J-S43035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA          :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
    ERNEST WOODALL                        :
                                          :
                     Appellant            :    No. 110 WDA 2017

                 Appeal from the PCRA Order December 9, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0008320-1996

BEFORE: STABILE, SOLANO, and FITZGERALD* JJ.

MEMORANDUM BY FITZGERALD, J.:            FILED: July 20, 2017

        Appellant, Ernest Woodall, appeals pro se from the order entered in

the Allegheny County Court of Common Pleas dismissing his serial Post

Conviction Relief Act Petition1 (“PCRA”). Appellant contends that fraud upon

the court was committed. We affirm.

        We adopt the facts and procedural posture of this case as set forth in a

prior memorandum of this Court.

                  On May 5, 1996, two uniformed Pittsburgh police
              officers on routine patrol in a marked wagon noticed
              Appellant’s vehicle parked in the middle of the street
              with the engine idling and a door open, blocking
              traffic in either direction, while he was standing on
              the sidewalk, talking to a female. One of the police
              officers, Edward Dent, knew Appellant personally
              from the neighborhood, and from towing his vehicle

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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          a week earlier. When Officer Dent asked him to
          move his vehicle, Appellant responded, “Fuck you,”
          and ran to the back of the vehicle. Both officers
          followed. (See N.T. Trial, 11/9-12/04, at 37-44).

              In the scuffle which ensued, Appellant attempted
          to draw a .45 Glock handgun from his waistband, but
          it fell to the ground. He managed to run away. The
          police began to follow him, but decided to stay
          behind to secure the Glock, which was loaded and
          equipped with a laser sight, and other firearms found
          in Appellant’s vehicle, a .9 millimeter Smith &
          Wesson handgun, and an SKS assault rifle, both also
          loaded. (Id. at 53-56). The two officers radioed for
          back-up and prepared to tow the vehicle.

              However, Appellant soon returned, this time with
          an AK-47 assault rifle, which he pointed at the
          police, saying, “I want my shit, give me my shit
          now.” (Id. at 58.) When they did not comply, he
          fired at them, now six police in all, including those
          who had arrived in response to the radio call.
          Appellant then escaped.

              The police apprehended Appellant the next day,
          but he fled the jurisdiction soon after he was
          charged. He was not discovered until almost seven
          years later, when the National Crime Information
          Center informed an FBI agent assigned to the
          Pittsburgh Fugitive Task Force that there was a
          possible fingerprint match between one “Joseph
          Brown,” a/k/a “Allan Alphonso Garner,” recently
          arrested in Montgomery County, Alabama, and
          Appellant.    Appellant was arrested in February,
          2003, in the office of his Alabama parole officer, and
          eventually returned to Pittsburgh through the
          Interstate Agreement on Detainers (IAD), 42
          Pa.C.S.A. §§ 9101-9108. Following a hearing, the
          trial court denied pre-trial motions, and trial
          commenced in November of 2004.

             After the jury convicted Appellant of four counts
          of attempted homicide, six counts of aggravated
          assault, and one count of violation of the Uniform


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            firearms Act (VUFA), the trial court sentenced him to
            an aggregate term of thirty-two to eighty years’
            imprisonment. This Court affirmed the judgment of
            sentence,[2] and our Supreme Court denied
            allowance of appeal on May 10, 2007.[3]

               On December 19, 2007, Appellant filed a timely
            pro se petition for PCRA relief. The PCRA court
            appointed counsel, who filed an amended petition.
            After the PCRA court filed notice of its intent to
            dismiss pursuant to Pa.R.Crim.P. 907, counsel filed a
            second amended petition and response to the notice
            of intent. The PCRA court dismissed the petition on
            May 4, 2009. Appellant filed a timely pro se notice
            of appeal, and the PCRA court appointed counsel to
            represent him.

          Commonwealth         v.  Woodall,    897    WDA    2009,
          unpublished memorandum at 1-3) (Pa. Super. Oct. 20,
          2010).      This [C]ourt affirmed [the] dismissal of
          [A]ppellant’s first PCRA petition on October 20, 2010.
          [Id.] Appellant did not file a petition for allowance of
          appeal with the Pennsylvania Supreme Court.

              On November 10, 2011, [A]ppellant filed a second pro
          se PCRA petition, which was dismissed without a hearing,
          following Rule 907 notice, on December 2, 2011. No direct
          appeal was taken from this dismissal.

             On December 16, 2011, [A]ppellant filed, pro se, a
          petition for habeas corpus relief which was properly
          treated as a third PCRA petition. On January 22, 2013, the
          PCRA court gave Rule 907 notice of its intent to dismiss
          the petition within 20 days without a hearing; and with no
          response forthcoming from [A]ppellant, his petition was
          dismissed on February 25, 2013. Appellant filed a timely
          pro se notice of appeal on March 13, 2013.

