J-S74029-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MICHAEL O. ANDREWS
Appellant No. 2986 EDA 2017
Appeal from the PCRA Order August 15, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-1006871-1995
BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED MARCH 15, 2019
Appellant, Michael O. Andrews, appeals from an order dismissing his
fourth petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§
9541-46, as untimely. We affirm.
On September 19, 1995, Appellant shot and killed Jamal Pettis following
a heated argument. On November 22, 2000, a jury found Appellant guilty of
second degree murder, robbery and possession of an instrument of crime. On
January 25, 2001, the trial court sentenced him to life imprisonment.
Appellant filed a direct appeal, which this Court dismissed on March 28, 2001
for failure to file a brief.
On August 28, 2002, Appellant filed a PCRA petition seeking
reinstatement of his direct appeal rights. The PCRA court granted his petition.
Appellant filed a direct appeal, and this Court affirmed in a memorandum J-S74029-18
issued on March 22, 2004. Commonwealth v. Andrews, 276 EDA 2003 (Pa.
Super., Mar. 22, 2004).
Appellant’s first claim of error on direct appeal was that “the trial court
erred when it sustained [the] Commonwealth’s objection and ‘admonished’
Appellant not to address the jury.” Id. at 4. This incident took place during
Appellant’s testimony, when instead of answering his attorney’s question, he
turned to the jury and asked “Y’all get a good look at this?” referring to a
photograph of the scene of the shooting. The Commonwealth objected and
asked the court to instruct Appellant not to address the jury. The court stated:
“Yes, please do not do that.” Trial counsel never objected. Due to trial
counsel’s silence, this Court held that Appellant waived this issue. Id.
Appellant’s second claim of error was that the Commonwealth
committed prosecutorial misconduct by stating in its closing argument that
Appellant was a thief and a criminal. Once again, we held that this issue was
waived because trial counsel did not lodge an objection. Id. at 5. We
“dismiss[ed] this issue without prejudice to Appellant to raise it in a PCRA
petition.” Id. at 9.
Appellant did not file a petition for allowance of appeal in the Supreme
Court. Thus, his judgment became final for PCRA purposes on April 21, 2004,
the deadline for filing his petition for allowance of appeal.
In 2005, 2008, and 2012, Appellant filed PCRA petitions, none of which
resulted in relief. On March 11, 2015, Appellant filed the PCRA petition
presently under review, his fourth since his direct appeal. On May 9, 2017,
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Appellant filed an amended PCRA petition through counsel. On June 14, 2017,
the PCRA court issued notice of its intent to dismiss the petition without a
hearing pursuant to Pa.R.Crim.P. 907. On August 15, 2017, the PCRA court
dismissed his petition. Appellant filed a timely appeal, and both Appellant and
the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises three issues in this appeal:
I. DOES THE FAILURE OF THE STATE TO AFFORD APPELLANT A DIRECT APPEAL AFTER SEVERAL ATTEMPTS AS TO HIS CONVICTIONS OF MURDER AND RELATED CRIMES—WHERE THE MERITS OF HIS CLAIMS SEEKING A NEW TRIAL WERE REACHED AND REVIEWED—COMPRISE A DUE PROCESS VIOLATION WHICH PREVENTED HIS CONVICTION FROM BECOMING FINAL UNDER 42 Pa.C.S.[A] § 9545(b)(1) WHICH REQUIRES A PCRA PETITION TO BE FILED WITHIN ONE YEAR OF THE DATE THE CONVICTION BECOMES FINAL?
II. IS APPELLANT ELIGIBLE FOR PCRA RELIEF?
III. CAN A STATE JURISDICTIONAL TIME BAR BE INVOKED WHICH FORCES THE DUE PROCESS VIOLATION DELINEATED HEREIN TO BE OVERLOOKED?
Appellant’s Brief at 4.
