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### -S38037-19 NON-PRECEDENTIAL DECISION - SEE 

### SUPERIOR COURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
JAMES RUSHING 

### Appellant : No. 964 EDA 2019 Appeal

### from the PCRA Order Entered March 7, 2019 In the Courtof Common Pleas

### of Delaware County Criminal Division at No(s): 

### CP-23-CR-0001801-2015 BEFORE: OTT, J., DUBOW, J., and COLINS*, J. MEMORANDUM BY COLINS, J.: 

### FILED JULY

### 30, 2019 Appellant, James Rushing, 

### pro se, appeals 

### from the order entered March 7, 2019,

### thatdismissed his

### first petition filed underthe Post Conviction ReliefAct ("PCRA")1 

### without a hearing. We 

### affirm. On 

### August 17, 2015, 

### Appellant pleaded 

### guilty to two counts of criminal trespass and one 

### count each of: persons not to possess, use, 

### manufacture, control, sell or 

### transfer firearms; and possession of 

### firearm with altered 

### manufacturer's number.2 On the same day, he was sentenced to 48 to 96 

### months of 

### confinement. Appellant did not file post-sentence 

### motions or a 

### direct appeal.

1 42 Pa.C.S. §§ 

### 9541-9546.

2 18 Pa.C.S. §§ 

### 3503(a)(1)(ii), 6105(a)(1), and 

### 6110.2(a), respectively. Retired Senior Judge assigned to the Superior Court.J

### -S38037-19
On 

### August 14, 2018, 

### Appellant filed his 

### first, pro se PCRA 

### petition, contending 

### that his 

### arresting officer perjured himself in the 

### affidavit of probable cause attached to the criminal complaint. The 

### petition pleaded 

### that 

### "[a] contrary 

### [fact] to 

### [those in

### the] affidavit was made known to 

### [Appellant] by the 

### [Delaware CountyDaily] Times newspaper article from 

### 12-18-14 

### that [he] received 

### from a 

### family member on 

### 6-18-18 which led to 

### further research and 

### understanding of 

### [his] 

### discovery[.]" PCRA Petition, 

### 8/14/2018, at4. The 

### petition alleged

### thatthe facts reported inthe newspaper

### article and the factual 

### averments in 

### the 

### affidavit of probable cause "as to 

### what lead to 

### [Appellant's] whereabouts, description and 

### apprehension" are 

### contradictory and 

### thatthe arresting 

### officer hence 

### committed perjury. 

### Id. Appellant concedes 

### that his 

### petition is 

### untimely but argues 

### that it qualifies 

### forthe 

### "after-discovered 

### evidence" exception to the PCRA

### time bar, because the following facts were unknown to him: 

### "That the arresting 

### officer/sworn affiant committed perjury and 

### intentionally provided 

### untrue allegations on the face of

### their affidavit as to 

### what

### truly led to 

### [Appellant's] apprehension on 

### 12-17-14 and 

### that the prima facie is not 

### fact but false and 

### invalid." 

### Id. at 3. On 

### August 21, 2018, the PCRA 

### court appointed counsel to 

### represent Appellant. OnJanuary31, 2019, PCRAcounsel filed a 

### motion to 

### withdrawand

a "no

### merit"letter pursuantto 

### Commonwealth v.

### Turner, 544 A.2d 927 (Pa. 

### 1988), and 

### Commonwealth v. 

### Finley, 550 A.2d 213 (Pa. Super. 1988) (en 

## -2J

### -S38037-19 banc). PCRA counsel sent a copy of both his 

### motion to 

### withdraw and 

### "no 

### merit" letter to 

### Appellant; the "no 

### merit" letter informed 

### Appellant

### that, if he 

### "wishes to address 

### [the PCRA 

### c]ourt concerning the issues raised 

### within this Motion, any issues discussed 

### within this letter, or any 

### other issues, he 

### must do so now 

### either on his own or 

### through a 

### privately retained 

### attorney." "No 

### Merit" Letter, 

### 1/31/2019, at 4. On February 5, 2019, the PCRA 

### court granted counsel's 

### motion to 

### withdraw and entered a notice

### of 

### intentto dismiss all claims

### without a hearing 

### pursuant to Pa.R.Crim.P. 907. 

### Appellantfiled a response. The response did not 

### request to amend the PCRA 

### petition. On March 7, 2019, the PCRA 

### court dismissed 

### Appellant's petition. The PCRA 

### court concluded 

### that it lacked 

### jurisdiction, because the petition was 

### untimely and failed to 

### satisfy an exception to the PCRA's 

### time bar. On March 18, 2019, 

### Appellantfiled 

### this

### timely appeal.3

3 On March 19, 2019, the PCRA 

