J-S94039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

GEORGE VERLE CONARD

                           Appellant                  No. 1031 MDA 2016


                   Appeal from the PCRA Order June 13, 2016
         in the Court of Common Pleas of Perry County Criminal Division
                        at No(s): CP-50-CR-0000113-1981

BEFORE: LAZARUS, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 27, 2017

        Appellant, George Verle Conard, appeals pro se from the order entered

in the Perry County Court of Common Pleas dismissing his latest Post

Conviction Relief Act1 (“PCRA”) petition as untimely.          He argues that his

petition was timely filed pursuant to the “after discovered facts” exception to

the PCRA.2 We affirm.

        A prior panel of this Court summarized the facts and pertinent

procedural history of this case as follows:

           On February 26, 1982, Appellant was convicted of criminal
           homicide and criminal conspiracy.[3]    He is currently

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    42 Pa.C.S. § 9545(b)(1)(ii).
3
  At trial, the primary witness against Appellant was John R. Connor.
Appellant confessed to Connor while Connor was wearing a wire. Trial Ct.
J-S94039-16


         serving a life sentence. In an unpublished memorandum
         filed on September 7, 1984, this Court affirmed his
         judgment of sentence. Commonwealth v. Conard, 482
         A.2d 666 (Pa. Super. 1984). Thereafter, Appellant filed a
         PCRA petition that the trial court dismissed as untimely.
         This Court affirmed the denial of post-conviction relief in
         an unpublished memorandum filed on June 18, 2001.
         Commonwealth v. Conard, 779 A.2d 1215 (Pa. Super.
         2001). On May 26, 2011, Appellant filed [his second] pro
         se PCRA petition. By order entered June 15, 2011, the
         PCRA court denied Appellant’s petition as untimely.

Commonwealth v. Conard, 263 MDA 2012 (unpublished memorandum at

1-2) (Pa. Super. Aug. 3, 2012). This Court affirmed the PCRA court’s denial

of Appellant’s second PCRA petition. See id.

      Appellant filed the instant third PCRA petition pro se on May 13, 2015.

The PCRA court denied Appellant’s petition via a June 13, 2016 order.

Appellant appealed and timely filed a Pa.R.A.P. 1925(b) statement.          The

PCRA court filed a Rule 1925(a) opinion on July 12, 2016 wherein the court

found Appellant’s third PCRA petition to be untimely and not eligible for relief

due to any alleged “after discovered” evidence.

      Appellant raises the following issues for our review:

         I. Did the [PCRA court] abuse it’s discretion when it denied
         the PCRA petition that was filed in this instant case



Op. 7/12/16, at 1. It is unclear whether Connor had criminal charges
pending against him when the application for the wire used against Appellant
was granted. Id. Nevertheless, “it doesn’t appear to be any secret that the
witness looked to or hoped for favorable treatment and that [the] whole
matter was developed at the trial, with the jury having an opportunity to
consider that background information on the issue of the witness’s
credibility.” Id. at 1-2.



                                     -2-
J-S94039-16


           because the Commonwealth violated, 42 Pa.C.S.A. § 9545
           (b)(1)(i and ii)?

           II. Was the evidence/documents attached to the PCRA
           [petition] proof of the Commonwealth’s violation of 42
           Pa.C.S.A. § 9545 (b)(i) and (b)(ii)?

           III. Did the Commonwealth violate Brady concerning
           Conn[o]r’s leniency deal?

Appellant’s Brief at 5.

      The crux of all three of Appellant’s issues lies in his contention that he

was not able to obtain the application for a body wire, concerning the wire

worn by witness Connor, until May 5, 2015.           Appellant states that he

received the application due to a Freedom of Information Act (“FOIA”)

request.    Appellant specifically avers that the application for the wire is

relevant because it does not list any criminal charges pending against

Connor at that time the application was made.          Appellant’s Brief at 6.

Appellant posits that the wire application might not have been granted if

such charges had been listed. Id. No relief is due.

      This Court has stated:

               In reviewing the propriety of an order denying PCRA
           relief, this Court is limited to examining whether the
           evidence of record supports the determination of the PCRA
           court, and whether the ruling is free of legal error. Great
           deference is given to the findings of the PCRA court, which
           may be disturbed only when they have no support in the
           certified record.

