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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
RONALD WARRICK,                          :         No. 1828 WDA 2017
                                         :
                        Appellant        :


               Appeal from the PCRA Order, October 17, 2017
             in the Court of Common Pleas of Allegheny County
              Criminal Division at No. CP-02-CR-0011872-2005


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 16, 2018

      Appellant, Ronald Warrick, appeals, pro se, from the October 17,

2017 order entered by the Court of Common Pleas of Allegheny County

dismissing his third petition filed pursuant to the Post Conviction Relief Act,

42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

      A previous panel of this court gave the following summary of the

procedural posture of this case:

            The sentencing court imposed a term of not less than
            twenty nor more than forty years of incarceration.
            After Appellant’s direct appeal rights were reinstated
            nunc pro tunc, this Court affirmed judgment of
            sentence and our Supreme Court denied allowance of
            appeal on July 21, 2010. The PCRA court denied
            Appellant’s first, counseled PCRA petition on
            February 29, 2012.         This Court affirmed on
            October 19, 2012.
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              On August 18, 2015, Appellant, acting pro se, filed
              [his second PCRA] petition, which he styled as a
              petition    for    writ     of    habeas     corpus
              ad subjiciendum.[Footnote 5]        After entering a
              notice of intent to dismiss pursuant to Pa.R.Crim.P.
              907, and receiving Appellant’s response, the PCRA
              court dismissed the petition on December 15, 2015.

Commonwealth         v.    Warrick,   No.   2019    WDA    2015,    unpublished

memorandum at 2-3 (Pa.Super. filed July 12, 2016) (footnotes omitted).

      This court affirmed the PCRA court’s dismissal of appellant’s second

PCRA petition on July 12, 2016.       Appellant filed the instant PCRA petition

pro se on May 23, 2017. On August 22, 2017, the PCRA court entered its

notice   of    intention   to   dismiss   without   a   hearing    pursuant   to

Pa.R.Crim.P. 907. Appellant filed a response to the PCRA court’s notice of

intention to dismiss on September 12, 2017.         The PCRA court dismissed

appellant’s PCRA petition on October 17, 2017.      Appellant filed a notice of

appeal to this court on November 16, 2017. The PCRA court did not order

appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). The PCRA court filed an opinion pursuant to

Pa.R.A.P. 1925(a) on December 21, 2017.         On March 12, 2018, appellant

filed an application to amend his appeal.

      In reviewing appellant’s three-page brief, we note that appellant failed

to include a statement of questions involved pursuant to Pa.R.A.P. 2116.

Additionally, appellant appears to be arguing that he is entitled to relief




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under the PCRA based on the contents of a PCRA petition and testimony

from a trial involving his co-defendant, David P. King.

      Subsequent PCRA petitions beyond a petitioner’s first petition are

subject to the following standard:

            A second or subsequent petition for post-conviction
            relief will not be entertained unless a strong
            prima facie showing is offered to demonstrate that
            a miscarriage of justice may have occurred.
            Commonwealth v. Allen, 732 A.2d 582, 586 (Pa.
            1999). A prima facie showing of entitlement to
            relief is made only by demonstrating either that the
            proceedings which resulted in conviction were so
            unfair that a miscarriage of justice occurred which no
            civilized society could tolerate, or the defendant’s
            innocence of the crimes for which he was charged.
            Id. at 586. Our standard of review for an order
            denying post-conviction relief is limited to whether
            the trial court’s determination is supported by
            evidence of record and whether it is free of legal
            error. Commonwealth v. Jermyn, 709 A.2d 849,
            856 (Pa. 1998).

            A PCRA petition, including a second or subsequent
            petition, must be filed within one year of the date
            that     judgment   of    sentence   becomes     final.
            42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes
            final for purposes of the PCRA “at the conclusion of
            direct review, including discretionary review in the
            Supreme Court of the United States and the
            Supreme Court of Pennsylvania, or the expiration of
            time for seeking the review.”         42 Pa.C.S.[A.]
            § 9543(b)(3). PCRA time limits are jurisdictional in
            nature, implicating a court’s very power to
            adjudicate a controversy. Commonwealth v. Fahy,
            737 A.2d 214 (Pa. 1999). Accordingly, the “period
            for filing a PCRA petition can be extended only if the
            PCRA permits it to be extended, i.e., by operation of
            one of the statutorily enumerated exceptions to the
            PCRA time-bar. Id. at 222.