### court ordered 

### Appellant to file a concise 

### statement of errors complained of on appeal 

### pursuant to Pa.R.A.P. 

### 1925(b) within 21 days 

### ofthe date 

### ofthe order. The 

### order stated: "This 

### Statement must be served upon the 

### court pursuant to 

### 1925(b)(1) and 

### must also be 

### filed of record."Order, 

### 3/19/2019, at 11 1 (emphasisadded). No concise

### statementappears in thecertified record or is listed on thedocket. However, the PCRA 

### court quotes a concise 

### statement in its opinion dated April 29, 2019. PCRA Court Opinion, filed April 29, 2019, at 2-4. Thus, we believe 

### thatAppellant mailed his concise 

### statement directly to the chambers ofthe PCRA 

### courtjudge and never filed it on the record. Nevertheless, we choose not to find 

### waiverfor failure to file 

### the concise 

### statement of record, because the PCRA 

### court judge received a copy 

### of it and was aware of the challenges being raised by

### Appellantwhen 

### writing the 

### court's opinion.

- 3 -J

### -S38037-19 Appellant presentsthe following issues

### for our review: A) Is 

### perjury an 

### illegality? B) Isfraud an 

### illegality? C) Does 

### perjury and fraud used to obtain evidence, 

### taints the evidence? D) Does 

### perjury and fraud used to obtain a plea, 

### taints the plea? E) Does 

### perjury and fraud used to obtain a 

### conviction, 

### taints the conviction? F) Is 

### perjury and fraud used to 

### restrain ones 

### liberty a 

### direct violation of the United States 

### Constitutional Laws and Laws 

### of Pennsylvania's Commonwealth? G) Is known to be false 

### testimony presented by a 

### witness and allowedto go uncorrected consistent 

### withthe

### affirmative duties of a prosecutor? H) Is known to be false 

### testimony presented by a witness and allowed to go 

### without objection consistent with the duties of a 

### competent defense counsel? 

### I) Is known to be false evidence 

### intentionally presented, misrepresented and misleading to a Court a 

### "fraud upon the Court", 

### "the

### jury" and 

### "the people of

### this Commonwealth"? J) Is an 

### arrest, evidence, plea and 

### conviction obtained result ofan 

### illegalityto be considered null and void? K) Should 

### this case and its 

### entirety be vacated and or granted a new

### trial result ofthe obvious 

### "fraud upon the Court", which is an 

### illegality 

### thatwas 

### committed in 

### the infancyofthis matter? Appellant's Briefat 7 (suggested answers 

### omitted). "We reviewthe denial of PCRA 

### reliefto decide

### whetherthe PCRA 

### court's factualdeterminations are

### supported bythe record and are

### freeof legal

### error." 

### Commonwealth v. 

### Medina, 2019 PA Super 119, 

### *8 (filed April 17, 

### 2019) (quoting 

### Commonwealth v. 

### Brown, 196 A.3d 130, 150 (Pa. 

### 2018)). 

## -4J

### -S38037-19 Preliminarily, we 

### mustdetermine 

### whetherthis appeal is 

### properly before
us. The 

### timeliness of a post

### -conviction petition is 

### jurisdictional. 

### Commonwealth v. 

### Hernandez, 79 A.3d 649, 651 (Pa. Super. 

### 2013). Generally, a 

### petition for relief under the PCRA, including a second or subsequent 

### petition, must be filed 

### within one

### year ofthe date the

### judgment of sentence is 

### final, unless 

### the petition alleges and the 

### petitioner proves one of the 

### three exceptions to the 

### time limitations forfiling the petition set

### forth in section 

### 9545(b) ofthe

### statute. See 42 Pa.C.S. § 

### 9545(b)(1).4 Any 

### petition attempting to invoke these exceptions "shall be filed 

### within 60 days 

### of the datethe claim could have been 

### presented." 

### Id. § 

### 9545(b)(2).5

4 The 

