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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD UPSHUR,
Appellant No. 99 EDA 2015
Appeal from the PCRA Order Entered December 16, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0720561-1974
BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 23, 2015
Appellant, Ronald Upshur, appeals pro se from the December 16, 2014
order denying, as untimely, his petition for relief filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the procedural history of Appellant’s case,
as follows:
On March 21, 1975, [Appellant] was found guilty of first
degree murder, two counts of robbery, and criminal conspiracy
following a jury trial before the Honorable Judge Edwin S.
Malmed of the Court of Common Pleas of Philadelphia County.
On February 10, 1976, following the denial of post-trial motions,
[Appellant] was sentenced by Judge Malmed to life imprisonment
for the murder conviction, and twenty-five to fifty years’
imprisonment for the remaining convictions. The Pennsylvania
Supreme Court vacated the judgment of sentence on February 4,
1980, and remanded [Appellant’s] case for a new trial. After a
second jury trial before the Honorable Judge Theodore B. Smith
[in May of 1980], [Appellant] was again convicted of first degree
murder, robbery and conspiracy. On October 23, 1980,
[Appellant] was sentenced to life imprisonment for the murder
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conviction. [Appellant] did not file an appeal from the entry of
[his] judgment of sentence.
On July 24, 1985, [Appellant] filed his first post conviction
petition under the Post Conviction Hearing Act (PCHA). The
petition was denied on January 21, 1988, and upon timely
appeal, the Superior Court dismissed his appeal for failure to file
a brief. On May 24, 1990, [Appellant] had his right to appeal his
denial of his PCHA petition reinstated nunc pro tunc. After a
second timely appeal, the Superior Court affirmed the lower
court’s dismissal of [Appellant’s] PCHA petition.
Commonwealth v. Upshur, 588 A.2d 565 (Pa. Super. 1990)
[(unpublished memorandum)], appeal denied, 527 Pa. 665
(1991). [Appellant] then pursued multiple, unsuccessful PCRA
petitions.
[Appellant] filed his current post conviction petition on
April 18, 2012. After conducting an extensive and exhaustive
review of the record and applicable case law, this Court
determined that [Appellant’s] petition seeking post conviction
collateral relief was untimely filed. Therefore, this Court did not
have jurisdiction to consider [Appellant’s] PCRA petition.
PCRA Court Opinion (PCO), 3/4/15, at 1-2.
Based on its finding of untimeliness, the PCRA court provided Appellant
with the requisite Pa.R.Crim.P. 907 notice of its intent to dismiss his petition,
to which Appellant filed a timely pro se response. On December 16, 2014,
the court issued an order denying his petition as untimely filed. Appellant
filed a timely, pro se notice of appeal. Herein, he raises one issue for our
review: “Whether the PCRA court erred in finding that [Appellant’s] PCRA
petition was untimely filed and [that he was] not entitled to the enumerated
exceptions under 42 Pa.C.S.A. § 9545(b)(1)(i) and (ii).” Appellant’s Brief at
IV (unnecessary capitalization omitted).
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
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by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified
record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
We must begin by addressing the timeliness of Appellant’s petition,
because the PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded in order to address the merits of a petition. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for post-conviction relief, including a second or
subsequent one, must be filed within one year of the date on which the
judgment of sentence becomes final, unless one of the exceptions set forth
in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant
part:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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
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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)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant did not file an appeal from the judgment of sentence
imposed on October 23, 1980; accordingly, it became final on Monday,
November 24, 1980.1 See 42 Pa.C.S. § 9545(b)(3) (directing that judgment
of sentence becomes final at the conclusion of direct review or the expiration
of the time for seeking the review); Pa.R.A.P. 903(a) (stating that “the
notice of appeal [to the Superior Court] shall be filed within 30 days after
the entry of the order from which the appeal is taken”). Consequently,
Appellant’s current PCRA petition, filed on April 18, 2012, is facially untimely
and, for this Court to have jurisdiction to review the merits thereof,
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1
We acknowledge that,
[i]n cases where the judgment of sentence was final prior to the
1995 enactment of the timeliness requirement, a first petition is
considered timely if filed within one year of the effective date of
the enactment. However, there is no grace period for filing
subsequent PCRA petitions.
Commonwealth v. Abu-Jamal, 833 A.2d 719, 724 (Pa. 2003) (citations
omitted; emphasis in original). Clearly, this exception to the timeliness
requirement of section 9545(b) does not apply to Appellant’s petition, which
is not his first, and which was filed in 2012.
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Appellant must prove that he meets one of the exceptions to the timeliness
requirements set forth in 42 Pa.C.S. § 9545(b).
Appellant contends that he has satisfied both sections 9545(b)(1)(i)
and (ii). Appellant grounds his argument pertaining to both of these
exceptions on the following facts. According to Appellant, at the time of his
second trial in 1980, the Commonwealth misinformed the trial court and
Appellant that a potential witness, Stanley Yates, was unavailable to testify
because he was “believed to be in North Carolina.” Appellant’s Brief at 6-7.
