J-S72043-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                 Appellee               :
                                        :
         v.                             :
                                        :
DANIEL L. SPUCK,                        :
                                        :
                 Appellant              : No. 917 WDA 2014


              Appeal from the PCRA Order Entered April 14, 2014
               in the Court of Common Pleas of Clearfield County
              Criminal Division at No(s): CP-17-CR-0000396-1995

BEFORE: BENDER, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED JANUARY 12, 2015

     Daniel L. Spuck (Appellant) appeals pro se from the April 14, 2014

order dismissing his serial petition filed pursuant to the Post Conviction

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

     As a prior panel of this Court explained,

     On March 22, 1996, a jury found [Appellant] guilty of third
     degree murder, two counts of recklessly endangering another
     person, aggravated assault, and simple assault in connection
     with the stabbing death of Michael Allen Cramer in DuBois[,
     Pennsylvania,] on February 23, 1995. [Appellant] also stabbed
     his ex-wife during the attack. Judgment of sentence was
     imposed on April 19, 1996, with [Appellant] receiving an
     aggregate term of 11 to 22 years’ imprisonment. This [C]ourt
     affirmed the judgment of sentence on February 27, 1998, and
     our [S]upreme [C]ourt denied appeal on October 1, 1998.

Commonwealth v. Spuck, 86 A.3d 870, 872, reconsideration denied (Mar.

26, 2014), reargument denied (Apr. 16, 2014), appeal denied, 99 A.3d 77



* Retired Senior Judge assigned to the Superior Court.
J-S72043-14


(Pa. 2014) (citations omitted). Appellant did not seek further review of his

direct appeal by the United States Supreme Court.

      Since 1998, Appellant has sought collateral review by this Court on

nearly a dozen occasions. Id. at 871-72 n. 2. His latest PCRA petition, the

one at issue herein, was filed on April 14, 2014.     As we have repeatedly

explained to Appellant, the timeliness of a post-conviction petition is

jurisdictional.   Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa.

Super. 2011).     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. 42 Pa.C.S. § 9545.

      Relying on a letter from the United States Supreme Court dated March

26, 2014, which apparently accompanied the return of certain documents to

Appellant and confirms that his case at docket number 13-1633 is closed,

Appellant categorizes this latest PCRA petition as a “first” petition on the

basis that the Supreme Court has just now finalized its review of his direct

appeal issues. Appellant’s Brief at 5; Appellant’s Exhibit C. Thus, Appellant

contends that his judgment of sentence is now final, the instant petition is

timely and all prior PCRAs were “premature.” Id. at 6.

      Appellant’s attempt to circumvent the jurisdictional prerequisites of the

PCRA is unavailing.     “The plain language of the PCRA provides that a

judgment of sentence becomes final at the conclusion of direct review or

when the time for seeking direct review expires.” Commonwealth v.



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Callahan, 101 A.3d 118, 122 (Pa. Super. 2014) (emphasis added; citation

omitted). The Rules of the Supreme Court of the United States provide that

      [u]nless otherwise provided by law, a petition for a writ of
      certiorari to review a judgment in any case, civil or criminal,
      entered by a state court of last resort or a United States court of
      appeals (including the United States Court of Appeals for the
      Armed Forces) is timely when it is filed with the Clerk of this
      Court within 90 days after entry of the judgment. A petition for a
      writ of certiorari seeking review of a judgment of a lower state
      court that is subject to discretionary review by the state court of
      last resort is timely when it is filed with the Clerk within 90 days
      after entry of the order denying discretionary review.

U.S. Sup. Ct. R. 13.

      As discussed above, Appellant did not seek discretionary review by the

United States Supreme Court following our Supreme Court’s October 1, 1998

denial of his petition for allowance of appeal.       Accordingly, Appellant’s

judgment of sentence became final 90 days later, on December 30, 1998, at

the expiration of the period in which he was permitted to seek discretionary

review in the first instance. Id.

      As this Court has explained, “[i]n 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 the time

for seeking direct review, even if other collateral proceedings are still

ongoing.” Callahan, 101 A.3d at 122.




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      A review of the United States Supreme Court docket reveals that

Appellant has filed numerous petitions with the Court since his conviction.

However, none of those petitions acted to stay or extend the 90-day

timeframe set forth above.        Additionally, the fact that one of Appellant’s

many pending cases is now considered closed by the High Court does not

serve to alter this conclusion.

      As the instant petition is patently untimely, it is time-barred unless

Appellant is able to plead and prove one of the timeliness exceptions set

forth at 42 Pa.C.S. § 9545(b)(3).

      The exceptions to the timeliness requirement are:

      (i) the failure to raise the claim previously was the result of
      interference of 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)(i), (ii), and (iii). A PCRA petition invoking one of

these statutory exceptions must “be filed within 60 days of the date the

claims could have been presented.” Robinson, 12 A.3d at 480.




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      Appellant   claims   that   he   has   produced   newly-discovered   facts

unknown to him at the time of trial in the form of affidavits from Fred Dick,

dated January 13, 2014, and Mark Cowder, dated April 27, 2012, the

content of which warrant a new trial. Appellant’s Brief at 9-10.      Mr. Dick

purports to be an eyewitness, as well as a character witness, Appellant’s

Exhibit D; while Mr. Cowder claims he has been in touch with a woman who

served on Appellant’s jury and who “struggled” with the facts of his case.

Appellant’s Exhibit E.

      Appellant does not assert that he filed the instant petition within 60

days of being informed of the existence of Mr. Dick or Mr. Cowder. In fact,

Appellant admits that he located Mr. Dick in 2012. Appellant’s Brief at 9.1

Because Appellant is not reserved about filing all manner of petitions with

this Court, we can conclude that, with the exercise of due diligence, he could

have raised this claim more than 60 days before April 14, 2104.

      With respect to Mr. Cowder, Appellant has failed to allege facts that

would warrant a hearing.     Appellant does not name the alleged juror, nor

does he detail when he learned this information from Mr. Cowder. Moreover,

such evidence is inadmissible. Commonwealth v. Patrick, 206 A.2d 295,

297 (Pa. 1965) (“Our Courts have repeatedly held for over 150 years that

after a verdict is recorded, and after the jury has separated and been

discharged, jurors may not invalidate or impeach a verdict by their own

1
 Mr. Dick’s affidavit, in which he claims to have known Appellant since the
mid-1980s, is dated April 27, 2012.


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testimony.”); Commonwealth v. Abu-Jamal, 720 A.2d 79, 115 (Pa. 1998)

(“the law of this Commonwealth … forbids the post-verdict testimony of

jurors which would tend to impeach the verdict.”)

      Accordingly, because Appellant failed to satisfy a PCRA timeliness

exception, we conclude that the PCRA court lacked jurisdiction to entertain

the merits of Appellant’s claims, and dismissal of his serial PCRA petition was

proper.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/12/2015




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