J-S20043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
              v.                         :
                                         :
 GUY JOSEPH BICKING                      :
                                         :
                   Appellant             :       No. 1557 MDA 2017

             Appeal from the PCRA Order September 25, 2017
           In the Court of Common Pleas of Lackawanna County
           Criminal Division at No(s): CP-35-CR-0000208-1987


BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

JUDGMENT ORDER BY GANTMAN, P.J.:                      FILED MAY 04, 2018

     Appellant, Guy Joseph Bicking, appeals pro se from the order entered in

the Lackawanna County Court of Common Pleas, which dismissed as untimely

his third petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. On November 19, 1987, a jury convicted Appellant

of first-degree murder. The court sentenced Appellant on June 18, 1988, to

life imprisonment. This Court affirmed the judgment of sentence on June 12,

1990, and our Supreme Court denied allowance of appeal on January 15,

1991. See Commonwealth v. Bicking, 579 A.2d 415 (Pa.Super. 1990),

appeal denied, 526 Pa. 653, 586 A.2d 922 (1991).       From 1992 to 2014,

Appellant filed two unsuccessful petitions for collateral relief. On March 7,

2017, Appellant filed the current pro se PCRA petition. The court appointed

counsel and held a PCRA hearing on August 17, 2017. On September 25,
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2017, the court denied relief. Appellant timely filed a pro se notice of appeal

on October 6, 2017.1 No Pa.R.A.P. 1925(b) statement was ordered or filed.

       Preliminarily, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A

PCRA petition must be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is “final” at

the conclusion of direct review or at the expiration of time for seeking review.

42 Pa.C.S.A. § 9545(b)(3). The exceptions to the PCRA time-bar allow for

limited circumstances under which the late filing of a petition will be excused;

a petitioner asserting an exception must file a petition within 60 days of the

date the claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(1-2).

The “newly-discovered fact” exception at Section 9545(b)(1)(ii) requires a

petitioner to plead and prove he: (1) did not know the fact(s) upon which he

based his petition; and (2) could not have learned those fact(s) earlier by the

exercise of due diligence.          Commonwealth v. Shiloh, 170 A.3d 553

(Pa.Super. 2017). Due diligence requires the petitioner to take reasonable

steps to protect his own interests; this rule is strictly enforced. Id. at 558.

       Instantly, Appellant’s judgment of sentence became final on April 15,

1991, upon expiration of the time for filing a petition for writ of certiorari with


____________________________________________


1The PCRA court allowed Appellant to proceed pro se on appeal after a hearing
per Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998) (holding
court must determine on record that indigent defendant wants to proceed pro
se, to ensure waiver of counsel is knowing, intelligent and voluntary).

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the U.S. Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the current

PCRA petition on March 7, 2017, which is patently untimely. See 42 Pa.C.S.A.

§ 9545(b)(1). Appellant now attempts to invoke the Section 9545(b)(1)(ii)

“newly-discovered fact” exception, claiming: he received a newspaper article

in 1989, indicating police seized multiple weapons from 1526 Mulberry Street;

one of the Commonwealth’s eyewitnesses in Appellant’s case, Mr. Rogers,

went to 1526 Mulberry Street after the January 10, 1987 murder; Appellant

theorized Mr. Rogers was the shooter and stashed the murder weapon at 1526

Mulberry Street; no murder weapon was recovered in Appellant’s case but a

ballistics report showed the bullet could have been fired by one of eight types

of guns; Appellant wanted a copy of the police report to see which types of

guns were seized from Mulberry Street but his legal research indicated it was

undiscoverable under the old and new Right to Know Law;2 Appellant tried to

hire a private investigator but he was unable to; Appellant “gave up” and “let

it go” because “there was nothing else to do”; at some point, Appellant’s sister

found the 1989 newspaper article and urged Appellant to continue his efforts;

Appellant filed a civil lawsuit against the Scranton Police Department on

October 13, 2015, requesting the police report; the City Solicitor responded

on February 7, 2017, with a copy of the report, which stated various guns



____________________________________________


2See Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104. The new
Right to Know Law repealed the former Right to Know Law, Act of June 21,
1957, P.L. 390, as amended, formerly 65 P.S. §§ 66.1-66.4.

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were seized from 1526 Mulberry Street, some of which are consistent with the

type of murder weapon in Appellant’s case; and Appellant filed this PCRA

petition within 60 days of receiving the report. Nevertheless, Appellant does

not explain how he was able to obtain the police report if the Right to Know

Law did not afford him relief. Appellant did not attach to his PCRA petition

any documents from his civil lawsuit against the Police Department. At the

PCRA hearing, Appellant said he ultimately filed a mandamus action to compel

the Police Department to supply the report, but Appellant failed to explain why

he could not have pursued mandamus relief sooner.                Under these

circumstances, Appellant has not shown the due diligence needed to meet the

asserted timeliness exception. See Shiloh, supra. Thus, Appellant’s petition

remains untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2018




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