2
  Commonwealth v. Woodall, 1338                  WDA    2005    (unpublished
memorandum) (Pa. Super. June 19, 2006).
3
    Commonwealth v. Woodall, 923 A.2d 1174 (Pa. 2007).




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Commonwealth v. Woodall, 565 WDA 2013, (unpublished memorandum

at 1-4) (Pa. Super. Jan. 14, 2015) (footnotes omitted). This Court affirmed

the PCRA court’s dismissal of Appellant’s PCRA petition as untimely. See id.

      On July 14, 2016, Appellant, pro se, served the PCRA court with his

“Fraud Upon the Court Motion.”4        On August 23, 2016, Appellant filed a

motion to compel a response by the court to his “Fraud Upon the Court

Motion,” which gives rise to this appeal.       The PCRA court regarded the

motion as a fourth PCRA petition, and on November 4, 2016, the PCRA court

filed notice of intent to dismiss. Appellant filed a pro se response to the Rule

907 notice.     On December 9, 2016, the PCRA court dismissed the PCRA

petition.    The PCRA court opined that Appellant “has filed his most recent

serial [PCRA] petition, which has been dismissed as being untimely.

[Appellant] has not raised any issues that would qualify as time-barred

exceptions.” PCRA Ct. Op., 1/17/17, at 1. This appeal followed.

      Appellant raises the following issues for our review:

            I. Why was the May 17, 2004 continuance slip introduced?

            II. Does the record demonstrate the May 17, 2004
            continuance slip the court read into the record, and
            handed to defense counse[l,] Mr. Sharif, to be fraudulent?

            III. Was fraud committed upon the court with introduction
            of the May 17, 200[4] continuance slip?


4
 See Appellant’s Brief at Ex. “B.” We note that the motion does not appear
on the docket; however, it is in the certified record.



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         IV. Is a preliminary hearing for thorough exploration of the
         fraudulent May 17, 2004 continuance slip’s impact
         required?

         V. Why did the trial court deny the November 5, 2004
         speedy trial motion to dismiss[ ] if not for the May 17,
         2004 continuance?

         VI. Did the trial court provide a lawful reason for denial of
         the November 5, 2004 motion to dismiss?

Appellant’s Brief at 3.

      Before examining the merits of Appellant’s claims, we consider

whether the PCRA court had jurisdiction to entertain the underlying PCRA

petition. On appellate review of a PCRA ruling, “we determine whether the

PCRA court’s ruling is supported by the record and free of legal error.”

Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (citation

omitted).

         We . . . turn to the time limits imposed by the PCRA, as
         they implicate our jurisdiction to address any and all of
         [a]ppellant’s claims. To be timely, a PCRA petition must
         be filed within one year of the date that the petitioner’s
         judgment of sentence became final, unless the petition
         alleges and the petitioner proves one or more of the
         following statutory exceptions:

            (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




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            (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. § 9545(b)(1).

            We emphasize that it is the petitioner who bears the
         burden to allege and prove that one of the timeliness
         exceptions applies. In addition, a petition invoking any of
         the timeliness exceptions must be filed within 60 days of
         the date the claim first could have been presented. 42
         Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy the 60–
         day requirement of Section 9545(b) if he or she fails to
         explain why, with the exercise of due diligence, the claim
         could not have been filed earlier.

Id. at 719-20 (some citations omitted).

      Appellant’s judgment of sentence became final on or about August 10,

2007, ninety days after the Pennsylvania Supreme Court denied his petition

for allowance of appeal.      See 42 Pa.C.S. § 9545(b)(3) (providing “a

judgment 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[ ]”); accord U.S. Sup.Ct.R. 13(1) (providing “[a] petition for a writ

of certiorari seeking review of a judgment of a lower state court that is

subject to discretionary review by the state court of last resort is timely

when it is filed with the Clerk within 90 days after entry of the order denying

discretionary review”). Appellant thus generally had until August 10, 2008,

to file his PCRA petition.   See 42 Pa.C.S. § 9545(b)(1) (providing PCRA



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petition, including second and subsequent petitions, must be filed within one

year of date judgment becomes final).      Appellant filed the instant PCRA

petition, in the form of a Motion to Compel, on August 23, 2016. Therefore,

it is patently untimely.

      Following our review, we agree that Appellant did not plead and prove

any exception to the PCRA’s timeliness requirement.     See Marshall, 947

A.2d at 719-20.    Thus, the PCRA court did not err in dismissing his PCRA

petition as untimely. See id. at 719.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2017




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