Com. v. Poller, C. (memorandum)

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J-S31038-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. CHRISTOPHER POLLER, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 3077 EDA 2013 Appeal from the PCRA Order entered on October 15, 2013 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. CP-51-CR-1124322-1993 BEFORE: BOWES, SHOGAN and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED JUNE 19, 2014 pro se, from the Order dismissing his third Petition for relief pursuant to the Post Conviction Relief Act See 42 Pa.C.S.A. § 9541-9546. We affirm. In June 1994, Poller was found guilty of second-degree murder, robbery, criminal conspiracy, and possessing an instrument of crime.1 He was sentenced to life in prison on the murder conviction and concurrent prison terms of 5 to 10 years and 6 to 12 months in prison for the conspiracy and possessing an instrument of crime convictions, respectively. Pennsylvania denied allowance of appeal. See Commonwealth v. Poller, 1 See 18 Pa.C.S.A. §§ 2502(b), 3701, 903, 907. J-S31038-14 679 A.2d 849 (Pa. Super. 1996) (unpublished memorandum), appeal denied, 687 A.2d 377 (Pa. 1996). Poller filed his first PCRA Petition on December 15, 1997. The PCRA court dismissed the Petition on February 25, 1999. This Court affirmed the dismissal, and the Supreme Court denied allowance of appeal. See Commonwealth v. Poller, 767 A.2d 1112 (Pa. Super. 2000) (unpublished memorandum), appeal denied, 786 A.2d 987 (Pa. 2001). Poller filed a second PCRA Petition on April 17, 2006, which the PCRA court dismissed as untimely on July 16, 2008. This Court affirmed the dismissal. See Commonwealth v. Poller, 996 A.2d 553 (Pa. Super. 2010) (unpublished memorandum). On March 8, 2011, Poller filed the instant PCRA Petition, pro se, claiming a newly recognized constitutional right as an exception to the timeliness requirement. The PCRA court issued a Notice of Intent to Dismiss Intent to Dismiss on December 9, 2011. court dismissed the Petition as untimely. On October 15, 2013, the PCRA Poller filed a timely Notice of Appeal. On appeal, Pol PCRA [c]ourt abuse [its] discretion in denying the PCRA [Petition] in this -2- J-S31038-14 We review an order dismissing a petition under the in the light most favorable to the prevailing party at the level. This review is limited to the findings of the PCRA and the evidence of the record. We will not disturb a PCRA PCRA court PCRA of legal error. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted). Under the PCRA, a petition must be filed within one year from the date the judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final at the conclusion of direct review or at the expiration of the period of time for seeking review. Id. § 9545(b)(3). An appellate court cannot reach the merits of an appeal if the PCRA petition is untimely. Commonwealth v. Fisher, 870 A.2d 864, 869 n.10 (Pa. 2005). did not file his PCRA Petition until 2011, the Petition was facially untimely. However, we may consider an untimely PCRA petition if the petitioner can plead and prove one of three exceptions set forth under 42 Pa.C.S.A. § 9545(b)(1)(iId. § 9545(b)(2); Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010). Here, Poller invokes section 9545(b)(1)(iii), and claims that the United States Supreme Court recognized a new constitutional right in Melendez- -3- J-S31038-14 Diaz v. Massachusetts, 557 U.S. 305 (2009), which should apply retroactively to his case. See Brief for Appellant at 9, 12. Invoking Melendez-Diaz, Poller claims that he was denied his right to confrontation when the Commonwealth did not make the forensic pathologist and toxicologist available for examination at trial. Id. at 5. The United States Supreme Court filed the Melendez-Diaz decision in 2009. Because Poller filed his Petition in 2011, far outside of the 60-day filing period required by section 9545(b)(2), he did not successfully invoke an exception necessary to circumvent the PC See Commonwealth v. Leggett, 16 A.3d 1144, 1146 (Pa. Super. 2011) (stating that a PCRA petition must be filed within 60 days of the filing of the judicial decision that created a new right). Furthermore, Melendez-Diaz did not establish a new constitutional right for the purpose of the timeliness exception at 42 Pa.C.S.A. § 9545(b)(1)(iii). See id. at 1147-48. Therefore, Accordingly, the PCRA court did not err in dism Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/19/2014 -4-

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