### three exceptions to 

### the timeliness requirement are: (i) the 

### failure to raise the claim previously was 

### the result of 

### interference by 

### government officials with the presentation of the claim in

### violation ofthe

### Constitutionor lawsof

### this Commonwealth orthe 

### Constitution or laws 

### ofthe United 

### States; (ii) the facts upon which

### the claim is predicated were unknown to the 

### petitionerand could not have been ascertained by

### theexercise ofdue 

### diligence; or 

### (iii) the 

### rightasserted is a

### constitutional right

### thatwas recognized bythe Supreme Courtofthe United States or the Supreme 

### Court of Pennsylvania 

### after the 

### time period provided in 

### this section and has been held by

### thatcourt to 

### apply retroactively. 42 Pa.C.S. § 

### 9545(b)(1)(i)-(iii).

5 Section 3 

### ofAct2018, Oct. 24, P.L. 894, No. 146, changed the 

### timeframe of 42 Pa.C.S. § 

### 9545(b)(2) from 60 days to one year. The change was

### effective on December 24, 2018, and applied 

### retroactively to claims arising on December 24, 2017, or 

### thereafter. Appellant's instant PCRA 

### petition is 

## -5J

### -S38037-19
In the

### current action,Appellant's

### judgmentofsentencebecame final 30 days 

### after his sentencing 

## - i.e., 30 days 

### after August 17, 2015, which was 

### September 16, 2015. Pa.R.A.P. 

### 903(a). Appellant had one

### year

### thereafterto file a PCRA 

### petition

## -i.e., untilSeptember 16, 2016. 42 Pa.C.S. § 

### 9545(b)(1). Appellant filed the 

### current petition on

### August 14, 2018, morethan 22 

### months late. 

### Therefore, Appellant's petition was 

### patently untimely. In his PCRA 

### petition,Appellantattempted to 

### circumventthe 

### time bar by asserting the 

### "after-discovered 

### evidence" exception under subsection 

### 9545(b)(1)(ii). PCRA Petition, 

### 8/14/2018, at 3. Nonetheless, 

### Appellant makes no 

### argument about the PCRA 

### time bar in his 

### brief to 

### this Court and 

### therefore hasabandoned any claim

### that his 

### petition qualifiesfor an exception to the

### time bar. Assuming we were to analyze the exception raised in 

### Appellant's PCRA 

### petition, we would still find 

### that the exception pursuant to 42 Pa.C.S. § 

### 9545(b)(1)(ii) was inapplicable to 

### Appellant's claim. "The 

### timeliness exception set 

### forth in Section 

### 9545(b)(1)(ii) requires a 

### petitioner to 

### demonstrate he did not know the facts upon which he based his 

### petition and could not have learned those facts 

### earlier by 

### the exercise of due 

### diligence." 

### Commonwealthv. 

### Fennell, 180 A.3d 778, 782 (Pa. Super. 

### 2018) (en banc) 

### (citation 

### omitted). Appellant's petition is predicated upon a newspaperarticle
predicated upon an 

### article dated December 18, 2014. Thus,the expansion of 

### time to file a claim to one

### year does not 

### applyto 

### the instant petition.

- 6 -J

### -S38037-19
dated December 18, 2014, 

### priorto

### Appellant's 

### guilty plea. 

### Appellant hasfailed to 

### demonstratewhy he could not have learned of facts 

### publically available in

a 

### community newspaper by the exercise of due diligence. 

### Id. Additionally, Appellant's PCRA 

### petition from August 2018 was 

### clearly not filed 

### within 60 days 

### ofthe date 

### the claim based upon the December 2014 

### article 

### first could have been presented as required by 42 Pa.C.S. § 

### 9545(b)(2). Consequently, the PCRA 

### court was 

### withoutjurisdiction to review the 

### merits of Appellant's claim and 

### properlydismissed his 

### petition.6 Having discerned no 

### error of law, we 

### affirm the 

### order below. 

### See 

### Medina, 2019 PA Super 119, 

### *8. Order

### affirmed. Judgment Entered.


### Jseph D. 

### Seletyn, Prothonotary

Date: 

### 7/30/19

6Assuming 

### arguendo

### that the PCRA 

### petition were not

### time-barred, Appellant would still not be 

### entitled to 

### relief, because the December 2014 newspaper article on which his claim is founded is not admissible evidence. 

### See 

### Commonwealth v. 

### Castro, 93 A.3d 818, 823, 826 (Pa. 

### 2014) ("newspaper articles generally do not 

### constitute evidence because 

### they are 

### largely comprised of inadmissible 

### hearsay"; allegations in a newspaper article are 

### "merely one 

### reporter's version of a 

### story; indeed, it is double hearsay, as it is the 

### reporter relaying 

### what he or she has been told by

### another person").

- 7 -