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[U] Commonwealth v. Szarewicz

Superior Court of Pennsylvania

March 7, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
STEVEN SZAREWICZ, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order December 18, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008902-1981

BEFORE: PANELLA, OLSON AND WECHT, JJ.

MEMORANDUM

OLSON, J.

Appellant, Steven Szarewicz, appeals, pro se, from the dismissal of his third petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541 et seq. Finding the petition to be untimely, and that no valid exception exists to the time requirements of the PCRA, we affirm.[1]

The underlying facts are not germane to this appeal and we shall not recount them. It will suffice to say that Appellant received a sentence of life in prison for the February 23, 1981 contract killing of William Merriweather.

In the years following his trial, Appellant has filed post-sentence motions, a direct appeal, several habeas corpus and PCRA petitions, and multiple civil actions in a tenacious effort to challenge and/or overturn his conviction and sentence. On at least two prior occasions, this Court has recited the procedural history in this matter. See Commonwealth v. Szarewicz, 53 A.3d 931 (Pa.Super. 2012) (unpublished memorandum); see also Commonwealth v. Szarewicz, 903 A.2d 54 (Pa.Super. 2006) (unpublished memorandum). We incorporate those recitations by reference and set forth below only so much of the procedural history of this case as is relevant to the resolution of this appeal.

Appellant filed his second PCRA petition on October 3, 2007. Ultimately, this petition was assigned to the Honorable Kevin G. Sasinoski who appointed counsel on August 12, 2010. On October 21, 2010, Judge Sasinoski granted counsel's motion for leave to withdraw and issued notice pursuant to Pa.R.Crim.P. 907 of his intention to dismiss the petition. The PCRA court dismissed the petition on December 14, 2010.

Appellant, acting pro se, appealed the dismissal of his second petition on December 21, 2010.[2] After Appellant filed a concise statement under Pa.R.A.P. 1925(b), the PCRA court issued its opinion on April 8, 2011. On June 12, 2012, this Court affirmed the PCRA court's denial of relief, finding that Appellant's second petition was untimely. Commonwealth v. Szarewicz, 53 A.3d 931 (Pa.Super. 2012) (unpublished memorandum) at 11. The Supreme Court denied Appellant's petition for allowance of appeal on October 12, 2012. Commonwealth v. Szarewicz, 55 A.3d 523 (Pa. 2012) (table case).

While litigation proceeded on his second PCRA petition, Appellant, on April 23, 2008, filed a pro se petition for writ of habeas corpus in the Court of Common Pleas of Westmoreland County. (It is from this third petition for PCRA relief that the present appeal emerges.) As in his second PCRA petition, Appellant claimed in his third petition that he was serving an illegal sentence because a jury instruction on accomplice liability was erroneous. This petition was denied on May 28, 2008. Thereafter, Appellant filed a pro se notice of appeal with this Court docketed at 813 WDA 2009.[3] On March 2, 2010, a panel of this Court remanded the 813 WDA 2009 case to the Court of Common Pleas of Westmoreland County and directed it to transfer the case to the Court of Common Pleas of Allegheny County. Following a request from Appellant, on December 5, 2011, by per curiam order, this Court directed the Court of Common Pleas of Allegheny County to "confirm and process" in due course Appellant's state habeas corpus petition.

After resolution of the appeal at 1965 WDA 2010, the certified record was remanded on December 3, 2012. On December 18, 2012, Judge Sasinoski considered, within the context of the PCRA, the petition transferred from Westmoreland County and denied relief. Appellant filed a timely notice of appeal and, pursuant to an order of court, submitted a Rule 1925(b) concise statement. Judge Sasinoski issued an opinion on September 23, 2012.

Appellant raises the following claims in his brief:
Did the [PCRA] court commit an abuse of discretion or an error of law by issuing an order of court when jurisdiction over the case existed with [the Superior Court]?
Did Judge Sasinoski error [sic] by failing to recuse from the below proceedings as the Judge issued rulings while under ...

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