In essence, Appellant contends that due to ineffectiveness of his
previous attorneys, “he never had any appellate review of the merits of his
claims seeking a new trial on direct or collateral appeal.” Id. at 5 (emphasis
in original). Consequently, Appellant continues, as a matter of due process,
this Court should grant him leave to raise his arguments in a direct appeal.
-3- J-S74029-18
As a threshold matter, we must determine whether the court erred in
dismissing as untimely Appellant’s PCRA petition. The PCRA contains the
following restrictions governing the timeliness of any PCRA petition.
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the 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.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
(3) For purposes of this subchapter, a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.
42 Pa.C.S.A. § 9545(b). Section 9545’s timeliness provisions are
jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
Additionally, we have emphasized repeatedly that “the PCRA confers no
authority upon this Court to fashion ad hoc equitable exceptions to the PCRA
time-bar in addition to those exceptions expressly delineated in the Act.”
-4- J-S74029-18
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
omitted).
Here, the record reflects that Appellant’s judgment of sentence became
final on April 21, 2004. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).
Because Appellant had one year from this date to file his PCRA petition, the
present petition filed on March 11, 2015 is facially untimely.
Appellant can overcome the one-year time limitation if he alleges and
proves one of the three exceptions set forth in Section 9545(b)(1)(i)-(iii) of
the PCRA. Here, Appellant has failed to allege, let alone prove, any exception
to the one-year time bar. He does not assert that interference by government
officials prevented him from filing this petition earlier. He does not allege that
he discovered new facts that he previously could not have ascertained through
the exercise of due diligence. He does not claim that the right in question is
a constitutional right that was recognized by the Supreme Court of the United
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J-S74029-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MICHAEL O. ANDREWS
Appellant No. 2986 EDA 2017
Appeal from the PCRA Order August 15, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-1006871-1995
BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED MARCH 15, 2019
Appellant, Michael O. Andrews, appeals from an order dismissing his
fourth petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§
9541-46, as untimely. We affirm.
On September 19, 1995, Appellant shot and killed Jamal Pettis following
a heated argument. On November 22, 2000, a jury found Appellant guilty of
second degree murder, robbery and possession of an instrument of crime. On
January 25, 2001, the trial court sentenced him to life imprisonment.
Appellant filed a direct appeal, which this Court dismissed on March 28, 2001
for failure to file a brief.
On August 28, 2002, Appellant filed a PCRA petition seeking
reinstatement of his direct appeal rights. The PCRA court granted his petition.
Appellant filed a direct appeal, and this Court affirmed in a memorandum J-S74029-18
issued on March 22, 2004. Commonwealth v. Andrews, 276 EDA 2003 (Pa.
Super., Mar. 22, 2004).
Appellant’s first claim of error on direct appeal was that “the trial court
erred when it sustained [the] Commonwealth’s objection and ‘admonished’
Appellant not to address the jury.” Id. at 4. This incident took place during
Appellant’s testimony, when instead of answering his attorney’s question, he
turned to the jury and asked “Y’all get a good look at this?” referring to a
photograph of the scene of the shooting. The Commonwealth objected and
asked the court to instruct Appellant not to address the jury. The court stated:
“Yes, please do not do that.” Trial counsel never objected. Due to trial
counsel’s silence, this Court held that Appellant waived this issue. Id.
Appellant’s second claim of error was that the Commonwealth
committed prosecutorial misconduct by stating in its closing argument that
Appellant was a thief and a criminal. Once again, we held that this issue was
waived because trial counsel did not lodge an objection. Id. at 5. We
“dismiss[ed] this issue without prejudice to Appellant to raise it in a PCRA
petition.” Id. at 9.
Appellant did not file a petition for allowance of appeal in the Supreme
Court. Thus, his judgment became final for PCRA purposes on April 21, 2004,
the deadline for filing his petition for allowance of appeal.
