J-S64013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DWIGHT M. HILL                           :
                                          :
                    Appellant             :   No. 390 WDA 2019

           Appeal from the PCRA Order Entered February 26, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0012419-2004,
                         CP-02-CR-0013731-2004

BEFORE:    BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.:                        FILED DECEMBER 19, 2019

      Dwight M. Hill appeals pro se from the order that dismissed as untimely

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”).     We

affirm.

      On February 5, 2008, Appellant pled guilty to, inter alia, rape and third-

degree murder in connection with his sexual assault of a seventy-nine-year-

old patient at a personal care home. The woman died of pneumonia acquired

as a result of aspiration in the hospital where she was admitted as a

consequence of Appellant’s assault. Also on February 5, 2008, Appellant was

sentenced in accordance with his plea agreement to an aggregate term of

thirty to sixty years of imprisonment. Appellant filed no direct appeal.

      In August 2018, Appellant filed a pro se PCRA petition. The PCRA court

promptly appointed counsel and ordered the filing of an amended petition



* Retired Senior Judge assigned to the Superior Court.
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within thirty days. After obtaining several extensions of time, counsel filed a

motion to withdraw and no-merit letter pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d

213 (Pa.Super. 1988) (en banc).           Therein, counsel opined that Appellant’s

petition was untimely and no timeliness exception applied. The PCRA court

granted counsel’s motion and issued notice of its intent to dismiss Appellant’s

petition as untimely without conducting an evidentiary hearing pursuant to

Pa.R.Crim.P. 907. After reviewing Appellant’s pro se response, the PCRA court

dismissed the PCRA petition as untimely. Appellant filed a timely notice of

appeal,1 and both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

       Appellant presents the following questions for this Court’s consideration:

       1)     Was the [PCRA c]ourt in error in its denial of the Appellant’s
              PCRA stating that, it was time-barred and basing [its]
              opinion on the reasons raised by the Appellant in a field that
              is beyond the field of the [c]ourt’s expertise, in which a
              hearing should [have] been granted to professionally
              examine the Appellant’s claims?

       2)     Was counsel for the Appellant ineffective for providing his
              client with knowingly false and misleading information about
              the contents and reports that were within the medical
              records of the victim, and thereby manipulating the
              Appellant in taking a plea deal to 3rd degree murder?
____________________________________________


1 Although Appellant filed a single notice of appeal from an order entered at
two docket numbers, our Supreme Court’s decision in Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018), does not require us to quash the appeal
because Appellant’s contentions relate only to his murder conviction at CP-02-
CR-0013731-2004. See Commonwealth v. Sayles, 1365 WDA 2018, 2019
WL 2353469, at *3 (Pa.Super. June 4, 2019) (non-precedential decision)
(holding that Walker did not apply to appeal involving issues only related to
one of the two docket numbers at issue).

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Appellant’s brief at 4.

      We begin with the principles pertinent to our review. “Our standard of

review regarding a PCRA court’s order is whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.

The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record.”       Commonwealth v. Garcia, 23 A.3d

1059, 1061 (Pa.Super. 2011).             Further, “[i]t is an appellant’s burden to

persuade     us     that   the   PCRA    court   erred    and    that   relief   is   due.”

Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012).

      The timeliness of a post-conviction petition is jurisdictional. See, e.g.,

Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa.Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final unless the petition alleges, and the petitioner proves, that

an exception to timeliness is satisfied.                 Those exceptions relate to

governmental interference with the presentation of the claim; newly-

discovered        facts;   and    a     newly-recognized,       retroactively-applicable

constitutional right. See 42 Pa.C.S. § 9545(b)(1).

      In the instant case, Appellant invoked the newly-discovered facts

exception to support his patently-untimely PCRA petition filed nearly ten years

after his judgment of sentence became final. In order to prevail under this

exception, Appellant must establish not only that “the facts upon which the

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claim is predicated were unknown to the petitioner and could not have been

ascertained by the exercise of due diligence;” but also that he filed his PCRA

petition “within one year of the date the claim could have been presented.”

