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[U] Commonwealth v. Preacher

Superior Court of Pennsylvania

February 19, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
JOHN D. PREACHER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order May 29, 2013 in the Court of Common Pleas of Delaware County, Criminal Division at No(s): CP-23-CR-0001286-2008

BEFORE: ALLEN, STABILE, and STRASSBURGER [*] , JJ.

MEMORANDUM

STRASSBURGER, J.

John D. Preacher (Appellant) appeals pro se from the May 29, 2013 order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

On October 8, 2007, Appellant shot and wounded Frederick Bowman (Bowman). On August 18, 2008, a Monday morning and immediately prior to jury selection, counsel for Appellant learned that the Commonwealth had just received on Friday afternoon the results of a gunshot residue test conducted on Appellant. These results showed that Appellant may have handled a firearm around the time of the shooting. Appellant's counsel asked the trial court either to continue the trial or to exclude the test results from evidence. N.T., 8/18/2008, at 6. The trial court excluded the evidence. Id. at 7-8.

On August 20, 2008, a jury convicted Appellant of attempted homicide, aggravated assault, persons not to possess firearms, possession of a firearm without a license and recklessly endangering another person. On October 27, 2008, Appellant was sentenced to an aggregate term of imprisonment of 25 to 50 years. On August 19, 2009, this Court affirmed Appellant's judgment of sentence, and on December 29, 2009, our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Preacher, 984 A.2d 1021 (Pa.Super. 2009), appeal denied, 987 A.2d 160 (Pa. 2009) (table).

On August 23, 2010, Appellant timely filed a pro se PCRA petition. Counsel was appointed, but was subsequently permitted to withdraw pursuant Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). Appellant's PCRA petition was dismissed, and Appellant timely filed a pro se notice of appeal to this Court. On December 15, 2011, this Court issued a memorandum affirming the dismissal of Appellant's PCRA petition. Commonwealth v. Preacher, 40 A.3d 182 (Pa.Super. 2011) (table). This Court concluded, inter alia, that Appellant waived an issue with respect to trial counsel's ineffective assistance in handling the results of the gunshot residue tests because he raised it for the first time on appeal. Id. at 10.

On January 17, 2012, Appellant filed a petition for allowance of appeal to our Supreme Court. Two days later, Appellant filed, with the PCRA court, a pro se document entitled "Motion for New Trial on Grounds of After-Discovered/Newly Discovered Evidence." In that document, Appellant raised claims with respect to all prior counsels' ineffective assistance in handling the gunshot residue results. On April 16, 2012, Appellant filed a pro se "Petition for Writ of Habeas Corpus Ad Subjiciendum" requesting the dismissal of charges against him. On July 17, 2012, the Commonwealth filed a response to Appellant's pro se petitions, asserting that they should be treated as untimely filed PCRA petitions. On August 22, 2012, the Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Preacher, 50 A.3d 692 (Pa. 2012) (table).

On November 27, 2012, the PCRA court issued a notice of intent to dismiss Appellant's PCRA petition pursuant to Pa.R.Crim.P. 907. On December 7, 2012, Appellant filed an amendment to his prior petitions requesting relief under the PCRA. By order dated May 29, 2013, mailed June 1, 2013, and docketed on June 3, 2013, the PCRA court dismissed the petition without a hearing.

On July 1, 2013, Appellant timely filed a notice of appeal and complied with the PCRA court's order to file a concise statement pursuant to Pa.R.A.P. 1925. On appeal, Appellant presents numerous issues for review; however, due to the nature of this case, we focus on the timeliness of the PCRA petition.

The timeliness of a post-conviction petition is jurisdictional. Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa.Super. 2011). Generally, a petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment of sentence is final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition is met. 42 Pa.C.S. § 9545. The exceptions to the timeliness requirement are:

(i) the failure to raise the claim previously was the result of interference of 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 ...

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