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[U] Commonwealth v. Mearion

Superior Court of Pennsylvania

February 19, 2014



Appeal from the PCRA Order Entered September 30, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1121431-1981




Appellant, Thurman W. Mearion, filed a pro se, nunc pro tunc appeal from the trial court's September 30, 2011 order denying as untimely his second petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After review, we agree with the PCRA court that Appellant's petition is untimely and meets no exception to the PCRA's timeliness requirement. Therefore, we affirm.

The relevant facts and procedural history of this case are as follows. On April 21, 1983, following a jury trial, Appellant was convicted of first-degree murder and possessing an instrument of crime. He was sentenced that same day to life imprisonment. Appellant's convictions stemmed from the October 5, 1981, murder of Kenneth Harris in the Germantown section of Philadelphia.

Appellant filed a timely direct appeal and this Court affirmed. Commonwealth v. Mearion, 495 A.2d 613 (Pa.Super. 1985). He then filed a petition for permission to appeal to our Supreme Court, which the Court initially granted, but then later dismissed. Commonwealth v. Mearion, 500 A.2d 805 (Pa. 1985) (granting petition for allowance of appeal); Commonwealth v. Mearion, 516 A.2d 1384 (Pa. 1986) (dismissing appeal as improvidently granted).

On January 3, 1991, Appellant filed his first pro se PCRA petition and counsel was appointed. The PCRA court ultimately denied that petition. After this Court affirmed on appeal, our Supreme Court denied Appellant's petition for permission to appeal. Commonwealth v. Mearion, 678 A.2d 831 (Pa.Super. 1996), appeal denied, 683 A.2d 879 (Pa. 1996).

Appellant filed his second pro se PCRA petition, which underlies the instant appeal, on September 7, 2010.[1] On August 5, 2011, the PCRA court notified Appellant of its intent to dismiss his petition in accordance with Pa.R.Crim.P. 907. Appellant filed a pro se response, but on September 30, 2011, the PCRA court issued an order dismissing Appellant's petition as untimely. Appellant did not file a notice of appeal within 30 days of the date of that order. Instead, on April 16, 2012, he filed another pro se PCRA petition seeking the restoration of his appeal rights nunc pro tunc, which the PCRA court granted.

Appellant subsequently filed a notice of appeal nunc pro tunc. He presents two questions for our review:

1. Did the PCRA [c]ourt err, in stating [Appellant] failed to properly raise an exception to the time line requirement of the [PCRA, ] 42 Pa.C.S.A. [§] 9545(b)(1)(ii) [and] (b)(2)[?]
2. Did the PCRA [c]ourt err, in the denial of [Appellant's] PCRA petition basing its denial on matters not included within the record[?]

Appellant's Brief at 3.

To begin, we note that this Court's standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).

Because the PCRA time limitations implicate our jurisdiction and may not be altered or disregarded in order to address the merits of a petition, we must start by examining the timeliness of Appellant's petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our jurisdiction and may not be altered or disregarded to address the merits of the petition); Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa.Super. 2002) (holding the Superior Court lacks jurisdiction to reach merits of an appeal from an untimely PCRA petition). Under the PCRA, any petition for post-conviction relief, including a second or subsequent one, must be filed within one year of the date the judgment of sentence becomes final, unless one of the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of these exceptions "shall be filed within 60 days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).

Here, Appellant's judgment of sentence became final on February 10, 1987. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking the review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa.Super. 1998) (directing that under the PCRA, petitioner's judgment of sentence becomes final ninety days after our Supreme Court rejects his or her petition for allowance of appeal since petitioner had ninety additional days to seek review with the United States Supreme Court). Thus, Appellant's petition, filed over 20 years after his judgment of sentence became final, is patently untimely, and we must assess whether he has pleaded and proven the applicability of any of the above-stated exceptions.

In Appellant's pro se PCRA petition, he alleged that his petition satisfied the after-discovered fact exception of section 9545(b)(1)(ii). Namely, Appellant claimed that on July 12, 2010, he discovered a

document show[ing] that a firearm was discharged under Rule 6013 on 6-11-82.[2] This same firearm was submitted as evidence against [Appellant] in a murder trial on 5-14-82. This information would have exonerated [Appellant] at trial and proven his actual innocence as [Appellant] has alleged throughout.

Appellant's PCRA Petition, 9/7/10, at 3.

In the PCRA court's opinion accompanying its order dismissing Appellant's petition, the court restated Appellant's claim as follows:

[Appellant] alleges that the firearm used in the murder that was introduced as evidence on May 14, 1982[, ] was reported as being discharged on June 11, 1982. [Appellant] believes this fact illustrates his actual innocence. In order to substantiate his claim[, Appellant] attached a criminal transcript from Philadelphia Municipal Court to his PCRA petition which shows that a motion under rule 6013 was granted. Rule 6013 explains that defendants are entitled to a prompt trial in Municipal court, specifically regarding retrials.

PCRA Court Opinion, 10/5/11, at 2-3.

The PCRA court then rejected Appellant's argument that his acquisition of this document satisfied the after-discovered fact exception, stating:

[Appellant's] alleged errors are convoluted, underdeveloped and do not expressly indicate any actual after-discovered evidence. The exhibit [Appellant] attaches merely shows that a firearm was discharged on June 6, 1982 after [Appellant's] trial on May 14, 1982. The paperwork [Appellant] presents does not illustrate whether the gun was physically discharged from the court or whether it was physically shot following its introduction as evidence. [Appellant] purports that this evidence would have exonerated him if it [had been] presented at trial. However, no where [sic] in his petition does [Appellant] fully explain what this paperwork illustrates or how it relates to an error during trial. Furthermore, the one page exhibit does not reflect any cognizable after-discovered evidence. Therefore[, Appellant's] evidence does not constitute after-discovered evidence that would have changed the outcome of trial.


We agree with the PCRA court that Appellant's claim is confusing and underdeveloped. On appeal, Appellant simply reiterates that he discovered a document showing that "a firearm was discharged" on June 11, 1982, and that "[t]his same firearm was submitted as evidence against [Appellant] in [his] murder trial" on May 14, 1982. Appellant's limited discussion is insufficient to explain how this document calls into question the legality of his conviction or the fairness of his trial. Moreover, Appellant does not state why he could not have discovered this evidence earlier had he exercised due diligence. Accordingly, Appellant has not proven that this document constitutes an 'after-discovered fact' triggering the exception set forth in section 9545(b)(1)(i). The PCRA court did not err in dismissing Appellant's petition as untimely.

Order affirmed.

Judgment Entered.

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