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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                     v.                  :
                                         :
KURT MICHAEL DANYSH,                     :         No. 1068 MDA 2016
                                         :
                          Appellant      :


                Appeal from the Order Entered May 31, 2016,
           in the Court of Common Pleas of Susquehanna County
              Criminal Division at No. CP-58-CR-0000132-1996


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 27, 2017

      Kurt Michael Danysh appeals pro se from the PCRA court’s May 31,

2016 order indicating that it lacked jurisdiction to grant or deny his

January 15, 2010 “Motion for Modification of Sentence (nunc pro tunc) on

Ground of After-Discovered Evidence,” and his subsequent March 30, 2015

“Addendum” thereto. Appellant was sentenced on November 20, 1997, and

his filing was, in actuality, an untimely serial petition brought under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.1        After careful

review, we affirm.



* Former Justice specially assigned to the Superior Court.
1
  Pennsylvania courts have consistently held that “the PCRA is intended to be
the sole means of achieving post-conviction relief.” Commonwealth v.
Taylor, 65 A.3d 462, 465 (Pa.Super. 2013). See also Commonwealth v.
Jackson, 30 A.3d 516, 521 (Pa.Super. 2011), appeal denied, 47 A.3d 845
J. S91006/16


      The relevant facts and extensive procedural history of this case were

summarized by a prior panel of this court, and need not be reiterated here.

See   Commonwealth           v.    Danysh,   988    A.2d   717   (Pa.Super.   2009)

(unpublished memorandum at 1-3). In sum, on October 9, 1997, appellant

entered a negotiated guilty plea to third-degree murder2 after he admitted to

shooting his father in the back of the head and stealing $31 from him. The

trial court sentenced appellant on November 20, 1997, to an aggregate term

of 22½ to 60 years’ imprisonment. On April 7, 1999, a panel of this court

affirmed appellant’s judgment of sentence, and appellant did not file a

petition   for   allowance    of    appeal   with   our    supreme   court.    See

Commonwealth v. Danysh, 738 A.2d 1049 (Pa.Super. 1999) (unpublished

memorandum).

      Thereafter, appellant embarked on what this court characterized as “a

decade long odyssey in pursuit of post-sentence relief, pro se as well as

counseled.”      See Commonwealth v. Danysh, 113 A.3d 341 (Pa.Super.

2014), appeal denied, 632 Pa. 668 (Pa. 2015) (unpublished memorandum




(Pa. 2012) (stating that, “any petition filed after the judgment of sentence
becomes final will be treated as a PCRA petition[]”); Commonwealth v.
Grafton, 928 A.2d 1112, 1114-1115 (Pa.Super. 2007) (holding that motion
to modify sentence was appropriately reviewed as a PCRA petition);
Commonwealth v. Evans, 866 A.2d 442, 443-444 (Pa.Super. 2005)
(holding that under certain circumstances, an untimely post-sentence motion
may be considered a PCRA petition).
2
 18 Pa.C.S.A. § 2502(c). The record reflects that appellant also entered an
open guilty plea to one count of robbery, 18 Pa.C.S.A. § 3701.


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at 2.) Ultimately, on May 31, 2016, the PCRA court entered an order that

indicated that it was without jurisdiction to grant or deny relief on appellant’s

motion to modify his sentence, and effectively disposed of the instant serial

petition. Appellant filed a timely pro se notice of appeal from this order on

June 30, 2016.    The PCRA court did not order appellant to file a concise

statement   of   errors   complained   of    on   appeal,   in   accordance   with

Pa.R.A.P. 1925(b).     On September 21, 2016, the PCRA court filed a

three-page “Statement in Lieu of an Opinion,” concluding that appellant’s

PCRA petition was untimely and that it “is without jurisdiction to either grant

or deny [appellant’s] Motion for Modification of Sentence (Nunc Pro Tunc)

on Ground of After-Discovered Evidence.” (PCRA court “Statement in Lieu of

an Opinion,” 9/21/16 at 3.)3

      On appeal, appellant challenges the PCRA court’s determination that it

lacked jurisdiction to address his January 15, 2010 motion to modify his

sentence and subsequent March 30, 2015 addendum to said motion.

(Appellant’s brief at 2.)      Appellant contends that he is entitled to an

exception to the PCRA time-bar on the basis of after-discovered evidence;

namely, that pharmaceutical company Eli Lilly concealed that one of the side

effects of Prozac was aggressive and violent behavior.              (Id. at 10.)

