J-S19009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 JOSEPH PAIGE                               :
                                            :
                     Appellant              :    No. 3755 EDA 2017

                Appeal from the PCRA Order October 5, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-1106341-2002


BEFORE:    LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM LAZARUS, J.:                                   FILED MAY 21, 2019

      Joseph Paige appeals, pro se, from the trial court’s order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546.    After careful review, we affirm.

      Following a jury trial, Paige was found guilty of simple assault in April

2004, and sentenced by the Honorable Willis W. Berry, Jr., to a term of 6-12

months’ imprisonment. On April 7, 2015, Paige filed the instant pro se PCRA

petition, his first, claiming that “[a]t the time of [his] trial[,] Judge Berry was

engaged in an ongoing illegal activity in violation of [the Pennsylvania

Constitution]” and that “Judge Berry allowed the [j]ury to review [his] medical

records that were altered to prevent crucial information concerning a witness’




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S19009-19



medical records.” PCRA Petition, 4/7/15, at ¶ 5.1 Paige concedes that his

petition was filed beyond the one-year statutory time limitation set forth in

the PCRA; however, he contends it is “covered by 42 Pa.C.S. § 9545([b])(1)

[b]ecause . . . [t]he facts upon which the claim is predicated were unknown

to [him] and could not have been ascertained by the exercise[] of [d]ue

[d]iligence.” Id. at ¶ 3.

       Paige is correct that his PCRA petition is facially untimely.   See 42

Pa.C.S.A. § 9545(b)(3) (PCRA must be filed within one year of date judgment

is final).   Thus, the PCRA court lacked jurisdiction to entertain his petition

unless he pleads and proves one of the section 9545(b)(1) timeliness

exceptions. Where the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition is met, the petition will be

considered timely.       These exceptions include interference by government

officials in the presentation of the claim, newly-discovered facts or evidence,

and after-recognized constitutional right. See Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000). A PCRA petition invoking one of these

exceptions must “be filed within 60 days of the date the claims could have




____________________________________________


1 Counsel was appointed to represent Paige on his first PCRA petition. See
Pa.R.Crim.P. 904(C). Counsel, however, later sought and was granted leave
to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



                                           -2-
J-S19009-19



been presented.” Id; see also 42 Pa.C.S.A. § 9545(b)(2).2 The timeliness

requirements of the PCRA are jurisdictional in nature and, accordingly, a PCRA

court cannot hear untimely petitions.          Commonwealth v. Robinson, 837

A.2d 1157 (Pa. 2003).

       Paige argues that exculpatory evidence that was previously unavailable

to him has now “become available and [it] would have changed the outcome

of [his] trial if it would have been introduced.” Appellant’s Brief, at 2. The

timeliness exception set forth in section 9545(b)(1)(ii) requires a petitioner to

demonstrate he did not know the facts upon which he based his petition and

could not have learned of those facts earlier by the exercise of due diligence.

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.

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

       Paige first claims that because his trial and sentencing judge, the

Honorable Willis W. Berry, Jr., was “engaged in ongoing illegal activity” during

his trial, his “trial was a constitutional mockery.”     Appellant’s Brief, at 2.

However, Paige does not explain how the “newly-discovered fact” that Judge

____________________________________________


2 Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days
(Dec. 24, 2018), extending the time for filing from sixty (60) days of the date
the claim could have been presented, to one year. The amendment applies
to claims arising on December 24, 2017, or thereafter. See Act 2018, Oct.
24, P.L. 894, No. 146, § 3. Here, the 60-day time limit in section 9545(b)(2)
applies to Paige’s petition, as he filed his petition on April 7, 2015.


                                           -3-
J-S19009-19



Berry was using his judicial chamber and staff to run his personal real estate

business could not have been ascertained sooner by the exercise of due

diligence, 42 Pa.C.S. § 9545(b)(10(ii), where Judge Berry’s illegal activities

were first made public in 2007. Thus, this claim fails.

       Paige also asserts that one of the prosecution’s witnesses, Donald

Edmonds, was on psychotropic medication at the time of trial and “was not

totally aware of his statements.” Appellant’s Brief, at 2. Paige contends that

Judge Berry altered Edmonds’ medical records, which he permitted the jury

to review at trial. Specifically, he asserts the trial judge omitted Edmonds’

medical condition from the records when they were given to the jury, and, as

a result, Judge Berry “knowingly allow[ed] the jury to be prejudiced against

[him.]” Id. Again, Paige does not allege how this information was not known

to him prior to 2015 and could not have been ascertained sooner by the

exercise of due diligence. 42 Pa.C.S. § 9545(b)(1)(ii). Thus, this claim must

also fail.3
____________________________________________


3 In addition to the timeliness requirements of the PCRA, petitioners must also
be eligible for relief under the statute. See 42 Pa.C.S. § 9543(a)(1)(i)(“To
be eligible for relief under this subchapter, the petitioner must plead and prove
by a preponderance of the evidence . . . [t]hat the petitioner has been
convicted of a crime under the laws of this Commonwealth and is at the time
relief is granted . . . currently serving a sentence of imprisonment, probation
or parole for the crime[.]”). See Commonwealth v. Fields, 197 A.3d 1217
(Pa. Super. 2018) (en banc) (section 9543 requirements establish inmate’s
eligibility for post-conviction relief, not PCRA court’s jurisdiction to act on
petition; petitioner must be serving sentence of incarceration at time relief
granted or he/she is ineligible for post-conviction relief).




                                           -4-
J-S19009-19



       Because Paige has failed to prove a section 9545(b)(1)(ii) exception,

the PCRA court did not have the power to address the substantive merits of

his PCRA claims. Brown, supra. Thus, we affirm the PCRA court’s4 order

dismissing Paige’s petition. Commonwealth v. Johnston, 42 A.3d 1120,

1126 (Pa. Super. 2012) (standard of review of order denying PCRA petition is

whether determination is supported by evidence of record and free of legal

error; PCRA court’s findings will not be disturbed unless there is no support

for findings in certified record).

       Order affirmed.




____________________________________________


       Instantly, Paige was sentenced to 6-12 months in prison on April 26,
2004. Thus, it would appear that at the time the PCRA court ruled upon
Paige’s instant PCRA petition, his sentence of imprisonment had been served.
See Commonwealth v. Ahlborn, 699 A.2d 718 (Pa. 1997) (under section
9543(a)(1)(i), as soon as petitioner’s sentence is completed, petitioner
becomes ineligible for relief, regardless of whether he or she was serving
sentence at time PCRA petition filed). Although Paige notes in his brief that
he is an inmate at SCI Coal Township, the PCRA judge clarifies this fact, stating
that Paige “is currently incarcerated, and was at the time his Petition was filed,
[however,] he was not incarcerated on the charge on which the PCRA petition
was based.” PCRA Court Opinion, 6/5/18, at 2 n.1 (emphasis added).
Moreover, the PCRA judge avers that “Petitioner’s sentence for this conviction
had expired long before his PCRA petition” was filed. Id. at 2. Because Paige
is no longer currently serving his sentence for his 2004 simple assault
conviction, we also would find him ineligible for relief under the PCRA. See
42 Pa.C.S. § 9543(a)(1)(i).
4 We note that the judge who authored the Pa.R.A.P. 1925(a) opinion, the
Honorable Tracy Brandeis-Roman, is not the same judge who presided over
Paige’s 2004 trial and is no longer on the bench.

                                           -5-
J-S19009-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/19




                          -6-
