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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PAUL L. POWELL,

                            Appellant                No. 1136 MDA 2015


                 Appeal from the Order Entered May 12, 2015
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0000904-1990


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED AUGUST 11, 2016

       Paul L. Powell (“Appellant”) appeals pro se from the May 12, 2015

order denying his serial petition filed pursuant to the Post Conviction Relief

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

       Roy Myran (“the victim”) was shot outside Jones’ bar on Wood Street

in Wilkes-Barre, Luzerne County, Pennsylvania, on February 5, 1990.1

Witnesses identified Appellant and his brother, Robert Powell (“Robert”),2 as

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*
    Former Justice specially assigned to the Superior Court.
1
  The facts underlying Appellant’s 1991 convictions of first degree murder
and conspiracy are fully set forth in this Court’s memorandum decision on
Appellant’s direct appeal. Commonwealth v. Powell, 660 A.2d 124 (Pa.
Super. filed January 17, 1995) (unpublished memorandum at 1–3).
2
    Robert’s appeal is under review by this Court at 1137 MDA 2015.
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responsible for the victim’s death. Appellant was charged with one count of

murder in the first degree and two counts of criminal conspiracy to commit

criminal homicide.

       Appellant waived his right to a jury trial.     Following a bench trial on

October 8, 1991, Appellant was convicted of first degree murder and two

counts of criminal conspiracy to commit first degree murder.         On May 20,

1993, the trial court sentenced Appellant to a term of life imprisonment for

first-degree murder and a term of imprisonment of two to four years on each

of the criminal conspiracy counts.             The sentences were to be served

concurrently.      This Court affirmed the judgment of sentence, and the

Pennsylvania Supreme Court denied further review.            Commonwealth v.

Powell, 660 A.2d 124 (Pa. Super. filed January 17, 1995) (unpublished

memorandum), appeal denied, 665 A.2d 469 (Pa. 1995).

       Appellant filed a timely PCRA petition on January 15, 1997.3 The PCRA

court subsequently appointed counsel.            However, because Appellant was

dissatisfied with counsel’s assistance, he filed a petition to obtain substitute

counsel.    After the court denied this petition, Appellant filed a petition to

proceed pro se. Following a hearing on September 9, 1998, the trial court

permitted counsel to withdraw, and it further permitted Appellant to file an
____________________________________________


3
   Appellant’s judgment of sentence became final before January 16, 1996,
the effective date of the 1995 PCRA amendments. Thus, Appellant had until
January 16, 1997, to file a timely first PCRA petition. Commonwealth v.
Merritt, 827 A.2d 485 (Pa. Super. 2003).



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amended PCRA petition pro se.     Appellant filed an amended pro se PCRA

petition on October 5, 1998. The court denied relief on March 16, 2000. On

March 29, 2000, Appellant filed a pro se notice of appeal with this Court. On

September 1, 2000, the trial court entered an order clarifying that it had

dismissed Appellant’s original and amended PCRA petitions.     In an opinion

dated December 4, 2001, this Court vacated the order dismissing Appellant’s

amended PCRA petition and remanded the matter for appointment of

counsel. Commonwealth v. Powell, 787 A.2d 1017 (Pa. Super. 2001).

     On January 18, 2002, the trial court appointed an attorney to

represent Appellant. A subsequent PCRA hearing was held on July 17, 2002,

and on August 26, 2002, the PCRA court dismissed Appellant’s amended

PCRA petition.    Appellant once again expressed his unwavering desire to

proceed pro se.     Consequently, counsel filed a motion to withdraw as

counsel, which the PCRA court granted on September 12, 2002. Appellant

filed a pro se appeal on September 30, 2002. This Court affirmed the PCRA

court’s order, and the Pennsylvania Supreme Court denied allowance of

appeal. Commonwealth v. Powell, 841 A.2d 578 (Pa. Super. filed October

29, 2003) (unpublished memorandum), appeal denied, 864 A.2d 1204 (Pa.

2005).

     Through counsel, Appellant sent a serial PCRA petition to the Luzerne

County Clerk of Courts, which was received on December 27, 2013, and

docketed on January 2, 2014. Appellant filed an amended PCRA petition on


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May 12, 2014, and, with leave of court, a second amended petition on June

20, 2014. In his serial petition, Appellant claimed that he was eligible for

collateral relief on two grounds. First, Appellant asserted “the unavailability

at the time of trial of exculpatory evidence that has subsequently become

available and would have changed the outcome of the trial if it had been

introduced.”    That evidence was a recantation by witness Charles Eckhart.

