J-S29039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
OTIS LEE BOYD                               :
                                            :
                          Appellant         :
                                            :     No. 1697 WDA 2015

                 Appeal from the PCRA Order September 8, 2015
       in the Court of Common Pleas of Allegheny County Criminal Division
                        at No(s): CP-02-CR-0001335-1991

BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 21, 2016

        Appellant, Otis Lee Boyd, appeals pro se from the order of the

Allegheny County Court of Common Pleas dismissing his fourth Post

Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant contends the

trial court judge “departed from his clear line of duty to remain impartial

when through questions he established before the fact-finders that ‘crack

cocaine’ was ‘water insoluble.’” Appellant’s Brief at 7. We affirm.

        A prior panel of this Court set forth the procedural posture of this case

as follows:

           A jury found [Appellant] guilty of first-degree murder and
           not guilty of robbery on March 31, 1992. The trial court
           sentenced [him] to life in prison after the jury was unable


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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           to agree on whether to impose the death penalty. This
           Court affirmed the judgment of sentence on December 15,
           1995, and our Supreme Court denied a petition for
           allowance of appeal on August 16, 1996.                 See
           Commonwealth v. Boyd, 674 A.2d 311 (Pa. Super.
           1995) (unpublished memorandum), appeal denied, 682
           A.2d 306 (Pa. 1996). The Supreme Court of the United
           States denied a petition for a writ of certiorari on January
           13, 1997. See Boyd v. Pennsylvania, 519 U.S. 1092
           (1997).

               [Appellant] filed his first PCRA Petition on July 31, 1997.
           The PCRA court appointed [him] counsel and counsel
           eventually filed an amended PCRA Petition of December
           12, 2003. The PCRA court dismissed the Petition. This
           Court affirmed the dismissal and the Supreme Court
           denied a petition for allowance of appeal.                 See
           Commonwealth v. Boyd, 895 A.2d 645 (Pa. Super.
           2006) (unpublished memorandum), appeal denied, 931
           A.2d 655 (Pa. 2007). On August 21, 2007, [Appellant]
           filed a Motion for discovery and inspection, production, and
           DNA testing.1 This Motion was denied on September 14,
           2007. [Appellant] did not file an appeal from this denial.


              1 We will treat [Appellant’s] Motion as his second
              PCRA Petition as the PCRA provides the exclusive
              remedy for post-conviction claims. See 42 Pa.C.S.A.
              § 9542; Commonwealth v. Lantzy, 736 A.2d 564,
              569-70 (Pa. 1999)

Commonwealth v. Boyd, 234 WDA 2010 (unpublished memorandum at 1-

2) (Pa. Super. Apr. 18, 2011).

      Appellant filed a third PCRA petition on September 28, 2009.            The

PCRA court dismissed the petition on January 7, 2010. This Court affirmed

the dismissal on April 18, 2011. See id. The Supreme Court denied the

petition   for   allowance   of   appeal   on   November    10,   2011.       See

Commonwealth v.Boyd, 32 A.3d 1274 (Pa. 2011).                  Appellant filed the


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instant PCRA petition on June 24, 2015. He filed a supplemental motion in

support of the PCRA petition on July 14, 2015. The PCRA court dismissed

the petition, after issuing a Pa.R.Crim.P. 907 notice, and this appeal

followed.2   Appellant raises the following issue for our review:

         Whether the trial court erred in its fraudulent advocacy of
         an evidentiary fact establishing crack cocaine as water
         insoluble and thereafter having it corroborated by an
         expert witness for the Commonwealth proof in a
         reasonable mind of an impropriety motivating the court’s
         exercise of jurisdiction over facts upon which newly
         discovered evidence is predicated without meeting any
         due process requirements as clarified under title 42 §
         9545(b)(1)(ii) that state that a court must first determine
         when an Appellant first learned of the facts upon which the
         claim is predicated and rather with the exercise of due
         diligence it could have been found sooner?

Appellant’s Brief at 3.3


2
  In the instant case, the notice of appeal is docketed as filed with the
Superior Court on October 9, 2015, beyond the thirty day appeal period from
the September 8, 2015 order. See Pa.R.A.P. 903(a); Commonwealth v.
Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001) (noting “questions of
jurisdiction may be raised sua sponte”). However, pro se Appellant is
incarcerated. The notice of appeal is dated by Appellant as having been
served on September 29, 2015 and Appellant attached a cash slip for
documentation. It is well settled the “prisoner mailbox rule provides that a
pro se prisoner’s document is deemed filed on the date he delivers it to
prison authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34,
38 (Pa. Super. 2011) (citation omitted). Thus, we adopt September 29th as
the date of filing and conclude the present appeal is timely. See id. at 40.
3
  We note that Appellant’s argument, in support of the issue raised on
appeal, consists solely of the following paragraph, reproduced verbatim:

            Had the jury been informed that crack cocaine was
         water insoluble and that Dennis Logan had a tendency to
         instruct the Commonwealth’s witnesses to testify falsely



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      When analyzing the dismissal of a PCRA petition, “an appellate court’s

scope of review is limited by the PCRA’s parameters; since most PCRA

appeals involve mixed questions of fact and law, the standard of review is

whether the PCRA court’s findings are supported by the record and free of

legal error.”   Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009)

(citation omitted).

      Preliminarily, we consider whether Appellant’s supplemental motion to

his PCRA petition is properly before this Court.      In Commonwealth v.