Commonwealth v. Perry, 959 A.2d 932, 934-35 (Pa. Super. 2008)

(citations omitted).



                                      -3-
J-S94039-16


      Because the timeliness requirements of the PCRA are jurisdictional in

nature, we first review the PCRA court’s determination that Appellant’s

petition was untimely. See Commonwealth v. Fahy, 737 A.2d 214, 223

(Pa. 1999). “Our standard of review of a PCRA court’s dismissal of a PCRA

petition is limited to examining whether the PCRA court’s determination is

supported   by   the   evidence    of    record   and   free   of   legal   error.”

Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en

banc) (citation omitted).

      A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.”       Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (citations and footnote omitted).

              Jurisdictional time limits go to a court’s right or
         competency to adjudicate a controversy. These limitations
         are mandatory and interpreted literally; thus, a court has
         no authority to extend filing periods except as the statute
         permits. Unlike a statute of limitations, a jurisdictional
         time limitation is not subject to equitable principles such as
         tolling except as provided by statute. Thus, the filing
         period is only extended as permitted; in the case of the
         PCRA, the time limitations are extended upon satisfaction
         of the exceptions found in § 9545(b)(1)(i)-(iii) and timely
         filing pursuant to (b)(2). As it has been established that
         the PCRA’s time restrictions are jurisdictional, we hold that
         the period for filing a PCRA petition is not subject to the
         doctrine of equitable tolling, save to the extent the
         doctrine is embraced by § 9545(b)(1)(i)-(iii).

Fahy, 737 A.2d at 222 (citations omitted).



                                        -4-
J-S94039-16


      The three timeliness exceptions are:

            (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).

      “[S]ubsection (b)(1)(ii) does not require the petitioner to allege and

prove a claim of ‘after-discovered evidence.’      Rather, it simply requires

petitioner to allege and prove that there were ‘facts’ that were ‘unknown’ to

him and that he exercised ‘due diligence.’”    Commonwealth v. Bennett,

930 A.2d 1264, 1270 (Pa. 2007) (footnote omitted).          “If the petitioner

alleges and proves these two components, then the PCRA court has

jurisdiction over the claim under this subsection.” Id. at 1272.

      In the instant case, Appellant’s judgment of sentence became final on

October 8, 1984, which marked the expiration of the thirty-day time period

for filing an allowance of appeal to the Pennsylvania Supreme Court after the

Pennsylvania Supreme Court had expired. 42 Pa.C.S. § 9545(b)(3) (stating

“a judgment becomes final at the conclusion of direct review . . . or at the



                                     -5-
J-S94039-16


expiration of time for seeking the review”).      Thus, Appellant had until

October 8, 1985 to file a timely PCRA petition. The instant PCRA petition,

filed on May 13, 2015, almost thirty-years after Appellant’s judgment of

sentence became final, is patently untimely. See 42 Pa.C.S. § 9545(b)(1).

Accordingly, we must determine whether the PCRA court erred in holding

that Appellant did not plead and prove one of the timeliness exceptions.

        Appellant argues that the application for the wire worn by Connor

constitutes “after-discovered” evidence and therefore his instant petition

should have been considered timely under timeliness exceptions to PCRA’s

time bar. See 42 Pa.C.S. § 9545(b)(1)(ii). However, Appellant provides no

explanation for why he did not seek this document in the almost three

decades since his trial. Thus, we conclude that Appellant did not exercise

due diligence, as required under Section 9545(b)(1)(ii). See Bennett, 930

A.2d at 1270.

        Accordingly, we conclude that Appellant has not pled and proven that

he is entitled to subsection 9545(b)(1)(ii)’s timeliness exception.        See

Wilson, 824 A.2d at 333; Fahy, 737 A.2d at 222; Bennett, 930 A.2d at

1270.    Therefore, we affirm the PCRA court’s order dismissing Appellant’s

petition as untimely.

        Order affirmed.




                                     -6-
J-S94039-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/27/2017




                          -7-
