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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ERNEST WOODALL :
:
Appellant : No. 110 WDA 2017
Appeal from the PCRA Order December 9, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008320-1996
BEFORE: STABILE, SOLANO, and FITZGERALD* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED: July 20, 2017
Appellant, Ernest Woodall, appeals pro se from the order entered in
the Allegheny County Court of Common Pleas dismissing his serial Post
Conviction Relief Act Petition1 (“PCRA”). Appellant contends that fraud upon
the court was committed. We affirm.
We adopt the facts and procedural posture of this case as set forth in a
prior memorandum of this Court.
On May 5, 1996, two uniformed Pittsburgh police
officers on routine patrol in a marked wagon noticed
Appellant’s vehicle parked in the middle of the street
with the engine idling and a door open, blocking
traffic in either direction, while he was standing on
the sidewalk, talking to a female. One of the police
officers, Edward Dent, knew Appellant personally
from the neighborhood, and from towing his vehicle
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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a week earlier. When Officer Dent asked him to
move his vehicle, Appellant responded, “Fuck you,”
and ran to the back of the vehicle. Both officers
followed. (See N.T. Trial, 11/9-12/04, at 37-44).
In the scuffle which ensued, Appellant attempted
to draw a .45 Glock handgun from his waistband, but
it fell to the ground. He managed to run away. The
police began to follow him, but decided to stay
behind to secure the Glock, which was loaded and
equipped with a laser sight, and other firearms found
in Appellant’s vehicle, a .9 millimeter Smith &
Wesson handgun, and an SKS assault rifle, both also
loaded. (Id. at 53-56). The two officers radioed for
back-up and prepared to tow the vehicle.
However, Appellant soon returned, this time with
an AK-47 assault rifle, which he pointed at the
police, saying, “I want my shit, give me my shit
now.” (Id. at 58.) When they did not comply, he
fired at them, now six police in all, including those
who had arrived in response to the radio call.
Appellant then escaped.
The police apprehended Appellant the next day,
but he fled the jurisdiction soon after he was
charged. He was not discovered until almost seven
years later, when the National Crime Information
Center informed an FBI agent assigned to the
Pittsburgh Fugitive Task Force that there was a
possible fingerprint match between one “Joseph
Brown,” a/k/a “Allan Alphonso Garner,” recently
arrested in Montgomery County, Alabama, and
Appellant. Appellant was arrested in February,
2003, in the office of his Alabama parole officer, and
eventually returned to Pittsburgh through the
Interstate Agreement on Detainers (IAD), 42
Pa.C.S.A. §§ 9101-9108. Following a hearing, the
trial court denied pre-trial motions, and trial
commenced in November of 2004.
After the jury convicted Appellant of four counts
of attempted homicide, six counts of aggravated
assault, and one count of violation of the Uniform
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firearms Act (VUFA), the trial court sentenced him to
an aggregate term of thirty-two to eighty years’
imprisonment. This Court affirmed the judgment of
sentence,[2] and our Supreme Court denied
allowance of appeal on May 10, 2007.[3]
On December 19, 2007, Appellant filed a timely
pro se petition for PCRA relief. The PCRA court
appointed counsel, who filed an amended petition.
After the PCRA court filed notice of its intent to
dismiss pursuant to Pa.R.Crim.P. 907, counsel filed a
second amended petition and response to the notice
of intent. The PCRA court dismissed the petition on
May 4, 2009. Appellant filed a timely pro se notice
of appeal, and the PCRA court appointed counsel to
represent him.
Commonwealth v. Woodall, 897 WDA 2009,
unpublished memorandum at 1-3) (Pa. Super. Oct. 20,
2010). This [C]ourt affirmed [the] dismissal of
[A]ppellant’s first PCRA petition on October 20, 2010.
[Id.] Appellant did not file a petition for allowance of
appeal with the Pennsylvania Supreme Court.
On November 10, 2011, [A]ppellant filed a second pro
se PCRA petition, which was dismissed without a hearing,
following Rule 907 notice, on December 2, 2011. No direct
appeal was taken from this dismissal.
On December 16, 2011, [A]ppellant filed, pro se, a
petition for habeas corpus relief which was properly
treated as a third PCRA petition. On January 22, 2013, the
PCRA court gave Rule 907 notice of its intent to dismiss
the petition within 20 days without a hearing; and with no
response forthcoming from [A]ppellant, his petition was
dismissed on February 25, 2013. Appellant filed a timely
pro se notice of appeal on March 13, 2013.