Porter, 35 A.3d 4 (Pa. 2012), the Pennsylvania Supreme Court opined:

         Our procedural Rules contemplate that amendments to
         pending PCRA petitions are to be “freely allowed to achieve
         substantial justice.” Pa.R.Crim.P. 905(A).[4] And, it is true
         that Rule 905 does not explicitly distinguish between initial
         and serial petitions. However, [the] appellant is mistaken
         in arguing that Rule 905 amendments are self-authorizing,
         i.e., that a petitioner may simply “amend” a pending
         petition with a supplemental pleading. Rather, the Rule

         then the results of Appellant trial would have been
         different.    And for any Jury to learn that a judge
         instructing it would conspire with a witness to strike foul
         blows to insure Appellant’s guilty verdict would had been
         an appearance of an impropriety with enough weight to
         alter the trial’s outcome.

Appellant’s Brief at 13.
4
 Rule 905(A) provides as follows: “The judge may grant leave to amend or
withdraw a petition for post-conviction collateral relief at any time.
Amendment shall be freely allowed to achieve substantial justice.”
Pa.R.Crim.P. 905(A).




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        explicitly states that amendment is permitted only by
        direction or leave of the PCRA court.

Id. at 12 (emphasis added). In the case sub judice, Appellant was neither

directed nor granted leave by the PCRA court to file the supplement to the

PCRA petition. Therefore, it is not properly before us. See id.

     We next consider whether the instant PCRA petition is timely.     The

timeliness of a PCRA petition is a threshold question that implicates the

jurisdiction of a court to consider the merits of the relief requested.

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014).

        To be timely, a PCRA petition must be filed within one year
        of the date that the petitioner’s judgment of sentence
        became final, unless the petition alleges and the petitioner
        proves one or more of the following statutory exceptions:

           (i) the 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) 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 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. § 9545(b)(1).

           We emphasize that it is the petitioner who bears the
        burden to allege and prove that one of the timeliness
        exceptions applies. In addition, a petition invoking any of
        the timeliness exceptions must be filed within 60 days of


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         the date the claim first could have been presented. 42
         Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy the 60–
         day requirement of Section 9545(b) if he or she fails to
         explain why, with the exercise of due diligence, the
         claim could not have been filed earlier.

Commonwealth v. Marshall, 947 A.2d 714, 719-20 (Pa. 2008) (some

citations omitted and emphasis added).

      In Commonwealth v. Edmiston, 65 A.3d 339 (Pa. 2013), the

Pennsylvania Supreme Court found the appellant’s claim that he was unable

to   obtain   statements   from   two    witnesses   did   not   satisfy   Section

9545(b)(1)(ii). Id. at 350. The Edmiston Court opined:

         [The a]ppellant has not addressed why he was unable to
         obtain these statements and present them at an earlier
         date with the exercise of due diligence.      As he was
         required to file his claims within 60 days of when they
         could have been presented, and has not explained why he
         could not have presented these claims earlier, i.e., during
         his first PCRA petition, they are untimely.

Id. (citation omitted).

      Appellant was sentenced on April 2, 1992.        This Court affirmed his

judgment of sentence on December 15, 1995.            See Commonwealth v.

Boyd, 370 Pitts. 1994 (unpublished memorandum) (Pa. Super. Dec. 15,

1995).   On August 16, 1996, the Pennsylvania Supreme Court denied his

petition for allowance of appeal. Commonwealth v. Boyd, 682 A.2d 306

(Pa. 1996). On January 13, 1997, the United States Supreme Court denied

his petition for writ of certiorari.    See Boyd v. Pennsylvania, 519 U.S.

1092 (1997). Appellant’s judgment of sentence became final on January 13,



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1998. See 42 Pa.C.S. § 9545(b)(3) (providing “a judgment 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[ ]”); see also U.S. Sup.

Ct. R. 13(1). Appellant had until January 13, 1998, to file his PCRA petition.

See 42 Pa.C.S. § 9545(b)(1) (providing PCRA petition must be filed within

one year of date judgment becomes final). Therefore, because he filed the

instant PCRA petition on June 24, 2015, his petition is untimely.

      Appellant avers as follows:

         On April 7, 2015, Appellant discovered the following
         exculpatory evidence during a KDKA News report wherein
         district Attorney Steven Zappala reported that a test
         performed on an Officer’s blood found that the metabolites
         found therein proved that he was not intoxicated at a
         specific time.

         On May 3, 2015, Appellant discovered the following
         exculpatory evidence through hearsay of a news report on
         KDKA on April 18, 2015, a report in which a Federal Judge
         said that Dennis Logan and other Officers could be sued for
         suborning a witness to commit perjury or testify falsely in
         a court.

Appellant’s Brief at 11.

      Appellant contends he discovered exculpatory evidence. Appellant did

not explain why he could not have presented this evidence earlier with the

exercise of due diligence. See Edmiston, 65 A.3d at 350. Appellant did not

plead and prove any exception to the PCRA’s timeliness requirement. See

Marshall, 947 A.2d at 719-20. The PCRA court did not err in dismissing his



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PCRA petition as untimely. See Pitts, 981 A.2d at 878; Marshall, 947 A.2d

at 719-20. Thus, the PCRA court lacked jurisdiction to consider Appellant’s

claims. See Davis, 86 A.3d at 887.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/21/2016




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