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[U] Commonwealth v. Mearion

Superior Court of Pennsylvania

February 19, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
THURMAN W. MEARION, Appellant

NON-PRECEDENTIAL DECISION

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

BEFORE: BENDER, P.J., SHOGAN, J., and FITZGERALD, J. [*]

MEMORANDUM

BENDER, P.J.

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 ...


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