J-S55009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JOHN HENRY LENARD,                         :
                                               :
                      Appellant                :     No. 353 MDA 2017

                  Appeal from the PCRA Order February 2, 2017
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0000541-2006


BEFORE:      DUBOW, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                               FILED SEPTEMBER 27, 2017

        Appellant, John Henry Lenard, appeals from the February 2, 2017

Order dismissing his fourth Petition filed pursuant to the Post-Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, as untimely.              After careful

review, we affirm.

        On February 12, 2007, a jury convicted Appellant of Third-Degree

Murder after hearing evidence that after then-18-year-old Appellant and his

16-year-old victim engaged in a brief physical altercation on the corner of

the street, Appellant returned to the corner and stabbed the victim, causing

his death.    The trial court subsequently sentenced Appellant to a term of

twenty to forty years’ incarceration.              On January 11, 2008, this Court
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*
    Retired Senior Judge assigned to the Superior Court.
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affirmed Appellant’s Judgment of Sentence, and the Pennsylvania Supreme

Court denied Appellant’s Petition for Allowance of Appeal on June 19, 2008.

See Commonwealth v. Lenard, 947 A.2d 827 (Pa. Super. filed January

11, 2008) (unpublished memorandum), appeal denied, 953 A.2d 540 (Pa.

2008). Appellant did not seek review by the United States Supreme Court.

Appellant’s Judgment of Sentence, therefore, became final on September 17,

2008, when the ninety-day period for filing a Writ of Certiorari with the

United States Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3); U.S.

Sup. Ct. R. 13.

     On December 15, 2016, more than eight years after his Judgment of

Sentence became final, Appellant filed the instant pro se PCRA Petition, his

fourth, raising a newly-discovered fact claim. On December 29, 2016, the

PCRA court issued an Order notifying Appellant of its intention to dismiss

Appellant’s PCRA Petition pursuant to Pa.R.Crim.P. 907.     On January 20,

2017, Appellant filed a pro se response entitled Petitioner’s Objection to

Pa.R.Crim.P. 907 Filed on December 28, 2016 (“Response”). On February 2,

2017, after consideration of Appellant’s Response, the PCRA court dismissed

Appellant’s PCRA Petition without a hearing. Appellant timely appealed.

     Appellant raises the following issues on appeal:

     1. Whether the PCRA court erred in denying Appellant’s PCRA as
        untimely filed when Appellant established that his after-
        discovered facts claim was within the plain language of the
        timeliness exception set forth at 42 Pa.C.S. § 9545(b)(1) and
        9545(b)(2)?


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      2. [Appellant] is bringing forth this PCRA based on after-
         discovered evidence under 42 Pa.C.S. § 9545(b)(1)(ii). The
         autopsy reports were not available before trial, after trial[,]
         nor during previous PCRA proceedings.        [Appellant] was
         eventually provided with a copy of the autopsy reports by
         Dauphin County Public Defenders Office on 11/14/16. The
         below facts were unknown to [Appellant] and eventually
         made known to him, then [Appellant] begin [sic] his due
         diligence in obtaining the autopsy reports to show factual
         evidence as to what coroner actually performed the autopsy.
         Without the autopsy reports, [Appellant] would not have
         known who performed the autopsy and could not have been
         able to bring forth this PCRA under 9545(b)(1)(ii).

      3. Whether the PCRA court’s timeliness analysis of Appellant’s
         after-discovered facts exception is erroneous to the extent
         the court also conducted a merits analysis?

Appellant’s Brief at 3 (some capitalization omitted).

      We review the denial of a PCRA petition to determine whether the

record supports the PCRA court’s findings and whether its order is otherwise

free of legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).

      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA petition is a jurisdictional

requisite). Under the PCRA, any petition “including a second or subsequent


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petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 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 the review.”            42 Pa.C.S. §

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).

      Here, it is undisputed that Appellant filed the instant PCRA Petition well

beyond the one-year time limitation set forth in 42 Pa.C.S. § 9545(b)(1) and

that his Petition is facially untimely.

      However, Pennsylvania courts may consider an untimely PCRA

petition, if the appellant pleads and proves one of the three exceptions set

forth in 42 Pa.C.S. § 9545(b)(1).           Any petition invoking a timeliness

exception must be filed within sixty days of the date the claim could have

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

      Instantly, Appellant invokes the Section 9545(b)(1)(ii) exception to

challenge his conviction, which allows an untimely filing if the petition




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asserts newly-discovered facts.1          42 Pa.C.S. § 9545(b)(1)(ii).   To prevail

under this section, Appellant is required to establish that: (1) the fact upon

which he bases his claim was unknown to him; and (2) he could not have

discovered the fact through due diligence.          Commonwealth v. Cox, 146

A.3d 221, 230 (Pa. 2016); 42 Pa.C.S. § 9545(b)(1)(ii). “Due diligence does

not require perfect vigilance and punctilious care, but merely a showing the

party has put forth reasonable effort to obtain the information upon which a

claim is based.” Cox, supra at 230 (internal quotation marks and citation

omitted).

       We agree with the PCRA court that Appellant failed to plead or prove

the applicability of the newly-discovered fact exception.            In his PCRA

Petition, Appellant contends that he “was not in possession of the autopsy

reports to verify as to who actually performed the autopsy on the victim. On

11/14/16 [Appellant] was provided with the autopsy reports to establish the

fact of who performed the autopsy, which was Dr. Wayne K. Ross and not

Coroner Graham Hetrick.”          PCRA Petition, filed 12/21/16, at 3.   Appellant

further avers that during his trial, “the [C]ommonwealth called its witness

Dr. Wayne K. Ross who testified that he was the coroner who actually

performed the autopsy on the victim . . . but at [Appellant]’s preliminary
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1
  We note that Appellant references “after-discovered facts” and “after-
discovered evidence” in his Brief, but he is seeking to invoke 42 Pa.C.S. §
9545(b)(1)(ii), which is the newly-discovered fact exception to the PCRA
time-bar.



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hearing, the [C]ommonwealth’s attorney introduced hearsay evidence to the

court from Dauphin County Coroner Graham Hetrick who supposedly

performed the autopsy.” Id. at 4.

       Appellant argues that upon receipt of the autopsy report, he

discovered the fact that Dr. Ross performed the autopsy on the victim rather

than Coroner Hetrick.2         This argument is nonsensical because Appellant

concedes, and a review of the record reveals, that Dr. Ross testified during

Appellant’s trial under oath that he performed the autopsy.         N.T. Trial,

2/12/07 – 2/16/17, at 81. Appellant did not need a copy of the autopsy to

learn this fact. Accordingly, Appellant failed to establish the fact upon which

he bases his claim was unknown to him and that he could not have

discovered the fact through due diligence.        See Cox, supra.     As such,

Appellant does not qualify for the time-bar exception under 42 Pa.C.S. §

9545(b)(1)(ii).

       In conclusion, Appellant failed to plead and prove any of the timeliness

exceptions provided in 42 Pa.C.S. § 9545(b)(1), and the PCRA court properly

dismissed Appellant’s untimely PCRA Petition without an evidentiary hearing.

The record supports the PCRA court’s findings and its Order is free of legal

error. We, thus, affirm the denial of PCRA relief.

       Order affirmed.
____________________________________________


2
  We note that Appellant appears to question who actually performed the
autopsy, but he does not refute the results of the autopsy.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2017




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