J-S18008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA

                          Appellee

                     v.

ANDRE LOWRY

                          Appellant                  No. 823 WDA 2017


               Appeal from the PCRA Order entered May 9, 2017
              In the Court of Common Pleas of Allegheny County
              Criminal Division at Nos: CP-02-CR-0000158-1997,
                           CP-02-CR-0009751-1997

BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                             FILED MAY 22, 2018

      Appellant, Andre Lowry, appeals pro se from the order entered May 9,

2017 dismissing his sixth petition under the Post-Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-95. We affirm.

      On January 26, 1998, following a jury trial, Appellant was convicted of

first degree murder and other charges.           He was sentenced to life

imprisonment.    On April 13, 2000, this Court affirmed his judgment of

sentence, and on August 30, 2000, the Pennsylvania Supreme Court denied

his petition for allowance of appeal.

      On January 24, 2001, Appellant filed a pro se PCRA petition, after which

counsel was appointed. On February 19, 2002, the PCRA court entered notice

of its intent to dismiss Appellant’s petition, and on January 14, 2003, the


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petition was denied. On appeal, this Court vacated the lower court’s order

dismissing Appellant’s PCRA petition and remanded for the appointment of

new counsel. On remand, new counsel was appointed, and Appellant filed an

amended PCRA petition on July 18, 2007. Following a hearing, the PCRA court

denied Appellant’s petition on November 14, 2008. This Court affirmed on

September 8, 2010.

      On September 30, 2010, Appellant filed his second pro se PCRA petition.

On October 28, 2010, the PCRA court issued notice of intent to dismiss this

petition.   On November 23, 2010, the PCRA court dismissed Appellant’s

petition as untimely. On September 11, 2011, this Court affirmed.

      Between 2012 and 2015, Appellant filed three more PCRA petitions. All

were dismissed without hearings.

      On March 15, 2017, Appellant his sixth pro se PCRA petition, the petition

presently under review, claiming that the coroner acted outside of his legal

authority by holding Appellant for trial. On April 27, 2017, the PCRA court

issued a notice of intent to dismiss the petition without a hearing. On May 9,

2017, less than twenty days later, the PCRA court dismissed the petition.

Appellant filed a timely notice of appeal, and both Appellant and the PCRA

court complied with Pa.R.A.P. 1925.

      Appellant raises three issues in this appeal:

      A. Whether the PCRA court committed reversible error when it
      dismissed the pro se Appellant’s PCRA petition, a petition raising
      circumstances similar to those in Commonwealth v. Bennett
      and pursuant to 42 Pa.C.S. § 9545 (b)(1)(ii), that were never
      considered prior to dismissal of his petition?

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      B. Whether the PCRA court committed reversible error when it
      determined State Senator Jay Costa’s explanation of the
      legislative intent of the General Assembly’s construction of the
      Coroner’s Statute did not qualify as a new fact under the newly
      discovered and previously unknown fact exceptions of the PCRA
      statute?

      C. Whether coroners are judicial officers, pursuant to Pennsylvania
      Constitution Article V, Section 1, the unified judicial system and
      State Senator Jay Costa’s explanation of the legislative intent of
      the General Assembly’s construction of the Coroner’s Statute?

Appellant’s Brief at 8.

      The PCRA court properly dismissed Appellant’s petition as untimely.

PCRA petitions must be filed within one year of the time the judgment of

sentence becomes final. 42 Pa.C.S.A. § 9545(b). The timeliness requirement

of Section 9545(b)(1) is jurisdictional; we cannot address the merits of an

untimely petition. Commonwealth v. Abu Jamal, 941 A.2d 1263, 1267–68

(Pa. 2008).   Appellant’s judgment of sentence became final at the end of

November 2000, ninety days after our Supreme Court denied his petition for

allowance of appeal in his direct appeal. 42 Pa.C.S. § 9545(b)(3). Appellant

filed his present petition on March 15, 2017, over sixteen years after his

judgment of sentence became final. Thus, it is untimely on its face.

      Furthermore, Appellant’s petition fails to satisfy any of the three

exceptions to the PCRA’s timeliness requirements in 42 Pa.C.S.A. §

9545(b)(1)(i-iii). Appellant attempted to invoke the newly discovered facts

exception, which required him to prove "the facts upon which the claim is

predicated were unknown to the petitioner and could not have been

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ascertained by the exercise of due diligence." 42 Pa.C.S.A. § 9545(b)(1)(ii).

Appellant relied upon a letter received from Candice Corbett, an employee of

Senator Jay Costa, dated January 19, 2017, advising that coroners are not

members of the judiciary and cannot bind persons for trial at preliminary

hearings. Appellant appears to argue that (1) his preliminary hearing was

defective because a coroner held him over for trial instead of a judge, and (2)

his acquisition of knowledge about the coroner’s status is a newly-discovered

“fact,” because he was unaware that coroners lacked the authority to hold

persons for trial until he received Corbett’s letter. We disagree.

       Legal principles or developments are “law”; they are not “facts” under

Section 9545(b)(1)(ii). Commonwealth v. Watts, 23 A.3d 980, 987 (Pa.

2011) (“an in-court ruling or published judicial opinion is law, for it is simply

the embodiment of abstract principles applied to actual events. The events

that prompted the analysis, which must be established by presumption or

evidence, are regarded as fact”). Thus, Appellant’s acquisition of knowledge

about the coroner’s legal status merely constitutes a new point of law. It does

not constitute a new “fact” under Section 9545(b)(1)(ii).

       For these reasons, the PCRA court properly dismissed Appellant’s sixth

PCRA petition as untimely.1

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1 Technically, the PCRA court’s order dismissing Appellant’s sixth petition was
premature under Pa.R.Crim.P. 907(1), because the court entered its order less
than twenty days after issuing its notice of intent to dismiss the petition.



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       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2018




____________________________________________


Nevertheless, this is not reversible error because the record is clear that the
petition is untimely. Commonwealth v. Zeigler, 148 A.3d 849, 851 n.2 (Pa.
Super. 2016) (failure to issue Rule 907 notice is not reversible error where
record is clear that PCRA petition is untimely).

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