J-S21043-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 BRYAN JOSEPH SEDLAK,                      :
                                           :
                     Appellant             :        No. 1748 WDA 2019

          Appeal from the PCRA Order Entered September 3, 2019
            in the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0015740-2007

BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED JUNE 26, 2020

      Bryan Joseph Sedlak (“Sedlak”) appeals, pro se, from the Order

dismissing his second Petition for relief filed pursuant to the Post Conviction

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

      In a prior appeal, this Court set forth the relevant history underlying this

appeal as follows:

             On February 18, 2009, a jury found [Sedlak] guilty of third[-
      ]degree murder and abuse of a corpse. The charges arose from
      [Sedlak]’s shooting of Patrick Kenney [(“Kenney”)] on February 2,
      2005[,] at a tanning salon owned by [Sedlak] in Homestead[,
      Pennsylvania]. [Sedlak] raised a defense of self-defense at trial[,]
      claiming that Kenney, in a cocaine-fueled aggression, demanded
      more cocaine from [Sedlak] at gunpoint. [Sedlak] claimed that
      Kenney opened fire first and that [Sedlak] killed [Kenney] by
      returning fire. The abuse of a corpse charge stemmed from
      [Sedlak]’s [dismemberment] of [Kenney]’s body and [disposal of
      it in sulfuric acid].

             On August 10, 2009, [Sedlak] was sentenced to an
      aggregate term of 19-38 years[] [in prison]. On April 7, 2011,
      this [C]ourt affirmed the judgment of sentence, and on September
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      12, 2011, our [S]upreme [C]ourt denied [allowance of] appeal.
      Commonwealth v. Sedlak, 29 A.3d 825 (Pa. Super. 2011)
      (unpublished memorandum), appeal denied, 29 A.3d 373 (Pa.
      2011).

Commonwealth v. Sedlak, 97 A.3d 808 (Pa. Super. 2014) (unpublished

memorandum at 1-2).

      Following an unsuccessful first PCRA Petition, on March 25, 2019,

Sedlak, pro se, filed the instant second PCRA Petition. On July 30, 2019, the

PCRA court issued a Notice of Intent to dismiss the Petition pursuant to

Pa.R.Crim.P. 907. Sedlak filed a pro se Response to the Rule 907 Notice on

August 19, 2019. On September 3, 2019, the PCRA court dismissed Sedlak’s

PCRA Petition as untimely filed. Sedlak filed a timely, pro se, Notice of Appeal

on September 26, 2019. The PCRA court did not order Sedlak to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and Sedlak did not file a concise statement. The PCRA court filed its 1925(a)

Opinion on November 13, 2019.

      Sedlak now presents the following claims for our review:

      (1) Whether the PCRA court erred in determining that the PCRA
      [Petition] was untimely?

      (2) Whether the PCRA court erred in determining that the claim of
      ineffective/deficient representation of counsel was untimely and
      meritless?

Brief for Appellant at 3 (some capitalization omitted).

             We review an order dismissing a petition under the PCRA in
      the light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the


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      evidence of the record. We will not disturb a PCRA court’s ruling
      if it is supported by evidence of record and is free of legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Under the PCRA, any PCRA petition “shall be filed within one year of the

date the judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). 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

review.”    Id. § 9545(b)(3).      The PCRA’s timeliness requirements are

jurisdictional in nature, and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,

994 A.2d 1091, 1093 (Pa. 2010).

      Instantly, Sedlak’s judgment of sentence became final in December

2011, when the time to file a petition for writ of certiorari with the United

States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); SUP. CT. R.

13. Thus, Sedlak’s Petition is facially untimely.

      However, Pennsylvania courts may consider an untimely petition if the

petitioner can explicitly plead and prove one of the three exceptions set forth

at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Those three exceptions are as follows:

      (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;


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      (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.A. § 9545(b)(1)(i)-(iii). Any petition invoking one of the exceptions

“shall be filed within one year of the date the claim could have been

presented.”   Id. § 9545(b)(2).     “The PCRA petitioner bears the burden of

proving the applicability of one of the exceptions.”        Commonwealth v.

Spotz, 171 A.3d 675, 678 (Pa. 2017).

      Sedlak fails to identify or invoke any of the timeliness exceptions set

forth at section 9545(b)(1)(i)-(iii).   Rather, Sedlak claims that PCRA court

erred in determining that his PCRA Petition was untimely because Sedlak had

demonstrated a “miscarriage of justice.” Brief for Appellant at 5. Additionally,

Sedlak asserts that “all prior counsel” were ineffective. Id. at 5-6. Sedlak

argues that the alleged ineffectiveness “constituted a miscarriage of justice

which is all that’s required for the filing of a second PCRA [] outside of the

statutory limit of one year.” Id. at 5.

      Sedlak has not invoked any of the exceptions to the PCRA time bar and,

thus, this Court has no jurisdiction to hear the merits of his untimely PCRA.

See Albrecht, supra.       “There is no [‘]miscarriage of justice[’] standard

exception to the time requirements of the PCRA.”            Commonwealth v.

Burton, 936 A.2d 521, 527 (Pa. Super. 2007). “[Pennsylvania courts] will

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only entertain a [‘]miscarriage of justice[’] claim when the initial timeliness

requirement is met.” Id. Additionally, Sedlak’s claim of “all prior counsel[’s]”

ineffectiveness does not satisfy an exception to the PCRA time bar.        See

Commonwealth v. Zeigler, 148 A.3d 849, 853-54 (Pa. Super. 2016) (stating

that a “claim of ineffective assistance of counsel does not save [an] otherwise

untimely PCRA petition for review on the merits.”) (citations omitted).

Because Sedlak failed to plead and prove an exception to the PCRA’s

timeliness requirements, we cannot address the merits of his claims.

      Based upon the foregoing, the PCRA court did not err in dismissing

Sedlak’s Petition as untimely filed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2020




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