J-S68002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RONALD UPSHUR,

                        Appellant                    No. 99 EDA 2015


          Appeal from the PCRA Order Entered December 16, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0720561-1974


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                 FILED NOVEMBER 23, 2015

      Appellant, Ronald Upshur, appeals pro se from the December 16, 2014

order denying, as untimely, his petition for relief filed under the Post

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

      The PCRA court summarized the procedural history of Appellant’s case,

as follows:

            On March 21, 1975, [Appellant] was found guilty of first
      degree murder, two counts of robbery, and criminal conspiracy
      following a jury trial before the Honorable Judge Edwin S.
      Malmed of the Court of Common Pleas of Philadelphia County.
      On February 10, 1976, following the denial of post-trial motions,
      [Appellant] was sentenced by Judge Malmed to life imprisonment
      for the murder conviction, and twenty-five to fifty years’
      imprisonment for the remaining convictions. The Pennsylvania
      Supreme Court vacated the judgment of sentence on February 4,
      1980, and remanded [Appellant’s] case for a new trial. After a
      second jury trial before the Honorable Judge Theodore B. Smith
      [in May of 1980], [Appellant] was again convicted of first degree
      murder, robbery and conspiracy.        On October 23, 1980,
      [Appellant] was sentenced to life imprisonment for the murder
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      conviction. [Appellant] did not file an appeal from the entry of
      [his] judgment of sentence.

             On July 24, 1985, [Appellant] filed his first post conviction
      petition under the Post Conviction Hearing Act (PCHA). The
      petition was denied on January 21, 1988, and upon timely
      appeal, the Superior Court dismissed his appeal for failure to file
      a brief. On May 24, 1990, [Appellant] had his right to appeal his
      denial of his PCHA petition reinstated nunc pro tunc. After a
      second timely appeal, the Superior Court affirmed the lower
      court’s    dismissal    of    [Appellant’s]       PCHA      petition.
      Commonwealth v. Upshur, 588 A.2d 565 (Pa. Super. 1990)
      [(unpublished memorandum)], appeal denied, 527 Pa. 665
      (1991). [Appellant] then pursued multiple, unsuccessful PCRA
      petitions.

             [Appellant] filed his current post conviction petition on
      April 18, 2012. After conducting an extensive and exhaustive
      review of the record and applicable case law, this Court
      determined that [Appellant’s] petition seeking post conviction
      collateral relief was untimely filed. Therefore, this Court did not
      have jurisdiction to consider [Appellant’s] PCRA petition.

PCRA Court Opinion (PCO), 3/4/15, at 1-2.

      Based on its finding of untimeliness, the PCRA court provided Appellant

with the requisite Pa.R.Crim.P. 907 notice of its intent to dismiss his petition,

to which Appellant filed a timely pro se response. On December 16, 2014,

the court issued an order denying his petition as untimely filed. Appellant

filed a timely, pro se notice of appeal. Herein, he raises one issue for our

review: “Whether the PCRA court erred in finding that [Appellant’s] PCRA

petition was untimely filed and [that he was] not entitled to the enumerated

exceptions under 42 Pa.C.S.A. § 9545(b)(1)(i) and (ii).” Appellant’s Brief at

IV (unnecessary capitalization omitted).

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

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by the evidence of record and is free of legal error.      Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified

record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

        We must begin by addressing the timeliness of Appellant’s petition,

because the PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the merits of a petition.      See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for post-conviction relief, including a second or

subsequent one, must be filed within one year of the date on which the

judgment of sentence becomes final, unless one of the exceptions set forth

in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant

part:

        (b) Time for filing petition.--

          (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:

             (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


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              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)-(iii).        Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

       Here, Appellant did not file an appeal from the judgment of sentence

imposed on October 23, 1980; accordingly, it became final on Monday,

November 24, 1980.1 See 42 Pa.C.S. § 9545(b)(3) (directing that judgment

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

of the time for seeking the review); Pa.R.A.P. 903(a) (stating that “the

notice of appeal [to the Superior Court] shall be filed within 30 days after

the entry of the order from which the appeal is taken”).           Consequently,

Appellant’s current PCRA petition, filed on April 18, 2012, is facially untimely

and, for this Court to have jurisdiction to review the merits thereof,



____________________________________________



1
    We acknowledge that,

       [i]n cases where the judgment of sentence was final prior to the
       1995 enactment of the timeliness requirement, a first petition is
       considered timely if filed within one year of the effective date of
       the enactment. However, there is no grace period for filing
       subsequent PCRA petitions.

Commonwealth v. Abu-Jamal, 833 A.2d 719, 724 (Pa. 2003) (citations
omitted; emphasis in original). Clearly, this exception to the timeliness
requirement of section 9545(b) does not apply to Appellant’s petition, which
is not his first, and which was filed in 2012.



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Appellant must prove that he meets one of the exceptions to the timeliness

requirements set forth in 42 Pa.C.S. § 9545(b).

      Appellant contends that he has satisfied both sections 9545(b)(1)(i)

and (ii).     Appellant grounds his argument pertaining to both of these

exceptions on the following facts. According to Appellant, at the time of his

second trial in 1980, the Commonwealth misinformed the trial court and

Appellant that a potential witness, Stanley Yates, was unavailable to testify

because he was “believed to be in North Carolina.” Appellant’s Brief at 6-7.

