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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC RAMBERT :
:
Appellant : No. 90 WDA 2015
Appeal from the PCRA Order December 19, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002765-1987
BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 29, 2016
Appellant, Eric Rambert, appeals pro se from the December 19, 2014,
order entered in the Court of Common Pleas of Allegheny County dismissing
his serial petition filed under the PCRA.1 We affirm.
The relevant facts and procedural history are as follows: On January
27, 1987, a fire broke out at a state correctional institution where Appellant
was an inmate. As a correctional officer attempted to unlock cells and direct
inmates to the yard, Appellant struck the officer from behind, with several
other inmates joining in the attack. The prisoners beat the correctional
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1
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.
*Former Justice specially assigned to the Superior Court.
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officer into unconsciousness and he later required more than seventy-five
stitches.
A jury convicted Appellant of assault by a prisoner, riot, and
conspiracy, and on November 10, 1987, the trial court sentenced Appellant
to an aggregate of six years to twenty-five years in prison. On November
30, 1988, this Court affirmed Appellant’s judgment of sentence. See
Commonwealth v. Rambert, 1710 Pittsburgh 1987 (Pa.Super. filed
11/30/88) (unpublished memorandum). Appellant did not file a petition for
allowance of appeal with our Supreme Court.
Thereafter, Appellant filed serial PCRA petitions, including one filed on
July 9, 2012. The PCRA court dismissed the petition, and on appeal, this
Court affirmed the dismissal. See Commonwealth v. Rambert, No. 320
WDA 2013 (Pa.Super. filed 11/12/13) (unpublished judgment order).
Specifically, we concluded that there was no indication Appellant was still
serving a sentence for the convictions at issue, and thus, it appeared he was
ineligible for PCRA relief. See id. at 2. Alternatively, we concluded that
Appellant’s PCRA petition was untimely filed, and Appellant did not meet his
burden of proving that any of the timeliness exceptions applied. See id. at
2-3.
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On May 15, 2014,2 Appellant filed the instant PCRA petition, and the
PCRA court provided Appellant with notice of its intent to dismiss the petition
without a hearing. Appellant provided a pro se response, and by order filed
on December 19, 2014, the PCRA court dismissed Appellant’s PCRA petition.
This timely pro se appeal followed. The PCRA court directed Appellant to file
a Pa.R.A.P. 1925(b) statement, Appellant timely complied, and the PCRA
court filed a Pa.R.A.P. 1925(a) opinion.3
Preliminarily, we note that, in order to be eligible for relief under the
PCRA, Appellant must demonstrate that he is currently serving a sentence of
imprisonment, probation, or parole for the convictions at issue. See 42
Pa.C.S.A. § 9543(a)(1)(i). Instantly, the trial court sentenced Appellant on
November 10, 1987, to six years to twenty-five years in prison. “Nothing in
the record indicates Appellant is still serving the sentence for the convictions
at issue. Therefore, Appellant appears to be ineligible for PCRA relief.”
Rambert, No. 320 WDA 2013, at 2 (citation omitted).
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2
Although Appellant’s PCRA petition was docketed on May 28, 2014, we
shall deem it to have been filed on May 15, 2014, when it was handed to
prison authorities. See generally Commonwealth v. Brandon, 51 A.3d
231, 234 n.5 (Pa.Super. 2012).
3
“Our standard of review of the denial of PCRA relief is clear; we are limited
to determining whether the PCRA court’s findings are supported by the
record and without legal error.” Commonwealth v. Wojtaszek, 951 A.2d
1169, 1170 (Pa.Super. 2008) (quotation and quotation marks omitted).
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Alternatively, we conclude Appellant’s instant PCRA petition was
untimely filed. Pennsylvania law makes it clear that no court has jurisdiction
to hear an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa.
500, 837 A.2d 1157 (2003). The most recent amendments to the PCRA,
effective January 19, 1996, provide that a PCRA petition, including a second
or subsequent petition, shall be filed within one 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, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of the time for seeking
review.” 42 Pa.C.S.A. § 9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of
interference by government officials with the
presentation of the claim in violation of the Constitution
or the law of this Commonwealth or the Constitution or
law 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 Pennsylvania after
the time period provide in this section and has been
held by that court to apply retroactively.
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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
“We emphasize that it is the petitioner who bears the burden to allege
and prove that one of the timeliness exceptions applies.” Commonwealth
v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).
Moreover, “the PCRA limits the reach of the exceptions by providing that a
petition invoking any of the exceptions must be filed within 60 days of the
date the claim first could have been presented.” Commonwealth v.
Walters, 135 A.3d 589, 592 (Pa.Super. 2016) (citations omitted). See 42
Pa.C.S.A. § 9545(b)(2).
Instantly, there is no dispute that Appellant’s current petition is facially
untimely. This Court affirmed Appellant’s judgment of sentence on
November 30, 1988, and Appellant did not file a petition for allowance of
appeal. However, Appellant did not file the instant PCRA petition until May
15, 2014. Thus, the petition is patently untimely. See 42 Pa.C.S.A. §
9545(b)(1).
Appellant attempts to invoke the governmental interference and/or the
newly-discovered facts exceptions.4 In this vein, he argues that he recently
discovered in the “volumes of legal documents” that two of the victim’s
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4
We are mindful that “although this Court is willing to construe liberally
materials filed by a pro se litigant, pro se status generally confers no special
benefit upon an appellant.” Commonwealth v. Lyons, 833 A.2d 245, 252
(Pa.Super. 2003) (citation omitted). It merits mentioning that Appellant’s
pro se brief is disjointed and difficult to read.
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statements, dated January 27, 1987, and January 28, 1987, which he gave
to Pennsylvania state troopers, contained exculpatory evidence. Appellant
avers that the Commonwealth committed a Brady5 violation in failing to turn
over the statements prior to Appellant’s trial.
To the extent Appellant’s argument touches upon the governmental
interference exception of Subsection 9545(b)(1)(i), we note that, to
establish the exception, “the petitioner must plead and prove the failure to
previously raise the claim was the result of interference by government
officials, and the information could not have been obtained earlier with the
exercise of due diligence.” Commonwealth v. Abu-Jamal, 596 Pa. 219,
941 A.2d 1263, 1268 (2008) (citation omitted).
To the extent Appellant’s argument touches upon the newly-
discovered facts exception of Subsection 9545(b)(1)(ii), we note that, to
establish the exception, the petitioner must prove (1) the fact was unknown
to him and (2) the fact could not have been ascertained previously by the
exercise of due diligence. Commonwealth v. Bennett, 593 Pa. 382, 930
A.2d 1264 (2007).
With regard to due diligence, we are guided by the following: “Due
diligence demands that the petitioner take reasonable steps to protect his
own interests. A petitioner must explain why he could not have learned the
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5
Brady v. Maryland, 83 S.Ct. 1194 (1963).
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new fact(s) earlier with the exercise of due diligence. This rule is strictly
enforced.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super.
2015) (citations omitted).
In the case sub judice, assuming, arguendo, Appellant presented his
claim within 60-days of when he first learned of the victim’s statements, see
Walters, supra, we conclude Appellant has failed to demonstrate the
necessary due diligence to invoke either the governmental interference or
newly-discovered facts exception. Simply put, inasmuch as Appellant admits
in his brief that trial counsel knew of the statements during trial, and
Appellant discovered the statements simply by reading the “volumes of legal
documents,” Appellant has not explained why he could not have learned of
the existence of the victim’s statements earlier with the exercise of due
diligence.
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2016
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