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Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,

135 S.Ct. 707 (2014). Before addressing appellant’s issues on the merits,

we must first determine if we have jurisdiction to do so.

      As noted above, a PCRA petitioner has one year from the date his or

her judgment of sentence becomes final in which to file a PCRA petition.

This court has held the following regarding when a judgment becomes final:

            The plain language of the PCRA provides that a
            judgment of sentence becomes final at the
            conclusion of direct review or when the time seeking
            direct review expires.            See 42 Pa.C.S.A.
            § 9545(b)(3).     In fixing the date upon which a
            judgment of sentence becomes final, the PCRA does
            not refer to the conclusion of collateral review or the
            time for appealing a collateral review determination.
            Thus, the plain language of the PCRA statute shows
            that a judgment of sentence becomes final
            immediately upon expiration of time for seeking
            direct review, even if other collateral proceedings are
            still ongoing.     As this result is not absurd or
            unreasonable, we may not look for further
            manifestations     of   legislative   intent.      See
            Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa.
            2013) (internal quotation marks omitted) (We may
            “look beyond the plain language of the statute only
            when words are unclear or ambiguous, or the plain
            meaning would lead to a result that is absurd,
            impossible of execution, or unreasonable.”).

Commonwealth v. Callahan, 101 A.3d 118, 112 (Pa.Super. 2014).

      In this case, our supreme court denied appellant’s petition for

allowance of appeal of his judgment of sentence on July 21, 2010.

Commonwealth v. Warrick, 998 A.2d 960 (Pa. 2010). Appellant did not

file a writ of certiorari with the Supreme Court of the United States.



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Accordingly, appellant’s judgment of sentence became final on October 19,

2010.     See S.Ct.R. 13.     Appellant filed the instant petition on May 23,

2017—more than six years after his judgment of sentence became final and

more than five years after a PCRA petition could be considered timely. See

42 Pa.C.S.A. § 9545(b)(1).

        As noted above, the PCRA does enumerate exceptions to the one-year

requirement. A petitioner may file a petition under the PCRA after one year

has passed from the final judgment of sentence for any of the following

reasons:

             (i)     [T]he 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)    [T]he 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)   [T]he 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.A. § 9545(b)(1)(i)-(iii).     Section 9545 also mandates that any

petition filed under these exceptions must be filed within 60 days of the date

the claim could have been presented. Id. at § 9545(b)(2).




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      Here,     appellant   appears    to   have   raised   a   claim   under

Section 9545(b)(1)(ii).

              The     timeliness    exception    set     forth   in
              Section 9545(b)(1)(ii) requires a petitioner to
              demonstrate that 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. Commonwealth v. Bennett, 930 A.2d
              1264, 1271 (Pa. 2007). Due diligence demands that
              the petitioner take reasonable steps to protect his
              own interests. Commonwealth v. Carr, 768 A.2d
              1164, 1168 (Pa.Super. 2001).        A petition must
              explain why he could not have learned the new
              fact(s) earlier with the exercise of due diligence.
              Commonwealth v. Breakiron, 781 A.2d 94, 98
              (Pa. 2001); Commonwealth v. Monaco, 996 A.2d
              1076, 1080 (Pa.Super. 2010), appeal denied, 20
              A.3d 1210 (Pa. 2011). This rule is strictly enforced.
              Id. 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. Marshall, 947
              A.2d 714, 720 (Pa. 2008).

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

denied, 125 A.3d 1197 (Pa. 2015).

      In the instant appeal, appellant relies solely on allegations contained

within his co-defendant, David P. King’s, 2015 PCRA petition and subsequent

new trial.    (See appellant’s brief at 1.)    Appellant fails to provide any

explanation as to why he could not have learned of any facts allegedly raised

in Mr. King’s petition and/or subsequent new trial with the exercise of due

diligence.     Accordingly, because appellant failed to comply with the

requirements set forth by this court in Brown, we find that appellant has



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failed to establish an exception to the PCRA’s time-bar; therefore, we do not

have jurisdiction to consider this case on its merits.

      Order affirmed. Application to amend appeal denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/16/2018




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