Com. v. Ford, P. ( 2016 )


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  • J-S17006-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    PAUL FORD
    Appellant                   No. 319 WDA 2015
    Appeal from the PCRA Order December 3, 2014
    In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0002612-1994
    BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*
    JUDGMENT ORDER BY GANTMAN, P.J.:                    FILED MARCH 1, 2016
    Appellant, Paul Ford, appeals pro se from the order entered in the
    Allegheny County Court of Common Pleas, which denied his serial petition
    filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-
    9546. On September 21, 1994, a jury convicted Appellant of second-degree
    murder. The court imposed a sentence of life imprisonment that day. This
    Court affirmed the judgment of sentence on March 26, 1997, and our
    Supreme Court denied allowance of appeal on December 19, 1997.           See
    Commonwealth v. Ford, 
    695 A.2d 436
     (Pa.Super. 1997), appeal denied,
    
    550 Pa. 699
    , 
    705 A.2d 1305
     (1997).      Appellant timely filed his first PCRA
    petition on December 11, 1998.      The court appointed counsel, who filed
    amended petitions on July 5, 2000, and March 13, 2001.       Following PCRA
    _____________________________
    *Former Justice specially assigned to the Superior Court.
    J-S17006-16
    hearings, the court denied relief on July 25, 2001. This Court affirmed the
    denial of PCRA relief on December 16, 2002, and our Supreme Court denied
    allowance of appeal on June 24, 2003. See Commonwealth v. Ford, 
    817 A.2d 1177
     (Pa.Super. 2002), appeal denied, 
    573 Pa. 703
    , 
    827 A.2d 429
    (2003).    On February 24, 2014, Appellant filed the current, serial PCRA
    petition (his 4th). The court appointed counsel on March 3, 2014, who filed a
    Turner/Finley1 no-merit letter and petition to withdraw on September 30,
    2014.     On November 3, 2014, the court issued appropriate notice per
    Pa.R.Crim.P. 907, to which Appellant did not respond.            On December 3,
    2014, the court denied PCRA relief.              The court subsequently permitted
    counsel to withdraw. Appellant timely filed a notice of appeal on December
    29, 2014.2 On April 29, 2015, the court ordered Appellant to file a concise
    statement per Pa.R.A.P. 1925(b); Appellant timely complied.
    The timeliness of a PCRA petition is a jurisdictional requisite.
    Commonwealth v. Turner, 
    73 A.3d 1283
     (Pa.Super. 2013), appeal denied,
    
    625 Pa. 649
    , 
    91 A.3d 162
     (2014). A PCRA petition must be filed within one
    ____________________________________________
    1
    Commonwealth v. Turner, 
    518 Pa. 491
    , 
    544 A.2d 927
     (1988) and
    Commonwealth v. Finley, 
    550 A.2d 213
     (Pa.Super. 1988) (en banc).
    2
    Appellant’s notice of appeal is docketed January 12, 2015. Nevertheless,
    the notice of appeal is dated and postmarked, December 29, 2014; thus, it
    is timely. See Commonwealth v. Chambers, 
    35 A.3d 34
     (Pa.Super.
    2011), appeal denied, 
    616 Pa. 625
    , 
    46 A.3d 715
     (2012) (explaining prisoner
    mailbox rule provides that pro se prisoner’s document is deemed filed on
    date he delivers it to prison authorities for mailing).
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    J-S17006-16
    year of the date the underlying judgment becomes final.         42 Pa.C.S.A. §
    9545(b)(1). A judgment is deemed 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 statutory exceptions to the PCRA’s timeliness provisions allow for very
    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 timeliness exception set forth in Section 9545(b)(1)(ii)
    requires a petitioner to demonstrate he did not know the facts upon which
    he based his petition and could not have learned those facts earlier by the
    exercise of due diligence. Commonwealth v. Bennett, 
    593 Pa. 382
    , 
    930 A.2d 1264
     (2007). Significantly, a claim based on inadmissible hearsay does
    not satisfy the “new facts” exception. Commonwealth v. Abu-Jamal, 
    596 Pa. 219
    , 
    941 A.2d 1263
     (2008), cert. denied, 
    555 U.S. 916
    , 
    129 S.Ct. 271
    ,
    
    172 L.Ed.2d 201
     (2008).
    Instantly, Appellant’s judgment of sentence became final on March 15,
    1998, upon expiration of the time to file a petition for writ of certiorari with
    the United States Supreme Court. See U.S.Sup.Ct.R. 13. Thus, Appellant’s
    current petition is patently untimely.     See 42 Pa.C.S.A. § 9545(b)(1).
    Nevertheless, Appellant attempts to invoke the “new facts” exception at
    Section 9545(b)(1)(ii), claiming he recently learned of two newspaper
    articles (published in September 2007), which allegedly state that the
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    J-S17006-16
    Commonwealth’s key witness in his case was a confidential informant; and
    the Commonwealth withheld this information at trial. Appellant maintains he
    obtained these articles in late December 2013. Assuming without deciding
    that Appellant satisfied the 60-day rule, Appellant’s claim is based on
    inadmissible hearsay that cannot satisfy the “new facts” exception. 3    See
    Commonwealth v. Castro, 
    625 Pa. 582
    , 
    93 A.3d 818
     (2014) (explaining
    newspaper articles contain allegations which suggest evidence might exist,
    but are no more than allegations in any other out-of-court situation; thus,
    newspaper articles generally constitute inadmissible hearsay); Abu-Jamal,
    supra. Therefore, the PCRA court properly denied the petition. Accordingly,
    we affirm.
    Order affirmed.
    ____________________________________________
    3
    Moreover, the newspaper articles do not allege the Commonwealth’s key
    witness in Appellant’s case was a confidential informant. Rather, the articles
    merely discuss the recent death of Nicole Bennett, mention that she testified
    for the Commonwealth in Appellant’s case, state that she was expected to
    testify for the prosecution in another unrelated case, and speculate that her
    death might be related to her anticipated testimony.          Appellant also
    contends on appeal that the newspaper articles discuss Ms. Bennett’s
    numerous aliases and criminal history, which Appellant was unaware of at
    the time of trial. Appellant did not lodge these complaints in his PCRA
    petition, so they are waived. See Commonwealth v. Lauro, 
    819 A.2d 100
    (Pa.Super. 2003), appeal denied, 
    574 Pa. 752
    , 
    830 A.2d 975
     (2003) (stating
    issues not raised in PCRA petition are waived on appeal). Appellant has
    abandoned on appeal other claims he raised in his PCRA petition, so we will
    not give those claims any attention.
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    J-S17006-16
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/1/2016
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