J-S92019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

THOMAS LEWIS TERRY

                            Appellant                  No. 547 WDA 2016


                   Appeal from the PCRA Order March 31, 2016
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0015702-1991


BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                             FILED APRIL 17, 2017

       Thomas Lewis Terry appeals, pro se, from the March 31, 2016 order of

the Allegheny County Court of Common Pleas dismissing as untimely his

eighth petition filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-46. We affirm.

       This Court summarized the procedural history of this case in a prior

PCRA appeal as follows:
            On July 9, 1993, a jury convicted Terry of burglary,
            aggravated assault,1 and spousal sexual assault.2 After
            sentencing and post-sentencing proceedings, Terry
            appealed and this Court affirmed his judgment of sentence
            on January 19, 1995. Terry filed a petition for allowance
            of appeal to our Supreme Court, which was denied on July
            17, 1995. Terry did not file a petition for a writ of
            certiorari to the United States Supreme Court within the
            ninety days allowed by Supreme Court Rule 13.1.
____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
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           Consequently, Terry’s judgment of sentence became final
           on October 16, 1995[]3 . . . .
              1
                  See 18 Pa.C.S. §[§] 3502 and 2702, respectively.
              2
               See 18 Pa.C.S. § 3128, repealed by Act of March 31,
              1995, P.L. 985, No. 10, § 10.
              3
                 The ninetieth day fell on October 15, 1995, but that
              date fell on a Sunday. Consequently, Terry’s last day to
              file a timely certiorari petition was Monday[,] October
              16, 1995. See Sup. Ct. R. 30.1.

Commonwealth v. Terry, No. 368 WDA 2014, unpublished mem. at 1-2

(Pa.Super. filed Dec. 18, 2014).

        Terry filed the instant pro se PCRA petition, his eighth, on March 10,

2016.     On March 15, 2016, the PCRA court issued a notice of intent to

dismiss the petition as untimely under Pennsylvania Rule of Criminal

Procedure 907, to which Terry filed a pro se response. On March 31, 2016,

the PCRA court dismissed Terry’s petition. On April 14, 2016, Terry filed a

timely notice appeal and Pennsylvania Rule of Appellate Procedure 1925(b)

statement with the PCRA court.         He then filed an amended Rule 1925(b)

statement on May 5, 2016.

        On appeal, Terry raises the following issues:
           Issue I: Whether United States Supreme Court has
           established that the deception of the court and jury by the
           knowing presentation [of] false evidence violates the due
           process guarantees of the Fourteenth Amendment. The
           Court explained that due process is a requirement that
           c[a]nnot be deemed to be satisfied by mere notice and
           hearing if a state has contrived a conviction through the
           pretense of a trial which in truth is but used as means of
           depriving a defendant of liberty through a deliberate
           deception of court and jury by the presentation of
           testimony known to be perjured. Such a contrivance by a

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       state to procure the conviction and imprisonment of a
       defendant is as inconsistent with the rudimentary demands
       of justice as is the obtaining of a like result by intimidation.

       Issue II: Whether prosecutor misconduct would violate a
       defendant’s due process rights . . . when the State,
       although not soliciting false evidence, allows it to go
       uncorrected when it appears. A prosecutorial misconduct
       claim may arise when the undisclosed evidence
       demonstrates that the prosecution’s case includes perjured
       testimony and the prosecution knew, or should have
       known, of the perjury?

       Issue III: Whether the Government Interference Exception
       to the timeliness requirement is applicable, petitioner
       alleged that his PCRA petition was not untimely, as he
       claimed that there was certain after-discovered evidence
       which would have changed the outcome of his trial had the
       information been available?

       Issue IV: Whether petitioner is entitled to circumvent the
       timeliness requirement [for] filing a PCRA petition because
       he has after-discovered evidence that would change the
       outcome of his case had it been available at the time of
       trial?

       Issue V: Whether the Opinion failed to address the
       recantation of the witnesses perjured testimony that is
       presented in the PCRA petition along with the offering of
       the witnesses compensation in exchange for false
       testimony that recantation is new evidence after-
       discovered evidence after trial [and] the court abuse[d] its
       discretion [by] not reviewing the perjured testimony which
       would require[] [an] evidentiary hearing to the truth-
       determining process of the witnesses credibility.

