J-S71033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

VERNON E. MCGINNIS, JR.

                            Appellant                      No. 782 WDA 2015


                   Appeal from the PCRA Order April 15, 2015
              In the Court of Common Pleas of Armstrong County
              Criminal Division at No(s): CP-03-CR-0000547-1996


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                 FILED JANUARY 29, 2016

       Vernon E. McGinnis, Jr., appeals, pro se, from the order entered on

April 15, 2015, in the Armstrong County Court of Common Pleas, which

dismissed his      eighth     petition for     post-conviction collateral relief as

untimely.1     McGinnis seeks relief from the judgment of sentence of life

imprisonment imposed on April 9, 1997, after pleading guilty to the charge

of first-degree murder for the fatal shooting of Edward Galvanek. 2 After a

thorough review of the record, the parties’ briefs, and applicable law, we

affirm on the basis of the PCRA court’s opinion.


____________________________________________


1
    See Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 2502(a).
J-S71033-15


       The PCRA court aptly summarized the facts and procedural history in

its Pa.R.A.P. 1925(a) opinion, and we adopt its recitation. See PCRA Court

Opinion, 6/25/2015, at 1.3 McGinnis argues the PCRA court erred in finding

his petition was untimely filed and that no timeliness exceptions under 42

Pa.C.S. § 9545(b)(1) apply. See McGinnis’ Brief at 4. Specifically, he states

that on January 9, 2015, his mother was cleaning out her deceased father’s

estate and discovered correspondence between McGinnis’ plea counsel and

his grandfather, which his mother then sent to McGinnis.         Id. at 8.   He

alleges counsel gave misleading information to his grandfather, who was not

counsel’s client, and McGinnis did not give counsel consent to consult with

his relative. Id.4 McGinnis contends this letter constitutes newly discovered

evidence, and that it was unknown to him and could not have been

ascertained by the exercise of due diligence. Id.

       The PCRA court has provided a well-reasoned discussion of its

disposition.    See PCRA Court Opinion, 6/25/2015, at 2-4 (finding:          (1)

McGinnis failed to plead to any facts in his petition indicating that the letter
____________________________________________


3
  See also Trial Court Opinion, 5/7/2001, at 1-2; Commonwealth v.
McGinnis, 4 A.3d 208 [2034 WDA 2009] (Pa. Super. 2010) (unpublished
memorandum).
4
   In his brief, McGinnis attaches a copy of the March 11, 1997, letter from
his plea counsel to his grandfather. Counsel informs the grandfather that it
was in McGinnis’ best interest to accept a guilty plea and that he would be
afforded release after ten years, “with good behavior which is no comparison
to life or death, upon conviction at trial.” See McGinnis’ Brief at Appendix C,
March 11, 1997 Letter from Dennis Paul Zawacki, Esquire, to Clifford Miller.



                                           -2-
J-S71033-15


on which he now relies could not have been discovered earlier with the

exercise of due diligence; and (2) the contents of the letter do not actually

contain any new “facts” on which McGinnis could base his petition because

McGinnis would have been aware of the various promises or representations

both at the time he entered his guilty plea and at sentencing, and therefore,

he could not have been unlawfully induced by promises of a release after ten

years by either plea counsel or his grandfather).5

       We agree and adopt the sound reasoning of the PCRA court as

dispositive of the issue raised in this appeal. Accordingly, because McGinnis’

petition is untimely and does not satisfy any exception to the PCRA

timeliness requirement, we are without jurisdiction to review his claims.

Therefore, the PCRA court did not err in dismissing his petition as untimely.

       Order affirmed.




____________________________________________


5
   The court also relies on its March 19, 2015, memorandum, which set forth
its reasons for dismissing the petition pursuant to Pa.R.Crim.P. 907. See
Memorandum, 3/19/2015, at 2-5 (explaining that McGinnis did not indicate
in his petition how these additional facts tended to show either that he was
given ineffective assistance of counsel or that his guilty plea was unlawfully
induced, and that these claims were not substantially supported by the facts
in the petition).



                                           -3-
J-S71033-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2016




                          -4-
                                                                                                     Circulated 12/30/2015 02:25 PM




   IN THE COURT OF COMMON PLEAS OF ARMSTRONG                                              COUNTY,         PENNSYLVANIA

 COMMONWEALTH                OF PENNSYLVANIA

                             v.                                          No.       CP-03-CR-0000547-1996

   VERNON         E.       MCGINNIS,       JR.


                                          1925(a) OPINION

NICKLEACH,                S.J.

                     Defendant          Vernon         E.   McGinnis,              Jr.     ("Defendantu)

appeals          the Court's            order         dismissing             his    eighth         ~ost     Conviction

Relief         Act        ("PCRAu)      petition,           which        was       entered         on April        15,

2015.

                     This         case has a protracted                      history.         Relevant         to the

instant         appeal,           the Court           directs          the Superior           Court's         attention

to the Memoranda                    it filed          in this      case        on December            18,     2003,

September            6,     2007,      July 21,         2008,      May 29,           2009,        and May 27,

2010,      all       affirming          this     Court's          prior        dismissals            of Defendant's

serial         PCRA petitions.                 Relevant           background              facts     are     also     set

forth in this                Court's      opinion           entered          May 7,        2001.