Appellant explains that “[i]n a statement to police prior to [Appellant’s] first

trial, Stanley Yates identified [Appellant] as the perpetrator of the robbery

and homicide; [however, Appellant] has always believed that [] Yates never

made such a statement and that, had he been available for [Appellant’s

second] trial, he would have given exculpatory testimony.”           Id. at 7.

Specifically, Appellant contends that Yates would have testified “that he

never gave the police any information which implicated [Appellant] in any

crime.”     Id. at 6.   However, Yates was not called to the stand because,

according to the Commonwealth, he was in North Carolina and was

unavailable to testify.

      Appellant further explains that on February 12, 2012, a friend of his

“went to the Criminal Justice Center in Philadelphia, [Pennsylvania,] and

[obtained] a copy of a document titled [‘]Secure Court Summary[’] for Mr.

Stanley Yates[.]”       Appellant’s Brief at 7 (unnecessary capitalization and

emphasis omitted). Appellant maintains that Yates’ court summary (which

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he attached to his appellate brief) confirms that Yates “was in custody within

the State of Pennsylvania at the time of [Appellant’s] second trial, contrary

to what the prosecutor told the court.”          Id.   Because Appellant filed his

current PCRA petition within 60 days of discovering this ‘new fact’ that Yates

was incarcerated in Pennsylvania – and, therefore, was presumably available

to testify – at the time of Appellant’s second trial, Appellant contends that he

has satisfied the after-discovered fact exception of section 9545(b)(1)(ii).

He also argues that the Commonwealth withheld the evidence of Yates’

incarceration in Pennsylvania from the defense, constituting a violation of

Brady v. Maryland, 373 U.S. 83 (1963), and satisfying the governmental

interference exception of section 9545(b)(1)(i).

       Even if Yates’ court summary proved that he was incarcerated in

Pennsylvania at the time of Appellant’s second trial,2 Appellant has failed to

prove he could not have discovered this fact earlier had he exercised due

diligence.    As this Court recently stated, “due diligence requires neither

perfect vigilance nor punctilious care, but rather it requires reasonable

efforts by a petitioner, based on the particular circumstances, to uncover
____________________________________________


2
  The court summary attached to Appellant’s brief shows that Yates was
arrested for various offenses on September 29, 1979, and was sentenced to
a term of incarceration in that case on September 16, 1980. However, the
court summary does not demonstrate on what date Yates was convicted, or
whether he was incarcerated for the entire period of time between
September of 1979 and September of 1980. Therefore, we disagree with
Appellant that Yates’ court summary definitively proves that he was
incarcerated in May of 1980 when Appellant’s second trial was conducted.



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facts that may support a claim for collateral relief.”        Commonwealth v.

Burton, 121 A.3d 1063, 1071 (Pa. Super. 2015) (en banc). Here, Appellant

declares that he “has always believed that Stanley Yates was available to

testify at his second trial[,]” yet he offers no explanation of what, if any,

efforts he undertook, prior to 2012, to ascertain whether Yates was, in fact,

available during his trial in May of 1980.         Thus, he has failed to meet his

burden of proving that he acted with due diligence in discovering this ‘new

fact.’

         Moreover, the fact that Yates was incarcerated at the time of

Appellant’s second trial in 1980 was a matter of public record, and because

Appellant was represented by counsel at that time, we presume that he had

access to that public information.               See Burton, 121 A.3d at 1072

(concluding that “[t]he general rule” that public information cannot be

‘unknown,’ for purposes of proving the exception of section 9545(b)(1)(ii),

“is reasonable when we may conclude that the petitioner retains access to

public information, such as when a petitioner is represented by counsel[;]”

however, “the presumption of access to information available in the public

domain does not apply where the untimely PCRA petitioner is pro se”).3
____________________________________________


3
   We also point out that because Yates’ criminal record was/is public
information, and was equally accessible to Appellant at the time of his
second trial, the Commonwealth cannot be deemed to have ‘withheld’ that
evidence in violation of Brady. See Commonwealth v. Ligons, 971 A.2d
1125, 1146 (Pa. 2009) (citing Commonwealth v. Brown, 872 A.2d 1139,
1148 (Pa. 2005) (holding that the Commonwealth has no obligation to
(Footnote Continued Next Page)


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Additionally, Appellant concedes that he had access to Yates’ record by

acknowledging that his friend obtained a copy of it simply by going to the

“Criminal Justice Center in Philadelphia….” Appellant’s Brief at 7. Appellant

does not explain why his friend could not have taken this same step to

obtain Yates’ criminal record earlier than 2012.

      Accordingly, Appellant has failed to prove that he could not have

discovered sooner that Yates was incarcerated in Pennsylvania at the time of

Appellant’s second trial in 1980.          Thus, he has not satisfied either of the

exceptions set forth in section 9545(b)(1)(i) or (ii), and the PCRA court did

not err in denying his petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2015




                       _______________________
(Footnote Continued)

provide a defendant with the criminal history of the victim where that record
is equally accessible to the defense)).




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