J-S74040-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                   1   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                      v.

EUGENE MYRICK

                           Appellant                      No. 2140 EDA 2015


                   Appeal from the PCRA Order June 12, 2015
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP- 51 -CR- 1120961 -1986

BEFORE:     OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                          FILED NOVEMBER 08, 2016

        Eugene   Myrick appeals from the order entered June 12, 2015,

dismissing as untimely his petition for relief filed pursuant to the Post

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

        In July of 1986, Appellant shot David Jennings, in the victim's home.

In January of 1988, Appellant was tried before        a   jury and found guilty of
murder of the first degree and possession of an instrument of crime.          The

Appellant received   a   sentence of life imprisonment for the murder conviction

and was      sentenced to    a   consecutive two and one -half to five years'

incarceration for possession of an instrument of crime.         In April 1988, the

trial court denied Appellant's post -trial motions.       This Court affirmed the



*   Former Justice specially assigned to the Superior Court.
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judgment of sentence on May 31, 1989. Commonwealth v. Myrick, 563
A.2d 193 (Pa. Super 1989) (unpublished memorandum).                  Appellant did not

seek review by the Supreme Court of Pennsylvania, and thus, his judgment

of sentence became final on June 30, 1989.           See 42 Pa.C.S.        §   9545(b)(3)

(stating that   a   judgment of sentence becomes final at the conclusion of
direct review or the expiration of the time for seeking the review).

      In January 1997, Appellant filed his first petition for collateral relief.

The PCRA court dismissed the petition in November 2001.                         This Court

affirmed, and the Supreme Court of Pennsylvania denied Appellant's petition

for allowance of appeal.       Commonwealth v. Myrick, 813 A.2d 906                   (Pa.

Super. 2002) (unpublished memorandum), appeal denied, 814 A.2d 676

(Pa. 2002).

      Appellant filed the instant PCRA petition, his second, on August 19,

2014, seeking relief based upon new evidence, specifically             a       copy of the

victim's prison record.        PCRA counsel was appointed and           submitted an

amended petition.        Appellee filed    a    motion to dismiss, and Appellant

responded by brief. On April 10, 2015, the PCRA court issued           a   Pa.R.Crim.P.

907 notice of its intent to dismiss Appellant's petition.       On June 12, 2015,

the PCRA court dismissed Appellant's petition without      a   hearing.

      Through newly appointed counsel, Appellant filed           a   notice of appeal

raising the following issue:

      Did  the Honorable PCRA Court err when it dismissed the
      Defendant's Amended Petition and all [sic] where the Defendant
      pled and would have been able to prove that he was entitled to

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J-S74040-16


      relief and where the Defendant was not time -barred as the court
      ruled?
Appellant's Brief at 3.

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court's findings deference unless there is no

support for them in the certified record.    Commonwealth v. Brown, 48
A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

      First, we address Appellant's assertion that the PCRA court erred in

finding his petition untimely. Under the PCRA, all petitions seeking collateral

relief must be filed within one year of the date the judgment of sentence

becomes final.     Commonwealth v. Bennett, 930 A.2d 1264, 1267             (Pa.

2007) (citing Commonwealth v. Peterkin, 722 A.2d 638, 641 (1998)).

Here, Appellant's judgement of sentence became final thirty days after the

judgment of sentence was entered and the time for filing   a   direct appeal had

expired. Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998).

Thus, his sentence became final in June of 1989. 42 Pa.C.S. §9545(b)(3).

      The instant PCRA was filed on September 18, 2014; twenty -five years

after the judgment of sentence became final.'          Appellant's petition   is


' When the amendments to the   PCRA statute became effective on January
16, 1996, those defendants whose judgments of sentence became final prior
(Footnote Continued Next Page)


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patently untimely, and for the court to have jurisdiction to review the merits

of Appellant's claims he must plead and prove the applicability of one of the

exceptions to       the timeliness    requirement.     See Commonwealth          v.

Hawkins, 953 A.2d 1248, 1253          (Pa. 2008) ( "It is the Appellant's burden to

allege and prove that one of the timeliness exceptions applies. ").

      There are three statutory exceptions:

      (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 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 attempting to invoke one of these

exceptions "shall be filed within 60 days of the date the claim could have

been presented." 42 PA.C.S.      §   9545(b)(2).
      Appellant does not dispute that his petition           is   untimely; rather,

Appellant acknowledges that he must avail himself of one of the exceptions

set forth in section 9545(b)(1)(i) -(iii) in order for this Court to have
(Footnote Continued)

to the effective date of the amendments were given until January 16, 1997
to file a PCRA petition. Appellant filed his second PCRA petition more than
seventeen years past the filing deadline.


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jurisdiction to reach the merits of his claims.       Bennett, 930 A.2d at 1267
(stating PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded to address the merits of the petition).            Appellant

asserts that his petition meets the timeliness exception found in 42 Pa.C.S.      §

9545(b)(1)(ii).       Under 42 Pa.C.S.    §   9545(b)(1)(ii), Appellant must prove
that (1) this fact was unknown to him and (2) that he could not have
ascertained this fact previously by the exercise of due diligence.        Bennett,
930 A.2d at 1270 -72.          Due diligence requires that the petitioner make

reasonable steps to protect his own interest. Commonwealth v. Carr, 768

A.2d 1164, 1168 (Pa. Super. 2001).

           Appellant obtained the victim's prison records from SCI Dallas, which

indicate that the victim was incarcerated there from April 14 to August 6,

1981.       Appellant asserts that he was not incarcerated at SCI Dallas during

that time frame.        Appellant asserts that this newly discovered fact would

have altered the verdict had it been available at trial.

           While Appellant filed his petition within sixty days of receiving the

victim's prison records he fails to prove or explain why he could not have

ascertained this information previously with the exercise of due diligence.

See Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001) (stating

that   a   petitioner must explain why he could not have learned the new fact(s)

earlier with the exercise of due diligence).

           In 1986, at Appellant's preliminary hearing, Police Officer Leslie Gunter

testified that the victim indicated that his assailant was "Gene the Hack"

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from Broad and Erie and the two had lived         together.2   Notes of Testimony

(N.T.), 11/12/86, at 18 -22.       Despite this, Appellant never challenged this

assertion, nor did he previously attempt to obtain the victim's prison

records.        Appellant offers no persuasive explanation why this information

could not have been discovered, with due diligence, long before he filed his

petition in August 2014. Hawkins, 953 A.2d at 1253; Bennett, 930 A.2d

at 1270 -72.        This information does not satisfy the after -discovered facts

exception provided in Section 9545(b)(1)(ii).

      In summary, Appellant's petition was patently untimely, and he has

failed to establish an exception to the timeliness requirements of the PCRA.

Accordingly, the PCRA court did not have jurisdiction to review the merits of

Appellant's claims and properly dismissed his petition.

      Order affirmed.

Judgment Entered.




J:seph    Seletyn,
           D.
Prothonotary


Date: 11/8/2016




2At the time of trial, the statement was redacted to indicate that the two
men had lived together without mentioning jail.


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