Com. v. Gray, S.

J-S56005-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

SHARRONE A. GRAY

Appellant No. 3509 EDA 2016

Appeal from the PCRA Order October 19, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0105661-2003

BEFORE: BOWES, STABILE, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 27, 2017

Sharrone A. Gray appeals from the PCRA order dismissing her serial

PCRA petition as untimely. We affirm.

A jury convicted Appellant of third-degree murder, aggravated assault,

and possession of an instrument of crime. On January 28, 2004, she was

sentenced to twenty-five to fifty years imprisonment. The events underlying

her convictions were as follows. On November 28, 2002, Appellant and her

friend, Starleen Pringle, and Pringle’s mother went to a bar. Appellant and

Pringle became involved in a bar fight that continued outside after the bar

closed. Appellant obtained a crowbar from her car, swung it at people, and

then entered her vehicle with Pringle and her mother.

* Retired Senior Judge specially assigned to the Superior Court.
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After someone threw the crowbar into the rear of her car, breaking the

window, Appellant placed the vehicle in reverse and backed up, hitting Daisy

Alvarez. Appellant then left the scene, drove a short distance, turned

around, and returned. Anna Romano was kneeling down next to Ms. Alvarez

when Appellant deliberately drove into the two women, killing Ms. Alvarez

and seriously injuring Ms. Romano. Appellant then dropped off Pringle’s

mother, returned to her residence, obtained a rifle and ammunition, and

articulated to Pringle that she was returning to the bar. Pringle called police,

who stopped Appellant while she was traveling in her car toward the crime

scene. The rifle and bullets were found in the vehicle.

On appeal from the judgment of sentence, we affirmed.

Commonwealth v. Gray, 869 A.2d 7 (Pa.Super. 2004) (unpublished

memorandum). Appellant filed a timely PCRA petition, which was denied.

On appeal, we affirmed. Commonwealth v. Gray, 951 A.2d 1210

(Pa.Super. 2008) (unpublished memorandum). On July 1, 2010, Appellant

filed her second PCRA petition, which was dismissed. We affirmed, ruling

that the petition was untimely since Appellant’s judgment of sentence

became final on January 20, 2005, and she had until January 20, 2006, to

file a timely PCRA petition. Commonwealth v. Gray, 2013 WL 11253823,

at (Pa.Super. 2013) (unpublished memorandum).

On February 3, 2015, Appellant filed a document entitled a motion for

modification of her sentence nunc pro tunc. The PCRA court treated that

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document as a PCRA petition and dismissed it as untimely, noting that

Appellant had failed to invoke any exceptions to the one-year time bar.

Appellant filed the present appeal, raising these issues:

1. The Judge's plain error for leaving involuntary manslaughter
off of the verdict slip, failing to include instructions on vehicular
manslaughter in the jury charge and allowing conviction for
murder of the third degree when there was insufficient evidence
to sustain the charge.

2. Counsel was ineffective for failing to investigate and present
exculpatory evidence regarding statements of a primary state's
witness, Defendant's intoxication, and facts in support of
Defendant's claim of self-protection.

3. Defendant is in possession of written documentation from a
previously unknown witness that constitutes new evidence and
should be investigated and evaluated by the court in light of the
fact that it clearly proves wrongful conviction.

4. Sentence is cruel and unusually punitive in light of the facts of
the case and the Defendant's minor criminal record.

Appellant’s brief at (unnumbered page) 6.

Initially, we observe, “Our standard of review of a PCRA court's

dismissal of a PCRA petition is limited to examining whether the PCRA

court's determination is supported by the record evidence and free of legal

error.” Commonwealth v. Whitehawk, 146 A.3d 266, 269 (Pa.Super.

2016). We also note that Appellant’s petition to modify her sentence was

properly treated by the court as a PCRA petition. Commonwealth v.

Taylor, 65 A.3d 462, 466 (Pa.Super. 2013) (citation omitted) (holding that

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“any petition filed after the judgment of sentence becomes final will be

treated as a PCRA petition”).

It is axiomatic that all PCRA petitions must be filed within one year of

the date a defendant’s judgment becomes final unless an exception to the

one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1). If a PCRA

petition is untimely, “neither this Court nor the trial court has jurisdiction

over the petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super.

2014) (citation omitted); see also Commonwealth v. Chester, 895 A.2d

520, 522 (Pa. 2006). We have previously found that Appellant’s judgment

of sentence became final on January 20, 2005, and that she had until

January 20, 2006 to file a timely PCRA. Her February 3, 2015 petition is

therefore untimely.

There are three exceptions to the one-year time bar of § 9545:

(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 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.

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42 Pa.C.S. § 9545(b)(1). “Any petition invoking an exception provided in

paragraph (1) shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).

Herein, Appellant does not specifically invoke any exception. The only

averment that touches on one relates to Appellant’s position that she is in

possession of written documentation from a previously unknown witness that

constitutes new evidence. This averment arguably invokes the second

exception. “To qualify for an exception to the PCRA's time limitations under

subsection 9545(b)(1)(ii), a petitioner need only establish that the facts

upon which the claim is based were unknown to him and could not have

been ascertained by the exercise of due diligence.” Commonwealth v.

Burton, 158 A.3d 618, 629 (Pa. 2017). Nevertheless, “to qualify for any of

the exceptions to the PCRA's one-year time limitation, including the newly-

discovered facts exception under subsection 9545(b)(1)(ii), the exception

must be pled within 60 days of the date the claim could have been

presented. Id. at 627.

Appellant has attached to her brief an undated letter from Josette

Blassinger, an inmate at the State Correctional Institution in Muncy, who

purportedly witnessed the events. In that letter, Blassinger suggested that

Appellant acted in self-defense. Appellant fails to indicate when that

document was obtained, that it was procured within sixty days of her

February 3, 2013 PCRA petition, and that she could not have discovered the

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existence of Ms. Blassinger earlier, through the exercise of due diligence.

Hence, Appellant did not plead and prove the newly-discovered facts

exception. As the PCRA court did not err in dismissing the plea petition, we

affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/27/2017

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