Com. v. Steele, H. (memorandum)

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J.S45040/14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. HERNDON STEELE, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2440 EDA 2013 Appeal from the PCRA Order July 24, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division No(s).: CP-51-CR-1116781-1986 BEFORE: BOWES, WECHT, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED JULY 17, 2014 Appellant, Herndon Steele, appeals from the order entered in the Philadelphia County Court of Common Pleas dismissing his third Post Conviction Relief Act1 by dismissing his third PCRA petition and that he should be granted a new trial based on after-discovered evidence. We affirm. opinion. See Trial Ct. Op., 9/20/14, at 1-2. On July 24, 2013, the PCRA petition. On August 15, 2013, Appellant filed a motion to vacate the PCRA * Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J. S45040/14 order, which the PCRA court implicitly construed as a petition for motion. On August 23, 2013, Appellant timely appealed from the July 24, 2013 order. The PCRA court did not order Appellant to comply with Pa.R.A.P. 1925(b). Appellant raises the following issues: Where [Appellant] filed a pro se petition and two amended petitions claiming that newly discovered evidence compelled the grant of a new trial, but arguably did not plead the first prong of the test for newly discovered evidence, did the lower court err and deny due process in not vacating its order dismissing the petitions and granting a request to file an amended, counseled petition? Did the lower court err in dismissing the newly discovered evidence petitions as pled where the newly discovered evidence provided significant evidence of actual innocence and met all the tests for the grant of a new trial? Did the lower court commit error in not addressing all the statements in the petitions to see if they met the test for newly discovered evidence? 2 has required this Court to examine whether we have jurisdiction to entertain the underlying PCRA petition. See Commonwealth v. Fahy, 737 A.2d 214, PCRA 2 petition is limited to examining The Commonwealth filed its brief late. -2- whether t J. S45040/14 Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc year of the date the judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-(iii) applies and the petition is filed within 60 Commonwealth v. Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (internal citations and footnote omitted). nature and must be strictly construed; courts may not address the merits of the issues raised in a petition if it is allege and prove that one of the [three] timeliness exceptions applies. Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267-68 (Pa. 2008) (internal citations omitted). The three timeliness exceptions are: (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. -3- J. S45040/14 42 Pa.C.S. § 9545(b)(1)(i)Rather, it simply requires petitioner to allege and prove that there were Commonwealth v. Bennett, 930 A.2d 1264, 1270 (Pa. 2007) (footnote these two components, then Id. at facts, not on a Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (citation omitted). Instantly, we review whether the PCRA court erred by holding See 42 Pa.C.S. § 9545(b)(1), (2); Abu-Jamal, 941 A.2d at 1267-68. Appell became final on August 20, 1990, ninety days after the Pennsylvania 3 Appellant filed the instant petition on June 23, 2011, over twenty years 3 1996, he could not take advantage of the timeliness exception discussed in Commonwealth v. Banks a petitioner whose judgment has become final prior to the effective date of the act[, i.e., January 16, 1996,] shall be deemed to have filed a timely -4- J. S45040/14 later. Thus, this Court must discern whether the PCRA court erred in concluding Appellant did not plead and prove one of the three timeliness exceptions. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii); Copenhefer, 941 A.2d at 648. In this case, Appellant has not established any of the timeliness exceptions, let alone exercised due diligence particularly as he averred he spoke to one of his alleged newly-discovered witnesses on the day of the crime. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Accordingly, we agree with the termination that Appellant has not properly invoked one of the three timeliness exceptions. See Abu-Jamal, 941 A.2d at 1267-68; Copenhefer, 941 A.2d at 648. Thus, the PCRA court lacks jurisdiction to consider his petition. See Fahy, 737 A.2d at 223. Having discerned no error of law, we affirm the order below. See Wilson, 824 A.2d at 333. Petition to withdraw granted. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/17/2014 -5- Circulated 06/30/2014 04:08 PM Circulated 06/30/2014 04:08 PM

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