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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
REMIC GUYAH :
:
Appellant : No. 2979 EDA 2019
Appeal from the PCRA Order Entered April 26, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0200121-2006
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KING, J.: FILED FEBRUARY 05, 2021
Appellant, Remic Guyah, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed as untimely his
serial petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.
The PCRA court has previously set forth the relevant facts of this case
as follows:
On May 25, 2005, Philadelphia Police Officer Vincent LaBrice
responded to 2400 Ridge Avenue following reports of a
robbery. Officer LaBrice met with [Victim], who informed
police that he had just been robbed by two black males.
[Victim] informed police that he had been using an ATM
when he was approached by the two males, who robbed him
at gunpoint of $100. Police then put out the description of
the two suspects over police radio. Officer Ryan Ewald, who
was on route to the scene of the robbery, saw [Appellant]
on the 1700 block of Lambert Street and noticed that
[Appellant] matched the description provided over the
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1 42 Pa.C.S.A. §§ 9541-9546.
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police radio. Officer Ewald stopped [Appellant] for
investigation and recovered two Ziploc bags containing
crack-cocaine and $89. Officer LaBrice transported [Victim]
to where [Appellant] was being held and [Victim] positively
identified [Appellant] as one of the two individuals who
robbed him. A witness, Estelle Roney, informed police that
she had seen [Appellant] and another person throw two
firearms into the bushes on the corner of 20th Street and
Cecil B. Moore Avenue, where police recovered two firearms.
(PCRA Court Opinion, filed February 24, 2016, at 3) (internal citations
omitted).
Prior to the start of trial, the court instructed trial counsel to inform
Appellant of his trial date. Nevertheless, Appellant did not appear for trial.
The court found that Appellant willfully failed to appear. (See N.T. Trial,
7/6/09, at 11-12). A jury convicted Appellant, in absentia, on July 8, 2009 of
robbery, firearms not to be carried without a license, carrying firearms on
public streets in Philadelphia, possessing instruments of crime, and
conspiracy. On that same day, the court sentenced Appellant to an aggregate
term of thirteen (13) to twenty-six (26) years in prison. On July 13, 2009,
Appellant filed timely post-sentence motions, which the court denied on July
15, 2009. Appellant did not file a direct appeal.
On March 20, 2013, Appellant filed his first PCRA petition pro se. The
court appointed counsel, who subsequently filed a Turner/Finley2 no-merit
letter. On September 18, 2014, the court issued Pa.R.Crim.P. 907 notice of
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2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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its intent to dismiss the petition without a hearing. Following Appellant’s
response, the court dismissed Appellant’s first petition on December 12, 2014,
and granted counsel’s motion to withdraw.
Over the next several years, Appellant unsuccessfully litigated four
additional PCRA petitions, and numerous pro se motions seeking to modify or
vacate his judgment of sentence. On January 17, 2019, Appellant filed the
current pro se PCRA petition. Appellant filed an “addendum” to this petition
on February 19, 2018. On March 14, 2019, the court issued Rule 907 notice.
On March 25, 2019, Appellant filed an amended PCRA petition. The court
dismissed the current petition on April 26, 2019. On May 5, 2019, Appellant
timely filed a pro se notice of appeal. The court ordered Appellant to file a
Pa.R.A.P. 1925(b) concise statement of errors on October 24, 2019. Following
the grant of an extension, Appellant timely filed his concise statement on
November 26, 2019.
Appellant raises the following issues for our review:
Whether the PCRA court erred when it determined that
Appellant’s petition did not satisfy the newly discovered fact
exception?
Has Appellant satisfied the requirement for an exception to
the PCRA time bar, 42 Pa.C.S.A. § 9545(b)(1)(ii), [because]
the statement contained in the secure docket was unknown
to Appellant under Commonwealth v. Burton, 158 A.3d
618 (Pa. 2017)?