2
Commonwealth v. Woodall, 1338 WDA 2005 (unpublished
memorandum) (Pa. Super. June 19, 2006).
3
Commonwealth v. Woodall, 923 A.2d 1174 (Pa. 2007).
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Commonwealth v. Woodall, 565 WDA 2013, (unpublished memorandum
at 1-4) (Pa. Super. Jan. 14, 2015) (footnotes omitted). This Court affirmed
the PCRA court’s dismissal of Appellant’s PCRA petition as untimely. See id.
On July 14, 2016, Appellant, pro se, served the PCRA court with his
“Fraud Upon the Court Motion.”4 On August 23, 2016, Appellant filed a
motion to compel a response by the court to his “Fraud Upon the Court
Motion,” which gives rise to this appeal. The PCRA court regarded the
motion as a fourth PCRA petition, and on November 4, 2016, the PCRA court
filed notice of intent to dismiss. Appellant filed a pro se response to the Rule
907 notice. On December 9, 2016, the PCRA court dismissed the PCRA
petition. The PCRA court opined that Appellant “has filed his most recent
serial [PCRA] petition, which has been dismissed as being untimely.
[Appellant] has not raised any issues that would qualify as time-barred
exceptions.” PCRA Ct. Op., 1/17/17, at 1. This appeal followed.
Appellant raises the following issues for our review:
I. Why was the May 17, 2004 continuance slip introduced?
II. Does the record demonstrate the May 17, 2004
continuance slip the court read into the record, and
handed to defense counse[l,] Mr. Sharif, to be fraudulent?
III. Was fraud committed upon the court with introduction
of the May 17, 200[4] continuance slip?
4
See Appellant’s Brief at Ex. “B.” We note that the motion does not appear
on the docket; however, it is in the certified record.
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IV. Is a preliminary hearing for thorough exploration of the
fraudulent May 17, 2004 continuance slip’s impact
required?
V. Why did the trial court deny the November 5, 2004
speedy trial motion to dismiss[ ] if not for the May 17,
2004 continuance?
VI. Did the trial court provide a lawful reason for denial of
the November 5, 2004 motion to dismiss?
Appellant’s Brief at 3.
Before examining the merits of Appellant’s claims, we consider
whether the PCRA court had jurisdiction to entertain the underlying PCRA
petition. On appellate review of a PCRA ruling, “we determine whether the
PCRA court’s ruling is supported by the record and free of legal error.”
Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (citation
omitted).
We . . . turn to the time limits imposed by the PCRA, as
they implicate our jurisdiction to address any and all of
[a]ppellant’s claims. To be timely, a PCRA petition must
be filed within one year of the date that the petitioner’s
judgment of sentence became final, unless the petition
alleges and the petitioner proves one or more of the
following statutory exceptions:
(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
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(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).
We emphasize that it is the petitioner who bears the
burden to allege and prove that one of the timeliness
exceptions applies. In addition, a petition invoking any of
the timeliness exceptions must be filed within 60 days of
the date the claim first could have been presented. 42
Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy the 60–
day requirement of Section 9545(b) if he or she fails to
explain why, with the exercise of due diligence, the claim
could not have been filed earlier.
Id. at 719-20 (some citations omitted).
Appellant’s judgment of sentence became final on or about August 10,
2007, ninety days after the Pennsylvania Supreme Court denied his petition
for allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (providing “a
judgment becomes 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[ ]”); accord U.S. Sup.Ct.R. 13(1) (providing “[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”). Appellant thus generally had until August 10, 2008,
to file his PCRA petition. See 42 Pa.C.S. § 9545(b)(1) (providing PCRA
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petition, including second and subsequent petitions, must be filed within one
year of date judgment becomes final). Appellant filed the instant PCRA
petition, in the form of a Motion to Compel, on August 23, 2016. Therefore,
it is patently untimely.
Following our review, we agree that Appellant did not plead and prove
any exception to the PCRA’s timeliness requirement. See Marshall, 947
A.2d at 719-20. Thus, the PCRA court did not err in dismissing his PCRA
petition as untimely. See id. at 719.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2017
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