J-S72043-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DANIEL L. SPUCK, :
:
Appellant : No. 917 WDA 2014
Appeal from the PCRA Order Entered April 14, 2014
in the Court of Common Pleas of Clearfield County
Criminal Division at No(s): CP-17-CR-0000396-1995
BEFORE: BENDER, P.J.E., SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 12, 2015
Daniel L. Spuck (Appellant) appeals pro se from the April 14, 2014
order dismissing his serial petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
As a prior panel of this Court explained,
On March 22, 1996, a jury found [Appellant] guilty of third
degree murder, two counts of recklessly endangering another
person, aggravated assault, and simple assault in connection
with the stabbing death of Michael Allen Cramer in DuBois[,
Pennsylvania,] on February 23, 1995. [Appellant] also stabbed
his ex-wife during the attack. Judgment of sentence was
imposed on April 19, 1996, with [Appellant] receiving an
aggregate term of 11 to 22 years’ imprisonment. This [C]ourt
affirmed the judgment of sentence on February 27, 1998, and
our [S]upreme [C]ourt denied appeal on October 1, 1998.
Commonwealth v. Spuck, 86 A.3d 870, 872, reconsideration denied (Mar.
26, 2014), reargument denied (Apr. 16, 2014), appeal denied, 99 A.3d 77
* Retired Senior Judge assigned to the Superior Court.
J-S72043-14
(Pa. 2014) (citations omitted). Appellant did not seek further review of his
direct appeal by the United States Supreme Court.
Since 1998, Appellant has sought collateral review by this Court on
nearly a dozen occasions. Id. at 871-72 n. 2. His latest PCRA petition, the
one at issue herein, was filed on April 14, 2014. As we have repeatedly
explained to Appellant, the timeliness of a post-conviction petition is
jurisdictional. Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa.
Super. 2011). Generally, a petition for relief under the PCRA, including a
second or subsequent petition, must be filed within one year of the date the
judgment of sentence is final. 42 Pa.C.S. § 9545.
Relying on a letter from the United States Supreme Court dated March
26, 2014, which apparently accompanied the return of certain documents to
Appellant and confirms that his case at docket number 13-1633 is closed,
Appellant categorizes this latest PCRA petition as a “first” petition on the
basis that the Supreme Court has just now finalized its review of his direct
appeal issues. Appellant’s Brief at 5; Appellant’s Exhibit C. Thus, Appellant
contends that his judgment of sentence is now final, the instant petition is
timely and all prior PCRAs were “premature.” Id. at 6.
Appellant’s attempt to circumvent the jurisdictional prerequisites of the
PCRA is unavailing. “The plain language of the PCRA provides that a
judgment of sentence becomes final at the conclusion of direct review or
when the time for seeking direct review expires.” Commonwealth v.
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Callahan, 101 A.3d 118, 122 (Pa. Super. 2014) (emphasis added; citation
omitted). The Rules of the Supreme Court of the United States provide that
[u]nless otherwise provided by law, a petition for a writ of
certiorari to review a judgment in any case, civil or criminal,
entered by a state court of last resort or a United States court of
appeals (including the United States Court of Appeals for the
Armed Forces) is timely when it is filed with the Clerk of this
Court within 90 days after entry of the judgment. 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.
U.S. Sup. Ct. R. 13.
As discussed above, Appellant did not seek discretionary review by the
United States Supreme Court following our Supreme Court’s October 1, 1998
denial of his petition for allowance of appeal. Accordingly, Appellant’s
judgment of sentence became final 90 days later, on December 30, 1998, at
the expiration of the period in which he was permitted to seek discretionary
review in the first instance. Id.
As this Court has explained, “[i]n fixing the date upon which a
judgment of sentence becomes final, the PCRA does not refer to the
conclusion of collateral review or the time for appealing a collateral review
determination. Thus, the plain language of the PCRA statute shows that a
judgment of sentence becomes final immediately upon expiration of the time
for seeking direct review, even if other collateral proceedings are still
ongoing.” Callahan, 101 A.3d at 122.
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A review of the United States Supreme Court docket reveals that
Appellant has filed numerous petitions with the Court since his conviction.
However, none of those petitions acted to stay or extend the 90-day
timeframe set forth above. Additionally, the fact that one of Appellant’s
many pending cases is now considered closed by the High Court does not
serve to alter this conclusion.
As the instant petition is patently untimely, it is time-barred unless
Appellant is able to plead and prove one of the timeliness exceptions set
forth at 42 Pa.C.S. § 9545(b)(3).
The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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.
42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii). A PCRA petition invoking one of
these statutory exceptions must “be filed within 60 days of the date the
claims could have been presented.” Robinson, 12 A.3d at 480.
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Appellant claims that he has produced newly-discovered facts
unknown to him at the time of trial in the form of affidavits from Fred Dick,
dated January 13, 2014, and Mark Cowder, dated April 27, 2012, the
content of which warrant a new trial. Appellant’s Brief at 9-10. Mr. Dick
purports to be an eyewitness, as well as a character witness, Appellant’s
Exhibit D; while Mr. Cowder claims he has been in touch with a woman who
served on Appellant’s jury and who “struggled” with the facts of his case.
Appellant’s Exhibit E.
Appellant does not assert that he filed the instant petition within 60
days of being informed of the existence of Mr. Dick or Mr. Cowder. In fact,
Appellant admits that he located Mr. Dick in 2012. Appellant’s Brief at 9.1
Because Appellant is not reserved about filing all manner of petitions with
this Court, we can conclude that, with the exercise of due diligence, he could
have raised this claim more than 60 days before April 14, 2104.
With respect to Mr. Cowder, Appellant has failed to allege facts that
would warrant a hearing. Appellant does not name the alleged juror, nor
does he detail when he learned this information from Mr. Cowder. Moreover,
such evidence is inadmissible. Commonwealth v. Patrick, 206 A.2d 295,
297 (Pa. 1965) (“Our Courts have repeatedly held for over 150 years that
after a verdict is recorded, and after the jury has separated and been
discharged, jurors may not invalidate or impeach a verdict by their own
1
Mr. Dick’s affidavit, in which he claims to have known Appellant since the
mid-1980s, is dated April 27, 2012.
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testimony.”); Commonwealth v. Abu-Jamal, 720 A.2d 79, 115 (Pa. 1998)
(“the law of this Commonwealth … forbids the post-verdict testimony of
jurors which would tend to impeach the verdict.”)
Accordingly, because Appellant failed to satisfy a PCRA timeliness
exception, we conclude that the PCRA court lacked jurisdiction to entertain
the merits of Appellant’s claims, and dismissal of his serial PCRA petition was
proper.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2015
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Com. v. Spuck, D.
Combined Opinion