J-A27044-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
           Appellee                       :
                                          :
      v.                                  :
                                          :
ODDELL QUARN CANNON,                      :
                                          :
           Appellant                      :   No. 1699 EDA 2019

            Appeal from the PCRA Order Entered May 15, 2019
              in the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0003756-2006

BEFORE:    BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:          FILED DECEMBER 20, 2019

      Oddell Quarn Cannon (Appellant) appeals from the May 15, 2019 order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      This Court previously recounted the procedural history of this case as

follows.

      On May 22, 2010, a jury convicted Appellant of third-degree
      murder and criminal conspiracy to commit aggravated assault
      related to the 2006 shooting and murder of Brian Keith Brown
      committed by Terry Gardner at Appellant’s behest in retaliation
      for another shooting. On July 7, 2010, the trial court imposed a
      term of 25 to 50 years’ incarceration.

             Appellant filed a timely direct appeal challenging the
      sufficiency of the evidence and raising one evidentiary claim, and
      this Court affirmed. Commonwealth v. Cannon, [37 A.3d
      1244] (Pa. Super. 2011) (unpublished memorandum). Appellant
      did not seek review by the Pennsylvania Supreme Court.
      Appellant’s judgment of sentence, therefore, became final on

*Retired Senior Judge assigned to the Superior Court.
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      November 25, 2011.      See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P.
      1113.

Commonwealth v. Cannon, 2017 WL 6014945 (Pa. Super. 2017)

(unpublished memorandum at 1-2) (footnote and unnecessary capitalization

omitted).

      Appellant sought collateral review of his sentence via a timely-filed

PCRA petition.     Following the appointment of counsel and an evidentiary

hearing, the PCRA court dismissed Appellant’s petition.     Appellant pro se

filed an appeal.   Upon review, this Court remanded Appellant’s case for a

hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. Super.

1998). After the PCRA court conducted such a hearing, Appellant proceeded

pro se on appeal.1 This Court ultimately affirmed the dismissal of his PCRA

petition.   Commonwealth v. Cannon, 181 A.3d 1201 (Pa. Super. 2017)

(unpublished memorandum). On September 18, 2018, our Supreme Court

declined to review Appellant’s case further.       See Commonwealth v.

Cannon, 194 A.3d 559 (Pa. 2018).

      On October 15, 2018, Appellant filed pro se the PCRA petition at issue

in this appeal, arguing, inter alia, that he had discovered evidence after his

trial that demonstrated his actual innocence. Specifically, Appellant argued


1 On August 15, 2017, while the appeal from the order dismissing
Appellant’s first PCRA petition was pending, Appellant filed pro se a second
PCRA petition. The PCRA court dismissed the second petition as premature
pursuant to Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000).


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that he had discovered evidence that was not available at the time of his

trial, namely an affidavit provided to him in 2017 by his cousin Randy Suber.

Suber had been charged as Appellant’s co-conspirator, but Suber ultimately

pleaded guilty in 2012 to aggravated assault and conspiracy to commit

aggravated assault. Although Suber had admitted at the time of his guilty

plea that he had reported to Appellant the whereabouts of Brown at

Appellant’s behest, in the affidavit, Suber claims he had recanted this

testimony in another co-conspirator’s trial in 2013.          Appellant did not

address the PCRA’s jurisdictional time bar in his petition.

        The Commonwealth filed a response, contending that the filing of the

PCRA petition was untimely. The PCRA court issued notice of its intent to

dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907,

explaining that it was dismissing the petition as untimely filed because

Appellant did not meet his burden of pleading and proving an exception to

the PCRA’s time bar.       After seeking and obtaining an extension of time in

which to respond to the Rule 907 notice, Appellant filed a response. In his

response, Appellant argued for the first time that he could satisfy the newly-

discovered-evidence exception to the PCRA’s time bar.2         The PCRA court

disagreed, and dismissed Appellant’s PCRA petition on April 26, 2019.3


2   This exception is as follows.

        (b) Time for filing petition.--
(Footnote Continued Next Page)

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      Appellant timely filed a notice of appeal. On June 11, 2019, the PCRA

court ordered Appellant to file a concise statement of matters complained of

on appeal pursuant to Pa.R.A.P. 1925(b), and directed Appellant to serve it

upon the PCRA judge within 21 days or risk waiver of any appellate issue not

included.    Order, 6/11/2019, at 1.             Appellant filed a concise statement on

July 5, 2019, which was two days outside of the allotted period.

Furthermore, according to the PCRA court, Appellant never served a copy of

the concise statement upon the PCRA judge. See Order, 7/12/2019, at 1-2.

Nothing in the record indicates otherwise.

