J-S22034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JONATHAN P. EISENHAUER,

                            Appellant                No. 1679 MDA 2016


               Appeal from the PCRA Order September 27, 2016
               in the Court of Common Pleas of Lebanon County
               Criminal Division at No.: CP-38-CR-0000417-2011


BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 19, 2017

        Appellant, Jonathan P. Eisenhauer, appeals from the denial of his first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546, as untimely. We affirm.

        On September 27, 2011, Appellant pleaded guilty to criminal homicide,

five counts of attempted homicide, five counts of aggravated assault on a

law enforcement officer, eleven counts of aggravated assault, kidnapping,

unlawful restraint, false imprisonment, discharge of a firearm into an

occupied structure, endangering the welfare of a child, cruelty to animals,

six counts of simple assault, terroristic threats, eight counts of recklessly


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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endangering another person, and resisting arrest.1 On November 2, 2011,

Appellant was sentenced to life imprisonment for the criminal homicide,

followed by an aggregate term of not less than thirty nor more than sixty

years’ incarceration on the remaining charges. Appellant did not file a direct

appeal.

       On June 6, 2016, Appellant filed a pro se first PCRA petition.      The

PCRA court appointed counsel. On June 16, 2016, the Commonwealth filed

a motion to dismiss the petition, arguing that it was untimely.      The court

conducted a hearing on the Commonwealth’s motion on September 27,

2016, after which it dismissed Appellant’s PCRA petition.         (See Order,

9/28/16). This timely appeal followed.2

       Appellant raises one issue on appeal:      “Whether the [PCRA c]ourt

erred in denying [his] PCRA [p]etition as untimely?”     (Appellant’s Brief, at

4).

       Our standard of review of the court’s denial of a PCRA petition is well-

settled:

            Our standard of review of a PCRA court’s dismissal of a
       PCRA petition is limited to examining whether the PCRA court’s
____________________________________________


1
  18 Pa.C.S.A. §§ 2501, 901, 2702.1(a), 2702(a)(2), 2901(a)(1),
2902(a)(1), 2903(a), 2707.1(a), 4304(a), 5511(a)(2.1)(i)(A), 2701(a)(1),
2706(a)(1), 2705, and 5104, respectively.
2
 Appellant filed a concise statement of errors complained of on appeal on
October 7, 2016. The PCRA court entered its opinion on December 6, 2106.
See Pa.R.A.P. 1925.



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      determination is supported by the record evidence and free of
      legal error. Before addressing the merits of Appellant’s claims,
      we must first determine whether we have jurisdiction to
      entertain the underlying PCRA petition.

Commonwealth v. Whitehawk, 146 A.3d 266, 269 (Pa. Super. 2016)

(citations omitted).

      Here, the PCRA court found that it lacked jurisdiction because

Appellant’s petition was untimely and he failed to plead and prove any

exception to the PCRA time-bar. (See PCRA Court Opinion, 12/6/16, at 6).

We agree.

      It is well-settled that:

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration
      of the time for seeking such review. [See] 42 Pa.C.S.[A.] §
      9545(b)(3).        The PCRA’s timeliness requirements are
      jurisdictional; therefore, a court may not address the merits of
      the issues raised if the petition was not timely filed.          The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions. . . .

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

      Here, Appellant’s judgment of sentence became final on December 2,

2011, at the expiration of the time for him to file a direct appeal.         See

Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had one year


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from that date to file a petition for collateral relief unless he pleaded and

proved that a timing exception applied.      See 42 Pa.C.S.A. § 9545(b)(1).

Hence, Appellant’s current petition, filed on June 6, 2016, is untimely on its

face and we will only review its merits if he pleads and proves one of the

statutory exceptions to the time-bar.

             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. [See] 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[d] in this
            section and has been held by that court to apply
            retroactively.

            We emphasize that it is the petitioner who bears the
      burden to allege and prove that one of the timeliness exceptions
      applies.

Whitehawk, supra at 269-70 (case citation and quotation marks omitted).

Further, “[i]f the petition is determined to be untimely, and no exception has

been pled and proven, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits


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of the petition.”   Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa.

Super. 2012) (citation omitted). Also, a PCRA petition invoking one of these

statutory exceptions must “be filed within [sixty] days of the date the claim

could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

       In the instant case, Appellant attempts to prove the applicability of the

newly discovered facts exception. (See Appellant’s Brief, at 8-15); see also

42 Pa.C.S.A. § 9545(b)(1)(ii). Specifically, he claims that he is entitled to

the benefit of the newly discovered facts exception because he discovered

that Ms. Jennifer Steiner could have been called as a witness, and argues

that his PCRA petition was only filed late because the drugs that he had been

taking interfered with his ability to figure out how to proceed with his

petition. (See Appellant’s Brief, at 10-11, 13-15; see also PCRA Ct. Op., at

3).   Appellant has failed to prove the applicability of the newly discovered

facts exception to the time-bar.

              The timeliness exception set forth in Section 9545(b)(1)(ii)
       requires a petitioner to demonstrate he did not know the facts
       upon which he based his petition and could not have learned
       those facts earlier by the exercise of due diligence.          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 new fact(s) earlier with the exercise
       of due diligence. This rule is strictly enforced. Additionally, the
       focus of this exception is on the newly discovered facts, not on a
       newly discovered or newly willing source for previously known
       facts.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015), appeal

denied, 125 A.3d 1197 (Pa. 2015) (citations and quotation marks omitted).



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      Here, as observed by the PCRA court:

            During the hearing on September 27, 2016, the
      Commonwealth called Attorney Brian Deiderick as a witness.
      Attorney Deiderick was [Appellant’s] counsel at the time
      [Appellant] entered into the guilty plea and was sentenced.
      Attorney Deiderick testified that both he and [Appellant] knew
      that Jennifer Steiner was available as a possible witness.
      Attorney Deiderick testified there was a [m]itigation [s]pecialist
      [r]eport regarding Jennifer Steiner in the file, and he would have
      discussed this with [Appellant] before the guilty plea was
      entered. Attorney Deiderick also testified that he did not recall
      talking to [A]ppellant about using Jennifer Steiner as a fact
      witness because she was not there for the shootings. Attorney
      Deiderick stated that Jennifer Steiner would have been used
      solely as a mitigation witness. Attorney Deiderick testified that
      Jennifer Steiner would have been discussed with [A]ppellant
      before the guilty plea by either himself or a member of his team.

                                  *    *     *

             The [PCRA c]ourt conclude[d] that, [Appellant] knew of or
      should have known of the witness, Jennifer Steiner, before he
      entered his guilty plea, and even if [Appellant] was unaware of
      her at that time, [Appellant] knew of her well before he filed his
      PCRA petition. [Appellant’s] own testimony indicated that he
      knew of the witness at least six [] months before he decided to
      file his PCRA petition. . . .

(PCRA Ct. Op., at 5-6).

      We agree with the sound reasoning of the PCRA court. Appellant has

failed to establish the applicability of the newly discovered facts exception to

the PCRA time-bar where he has not shown that the fact was newly

discovered or that he acted with due diligence. See Brown, supra at 176.

      Accordingly,   because   Appellant    failed   to   plead   and   prove   the

applicability of a PCRA timeliness exception, we conclude that the PCRA

court properly dismissed his untimely petition without a hearing on the basis


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that it lacked jurisdiction. See Whitehawk, supra at 269-70; Johnston,

supra at 1126.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2017




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