J-S06029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    RAMEL ANDERSON                             :
                                               :   No. 345 EDA 2017
                       Appellant               :

                 Appeal from the PCRA Order January 30, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0607951-2004


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                            FILED MARCH 26, 2018

        Appellant Ramel Anderson appeals pro se from the order of the PCRA

court dismissing his second petition filed under the Post Conviction Relief Act

(“PCRA”).1 We affirm.

        The underlying facts are not relevant to our disposition. In short,

Anderson was convicted in 2006 of second-degree murder, robbery, and

burglary, and was sentenced to life imprisonment.2 We affirmed the

judgement of sentence, and in May 2009, the Pennsylvania Supreme Court

denied Anderson’s Petition for Allowance of Appeal. See Commonwealth v.



____________________________________________


1   42 Pa.C.S.A. § 9541-46.

2Appellant was convicted of violating 18 Pa.C.S.A. §§ 2502(b), 3701, and
3502(a), following the 1998 murder of George Volz inside his home.
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Anderson, 965 A.2d 286 (Pa.Super. 2008) (unpublished memorandum),

appeal denied, 972 A.2d 519 (Pa. 2009).

       In May 2010, Anderson filed his first PCRA petition, pro se. Anderson

was appointed counsel, who subsequently filed a Petition to Withdraw

pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en

banc). The PCRA court granted counsel leave to withdraw and dismissed

Anderson’s PCRA Petition, and we affirmed; the Pennsylvania Supreme Court

denied allowance of appeal. See Commonwealth v. Anderson, 87 A.3d 876

(Pa.Super. 2013) (unpublished memorandum), review denied, 87 A.3d 814

(Pa. 2014).

       On October 8, 2013, Anderson filed a second PCRA petition, which gave

rise to this appeal. In the Petition, Anderson claimed that he received a copy

of his criminal docket on September 17, 2013, at which time he discovered

that the Commonwealth did not file a criminal complaint against him until July

1, 2004, even though he was arrested on March 13, 2004, and held without

bail. See PCRA Petition, filed August 8, 2013, at 4.

       The PCRA court took no action on Anderson’s second petition until May

19, 2014, when counsel was appointed to represent Anderson.3 On May 13,

2016, counsel filed a Finley letter. The PCRA court dismissed Anderson’s

second PCRA petition as untimely on January 6, 2017, and permitted counsel

to withdraw.
____________________________________________


3For reasons that do not appear in the record, new counsel was appointed for
Appellant on September 17, 2015.

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     Anderson filed a notice of appeal on January 10, 2017. However, on

January 30, 2017, the PCRA court vacated its order of January 6, 2017, and

issued a new order, again dismissing Anderson’s second PCRA petition and

permitting counsel to withdraw. It appears that the January 6, 2017 order of

the PCRA court permitted the wrong attorney to withdraw, spurring the

January 30, 2017 correction.

     Anderson presents the following issues:

     1.    Is the Defendant entitled to a new trial because the trial
           counsel failed to investigate time limits and exclusions under
           the Speedy Trial Rule where the Commonwealth failed to file
           charges against the Defendant within a proper time limit?

     2.    Is the Defendant entitled to a new trial because of [sic] the
           Prosecutor’s closing remarks violated the Defendant’s
           Constitutional rights?

     3.    Is the Defendant entitled to a new trial because trial counsel
           failed to investigate and to seek out an expert witness to
           rebut the medical examiner[’]s finding that could prove that
           the decedent could have died other than [by] homicide?

     4.    Is the Defendant entitled to a new trial because the
           Philadelphia Police’s search of the Defendant’s home was
           unconstitutional and illegal because they were only allowed
           to do a protective sweep and not search because they did
           not have a search warrant so any evidence after that point
           is suppose[d] to be thrown out because of fruit from a
           poisonous tree?

Anderson’s Br. at 3 (answers below omitted).

     “[I]n reviewing the propriety of an order granting or denying PCRA relief,

this Court is limited to ascertaining whether the evidence supports the




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determination of the PCRA court and whether the ruling is free of legal error.”

Commonwealth v. Grove, 170 A.3d 1127, 1136 (Pa.Super. 2017).

      We first consider whether Anderson’s Notice of Appeal was filed

prematurely, as the PCRA court vacated the January 6 order under appeal and

entered a subsequent final order on January 30, and Anderson filed no new

notice of appeal. Because the January 6 order was appealable at the time it

was entered, and because the January 30 order merely corrected a patent

error in the January 6 order, we will not quash the appeal as premature. See

Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a

determination but before the entry of an appealable order shall be treated as

filed after such entry and on the day thereof”).

      We do not reach the merits of Anderson’s issues on appeal because the

PCRA court correctly determined that it lacked jurisdiction. The PCRA court

explained in its Pa.R.A.P. 1925(a) opinion that the PCRA’s timeliness

requirements are jurisdictional, and that under 42 Pa.C.S.A. § 9545(b)(1), all

PCRA petitions must be filed within one year of the date on which the

petitioner’s judgement of sentence becomes final, unless the petition meets

one of three exceptions. See PCRA Court Opinion, filed June 9, 2017, at 7-8.

The PCRA court found that although Anderson claimed the exception in

subsection 9545 (b)(1)(ii) (that “the facts upon which the claim is predicated

were unknown to the petitioner and could not have been ascertained by the




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excellence of due diligence”), Anderson presented no newly discovered

evidence to validate his untimely petition. Id. at 8.

      We agree with the PCRA court’s assessment. Anderson’s judgment of

sentence became final on August 26, 2009, 90 days after the Pennsylvania

Supreme Court denied Anderson’s petition for direct review, as Anderson did

not seek review in the United States Supreme Court. See 42 Pa.C.S.A. §

9545(b)(3) (stating that a judgment becomes final at the conclusion of direct

review, or the expiration of time for seeking direct review); U.S. Sup. Ct. R.

13 (allowing 90 days to file a petition for writ of certiorari with the United

States Supreme Court); Commonwealth v. Crews, 863 A.2d 498, 501 n.1

(Pa. 2004). Anderson then had one year, until August 26, 2010, to file a timely

PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Anderson’s petition, filed in

2013, is therefore patently untimely.

      Anderson claims that his petition is timely under the after discovered

facts exception because the copy of the court docket he obtained in 2013

alerted him to the date of his arrest and the date the filing of the criminal

complaint. However, the after-discovered facts exception “requires [a]

petitioner to allege and prove that there were facts that were unknown to him

and that he could not have ascertained those facts by the exercise of due

diligence.” Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008)

(quotation marks and citation omitted). “The focus of the exception is on the

newly discovered facts, not on a newly discovered or newly willing source for


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previously known facts.” Id. (quotation marks, citation, brackets, and

footnote omitted). The dates of Anderson’s arrest and the filing of the criminal

complaint in 2004 could have been ascertained by Anderson’s due diligence

at least at the time of his first PCRA petition, and therefore his 2013 receipt

of a copy of his court docket does not meet the after-discovered facts

exception. Thus, we affirm the PCRA court’s dismissal of Anderson’s untimely

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/18




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