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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

DAVID KENNEDY

                            Appellant                    No. 1012 WDA 2014


                   Appeal from the PCRA Order May 13, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0000571-2001


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED OCTOBER 31, 2014

        Appellant, David Kennedy, appeals from the order entered in the

Allegheny County Court of Common Pleas, which dismissed his petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On November 21, 2005, a jury convicted Appellant of first degree murder,

and the court immediately sentenced him to life imprisonment. This Court

affirmed    the   judgment      of   sentence   on   February   26,   2007.   See

Commonwealth v. Kennedy, 924 A.2d 693 (Pa.Super. 2007). On March

12, 2008, Appellant timely filed a counseled PCRA petition.           On August 4,

2008, the PCRA court reinstated Appellant’s right to file a petition for
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
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allowance of appeal nunc pro tunc, which Appellant filed on August 18,

2008. On December 31, 2008, our Supreme Court denied the nunc pro tunc

petition for allowance of appeal.    See Commonwealth v. Kennedy, 600

Pa. 730, 963 A.2d 468 (2008).

        On February 19, 2009, Appellant timely filed a counseled PCRA petition

alleging ineffective assistance of trial counsel. On March 16, 2009, the court

provided notice of its intent to dismiss the petition without a hearing,

pursuant to Pa.R.Crim.P. 907.       The court denied PCRA relief on April 14,

2009.     This Court affirmed the order on December 18, 2009, and our

Supreme Court denied Appellant’s petition for allowance of appeal on May

11, 2010.     See Commonwealth v. Kennedy, 990 A.2d 47 (Pa.Super.

2009), appeal denied, 606 Pa. 662, 995 A.2d 352 (2010).

        Appellant filed a pro se PCRA petition on May 23, 2012, raising

multiple claims of prosecutorial misconduct. Appellant also asserted that the

facts upon which his claims were based were unknown to him and could not

have been ascertained by the exercise of due diligence. On June 1, 2012,

the court provided Rule 907 notice.      Appellant filed a pro se response on

August 30, 2012. Ultimately, the court denied PCRA relief on September 18,

2012. Appellant filed a pro se notice of appeal, and this Court affirmed on

August 8, 2013.        See Commonwealth v. Kennedy, 83 A.3d 1062

(Pa.Super. 2013)

        Appellant filed the current pro se PCRA petition on February 26, 2014.


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The court issued Rule 907 notice on March 5, 2014, and denied relief on May

13, 2014. Appellant timely filed a notice of appeal on June 9, 2014. The

court did not order Appellant to file a concise statement of errors complained

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

      Appellant raises the following issues for our review:

         WHETHER THE PROSECUTION’S EXTENSIVE USE OF FALSE
         TESTIMONY VIOLATED THE RULES OF BRADY, AS
         DEFINED BY COURTS, THEREBY DENYING APPELLANT’S
         CONSTITUTIONAL RIGHTS[?]

         WHETHER       THE     PROSECUTION’S      PRE-TRIAL
         CONSTITUTIONAL    FAILURE   TO   GUARD    AGAINST
         IMPROBITY IN THE TRIAL PROCESS RENDERED THE TRIAL
         UNFAIR AND IN VIOLATION OF DUE PROCESS[?]

         WHETHER    THE    PROSECUTION’S  EGREGIOUS
         MISCONDUCTS PREJUDICED THE OUTCOME OF THE
         TRIAL[?]

         WHETHER THE 23-YEAR PRE-ARREST/28-YEAR PRE-TRIAL
         DELAY SIGNIFICANTLY PREJUDICED APPELLANT’S DUE
         PROCESS RIGHTS[?]

         WHETHER THE PROSECUTION’S INFLAMMATORY AND
         PREJUDICIAL CLOSING REMARKS, NOT BASED ON
         EVIDENCE [OF] RECORD, SO PREJUDICED THE JURY THAT
         A VERDICT BASED ON FACTUAL EVIDENCE COULD NOT BE
         ACHIEVED[?]

(Appellant’s Brief at 0-I).

      As a preliminary matter, we must determine whether Appellant’s

current petition is timely.   Commonwealth v. Harris, 972 A.2d 1196

(Pa.Super. 2009), appeal denied, 603 Pa. 684, 982 A.2d 1227 (2009).

Pennsylvania law makes clear no court has jurisdiction to hear an untimely


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PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157

(2003).   The most recent amendments to the PCRA, effective January 16,

1996, provide that a PCRA petition, including a second or subsequent

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

becomes final. 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Bretz, 830

A.2d 1273 (Pa.Super. 2003). A judgment is deemed 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.A. § 9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused.    42 Pa.C.S.A. § 9545(b)(1).     To invoke an exception, a

petition must allege and the petitioner must prove:

          (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;

          (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.




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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Further, any petition invoking one of the

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

have been presented.     42 Pa.C.S.A. § 9545(b)(2).     “We have established

that this 60–day rule requires a petitioner to plead and prove that the

information on which his claims are based could not have been obtained

earlier despite the exercise of due diligence.”           Commonwealth v.

Edmiston, 619 Pa. 549, 560, 65 A.3d 339, 346 (2013), cert. denied, ___

U.S. ___, 134 S.Ct. 639, 187 L.Ed.2d 423 (2013). “As such, when a PCRA

petition is not filed within one year of the expiration of direct review, or not

eligible for one of the three limited exceptions, or entitled to one of the

exceptions, but not filed within 60 days of the date that the claim could have

been first brought, the trial court has no power to address the substantive

merits of a petitioner’s PCRA claims.” Commonwealth v. Gamboa-Taylor,

562 Pa. 70, 77, 753 A.2d 780, 783 (2000).

      Instantly, the court sentenced Appellant on November 21, 2005. This

Court affirmed the judgment of sentence on February 26, 2007.               Our

Supreme Court denied Appellant’s petition for allowance of appeal on

December 31, 2008, and Appellant did not seek further review.             Thus,

Appellant’s judgment of sentence became final ninety days later, on March

31, 2009, upon expiration of the time to file a petition for writ of certiorari

with the United States Supreme Court.       See 42 Pa.C.S.A. § 9545(b)(3);

U.S.Sup.Ct.R. 13. Appellant filed his current PCRA petition on February 26,


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2014, almost five years after his judgment of sentence became final.

Accordingly, Appellant’s prayer for relief was patently untimely.

        Appellant attempts to invoke an exception to the time restrictions of

the PCRA, arguing his failure to raise the claim previously was the result of

interference by government officials.      See 42 Pa.C.S.A. § 9545(b)(1)(i).

Specifically, Appellant contends the prosecution presented false testimony at

trial and committed prosecutorial misconduct with prejudicial closing

statements. Appellant alleges the Commonwealth intentionally delayed the

trial, and lost and withheld evidence, creating interference.       Under these

circumstances, Appellant concludes the PCRA court should have considered

the current petition timely filed. We disagree.

        Instantly, Appellant does not attempt to satisfy the PCRA’s 60-day due

diligence requirement.      The trial where the governmental interference

allegedly took place occurred on November 21, 2005.         Appellant fails to

assert any reason why he could not have presented his claims at an earlier

time.     Thus, Appellant failed to satisfy the requirements of Section

9545(b)(2).     As a result, we conclude Appellant’s current PCRA petition

remains time-barred. See Gamboa-Taylor, supra. Accordingly, we affirm.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2014




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