      Even if we give Appellant the benefit of the prisoner mailbox rule as to

the   late   filing    of   his     concise      statement,   see   Commonwealth     v.


(Footnote Continued)   _______________________



             (1) Any petition under this subchapter, including a
             second or subsequent petition, shall be filed within
             one year of the date the judgment becomes final,
             unless the petition alleges and the petitioner proves
             that:

                                                 ***

                       (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[.]

42 Pa.C.S. § 9545(b)(1)(ii).

3 The PCRA court amended its order on May 15, 2019, to correct a
typographical error in its original order.


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Whitehawk, 146 A.3d 266, 268 n.3 (Pa. Super. 2016) (“[U]nder the

‘prisoner mailbox rule[,]’ a document is deemed filed when placed in the

hands of prison authorities for mailing.”), Appellant’s failure to serve the

concise statement upon the PCRA judge renders his claim on appeal waived.

Pa.R.A.P. 1925(b) provides, in pertinent part:

     (b) Direction to file statement of errors complained of on appeal;
     instructions to the appellant and the trial court. - If the judge
     entering the order giving rise to the notice of appeal (“judge”)
     desires clarification of the errors complained of on appeal, the
     judge may enter an order directing the appellant to file of record
     in the trial court and serve upon the judge a concise
     statement of the errors complained of on appeal
     (“Statement”).

           (1) Filing and service.—Appellant shall file of record
           the Statement and concurrently shall serve the
           judge.

Pa.R.A.P.1925(b) (emphasis provided).

     “[F]ailure   to   comply     with    the    minimal   requirements   of

Pa.R.A.P.1925(b) will result in automatic waiver of the issues raised.”

Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa. 2005). Because the

PCRA court ordered Appellant to file a concise statement, Rule 1925(b)

required Appellant to file the concise statement with the ordering court’s

prothonotary, and to serve concurrently the statement upon the PCRA judge.

See Pa.R.A.P. 1925(b); Schofield, 888 A.2d at 774. By failing to comply

with Rule 1925(b), Appellant has waived all issues for appeal. Id.




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      Even if we were to conclude Appellant’s issues on appeal were not

waived on this basis, we would affirm the dismissal order based upon the

untimely filing of his petition.       The timeliness of the filing of a post-

conviction petition is jurisdictional. Commonwealth v. Robinson, 12 A.3d

477, 479 (Pa. Super. 2011).          Neither this Court nor the PCRA court has

jurisdiction    to   address   the    merits   of   an   untimely-filed   petition.

Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011). Any

PCRA petition, including second and subsequent petitions, must either (1) be

filed within one year of the judgment of sentence becoming final, or (2)

plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).4                “For

purposes of [the PCRA], a judgment [of sentence] becomes final at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

      Since the instant petition was filed seven years after his sentence

became final, the petition is untimely on its face. In his petition, Appellant

neither pleaded nor proved an exception to the PCRA time bar. This is fatal

to his claim.    Commonwealth v. Brown, 111 A.3d 171, 179 (Pa. Super.

4 There are also time restrictions on when a petitioner must file a petition
after a time-bar-exception claim has arisen. See 42 Pa.C.S. § 9545(b)(2).
On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
in order to extend the time for filing a petition from 60 days to one year
from the date the claim could have been presented. See 2018
Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018.


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2015) (holding petitioner must plead and prove a time-bar exception in the

petition to establish jurisdiction).

      In response to the PCRA court’s Rule 907 notice, Appellant attempted

to invoke, for the first time, the newly-discovered fact exception to the

PCRA’s time bar.       However, to receive the benefit of this exception,

Appellant must raise the exception and plead facts to establish the exception

in his petition. Brown, 111 A.3d 171, 179. The response to the Rule 907

notice is not a petition. Commonwealth v. Rykard, 55 A.3d 1177, 1192

(Pa. Super. 2012). A time-bar exception raised for the first time in response

to a court’s Rule 907 notice is not preserved for review unless the petitioner

seeks, and the PCRA court grants, permission to file an amended petition.

Commonwealth v. Derrickson, 923 A.2d 466, 469 (Pa. Super. 2007).

      Finally, Appellant has not satisfied the due diligence requirement.

“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.”    Brown, 111 A.3d at 176.           Appellant simply states in a

conclusory fashion that he exercised due diligence, but makes no effort to

explain the steps he took to obtain the information from Randy Suber, or

why it took until 2017 to obtain the information from Suber when Suber

allegedly recanted his original 2012 testimony in 2013. Therefore, Appellant

has failed to establish that he exercised due diligence.

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      Based on the foregoing, we affirm the dismissal of Appellant’s PCRA

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/19




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