(Appellant’s Brief at 2).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
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and whether the court’s decision is free of legal error. Commonwealth v. H.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d
319 (2008). This Court grants great deference to the findings of the PCRA
court if the record contains any support for those findings. Commonwealth
v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932
A.2d 74 (2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. J. Ford, 44 A.3d 1190 (Pa.Super. 2012).
Further, a petitioner is not entitled to a PCRA hearing as a matter of right; the
PCRA court can decline to hold a hearing if there is no genuine issue
concerning any material fact, the petitioner is not entitled to PCRA relief, and
no purpose would be served by any further proceedings. Commonwealth v.
Wah, 42 A.3d 335 (Pa.Super. 2012).
For purposes of disposition, we combine Appellant’s issues. Appellant
argues that his trial counsel abandoned him and failed to give him notice of
his trial date. Appellant asserts he received a secure docket sheet from the
court on November 20, 2018, indicating that the court had instructed counsel
in 2008 to inform Appellant of his trial date. Appellant claims counsel failed
to do so. Appellant insists he could not have discovered this “new fact” sooner
because he did not have access to the secure docket sheet.3 Appellant
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3 Appellant also argues the PCRA court erroneously applied the “public record
presumption” set forth in Burton, supra, because our Supreme Court
recently overruled that presumption in Commonwealth v. Small, __Pa.___,
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contends he satisfied the “newly-discovered facts” exception to excuse his
facially untimely filing. Appellant concludes the court improperly dismissed
his current PCRA petition as untimely, and this Court must grant appropriate
relief. We disagree.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA 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 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 time for seeking the review.” 42 Pa.C.S.A. §
9545(b)(3).
Generally, to obtain merits review of a PCRA petition filed more than
one year after the sentence became final, the petitioner must allege and prove
at least one of the three timeliness 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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238 A.3d 1267 (2020). As we do not rely on that presumption to dispose of
this case, we give no further attention to Appellant’s analysis of Small.
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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.A. § 9545(b)(1)(i)-(iii). A petitioner asserting a timeliness
exception must also file the petition within the required statutory window. 42
Pa.C.S.A § 9545(b)(2).
To meet the “newly-discovered facts” timeliness exception set forth in
Section 9545(b)(1)(ii), a petitioner must demonstrate “he did not know the
facts upon which he based his petition and could not have learned those facts
earlier by the exercise of due diligence.” Commonwealth v. Brown, 111
A.3d 171, 176 (Pa.Super. 2015). Due diligence demands that a PCRA
petitioner take reasonable steps to protect his own interests. Id.
Instantly, the court sentenced Appellant on July 8, 2009. The court
denied Appellant’s post-sentence motions on July 15, 2009. Appellant did not
file a notice of appeal, so his judgment of sentence became final thirty days
later, on August 14, 2009. See Pa.R.Crim.P. 720(A)(2)(a). Appellant did not
file his current PCRA petition until January 17, 2019, which is patently
untimely. See 42 Pa.C.S.A. § 9545(b)(1).
Appellant now attempts to invoke the “newly-discovered fact” exception
to the PCRA time-bar, claiming he did not learn of the court’s instruction for
trial counsel to inform Appellant of his trial date until Appellant reviewed the
secure docket sheet in November 2018. Nevertheless, Appellant’s trial
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transcripts make clear the court had directed trial counsel to inform Appellant
of the date set for trial (see N.T. Trial at 12), and Appellant cited to this same
transcript in his memorandum of law in support of a prior PCRA petition (see
PCRA petition, filed 2/28/17). Thus, Appellant could have discovered his
proffered “newly-discovered fact” sooner, with the exercise of due diligence.
See Brown, supra. Further, Appellant does not explain why he was unable
to obtain the secure docket sheet earlier with the exercise of due diligence.
See id. See also Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa.Super.
2001) (holding that trial counsel’s failure to file direct appeal was discoverable
during appellant’s one-year window to file timely PCRA petition; “A phone call
to his attorney or the clerk of courts would have readily revealed that no
appeal had been filed”). Based upon the foregoing, Appellant’s current
petition remains time-barred. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2021
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