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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

DAVID LUSICK

                            Appellant                 No. 2160 EDA 2015


                   Appeal from the PCRA Order May 22, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0321881-1993,
                             CP-51-CR-100011-1992


BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 12, 2016

        David Lusick appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, dismissing his petition filed pursuant to the

Post Conviction Relief Act (PCRA).1 Upon review, we affirm.

        Following a jury trial, Lusick and his girlfriend were convicted of

criminal conspiracy, involuntary deviate sexual intercourse, indecent assault,

and corruption of minors. On January 18, 1995, Lusick was sentenced to an

aggregate term of 12 to 35 years’ imprisonment.          Lusick’s sentence was

affirmed on direct appeal, and his petition for allowance of appeal was

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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denied by the Pennsylvania Supreme Court on November 1, 1996.            Lusick

filed a timely first PCRA petition that was subsequently denied. After this

Court affirmed the PCRA court’s ruling, the Pennsylvania Supreme Court

denied Lusick’s petition for allowance of appeal on December 26, 2003.

Lusick filed a second PCRA petition on November 18, 2009. This Court again

affirmed the PCRA court, and the Pennsylvania Supreme Court denied

Lusick’s petition for allowance of appeal on June 26, 2012.

        Lusick filed the instant pro se PCRA petition, his third, on October 17,

2014. After issuing a notice pursuant to Pa.R.Crim.P. 907, the PCRA court

dismissed the petition without a hearing on May 22, 2015.           Thereafter,

Lusick filed a timely notice of appeal.2 On appeal, Lusick raises the following

issues, verbatim:

        1. Whether [the] PCRA time bar is valid when [the] lower court
           judge is in want of jurisdiction to enhance petitioner’s
           sentence based on Brady[3] violations and non-disclosure of
           materially false testimony of [Assistant District Attorney]
           Elizabeth Varki Jobes?

        2. Whether a miscarriage of justice has occurred?

        3. Whether mandatory minimums based on fraud and non-
           dis[c]losure of ADA Jobes is retroactive?

Brief of Appellant, at 3.

____________________________________________


2
  Although the PCRA court did not order Lusick to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), Lusick did so
on July 20, 2015.
3
    Brady v. Maryland, 373 U.S. 83 (1963).



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      Our standard and scope of review regarding the denial of a PCRA

petition is well-settled.   We review the PCRA court’s findings of fact to

determine whether they are supported by the record, and review its

conclusions of law to determine whether they are free from legal error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level. Id.

      In order to be considered timely,

      [a] PCRA petition, including a second or subsequent one, must
      be filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S. § 9545(b)(1).           A
      judgment becomes final at the conclusion of direct review by
      [the Pennsylvania Supreme] Court or the United States Supreme
      Court, or at the expiration of the time for seeking such review.
      42 Pa.C.S. § 9545(b)(3). The PCRA’s timeliness requirements
      are jurisdictional; therefore, a court may not address the merits
      of the issues raised if the petition was not timely filed. The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and

footnote omitted).

      The three statutory exceptions for an untimely petition under the PCRA

consist of the following:

      (i) the failure to raise the claim previously was the result of
      interference by government officials with the presentation of the



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       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). Additionally, a petition invoking a timeliness

exception pursuant to the statute must “be filed within 60 days of the date

the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

       Here, Lusick’s petition for allowance of appeal in our Supreme Court

was denied on November 1, 1996.                Thus, his sentence became final on

January 30, 1997, upon the expiration of the ninety-day period for filing a

writ of certiorari with the United States Supreme Court. See 42 Pa.C.S. §

9545(b)(3); Sup. Ct. R. 13. Lusick therefore had until January 30, 1998, to

file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1). Because Lusick

did not file the instant PCRA petition until October 17, 2014, it is untimely on

its face.

       Lusick fails to plead or prove a timeliness exception as to his claims

regarding alleged Brady violations.4           However, Lusick asserts the newly-


____________________________________________


4
  Lusick’s brief fails to provide a coherent argument regarding the alleged
violations. However, Lusick appears to assert that the Honorable Paula
Pryor Dembe, who presided over his trial and sentencing, was biased and
(Footnote Continued Next Page)


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recognized constitutional right exception in section 9545(b)(1)(iii) with

respect to his mandatory minimum sentence claim.                 Lusick bases his

argument on our decision in Commonwealth v. Newman, 99 A.3d 86 (Pa.

Super. 2014) (holding mandatory minimum sentence for certain drug

offenses committed with firearms unconstitutional pursuant to dictates of

Alleyne v. United States, 133 S.Ct. 2151 (2013) (any fact increasing

mandatory minimum sentence for crime is “element” of crime that must be

submitted to jury)).

      We note, however, that Alleyne has not been held to have retroactive

effect in the context of an untimely PCRA petition. See Commonwealth v.

Ruiz, 131 A.3d 54, 58 (Pa. Super. 2015) (it has been “settled that Alleyne

does not invalidate a mandatory minimum sentence when presented in an

untimely PCRA petition”).         Accordingly, Lusick has not satisfied the newly-

recognized constitutional right timeliness exception.

      Finally, we note that Lusick was not actually sentenced to any

mandatory minimum sentences. Thus, even if he had satisfied a timeliness

exception as outlined above, Lusick is not entitled to relief.

      Order affirmed.




                       _______________________
(Footnote Continued)

that ADA Elizabeth Varki Jobes had a personal relationship with the victims
and their biological father that was not disclosed prior to sentencing.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2016




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