDUM BY BENDER, P.J.E.:                           FILED JUNE 02, 2015

        Appellant, Jerome McDavis, appeals pro se from the October 30, 2013

order denying, as untimely, his petition for relief filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The PCRA court set forth the following procedural history of Appellant’s

case:

              On June 4, 1987, [Appellant] was charged generally with
        the crime of criminal homicide with respect to the death of
        Richard Banyots. [Appellant] proceeded with a jury trial and on
        November 24, 1987, he was convicted of first-degree murder
        and ultimately sentenced to life without the possibility of parole
        on February 11, 1988. [Appellant] filed timely post-sentence
        motions, which were denied, and he then filed a timely appeal to
        the Superior Court, which affirmed the judgment of [] sentence
        on August 9, 1989.1
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*
    Retired Senior Judge assigned to the Superior Court.
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            1
              The judgment of [] sentence was affirmed in an
            unpublished Memorandum filed at [Commonwealth v.
            McDavis,] 394 Pa. Super. 613, 565 A.2d 819 (1989).

PCRA Court Opinion (PCO), 1/9/15, at 1-2 (unnumbered).

      After this Court affirmed Appellant’s judgment of sentence on August

8, 1989, he did not file a petition for allowance of appeal with our Supreme

Court. Thus, his judgment of sentence became final on September 7, 1989.

See 42 Pa.C.S. § 9545(b)(3) (stating “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”); Pa.R.A.P. 1113(a) (providing

that “a petition for allowance of appeal shall be filed with the Prothonotary of

the Supreme Court within 30 days after the entry of the order of the

Superior Court … sought to be reviewed”).

      Appellant filed his first, counseled PCRA petition on January 17, 1997.

On November 16, 1998, that petition was denied by the PCRA court.

Appellant did not file an appeal. On January 14, 2013, Appellant filed the

pro se PCRA petition underlying the instant appeal.       On May 2, 2013, the

PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss that

petition.       Appellant filed a pro se response, but on October 30, 2013, the

court issued an order denying his PCRA petition as untimely.

      Appellant filed a timely notice of appeal, and complied with the court’s

subsequent order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. On January 9, 2015, the PCRA court filed a Rule

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1925(a) opinion, construing Appellant’s twelve-page Rule 1925(b) statement

as raising the following issue:

      [T]he Commonwealth withheld exculpatory information from
      [Appellant] when it did not acknowledge that it had in its
      possession transcripts from the testimony of three witnesses
      who testified before an Ohio investigating grand jury.
      [Appellant] claims that the failure to turn over these transcripts
      resulted in a violation of his rights pursuant to Brady v.
      Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.ed.2d 215 (1963).

PCO at 1 (unnumbered).

      Appellant subsequently filed a brief with this Court that does not

comport with the Rules of Appellate Procedure. Namely, Appellant does not

set forth a Statement of the Questions Involved (Pa.R.A.P. 2116), a

Statement of the Case (Pa.R.A.P. 2117), or a Summary of the Argument

(Pa.R.A.P. 2118). Instead, Appellant presents eleven handwritten pages of

argument that is nearly incomprehensible. From what we can ascertain, the

PCRA court’s characterization of Appellant’s issue, set forth above, is

accurate. However, before we may even attempt to address this claim, we

must determine if Appellant’s patently untimely petition satisfies an

exception to the PCRA’s one-year jurisdictional time-bar. As this Court has

explained:

      It is undisputed that a PCRA petition must be filed within
      one year of the date that the judgment of sentence
      becomes final. 42 Pa.C.S.A. § 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. Murray, 562 Pa. 1, 753
      A.2d 201, 203 (2000).


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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.A. § 9545(b)(1)(i), (ii), and (iii), is
     met.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Section 9545(b)(1)(i)-(iii) states:

     (b) Time for filing 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;
           (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)-(iii).

     Additionally, “[a] petition invoking one of these exceptions must

be filed within sixty days of the date the claim could first have been

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presented.”       Hernandez, 79 A.3d at 651-652 (citing 42 Pa.C.S. §

9545(b)(2)). “In order to be entitled to the exceptions to the PCRA's

one-year filing deadline, the petitioner must plead and prove specific

facts that demonstrate his claim was raised within the sixty-day time

frame under section 9545(b)(2).”               Id. at 652 (citation and internal

quotation marks omitted).

       Here, Appellant has failed to prove that his petition satisfies an

exception to the PCRA’s one-year time-bar. First, at no point does he

state when he discovered the evidence purportedly withheld by the

Commonwealth in violation of Brady.                Therefore, Appellant has not

demonstrated that he satisfied the sixty-day time requirement set

forth in section 9545(b)(2). Second, Appellant does not specify which

timeliness exception his Brady claim satisfies, or prove that he acted

with due diligence in discovering the allegedly withheld evidence.1

Accordingly, we conclude that the PCRA court did not err in



____________________________________________


1
  Brady claims have been found to satisfy the governmental interference
exception of section 9545(b)(1)(i), as well as the newly-discovered fact
exception of section 9545(b)(1)(ii). See Commonwealth v. Hawkins, 953
A.2d 1248, 1253 (Pa. 2006). To satisfy either exception, the petitioner must
prove that he acted with due diligence in discovering the withheld evidence.
Id.



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determining that it was without jurisdiction to consider the merits of

Appellant’s petition.2


       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2015




____________________________________________


2
  Appellant has filed three pro se motions with this Court: (1) a March 30,
2015 “Motion Practice/Letter Brief”; (2) an April 20, 2015 “Letter Strictly to
Supplement Record with the two No Bills”; and (3) an April 27, 2015 untitled
motion (docketed by this Court as “Application for Relief”). We note that
Appellant does not ask this Court for any type of relief in the motions filed
on March 30, 2015, and April 27, 2015. Instead, in these ‘motions,’
Appellant simply proffers additional arguments that, like his appellate brief,
are essentially incoherent. Accordingly, we deny these two motions.

       In regard to Appellant’s April 20, 2015 motion to supplement the
record, it appears that he is requesting that this Court issue an order
directing the PCRA court and/or the Commonwealth to supplement the
certified record with the transcripts of the Ohio grand jury proceeding, as
well as with two documents Appellant refers to as “no bills.” Because our
issuing Appellant’s requested order would not save his otherwise untimely
petition, we also deny this motion.



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