                     In the instant              appeal,          Defendant              asserts      the    following

errors         in his        Concise      Statement:

         (1)     The       Court     erred       in    denying          Defendant's            PCRA petition               as

having         been untimely            filed         and not          within       any      of the       exceptions

set forth         in 42 Pa.            Cons.      Stat.         Ann.     §    9545(b)        (1);
     Commonwealth  v. McGinnis
    ·No. CP-03-CR-0000547-1996


              (2)     The Court           erred     in denying         Defendant's                PCRA petition                as

    having          been    untimely        filed       without       a hearing.1

                       We continue           to find         that     our    ruling         was adequat~ly

    supported          by the       record        and that        Defendant's              petition          was

    untimely          on its       face     and that no purpose                   would      have      been         served

    by further             proceedings.           Thus,      pursuant          to Pa.        R.    Crim.       P.

    907(1),         we remain        convinced          that      a hearing          was     unnecessary.                  The

    Court      thoroughly           set     forth     the    reasons         for dismissing                the

    petition          in its Memorandum               entered        on Marcy         19,     2015.           The      Court

    also      recommends           affirmance         for    the     following         additional              reasons.

                       First,       Defendant         failed        to plead         any     facts      in his

    petition         indicating           that    the     letter      on which         he now relies                 could

    not have         been     discovered          earlier        with the         exercise           of due

    diligence.             See     42 Pa.     Cons.      Stat.       Ann.     §   9545(b)         (1) (ii);

    Commonwealth            v . Edmiston,           65 A.3d         339,    345-46         {Pa.     2013).           The

    letter     was     discovered           by Defendant's             mother        as     she     was sorting

through             Defendant's           grandfather's             personal       items.           There        are      no

facts         pled in        Defendant's           petition          that    would         establish          that the

letter         could        not    have been discovered                    earlier         by Defendant              by

simply         asking        his    grandfather             for any correspondence                     from

Attorney             Zawacki.         The    letter       was     not in the          possession              of the

I
  Although    Defendant's    concise    statement    appears to raise a third issue      for
appeal,    namely,  that the Court erred in denying Defendant's             substantive
claims that he received       ineffective      assistance     of counsel and entered an
unlawfully-induced      plea,   the Court did not,        indeed could not, reach the
merits    of these substantive      issues   because we concluded       that the petition was
untimely.

                                                             2
 Commonwealth   v. McGinnis
·No. CP-03-CR-0000547-1996


 Commonwealth,               law enforcement,                 or the Court.                   Nor is there           any

 indication           that     it was         in any way           concealed            from        Defendant        or

 his      family.        Because          Defendant           presumably              could     have     discovered

 the letter           and its         contents            years    before        his mother            discovered

 it    in early        2015,       we find           that     Defendant          has     failed        to establish

 in    his    petition         that       he exercised             due diligence.

                     Secondly,           we also       note the            Pennsylvania              Supreme

 Court's       precedent           with       regard        to what         constitute              new "facts"           on

 which       a PCRA petitioner                 may     rely       to establish            the        timeliness

 exception           found    at section              9545 (b) (1) (ii).                Petitioners           must

allege        and     prove     "previously               unknown          'facts,'       not merely            a

newly-discovered               or newly          willing          source        for previously                known

facts."         Edmiston,           65 A.3d          at     352 (internal              quotations          and

citation        omitted).             "(T]o      constitute             facts         which     were     unknown          to

a petitioner            and could          not have           been      ascertained             by the        exercise

of due diligence,                  the    information             must        not be of public                record

and must        not    be facts           that       were     previously              known     but are        now

presented           through      a newly         discovered             source."              Id.

                    Defendant         contends            that    the      newly-discovered               letter,

written       approximately               one month           before          Defendant         entered        his

guilty       plea,     contains           evidence          that the plea               was unlawfully

induced       because        his    prior attorney,                  Mr.      Zawacki,          told

Defendant's           grandfather             that     Defendant            would       be afforded            release

after 10       years.          Without         considering              the    veracity             of this

                                                              3
    Commonwealth   v. McGinnis
    No. CP-03-CR-0000547-1996


    statement,            if,   in fact,            Defendant's              plea     had    been    unlawfully-

    induced         by promises              of such     release             by either        Mr.    Zawacki        or

    Defendant's            grandfather,             or both,             Defendant          would    have    been

    aware     of those          promises          or representation                   both at the time               he

    entered        his     guilty        plea     and at sentencing.                        The   letter     is only           a

    newly-discovered                  source     of evidence                 for the fact           of those

    promises         or representations                  that          surfaced       almost        18   years     after

    Defendant         entered          his     guilty         plea.          Accordingly,           because      we find

    that    the contents               of the       letter            do not actually             contain     any        new

    "facts"        on which           Defendant         could base his                petition,          we conclude

    that    they      cannot          be used to establish                     the    timeliness           exception

    found     at    section           9545(b)(l)(ii).2

                                             III.       CONCLUSION

                     For all           of the above             reasons,            and   for the        reasons

    stated in the Court's                      March 17,              2015   Memorandum,            we recommend

affirmance               on all        issues       raised        in Defendant's              concise

statement.

                                                                 BY THE COURT,


Dated:             June     ,;.;- ,     2015


                                                        .c>



2
  In the Guilty Plea Questionnaire  executed by Defendant on March 25, 1997,
Defendant acknowledged his understanding that he was pleading guilty to first
degree murder, that the law required him to go to jail for life, and that no
one promised him anything or forced him to enter his guilty plea.    See Guilty
Plea Questionnaire, gs. 9,10,13,15;  Certification of Defense Counsel, no. 8.
Defendant's sentencing order also clearly indicates that his sentence is for
a term of incarceration for the duration of his natural life.   See Sentencing
Order, April 9, 1997.
                                                                 ,J
