Com. v. Bicking, G. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
GUY JOSEPH BICKING :
:
Appellant : No. 1557 MDA 2017
Appeal from the PCRA Order September 25, 2017
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000208-1987
BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED MAY 04, 2018
Appellant, Guy Joseph Bicking, appeals pro se from the order entered in
the Lackawanna County Court of Common Pleas, which dismissed as untimely
his third petition filed under the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. On November 19, 1987, a jury convicted Appellant
of first-degree murder. The court sentenced Appellant on June 18, 1988, to
life imprisonment. This Court affirmed the judgment of sentence on June 12,
1990, and our Supreme Court denied allowance of appeal on January 15,
1991. See Commonwealth v. Bicking, 579 A.2d 415 (Pa.Super. 1990),
appeal denied, 526 Pa. 653, 586 A.2d 922 (1991). From 1992 to 2014,
Appellant filed two unsuccessful petitions for collateral relief. On March 7,
2017, Appellant filed the current pro se PCRA petition. The court appointed
counsel and held a PCRA hearing on August 17, 2017. On September 25,
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2017, the court denied relief. Appellant timely filed a pro se notice of appeal
on October 6, 2017.1 No Pa.R.A.P. 1925(b) statement was ordered or filed.
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition must be filed within one year of the date the underlying
judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is “final” at
the conclusion of direct review or at the expiration of time for seeking review.
42 Pa.C.S.A. § 9545(b)(3). The exceptions to the PCRA time-bar allow for
limited circumstances under which the late filing of a petition will be excused;
a petitioner asserting an exception must file a petition within 60 days of the
date the claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(1-2).
The “newly-discovered fact” exception at Section 9545(b)(1)(ii) requires a
petitioner to plead and prove he: (1) did not know the fact(s) upon which he
based his petition; and (2) could not have learned those fact(s) earlier by the
exercise of due diligence. Commonwealth v. Shiloh, 170 A.3d 553(Pa.Super. 2017). Due diligence requires the petitioner to take reasonable
steps to protect his own interests; this rule is strictly enforced. Id. at 558.
Instantly, Appellant’s judgment of sentence became final on April 15,
1991, upon expiration of the time for filing a petition for writ of certiorari with
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1The PCRA court allowed Appellant to proceed pro se on appeal after a hearing
per Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998) (holding
court must determine on record that indigent defendant wants to proceed pro
se, to ensure waiver of counsel is knowing, intelligent and voluntary).
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the U.S. Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the current
PCRA petition on March 7, 2017, which is patently untimely. See 42 Pa.C.S.A.
§ 9545(b)(1). Appellant now attempts to invoke the Section 9545(b)(1)(ii)
“newly-discovered fact” exception, claiming: he received a newspaper article
in 1989, indicating police seized multiple weapons from 1526 Mulberry Street;
one of the Commonwealth’s eyewitnesses in Appellant’s case, Mr. Rogers,
went to 1526 Mulberry Street after the January 10, 1987 murder; Appellant
theorized Mr. Rogers was the shooter and stashed the murder weapon at 1526
Mulberry Street; no murder weapon was recovered in Appellant’s case but a
ballistics report showed the bullet could have been fired by one of eight types
of guns; Appellant wanted a copy of the police report to see which types of
guns were seized from Mulberry Street but his legal research indicated it was
undiscoverable under the old and new Right to Know Law;2 Appellant tried to
hire a private investigator but he was unable to; Appellant “gave up” and “let
it go” because “there was nothing else to do”; at some point, Appellant’s sister
found the 1989 newspaper article and urged Appellant to continue his efforts;
Appellant filed a civil lawsuit against the Scranton Police Department on
October 13, 2015, requesting the police report; the City Solicitor responded
on February 7, 2017, with a copy of the report, which stated various guns
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2See Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104. The new
Right to Know Law repealed the former Right to Know Law, Act of June 21,
1957, P.L. 390, as amended, formerly 65 P.S. §§ 66.1-66.4.
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were seized from 1526 Mulberry Street, some of which are consistent with the
type of murder weapon in Appellant’s case; and Appellant filed this PCRA
petition within 60 days of receiving the report. Nevertheless, Appellant does
not explain how he was able to obtain the police report if the Right to Know
Law did not afford him relief. Appellant did not attach to his PCRA petition
any documents from his civil lawsuit against the Police Department. At the
PCRA hearing, Appellant said he ultimately filed a mandamus action to compel
the Police Department to supply the report, but Appellant failed to explain why
he could not have pursued mandamus relief sooner. Under these
circumstances, Appellant has not shown the due diligence needed to meet the
asserted timeliness exception. See Shiloh, supra. Thus, Appellant’s petition
remains untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2018
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