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Commonwealth v. Shaird

Superior Court of Pennsylvania

February 28, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
LUCIUS SHAIRD, Appellant

Appeal from the PCRA Order April 30, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division No(s). CP-51-CR-0304881-1996

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

MEMORANDUM

FITZGERALD, J.

Appellant, Lucius Shaird, appeals pro se from the order entered in the Philadelphia County Court of Common Pleas dismissing, as untimely filed, his fourth petition seeking post-conviction relief.[1] Appellant asserts that he is entitled to relief because his conviction for first-degree murder constitutes a miscarriage of justice in light of the 2011 amendments to Pennsylvania's self-defense statute. See 18 Pa.C.S. § 505, amended by 2011 P.L. 48, No. 10, § 2 (enacted June 28, 2011, effective Aug. 29, 2011) (hereinafter the "2011 amendments"). We affirm.

This Court previously recited the factual and prior procedural history related to Appellant's third PCRA petition. Commonwealth v. Shaird, 2283 EDA 2006 (unpublished memorandum) (Pa. Super. June 4, 2007). It suffices here to note that Appellant was convicted of, inter alia, murder of the first degree and was sentenced to life imprisonment on April 4, 1997. Id. at 2. Following a direct appeal, the conviction became final on November 17, 2000. Id. at 2, 4.

On September 15, 2010, the PCRA court docketed pro se Appellant's fourth petition, which gives rise to this appeal.[2] On August 8, 2011, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss. The court, on April 30, 2013, then entered an order dismissing the September 15, 2010 petition.

On May 28, 2013, Appellant filed a timely notice of appeal, as well as an unsolicited "statement of matters complained of on appeal, " in which he sought relief based on the enactment of the 2011 amendments to the self-defense statute. This appeal followed.

As we previously explained:
"An appellate court's review of an order denying post conviction relief is limited to examining whether the evidence of record supports the determination of the PCRA court and whether the ruling is free from legal error." Commonwealth v. Padden, 783 A.2d 299, 309 (Pa. Super. 2001). "We will not disturb findings of the PCRA court that are supported by the certified record." Id.....
Under the PCRA, any PCRA petition, "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final[.]" 42 Pa.C.S. § 9545(b)(1) (emphasis added). A judgment becomes 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." Id. at § 9545(b)(3). "The PCRA's timeliness requirements are jurisdictional in nature and a court may not address the merits of the issues raised if the PCRA petition was not timely filed." Commonwealth v. Abu-Jamal, 833 A.2d 719, 723-24 (Pa. 2003); see also Commonwealth v. Hall, 771 A.2d 1232, 1234 (Pa. 2001) ("Pennsylvania courts lack jurisdiction to entertain untimely PCRA petitions."). Therefore, when a PCRA petition is filed over one year after the judgment of sentence becomes final, Pennsylvania courts cannot consider the petition unless the petitioner can prove one of the exceptions set forth in 42 Pa.C.S. section 9545(b).
. . . [Appellant]'s sentence became final on or about November 17, 2000, at the conclusion of the period for seeking certiorari to the Supreme Court of the United States. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment becomes 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."); see also Commonwealth v. Wilson, 911 A.2d 942, 945 (Pa. Super. 2006) .....
However, Pennsylvania courts may consider an untimely petition if the appellant can explicitly prove one of the exceptions set forth in the PCRA:
(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 PCRA petition invoking one of these exceptions "shall be filed within 60 days of the date the claim could have been presented." Id. at § 9545(b)(2); Abu-Jamal, 833 A.2d at 724.

Shaird, 2283 EDA 2006 at 3-5.

Instantly, Appellant filed his fourth PCRA petition on September 10, 2010. Specifically, Appellant recited his version of the facts underlying the 1996 incident that led to his conviction, asserted that the jury should have found that he acted in self-defense or defense of others, and challenged alleged errors in the rulings of the trial court.[3] However, Appellant failed to plead or substantiate an exception to the PCRA time-bar.

Appellant presently argues that the untimeliness of his petition should be excused by the enactment of the 2011 amendments to the self-defense statute. However, Appellant first referenced the 2011 amendments in his Pa.R.A.P. 1925(b) statement and failed to preserve any argument based on the 2011 amendments before the PCRA court. See Pa.R.A.P. 302(a); Pa.R.Crim.P. 907; Commonwealth v. Derrickson, 923 A.2d 466, 469 (Pa. Super. 2009). Moreover, although Appellant's argument to this Court focuses on the alleged miscarriage of justice, he fails to develop any argument regarding a time-bar exception under 42 Pa.C.S. § 9545(b)(1)(i)-(iii). See Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (noting court may consider timely serial petition for miscarriage of justice, but has no jurisdiction to address untimely petition). Therefore, we conclude that Appellant has waived his claims that he timely sought PCRA relief based on the 2011 amendments to the self-defense statute and discern no basis to disturb the PCRA court's order.[4]

Order affirmed.

Judgment Entered.


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