Com. v. Lowry, A. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ANDRE LOWRY
Appellant No. 823 WDA 2017
Appeal from the PCRA Order entered May 9, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at Nos: CP-02-CR-0000158-1997,
CP-02-CR-0009751-1997
BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED MAY 22, 2018
Appellant, Andre Lowry, appeals pro se from the order entered May 9,
2017 dismissing his sixth petition under the Post-Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-95. We affirm.
On January 26, 1998, following a jury trial, Appellant was convicted of
first degree murder and other charges. He was sentenced to life
imprisonment. On April 13, 2000, this Court affirmed his judgment of
sentence, and on August 30, 2000, the Pennsylvania Supreme Court denied
his petition for allowance of appeal.
On January 24, 2001, Appellant filed a pro se PCRA petition, after which
counsel was appointed. On February 19, 2002, the PCRA court entered notice
of its intent to dismiss Appellant’s petition, and on January 14, 2003, the
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petition was denied. On appeal, this Court vacated the lower court’s order
dismissing Appellant’s PCRA petition and remanded for the appointment of
new counsel. On remand, new counsel was appointed, and Appellant filed an
amended PCRA petition on July 18, 2007. Following a hearing, the PCRA court
denied Appellant’s petition on November 14, 2008. This Court affirmed on
September 8, 2010.
On September 30, 2010, Appellant filed his second pro se PCRA petition.
On October 28, 2010, the PCRA court issued notice of intent to dismiss this
petition. On November 23, 2010, the PCRA court dismissed Appellant’s
petition as untimely. On September 11, 2011, this Court affirmed.
Between 2012 and 2015, Appellant filed three more PCRA petitions. All
were dismissed without hearings.
On March 15, 2017, Appellant his sixth pro se PCRA petition, the petition
presently under review, claiming that the coroner acted outside of his legal
authority by holding Appellant for trial. On April 27, 2017, the PCRA court
issued a notice of intent to dismiss the petition without a hearing. On May 9,
2017, less than twenty days later, the PCRA court dismissed the petition.
Appellant filed a timely notice of appeal, and both Appellant and the PCRA
court complied with Pa.R.A.P. 1925.
Appellant raises three issues in this appeal:
A. Whether the PCRA court committed reversible error when it
dismissed the pro se Appellant’s PCRA petition, a petition raising
circumstances similar to those in Commonwealth v. Bennett
and pursuant to 42 Pa.C.S. § 9545 (b)(1)(ii), that were never
considered prior to dismissal of his petition?
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B. Whether the PCRA court committed reversible error when it
determined State Senator Jay Costa’s explanation of the
legislative intent of the General Assembly’s construction of the
Coroner’s Statute did not qualify as a new fact under the newly
discovered and previously unknown fact exceptions of the PCRA
statute?
C. Whether coroners are judicial officers, pursuant to Pennsylvania
Constitution Article V, Section 1, the unified judicial system and
State Senator Jay Costa’s explanation of the legislative intent of
the General Assembly’s construction of the Coroner’s Statute?
Appellant’s Brief at 8.
The PCRA court properly dismissed Appellant’s petition as untimely.
PCRA petitions must be filed within one year of the time the judgment of
sentence becomes final. 42 Pa.C.S.A. § 9545(b). The timeliness requirement
of Section 9545(b)(1) is jurisdictional; we cannot address the merits of an
untimely petition. Commonwealth v. Abu Jamal, 941 A.2d 1263, 1267–68
(Pa. 2008). Appellant’s judgment of sentence became final at the end of
November 2000, ninety days after our Supreme Court denied his petition for
allowance of appeal in his direct appeal. 42 Pa.C.S. § 9545(b)(3). Appellant
filed his present petition on March 15, 2017, over sixteen years after his
judgment of sentence became final. Thus, it is untimely on its face.
Furthermore, Appellant’s petition fails to satisfy any of the three
exceptions to the PCRA’s timeliness requirements in 42 Pa.C.S.A. §
9545(b)(1)(i-iii). Appellant attempted to invoke the newly discovered facts
exception, which required him to prove "the facts upon which the claim is
predicated were unknown to the petitioner and could not have been
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ascertained by the exercise of due diligence." 42 Pa.C.S.A. § 9545(b)(1)(ii).
Appellant relied upon a letter received from Candice Corbett, an employee of
Senator Jay Costa, dated January 19, 2017, advising that coroners are not
members of the judiciary and cannot bind persons for trial at preliminary
hearings. Appellant appears to argue that (1) his preliminary hearing was
defective because a coroner held him over for trial instead of a judge, and (2)
his acquisition of knowledge about the coroner’s status is a newly-discovered
“fact,” because he was unaware that coroners lacked the authority to hold
persons for trial until he received Corbett’s letter. We disagree.
Legal principles or developments are “law”; they are not “facts” under
Section 9545(b)(1)(ii). Commonwealth v. Watts, 23 A.3d 980, 987 (Pa.
2011) (“an in-court ruling or published judicial opinion is law, for it is simply
the embodiment of abstract principles applied to actual events. The events
that prompted the analysis, which must be established by presumption or
evidence, are regarded as fact”). Thus, Appellant’s acquisition of knowledge
about the coroner’s legal status merely constitutes a new point of law. It does
not constitute a new “fact” under Section 9545(b)(1)(ii).
For these reasons, the PCRA court properly dismissed Appellant’s sixth
PCRA petition as untimely.1
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1 Technically, the PCRA court’s order dismissing Appellant’s sixth petition was
premature under Pa.R.Crim.P. 907(1), because the court entered its order less
than twenty days after issuing its notice of intent to dismiss the petition.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2018
____________________________________________
Nevertheless, this is not reversible error because the record is clear that the
petition is untimely. Commonwealth v. Zeigler, 148 A.3d 849, 851 n.2 (Pa.
Super. 2016) (failure to issue Rule 907 notice is not reversible error where
record is clear that PCRA petition is untimely).
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