Appellant maintains that his sentence should be modified based on this


3
  We note that the PCRA court’s September 21, 2016 “Statement in Lieu of
an Opinion” does not contain pagination; however, for the ease of our
discussion, we have assigned each page a corresponding number.


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after-discovered mitigating evidence.          (Id. at 11-14.)     For the following

reasons, we disagree.

       Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

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

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in

the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.

2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.”          Commonwealth v. Hickman,

799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).

       Initially, our review of appellant’s petition reveals that he has failed to

raise a cognizable claim under the PCRA.          In order to be eligible for PCRA

relief, a defendant must plead and prove by a preponderance of the

evidence that his conviction or sentence arose from one or more of the

errors set forth in 42 Pa.C.S.A. § 9543(a)(2)(i)-(viii).

       Instantly, appellant’s allegations concerning the court’s purported

refusal to modify his sentence based on after-discovered mitigating evidence

does   not   fall   within   any   of   the   cognizable   bases   for   relief   under

Section 9543(a)(2) of the PCRA. See Commonwealth v. Fowler, 930 A.2d

586, 593 (Pa.Super. 2007), appeal denied, 944 A.2d 756 (Pa. 2008)



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(holding that challenges to the discretionary aspects of a sentence, such as

those presented here, are not cognizable under the PCRA).                           Nor does

appellant challenge the legality of his sentence or contend that the sentence

imposed exceeded the lawful maximum.                     Accordingly, we agree that the

PCRA court is without jurisdiction in this matter.

         Additionally, even if appellant had raised a legality of sentence claim, it

would      still   have   to   be   brought    in   a     timely   PCRA    petition.     See

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (although legality

of sentence is always subject to review within PCRA, claims must still first

satisfy the PCRA’s time limits or a statutory exception).

         All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence becomes

final.     42 Pa.C.S.A. § 9545(b)(1).           “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 the time for seeking the review.” Id. § 9545(b)(3). If a PCRA

petition     is    untimely,    a   court   lacks       jurisdiction   over   the    petition.

Commonwealth v. Callahan, 101 A.3d 118, 120-121 (Pa.Super. 2014).

         Here, it is undisputed that appellant’s instant petition is patently

untimely. As noted, appellant was sentenced to an aggregate term of 22½

to 60 years’ imprisonment on November 20, 1997.                        On April 7, 1999, a

panel of this court affirmed appellant’s judgment of sentence.                           See



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Commonwealth v. Danysh, 738 A.2d 1049 (Pa.Super. 1999) (unpublished

memorandum).          Thus, appellant’s judgment of sentence became final on

May 7, 1999, 30 days after this court affirmed the judgment of sentence,

and appellant failed to seek leave to appeal to the Pennsylvania Supreme

Court.      See Pa.R.A.P. 1113(a); 42 Pa.C.S.A. § 9545(b) (providing “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[]”).    Appellant filed the instant serial PCRA petition on January 15,

2010, and amended it on March 30, 2015.               As a result, the PCRA court

lacked jurisdiction to review appellant’s petition, unless appellant alleged

and proved one of the statutory exceptions to the time bar, as set forth in

Section 9545(b)(1).        See Commonwealth v. Lawson, 90 A.3d 1, 5

(Pa.Super. 2014).

      The     three    exceptions   to   the   PCRA   time-bar   are    as   follows:

“(1) interference by government officials in the presentation of the claim;

(2) newly discovered facts; and (3) an after-recognized constitutional right.”

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012),

citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii).         Appellant bears the burden of

pleading and proving the applicability of any exception.               42 Pa.C.S.A.

§ 9545(b)(1).         In addition, a petition invoking any of the timeliness




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exceptions must be filed within 60 days of the date the claim first could have

been presented. Id. § 9545(b)(2).

      Here, our review of the record reveals that appellant failed to present

his “after-discovered evidence” exception within 60 days of the date the

claim could have been presented. Appellant acknowledges that he became

aware of the possible violent side effects of Prozac as early as January 5,

2005, and therefore, he was required to raise this claim within 60 days of

that date. See 42 Pa.C.S.A. § 9545(b)(2); see also “Motion for Modification

of Sentence (nunc pro tunc) on Ground of After-Discovered Evidence,”

1/15/10; appellant’s brief at 20. He failed to do so. Accordingly, appellant’s

claim, even if cognizable under the PCRA, would be waived.

      For all of the foregoing reasons, we find that the PCRA court lacked

jurisdiction to consider the merits of appellant’s petition.   Accordingly, we

affirm the May 31, 2016 order of the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/27/2017




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