Second Amended PCRA Petition, 6/20/14, at ¶¶ 14–15. Second, Appellant

raised an ineffective assistance of counsel claim (“IAC”), alleging that

defense counsel was ineffective for not locating a witness, Stanley Petroski.

Id. at ¶¶ 17–18.

       The PCRA court scheduled an evidentiary hearing for August 7, 2014,

which was eventually held on December 18, 2014. At the hearing, counsel

testified that the defense theory was intoxication, i.e., Appellant and Robert

were too drunk to form the intent necessary for first degree murder. N.T.,

12/18/14, at 9–19.         Additionally, Appellant and Robert testified, as did

Charles Eckhart and Stanley Petroski.            Id. at 51–52, 56–60, 90–95.

Following the evidentiary hearing, the PCRA dismissed Appellant’s petition as

untimely. Order, 5/12/15.

       This appeal followed.4       Appellant presents the following question for

our consideration: “I. Whether the Appellant should be granted a new trial

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4
    Appellant and the PCRA court complied with Pa.R.A.P. 1925.



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on the basis of after-discovered exculpatory evidence?” Appellant’s Brief at

4 (full capitalization omitted).

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”    Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and may not be

ignored in order to reach the merits of the petition.     Commonwealth v.

Murray, 753 A.2d 201, 203 (Pa. 2000). A judgment of sentence “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.”           42 Pa.C.S. §

9545(b)(3).


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       Our review of the record reflects that the trial court imposed a

sentence of life imprisonment on May 20, 1993.                   This Court affirmed

Appellant’s    judgment      of   sentence     on    January   17,   1995,   and   the

Pennsylvania Supreme Court denied further review on September 15, 1995.

Accordingly, Appellant’s judgment of sentence became final on December

14, 1995, ninety days after the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal and the time for filing an appeal

to the United States Supreme Court expired.                42 Pa.C.S. § 9545(b)(3);

U.S.Sup.Ct.R. 13 (stating that a petition for writ of certiorari must be filed

within ninety days of final judgment).              Because Appellant’s judgment of

sentence became final before January 16, 1996, the effective date of the

1995 PCRA amendments, he had until January 16, 1997, to file a timely

PCRA petition.     Merritt, 827 A.2d 485.           Appellant did not file the instant

PCRA petition until May 12, 2014.              Thus, the instant PCRA petition is

patently untimely.

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.5 A petition invoking one of these exceptions must be filed


____________________________________________


5
    The exceptions to the timeliness requirement are:

(Footnote Continued Next Page)


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within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).          In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,

1167 (Pa. Super 2001).

      The record reflects that Appellant attempted to raise the second time-

bar exception, i.e., that the facts upon which his claim was predicated were

unknown to him at the time of trial. 42 Pa.C.S. § 9545(b)(1)(ii). Regarding

this exception, we have stated the following:

            In order to sustain an untimely PCRA petition under the
      after-discovered evidence exception, a petitioner must show that
      the evidence: (1) has been discovered after the trial and could
      not have been obtained prior to the conclusion of the trial by the
      exercise of reasonable diligence; (2) is not merely corroborative
                       _______________________
(Footnote Continued)

      (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)(i), (ii), and (iii).



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      or cumulative; (3) will not be used solely for impeachment
      purposes; and (4) is of such a nature and character that a
      different verdict will likely result if a new trial is granted.

Commonwealth v. Johnson, 841 A.2d 136, 140-141 (Pa. Super. 2003).

In addition, our Supreme Court explained that “the after-discovered facts

exception focuses on facts, not on a newly discovered or newly willing

source for previously known facts[.]”     Commonwealth v. Marshall, 947

A.2d 714, 721 (Pa. 2008) (emphasis in original; internal quotation marks

and citation omitted). See also Commonwealth v. Abu-Jamal, 941 A.2d

1263, 1269 (Pa. 2008) (concluding that alleging a new conduit for a

previously known fact “does not transform [the] latest source into evidence

falling within the ambit of § 9545(b)(1)(ii)”) (citation omitted).

      Specifically, Appellant claims that he is entitled to PCRA relief on the

basis of after-discovered facts contained in an October 2013 letter Appellant

received from Charles Eckhart.      Therein, the witness stated, for the first

time, that Appellant was intoxicated on the night of the murder, and that he

did not disclose this information during Appellant’s trial for fear of his own

safety. Appellant’s Brief at 20.