       Issue VI: Whether Newly discovered evidence of
       recantation which related specifically to the very evidence
       supporting defendant’s conviction qualified as more than
       impeaching, even if it was subsequently repudiated.
       Furthermore the recantation was certainly material to the
       issues involved, []going to the very heart of defendant’s
       guilt or innocence. The witness’s recantation of his key
       testimony, even if subsequently repudiated or not qualified
       as the type of newly discovered evidence for which relief
       was available?

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Terry’s Br. at 4 (citations omitted).

       Our review of an order denying PCRA relief is limited to determining

“whether the decision of the PCRA court is supported by the evidence of

record and is free of legal error.” Commonwealth v. Melendez-Negron,

123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s

factual findings “unless there is no support for [those] findings in the

certified record.” Id.

       We must first address the timeliness of Terry’s PCRA petition, which is

a jurisdictional requisite.     See Commonwealth v. Brown, 111 A.3d 171,

175 (Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). A petitioner must

file a PCRA petition, including a second or subsequent petition, within one

year of the date his or her judgment of sentence becomes final. 42 Pa.C.S.

§ 9545(b)(1). Here, the Pennsylvania Supreme Court denied Terry’s petition

for allowance of appeal on July 14, 1995. Terry did not seek review with the

United States Supreme Court, so his judgment of sentence became final 90

days later, on October 16, 1995.1 See 42 Pa.C.S. § 9545(b)(3); U.S. S. Ct.

R. 13. Thus, the instant PCRA petition, filed on March 10, 2016, was facially

untimely.



____________________________________________


       1
        Where a petitioner’s judgment of sentence became final on or before
January 16, 1996, the effective date of the 1995 amendments to the PCRA,
a grace proviso allowed the petitioner to file a timely first PCRA petition by
January 16, 1997. See Commonwealth v. Alcorn, 703 A.2d 1054, 1056-
57 (Pa.Super. 1997). Terry filed his first PCRA petition on January 22, 1996.


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       To overcome the time bar, Terry was required to plead and prove one

of the following exceptions: (i) unconstitutional interference by government

officials; (ii) newly discovered facts that could not have been previously

ascertained with due diligence; or (iii) a newly recognized constitutional right

that has been held to apply retroactively. See 42 Pa.C.S. § 9545(b)(1)(i)-

(iii). To invoke one of these exceptions, Terry must have filed his petition

within 60 days of the date the claim could have been presented.             See 42

Pa.C.S. § 9545(b)(2).

       In    the   instant   PCRA   petition,   Terry   attempted   to   assert   the

governmental interference and “new facts” exceptions to the one-year time

bar.   Both claims are based on Terry’s alleged discovery of prosecutorial

misconduct. However, as the PCRA court correctly determined:
            [Terry] claims that either the District Attorney actively
            encouraged witnesses to lie during his trial by offering
            them compensation in exchange for false testimony, or
            was aware that witnesses provided false testimony and did
            nothing about it. [Terry] asserts that he learned of a
            “reward fund.” [He] did not clearly state, but insinuated[,]
            that he learned of the reward fund through recanted
            witness testimony. However, [Terry] did not provide any
            details about the alleged reward fund or any information
            that confirms that the reward fund is anything more than
            mere speculation on [his] part. [Terry] also failed to
            provide the date on which he became aware of the reward
            fund.

PCRA Ct. Op., 8/1/16, at 4. Terry failed to establish that he filed his petition

within 60 days of discovering this allegedly new information. See 42 Pa.C.S.




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§ 9545(b)(2).2      Therefore, the PCRA court lacked jurisdiction over Terry’s

petition.

       Accordingly, because Terry’s eighth PCRA petition was untimely filed

and he failed to prove an exception to the one-year time bar, we conclude

that the PCRA court properly dismissed the petition.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2017




____________________________________________


       2
        In his initial Rule 1925(b) statement, Terry also asserted a claim of
an illegal sentence under Alleyne v. United States, 133 S. Ct. 2151
(2013), but he has abandoned that claim on appeal.


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