Appellant explains that “[i]n a statement to police prior to [Appellant’s] first
trial, Stanley Yates identified [Appellant] as the perpetrator of the robbery
and homicide; [however, Appellant] has always believed that [] Yates never
made such a statement and that, had he been available for [Appellant’s
second] trial, he would have given exculpatory testimony.” Id. at 7.
Specifically, Appellant contends that Yates would have testified “that he
never gave the police any information which implicated [Appellant] in any
crime.” Id. at 6. However, Yates was not called to the stand because,
according to the Commonwealth, he was in North Carolina and was
unavailable to testify.
Appellant further explains that on February 12, 2012, a friend of his
“went to the Criminal Justice Center in Philadelphia, [Pennsylvania,] and
[obtained] a copy of a document titled [‘]Secure Court Summary[’] for Mr.
Stanley Yates[.]” Appellant’s Brief at 7 (unnecessary capitalization and
emphasis omitted). Appellant maintains that Yates’ court summary (which
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he attached to his appellate brief) confirms that Yates “was in custody within
the State of Pennsylvania at the time of [Appellant’s] second trial, contrary
to what the prosecutor told the court.” Id. Because Appellant filed his
current PCRA petition within 60 days of discovering this ‘new fact’ that Yates
was incarcerated in Pennsylvania – and, therefore, was presumably available
to testify – at the time of Appellant’s second trial, Appellant contends that he
has satisfied the after-discovered fact exception of section 9545(b)(1)(ii).
He also argues that the Commonwealth withheld the evidence of Yates’
incarceration in Pennsylvania from the defense, constituting a violation of
Brady v. Maryland, 373 U.S. 83 (1963), and satisfying the governmental
interference exception of section 9545(b)(1)(i).
Even if Yates’ court summary proved that he was incarcerated in
Pennsylvania at the time of Appellant’s second trial,2 Appellant has failed to
prove he could not have discovered this fact earlier had he exercised due
diligence. As this Court recently stated, “due diligence requires neither
perfect vigilance nor punctilious care, but rather it requires reasonable
efforts by a petitioner, based on the particular circumstances, to uncover
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2
The court summary attached to Appellant’s brief shows that Yates was
arrested for various offenses on September 29, 1979, and was sentenced to
a term of incarceration in that case on September 16, 1980. However, the
court summary does not demonstrate on what date Yates was convicted, or
whether he was incarcerated for the entire period of time between
September of 1979 and September of 1980. Therefore, we disagree with
Appellant that Yates’ court summary definitively proves that he was
incarcerated in May of 1980 when Appellant’s second trial was conducted.
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facts that may support a claim for collateral relief.” Commonwealth v.
Burton, 121 A.3d 1063, 1071 (Pa. Super. 2015) (en banc). Here, Appellant
declares that he “has always believed that Stanley Yates was available to
testify at his second trial[,]” yet he offers no explanation of what, if any,
efforts he undertook, prior to 2012, to ascertain whether Yates was, in fact,
available during his trial in May of 1980. Thus, he has failed to meet his
burden of proving that he acted with due diligence in discovering this ‘new
fact.’
Moreover, the fact that Yates was incarcerated at the time of
Appellant’s second trial in 1980 was a matter of public record, and because
Appellant was represented by counsel at that time, we presume that he had
access to that public information. See Burton, 121 A.3d at 1072
(concluding that “[t]he general rule” that public information cannot be
‘unknown,’ for purposes of proving the exception of section 9545(b)(1)(ii),
“is reasonable when we may conclude that the petitioner retains access to
public information, such as when a petitioner is represented by counsel[;]”
however, “the presumption of access to information available in the public
domain does not apply where the untimely PCRA petitioner is pro se”).3
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3
We also point out that because Yates’ criminal record was/is public
information, and was equally accessible to Appellant at the time of his
second trial, the Commonwealth cannot be deemed to have ‘withheld’ that
evidence in violation of Brady. See Commonwealth v. Ligons, 971 A.2d
1125, 1146 (Pa. 2009) (citing Commonwealth v. Brown, 872 A.2d 1139,
1148 (Pa. 2005) (holding that the Commonwealth has no obligation to
(Footnote Continued Next Page)
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Additionally, Appellant concedes that he had access to Yates’ record by
acknowledging that his friend obtained a copy of it simply by going to the
“Criminal Justice Center in Philadelphia….” Appellant’s Brief at 7. Appellant
does not explain why his friend could not have taken this same step to
obtain Yates’ criminal record earlier than 2012.
Accordingly, Appellant has failed to prove that he could not have
discovered sooner that Yates was incarcerated in Pennsylvania at the time of
Appellant’s second trial in 1980. Thus, he has not satisfied either of the
exceptions set forth in section 9545(b)(1)(i) or (ii), and the PCRA court did
not err in denying his petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2015
_______________________
(Footnote Continued)
provide a defendant with the criminal history of the victim where that record
is equally accessible to the defense)).
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