In 2005, 2008, and 2012, Appellant filed PCRA petitions, none of which
resulted in relief. On March 11, 2015, Appellant filed the PCRA petition
presently under review, his fourth since his direct appeal. On May 9, 2017,
-2- J-S74029-18
Appellant filed an amended PCRA petition through counsel. On June 14, 2017,
the PCRA court issued notice of its intent to dismiss the petition without a
hearing pursuant to Pa.R.Crim.P. 907. On August 15, 2017, the PCRA court
dismissed his petition. Appellant filed a timely appeal, and both Appellant and
the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises three issues in this appeal:
I. DOES THE FAILURE OF THE STATE TO AFFORD APPELLANT A DIRECT APPEAL AFTER SEVERAL ATTEMPTS AS TO HIS CONVICTIONS OF MURDER AND RELATED CRIMES—WHERE THE MERITS OF HIS CLAIMS SEEKING A NEW TRIAL WERE REACHED AND REVIEWED—COMPRISE A DUE PROCESS VIOLATION WHICH PREVENTED HIS CONVICTION FROM BECOMING FINAL UNDER 42 Pa.C.S.[A] § 9545(b)(1) WHICH REQUIRES A PCRA PETITION TO BE FILED WITHIN ONE YEAR OF THE DATE THE CONVICTION BECOMES FINAL?
II. IS APPELLANT ELIGIBLE FOR PCRA RELIEF?
III. CAN A STATE JURISDICTIONAL TIME BAR BE INVOKED WHICH FORCES THE DUE PROCESS VIOLATION DELINEATED HEREIN TO BE OVERLOOKED?
Appellant’s Brief at 4.
In essence, Appellant contends that due to ineffectiveness of his
previous attorneys, “he never had any appellate review of the merits of his
claims seeking a new trial on direct or collateral appeal.” Id. at 5 (emphasis
in original). Consequently, Appellant continues, as a matter of due process,
this Court should grant him leave to raise his arguments in a direct appeal.
-3- J-S74029-18
As a threshold matter, we must determine whether the court erred in
dismissing as untimely Appellant’s PCRA petition. The PCRA contains the
following restrictions governing the timeliness of any PCRA petition.
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the 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.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
(3) For purposes of this subchapter, a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.
42 Pa.C.S.A. § 9545(b). Section 9545’s timeliness provisions are
jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
Additionally, we have emphasized repeatedly that “the PCRA confers no
authority upon this Court to fashion ad hoc equitable exceptions to the PCRA
time-bar in addition to those exceptions expressly delineated in the Act.”
-4- J-S74029-18
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
omitted).
Here, the record reflects that Appellant’s judgment of sentence became
final on April 21, 2004. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).
Because Appellant had one year from this date to file his PCRA petition, the
present petition filed on March 11, 2015 is facially untimely.
Appellant can overcome the one-year time limitation if he alleges and
proves one of the three exceptions set forth in Section 9545(b)(1)(i)-(iii) of
the PCRA. Here, Appellant has failed to allege, let alone prove, any exception
to the one-year time bar. He does not assert that interference by government
officials prevented him from filing this petition earlier. He does not allege that
he discovered new facts that he previously could not have ascertained through
the exercise of due diligence. He does not claim that the right in question is
a constitutional right that was recognized by the Supreme Court of the United
States or the Supreme Court of Pennsylvania after the one-year limitation
period and has been held by that court to apply retroactively.
Appellant claims that he has a constitutional right to relief, as a matter
of due process, because he never had any appellate review of the merits of
his claims seeking a new trial. But because the present PCRA petition is
untimely, we lack jurisdiction to provide relief. Following our decision on direct
appeal that he waived both of his arguments, Andrews, 276 EDA 2003, he
either had to file a PCRA petition within the one-year statute of limitation or
file a petition beyond the one-year statute that satisfied one or more of the
-5- J-S74029-18
three exceptions delineated above. He failed to meet either requirement in
his present petition, and we are powerless to fashion any “ad hoc equitable
exception” to the statute of limitations such as the due process exception
suggested in Appellant’s brief. Robinson, 837 A.2d at 1161.
Accordingly, the PCRA court correctly dismissed Appellant’s present
PCRA petition for want of jurisdiction.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/15/19
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