J-S26001-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                     v.

MAURICE TALLEY

                          Appellant                    No. 1825 MDA 2016


                 Appeal from the PCRA Order October 20, 2016
               In the Court of Common Pleas of Schuylkill County
              Criminal Division at No(s): CP-54-MD-0000272-1968


BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                                     FILED MAY 23, 2017

      Maurice Talley appeals from the October 20, 2016 order denying him

PCRA relief. We affirm.

      A jury convicted Appellant of first-degree murder in connection with

the December 26, 1967 death of Patricia Sholley. Appellant and Ms. Sholley

worked at the same hospital in Reading, and a man fitting Appellant’s

description was observed with the victim the night that she disappeared.

Pursuant to a warrant, police found items belonging to the decedent and

Appellant’s    blood-stained   clothing   in   Appellant’s    residence,   and   his

fingerprints were recovered from Ms. Sholley’s car. After he was convicted,

Appellant received a sentence of life imprisonment, and, on appeal, our




* Former Justice specially assigned to the Superior Court.
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Supreme Court affirmed.          Commonwealth v. Talley, 318 A.2d 922 (Pa.

1974).

          On December 19, 1983, Appellant filed a petition for post-conviction

relief.     After a hearing, relief was denied; on appeal, we rejected ten

allegations that trial counsel rendered ineffective assistance and affirmed.

Commonwealth v. Talley, 517 A.2d 1367 (Pa.Super. 1986) (unpublished

memorandum), appeal denied, 544 A.2d 961 (Pa. 1988).

          The next request for relief occurred on October 3, 2016, when

Appellant filed two documents in this matter: a motion for the appointment

of counsel and an appeal nunc pro tunc from the judgment of sentence. The

PCRA court denied relief based upon a finding that the October 3, 2016

notice of appeal was an untimely PCRA petition.1           This pro se appeal

followed.

          Appellant’s brief does not contain a statement of issues involved, but

he raises these arguments: “(A) After discovered evidence[;] (B) [Denial] of

fair trial[;] (C) Ineffective assistance of counsel at trial/sentence and

appeal[;] (D) Fraud upon the court by state police/witness perjury[; and] (F)

Ambiguous charge of the court/ due process.” Appellant’s brief at 3.



____________________________________________


1
  It also noted that Appellant was not automatically entitled to appointment
of counsel for a second PCRA petition.



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      We first observe that Appellant’s notice of appeal nunc pro tunc was

not timely, and was properly treated by the court as a PCRA petition.

Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super. 2013) (citation

omitted) (holding that “any petition filed after the judgment of sentence

becomes final will be treated as a PCRA petition”). This Court reviews the

“denial of PCRA relief to determine whether the findings of the PCRA court

are supported by the record and free of legal error.” Commonwealth v.

Roane, 142 A.3d 79, 86 (Pa.Super. 2016) (quoting Commonwealth v.

Treiber, 121 A.3d 435, 444 (Pa. 2015)).

      It is axiomatic that all PCRA petitions must be filed within one year of

the date a defendant’s judgment becomes final unless an exception to the

one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1).        If a PCRA

petition is untimely, “neither this Court nor the trial court has jurisdiction

over the petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super.

2014) (citation omitted); see also Commonwealth v. Chester, 895 A.2d

520, 522 (Pa. 2006). “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.” 42 Pa.C.S. § 9545(b)(3).

      In this case, our Supreme Court affirmed Appellant’s judgment of

sentence on April 23, 1974, and it became final, since Appellant did not seek

review in the United States Supreme Court, in 1974. He had until 1975 to

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file a timely PCRA petition, and the October 3, 2016 request for relief was

clearly untimely. There are three exceptions to the one-year time bar of §

9545:

     (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). “Any petition invoking an exception provided in

paragraph (1) shall be filed within 60 days of the date the claim could have

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

     Herein, Appellant does not specifically invoke any exception. The only

averment that touches on an exception relates to Appellant’s position that he

obtained after-discovered evidence, which arguably invokes the second

exception. “To qualify for an exception to the PCRA's time limitations under

subsection 9545(b)(1)(ii), a petitioner need only establish that the facts

upon which the claim is based were unknown to him and could not have

been ascertained by the exercise of due diligence.” Commonwealth v.

Burton, 2017 WL 1149203, at *8 (No. 9 WAP 2016, Pa. March 28, 2017).



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      In connection with his after-discovered-evidence position, Appellant

suggests that he “will present after discovered evidence facts and mitigating

evidence relevant and material to the evidence presented at trial and

penal[ty] phase but not available or not permitted by the courts at the time

of trial which would have made a difference in the outcome[.]” Appellant’s

brief at 4. He claims that he suffers from post-traumatic stress syndrome,

and that unidentified Commonwealth witnesses made unspecified out-of-

court statements that conflict with their trial testimony. We conclude that

Appellant has failed to fall within the parameters of the newly discovered

facts exception since he does not indicate when he discovered his proof.

Thus, Appellant does not establish that he raised his claims within sixty days

of when he first discovered, and could have presented, those claims.

      Appellant also maintains that he received ineffective assistance of

counsel. However, “allegations of ineffective assistance of counsel will not

overcome    the   jurisdictional   timeliness   requirements   of   the   PCRA.”

Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005); accord

Commonwealth v. Pollard, 911 A.2d 1005 (Pa.Super. 2006).                    The

remainder of Appellant’s complaints concern events that occurred during the

criminal investigation or course of trial, and thus they do not qualify as

newly discovered facts since these events were known to him in the 1970s,

when they occurred.




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      Hence, the PCRA court did not abuse its discretion in ruling that

Appellant’s October 3, 2016 notice of appeal was an untimely PCRA petition

and dismissing it.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




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