42 Pa.C.S. § 9545(b)(1)(ii), (2). “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 facts earlier with the exercise of due

diligence.”    Commonwealth v. Sanchez, 204 A.3d 524, 526 (Pa.Super.

2019).

       Appellant argues that he “was presented with [the victim’s] complete

medical records only after he file[d] his PCRA” petition and requested them

from PCRA counsel. Appellant’s brief at 8. Appellant also points to a January

9, 2007 letter from Howard E. Reibord, M.D., to Appellant’s trial counsel, which

Appellant claims to have learned of for the first time when PCRA counsel

attached it to his Turner/Finley letter.2 Id. at 8. Appellant further contends

that he met his burden of showing due diligence because he pursued his claim

as soon as he received the documents. Id. at 10.

       Appellant has not convinced us that the PCRA court erred and that relief

us due. The transcript of Appellant’s plea hearing clearly shows that Appellant

____________________________________________


2 Dr. Reibord’s January 9, 2007 letter states his opinion that the victim’s
manner of death should be classified as undetermined because there was a
question whether the family’s refusal to allow blood cultures and certain
medications resulted in insufficiently-aggressive treatment. See No-Merit
Letter, 1/22/19, at Exhibit B.



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was aware before he pled guilty that the victim’s primary cause of death was

pneumonia.3 See N.T. Plea/Sentencing, 2/5/08, at 17-19. Although Appellant

has alleged and argued that he did not know the specific medical information

related to the challenge he now wishes to make to the cause of his victim’s

death until 2018 or 2019, at no point does Appellant explain why he could not

have discovered them a decade ago, merely by asking for his plea counsel’s

file.



____________________________________________


3 Specifically, as part of the factual basis of Appellant’s plea, the
Commonwealth indicated as follows:

              The testimony would have been that [the victim] was
        admitted to Jefferson Memorial Hospital and as she was there, she
        began to decline. She developed bronchial pneumonia from
        aspiration.

              From the moment that she was found, she was non-
        responsive. Her dementia, she never could go back to baseline
        Your Honor. That she was non-ambulatory nonverbal, and as a
        result of this trauma, she was hospitalized, developed bronchial
        pneumonia.

             Due to the fact that there was hospice involved, comfort
        measures only were given to [her], and as a result of the bronchial
        pneumonia, she died on August 21, 2004.

              ....

              It was the opinion of Dr. Shaun Ladham that [the victim]
        died as a result of acute bronchial pneumonia, physical assault
        which was documented clinically as contact fracture.

N.T. Plea/Sentencing, 2/5/08, at 17-19



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       Furthermore, Appellant’s allegations of actual innocence are unavailing

to allow a court to reach the merits of his claim. See Commonwealth v.

Brown, 143 A.3d 418, 420-21 (Pa.Super. 2016) (rejecting actual innocence

as a basis for jurisdiction over an untimely PCRA petition).

       Therefore, we conclude that the PCRA court properly held that Appellant

failed to plead and offer to prove facts to establish an exception to the PCRA’s

timeliness requirements. Accordingly, the PCRA court correctly dismissed the

petition without a hearing because it lacked jurisdiction to entertain the merits

of Appellant’s substantive claim.4

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2019


____________________________________________


4 For Appellant’s benefit, we note that the fact that his victim’s immediate
cause of death was pneumonia does not ipso facto indicate that he is innocent
of her murder. “So long as the defendant’s conduct started the chain of
causation which led to the victim’s death, criminal responsibility for the crime
of homicide may properly be found.” Commonwealth v. Shoup, 620 A.2d
15, 18 (Pa.Super. 1993). Our Supreme Court has upheld a second-degree
murder conviction upon similar facts. See Commonwealth v. Johnson, 284
A.2d 734, 734 (Pa. 1971) (affirming second-degree murder conviction where
victim died of bronchopneumonia developed while she was being treated for
burns caused by the defendant).

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