J-S39039-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
WALTER L. ERWIN,                          :
                                          :
                  Appellant               :            No. 372 EDA 2015

          Appeal from the PCRA Order entered on January 8, 2015
           in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No. CP-51-CR-0505701-2004

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED JULY 30, 2015

      Walter L. Erwin (“Erwin”) 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.

      On June 3, 2005, a jury convicted Erwin of murder of the third degree.

The trial court sentenced Erwin to twenty to forty years in prison on July 21,

2005. This court affirmed the judgment of sentence on March 28, 2008, and

the Pennsylvania Supreme Court denied allocatur on October 28, 2008. See

Commonwealth v. Erwin, 953 A.2d 597 (Pa. Super. 2008) (unpublished

memorandum), appeal denied, 960 A.2d 545 (Pa. 2008).

      Erwin filed his first PCRA Petition in May 2009. The PCRA court denied

the Petition in May 2011. This Court affirmed the denial in July 2012, after

which the Pennsylvania Supreme Court denied allowance of appeal on
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December 4, 2012.        See Commonwealth v. Erwin, 55 A.3d 133 (Pa.

Super. 2012), appeal denied, 57 A.3d 67 (Pa. 2012).

        On January 30, 2013, Erwin filed the instant PCRA Petition. He filed

supplements to the Petition in August and October of 2014. On January 8,

2015, the PCRA court dismissed the Petition as untimely.            Erwin filed a

timely Notice of appeal.

        On appeal, Erwin raises the following question for our review:

        Did the PCRA court err in failing to enforce the Lark[1] rule when
        [Erwin] complied with the [timeliness] requirements of a second
        PCRA petition [] with newly discovered facts of misconduct [and]
        corruption of [his trial judge,] Judge Renee C. Hughes [(“Judge
        Hughes”),] that effected [sic] [Erwin’s] trial, direct appeal[,]
        PCRA process[,] and sentencing[,] and a hearing is warranted in
        the interest of justice?

Brief for Appellant at vi (footnote added, 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 evidence of record. We will not disturb a PCRA courts
        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).

        A PCRA petition “shall be filed within one year of the date the

judgment becomes final, unless” the petition meets one of three exceptions.

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

1
    Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000).


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Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” Id. § 9545(b)(3).

      Erwin’s judgment of sentence became final on January 26, 2009, upon

the expiration of the time to file an appeal with the United States Supreme

Court.       Thus, Erwin had until January 26, 2010, to file a timely PCRA

petition. The instant Petition, filed on January 30, 2013, is facially untimely.

      However, Pennsylvania courts may consider an untimely petition if the

petitioner pleads and proves one of the three exceptions under section

9545(b)(1)(i)-(iii), which states the following:

      (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.

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

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

been presented.” Id. § 9545(b)(2).

      Initially, Erwin invokes the newly-discovered facts exception at section

9545(b)(1)(ii), and argues that he discovered newspaper articles in May



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2011, while his first PCRA Petition was pending on appeal.2      The articles

allege the removal of Judge Hughes from the bench for misconduct in

Commonwealth v. Dougherty, 18 A.3d 1095 (Pa. 2011). Brief for

Appellant at 8-11. Therefore, Erwin asserts that Judge Hughes must have

also committed misconduct at his trial and sentencing. Id. at 9-11.

     Erwin’s reliance on the newspaper articles to support an exception to

the PCRA’s timeliness requirements is unavailing.        Indeed, newspaper

articles are not considered evidence. See Commonwealth v. Castro, 93

A.3d 818, 825 (Pa. 2014) (concluding that newspaper articles are not

evidence). Further, as this Court previously noted, Judge Hughes resigned

from the bench to take another position, rather than being removed from

the bench, and there was no explanation of how alleged misconduct in an

unrelated case related to Erwin’s case.         See Erwin, 55 A.3d 133

(unpublished memorandum at 14 n.8). Therefore, the PCRA court properly

determined that Erwin failed to provide new evidence to meet the exception

provided by 42 Pa.C.S.A. § 9545(b)(1)(ii).


2
  Erwin improperly attempted to raise his discovery of the articles as an
issue on appeal of his first PCRA Petition. However, because this issue was
not raised before the PCRA court, Erwin was precluded from raising the issue
on appeal of his first PCRA Petition. See Erwin, 55 A.3d 133 (unpublished
memorandum at 13). In the instant case, Erwin asserts that he timely
raised this issue in his second PCRA Petition that, he contends, was filed
within 60 days after the Pennsylvania Supreme Court’s denial of allowance of
appeal of his first PCRA Petition. See Brief for Appellant at 8-9; see also
Commonwealth v. Callahan, 101 A.3d 118, 122-23 (Pa. Super. 2014)
(stating that “a subsequent PCRA petition cannot be filed until the resolution
of review of the pending PCRA petition.”).


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      Additionally, Erwin invokes the new constitutional right exception at

section 9545(b)(1)(iii) by arguing that his sentence is illegal based on

Alleyne v. United States, 133 S. Ct. 2151 (2013), and Commonwealth v.

Newman, 99 A.3d 86 (Pa. Super. 2014).             Brief for Appellant at 12.

However,   Alleyne    and    Newman     only   address   mandatory   minimum

sentences, and no such sentence was imposed in this case.3 Thus, the PCRA

court properly determined that Erwin has not met the new constitutional

right exception provided by 42 Pa.C.S.A. § 9545(b)(1)(iii).

      Finally, Erwin raises ineffective assistance of counsel claims. Brief for

Appellant at 11-12.       However, “[i]t is well settled that allegations of

ineffective assistance of counsel will not overcome the jurisdictional

timeliness requirements of the PCRA.” Commonwealth v. Wharton, 886

A.2d 1120, 1127 (Pa. 2005). Thus, the PCRA court properly determined that

Erwin’s ineffective assistance of counsel claims were barred by the PCRA’s

timeliness constraints.

      Since none of the claims raised by Erwin invokes an exception to the

timeliness requirements of the PCRA, the PCRA court properly determined




3
  Furthermore, this Court has held that Alleyne does not apply retroactively
to claims on collateral review. See Commonwealth v. Miller, 102 A.3d
988, 995 (Pa. Super. 2014); see also Commonwealth v. Riggle, 2015 PA
Super 147, at *6 (Pa. Super. 2015).


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that Erwin failed to overcome the untimeliness of his Petition.4

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/30/2015




4
   The PCRA court did not abuse its discretion in declining to hold an
evidentiary hearing. See Commonwealth v. Garcia, 23 A.3d 1059, 1066
n.9 (Pa. Super. 2011) (stating that the PCRA court did not abuse its
discretion in dismissing an untimely PCRA petition, without a hearing, where
the petitioner failed to properly invoke any of the timeliness exceptions).


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