J-S10027-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ROGER BIEROS Appellant No. 1572 EDA 2014

Appeal from the PCRA Order entered April 24, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0706111-2000

BEFORE: GANTMAN, P.J., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.: FILED APRIL 17, 2015 Appellant, Roger Bieros, appeals from the April 24, 2014 order of the Court of Common Pleas of Philadelphia County denying relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

The PCRA court adequately summarized the factual and procedural background of this case. Briefly, in 1999, Appellant was charged with attempted murder, aggravated assault, and possession of an instrument of crime. Throughout the pre-trial motion proceedings and trial, Appellant represented himself. On July 24, 2001, a jury convicted Appellant of all charges. On January 29, 2002, Appellant was sentenced to an aggregate ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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sentence of 12½ to 25 years of incarceration. Appellant did not appeal the sentence.

On February 6, 2003, Appellant filed first PCRA petition, which the PCRA court granted on October 7, 2004, reinstating his direct appeal rights.

After filing his direct appeal, Appellant petitioned for withdrawal of appointed counsel. After remand for a Grazier1 hearing, counsel was permitted to withdraw and Appellant was allowed to proceed pro se. This Court affirmed the judgment of sentence on April 7, 2008, and denied his request for reconsideration, on May 19, 2008. Appellant did not petition the Supreme Court for allowance of appeal.

On October 6, 2011, Appellant filed the instant pro se petition.

Counsel was appointed on February 28, 2012. On April 11, 2014, Appellant filed a motion to proceed pro se. The PCRA court dismissed the petition as untimely, without holding a hearing, on April 24, 2014. This appeal followed.

On appeal, Appellant argues the PCRA court erroneously dismissed his petition without holding a hearing. Specifically, Appellant argues the PCRA court erred in “reject[ing] [his] petition based solely on the statute of limitations.” Appellant’s Brief at 10. According to Appellant, the PCRA court should have held “an evidentiary hearing to determine the material issues of ____________________________________________

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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fact that the Appellant raised relating to the effects of his medication on him and on [sic] his case.” Id. There is no dispute the instant petition is facially untimely. The only question is whether Appellant alleged and established the newly discovered facts exception (i.e., effects of medication on Appellant).2 Upon consideration of the record, the briefs, and the applicable law, we conclude the PCRA court properly dismissed the instant petition as untimely.

Specifically, we agree with the PCRA court’s analysis and conclusion that Appellant failed to establish that the side effect of the medication was previously unknown to him and that it could not have been discovered by ____________________________________________

As we stated in Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010): 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.

Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 1271 (2007). Due diligence demands that the petitioner take reasonable steps to protect his own interests. Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001). A petitioner must explain why he could not have obtained the new fact(s) earlier with the exercise of due diligence. Commonwealth v. Breakiron, 566 Pa. 323, 330-31, 781 A.2d 94, 98 (2001); Commonwealth v. Yarris, 557 Pa. 12, 29, 731 A.2d 581, 590 (1999). This rule is strictly enforced. See [Commonwealth v.] Vega, [754 A.2d 714,] 718 [(Pa. Super. 2000)]. Id. at 1080

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the exercise of due diligence. The instant petition is, therefore, untimely, as Appellant fails to establish that the newly discovered facts exception applies in this matter.

Additionally, the PCRA court did not err in dismissing the petition without a hearing. See Commonwealth v. Marshall, 947 A.2d 714, 723 (Pa. 2008). (“As explained supra, we have concluded that [a]ppellant’s petition was untimely, and accordingly the PCRA court properly determined that it had no jurisdiction to entertain it. We therefore also must conclude that the PCRA court did not err in dismissing [a]ppellant’s petition without a hearing.”).

Because we dispose of this appeal on the basis of the PCRA court’s Rule 1925(a) opinion authored by the Honorable Genece E. Brinkley, we direct that a copy of the PCRA court’s August 1, 2014 Rule 1925(a) opinion be attached to any future filings in this case.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/17/2015

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