      The PCRA court found that Appellant’s serial petition was filed within

sixty days of receiving Charles Eckhart’s letter; however, it also found no

merit to Appellant’s substantive claim:

            Pursuant to Section 9545, the PCRA petition would have
      been due within 60 days of October 30, 2013, when [Appellant]
      received a letter from Charles Eckhart, or by December 29,
      2013. At the PCRA hearing, the defense presented evidence,

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     specifically, a receipt from Fed-Ex indicating that the PCRA
     petition was sent by priority delivery overnight and received on
     December 2[7], 2013 at 10:00 a.m. by John with the sender
     being Gerald A. Lord, Esquire.       See Transcript from PCRA
     evidentiary hearing on December 18, 2014 at page 6.

           Pursuant to Pa. R.C.P. 903(A) the Clerk of Courts shall
     promptly time stamp the Petition for Post Conviction Relief.
     Because the petitions were received at 10:00 a.m. on December
     27, 2013, a prompt time stand would and should have the same
     date. The Court finds the Petition was filed within sixty days.

            However, [Appellant] must prove one of the exceptions
     pursuant to §9545 and what cannot be ignored is that the facts
     upon which [Appellant’s] claims are predicated were known to
     [him] at the time of the trial. . . . Mr. Eckhart was available and
     testified at the trial of this matter. The statement he provided in
     October 2013 and his testimony at the [PCRA hearing] is merely
     corroborative or cumulative of the other testimony already
     presented to the fact finder.

PCRA Court Opinion, 5/12/15, at 5–6.

     Upon review of the certified record, we discern no basis on which to

disturb the PCRA court’s order dismissing Appellant’s petition.    The record

supports the PCRA court’s finding that Appellant filed his PCRA petition

within sixty days of Charles Eckhart’s letter. N.T., 12/18/14, at 99, Defense

Exhibit 1. The record also supports the PCRA court’s conclusion that Charles

Eckhart’s   2013   statement   was   cumulative    evidence   of   Appellant’s

intoxication defense.   Specifically, at the December 2014 hearing, defense

counsel testified that “just about all of those ten [defense] witnesses

testified in some form or other about intoxication,” “we had the officer who

issued the public drunkenness citation to [Appellant] and to [Robert],” and

the “forensic toxicologist . . . opined that the blood alcohol was . . . high;

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between .20 and .25.” N.T., 12/18/14, at 11–13. Appellant and/or Robert

confirmed: their defense was intoxication; their witnesses “stated that we

were intoxicated;” the toxicologist testified to high blood alcohol levels; and

Stanley Petrosky’s statement was admitted into evidence at trial. Id. at 23–

32; 34–47.      Charles Eckhart testified that he believed Appellant was

intoxicated, and he explained his reasons for not disclosing that opinion at

the time of Appellant’s trial. Id. at 65–77, 86–96.

      Based on the foregoing, we agree with the PCRA court that Charles

Eckhart’s testimony was cumulative evidence of Appellant’s intoxication.

Thus, Appellant failed to prove that Charles Eckhart’s October 2013

statement constituted after-discovered facts that could render Appellant’s

serial petition timely.   42 Pa.C.S. § 9545(b)(1)(ii); Johnson, 841 A.2d at

140-141.

      Appellant also claims that defense counsel was ineffective for failing to

call Stanley Petroski to testify at trial.     Appellant’s Brief at 22.   The PCRA

court and the Commonwealth reply that this claim is waived. PCRA Court

Opinion, 5/12/15, at 8 n.1 (citing 42 Pa.C.S. § 9544(b)); Commonwealth’s

Brief at 7 (same). We agree.

      The record reveals that Stanley Petroski was unavailable to Appellant

and the Commonwealth at the time of trial.             N.T., 12/18/14, at 14–16.

Despite the witness’ unavailability, Appellant was able to admit Stanley

Petroski’s written statement in which he stated his belief that Appellant was


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drunk on the night of the murder. Id. at 14, 18–21. By his own admission,

Appellant failed to pursue an IAC claim regarding Stanley Petroski in his first

PCRA petition. Id. at 44–46. Therefore, his current IAC claim is waived. 42

Pa.C.S. § 9544(b).

      Appellant’s PCRA petition was untimely, and he failed to plead and

prove an exception to the time-bar.            Therefore, the PCRA court lacked

jurisdiction   to   accept   Appellant’s   petition   and   grant   relief.   See

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding

that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we

lack the authority to address the merits of any substantive claims raised in

the PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007) (“[J]urisdictional time limits go to a court’s right or competency

to adjudicate a controversy.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2016




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