Com. v. Tucker, R. ( 2023 )

J-S04025-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT TUCKER :
:
Appellant : No. 1654 EDA 2022
Appeal from the PCRA Order Entered June 2, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010230-2010
BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.*
JUDGMENT ORDER BY KING, J.: FILED JULY 7, 2023
Appellant, Robert Tucker, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, which denied his serial petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows. On
June 30, 2011, a jury convicted Appellant of rape of a child, endangering the
welfare of a child, and aggravated indecent assault. The trial court sentenced
Appellant on October 28, 2011, to an aggregate term of 13½ to 27 years of
imprisonment. This Court affirmed his sentence on April 30, 2013, and our
Supreme Court denied his petition for allowance of appeal on October 16,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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2013. See Commonwealth v. Tucker, 75 A.3d 566 (Pa.Super. 2013)
(unpublished memorandum), appeal denied, 621 Pa. 696, 77 A.3d 1260(2013).
Appellant filed the current serial PCRA petition on January 26, 2021.
After issuing notice of its intent to dismiss per Pa.R.Crim.P. 907, the PCRA
court denied relief on June 2, 2022. Appellant timely appealed, and on June
7, 2022, the PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b)
statement. Appellant complied with the court’s order, filing his initial
statement on June 14, 2022, and a supplemental statement on June 17, 2022.
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition, including a second or subsequent petition, shall be filed within
one year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence is 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.” 42 Pa.C.S.A. § 9545(b)(3). The statutory
exceptions to the PCRA time-bar allow very limited circumstances to excuse
the late filing of a petition. 42 Pa.C.S.A. § 9545(b)(1).
Instantly, Appellant’s judgment of sentence became final on January 14,
2014, upon expiration of the time for Appellant to file a petition for writ of
certiorari in the U.S. Supreme Court. See U.S.Sup.Ct.R. 13 (allowing 90 days
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to file petition for writ of certiorari). Thus, Appellant’s current PCRA petition
filed on January 26, 2021, is patently untimely. See 42 Pa.C.S.A. §
9545(b)(1).
Appellant now attempts to invoke the “newly-discovered facts”
exception to the PCRA time-bar at Section 9545(b)(1)(ii).2 Specifically,
Appellant relies on a document in which the victim’s aunt told police that the
case against Appellant was fabricated. Nevertheless, Appellant admits that
this document was in his discovery records, which trial counsel sent to
Appellant in 2012. (See PCRA Petition, 1/26/21, at 5). Therefore, by his own
admission, Appellant cannot demonstrate that the document is a “new fact”
previously unknown to Appellant that could not have been ascertained sooner
with the exercise of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii).
Accordingly, Appellant’s current petition remains time-barred, and we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2023
____________________________________________
2 See 42 Pa.C.S.A. § 9545(b)(1)(ii) (stating facts upon which claim is
predicated were unknown to petitioner and could not have been ascertained
by exercise of due diligence).
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