Com. v. Brown, M.

• Court: Superior Court of Pennsylvania
• Decided: September 9, 2014
• Docket: 3312 EDA 2013
• Status: Unpublished

Opinion

J-S59023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MAURICE BROWN

Appellant No. 3312 EDA 2013

Appeal from the PCRA Order November 13, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0404191-1999

BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 09, 2014

Maurice Brown appeals, pro se, from the order of the Court of

Common Pleas of Philadelphia County dismissing as untimely his serial

petition filed under the .A. §§

9541-9546. Upon review, we affirm.

On February 22, 2000, Brown was convicted by a jury of attempted

murder and related counts, stemming from an incident in which he shot the

brother of the man charged with murdering his own brother. Brown was

sen

of sentence was affirmed by this Court on May 13, 2002. Commonwealth

v. Brown, 804 A.2d 51 (Pa. Super. 2002) (unpublished memorandum

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S59023-14

decision). Our Supreme Court denied allowance of appeal on November 7,

2002. Commonwealth v. Brown, 813 A.2d 836 (Pa. 2002).

On June 3, 2003, Brown filed his first PCRA petition, which was

dismissed after a hearing by order dated September 10, 2004. This Court

affirmed, and the Supreme Court denied allowance of appeal. Brown filed a

second PCRA petition on October 30, 2006, which was also dismissed. This

Court affirmed and Brown did not seek allowance of appeal. Brown filed the

pus Ad

treated as an untimely serial PCRA petition, by order dated November 13,

2013. This timely appeal followed, in which Brown claims that the PCRA

court erred in dismissing his petition for writ of habeas corpus as an

untimely PCRA petition.

standard of review regarding an order dismissing a PCRA

petition is whether the determination of the PCRA court is supported by

evidence of record and is free of legal error. Commonwealth v. Burkett, 5

A.3d 1260, 1267 (Pa. Super. 2010) (citations omitted). In evaluating a

PCRA court and the evidence of record, viewed in the light most favorable to

the prevailing party at the trial level. Id.

Generally, a petition for PCRA relief, including a second or subsequent

petition, must be filed within one year of the date the judgment is final. See

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42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Alcorn, 703 A.2d

1054 (Pa. Super. 1997). There are, however, three exceptions to the time

requirement, set forth at section 9545(b)(1) of the PCRA. Where the

petition alleges, and the petitioner proves, that an exception to the time for

filing the petition is met, the petition will be considered timely. These

exceptions include interference by government officials in the presentation of

the claim, after-discovered facts or evidence, and an after-recognized

constitutional right. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). A PCRA petition invoking

one of these exceptions must be filed within 60 days of the date the claims

could have been presented. 42 Pa.C.S.A. § 9545(b)(2). The timeliness

requirements of the PCRA are jurisdictional in nature and, accordingly, a

PCRA court cannot hear untimely petitions. Commonwealth v. Robinson,

837 A.2d 1157 (Pa. 2003).

ntence became final on February 5,

2003, ninety days after the Pennsylvania Supreme Court denied his petition

for allowance of appeal, when the time for seeking discretionary review in

the United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3);

U.S. Sup. Ct. Rule 13. Thereafter, Brown had one year, or until February 5,

2004, in which to file a PCRA petition. Brown filed the instant petition on

July 25, 2013, over ten years after his judgment of sentence became final.

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As such, his petition is untimely unless he pleads and proves one of the

exceptions to the time bar under section 9545(b).

Here, Brown has neither pled nor offered to prove any exception to the

[s]entencing [o]rder in his case was without statutory authorization[,]

that this claim is not cognizable under the PCRA. Because habeas corpus

continues to exist1 in cases where there is no remedy under the PCRA,

Id. at 8. Accordingly, Brown argues his petition should not have

been treated and dismissed as an untimely PCRA petition. He is incorrect.

implicates the legality of his sentence. Such a claim is cognizable under the

PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(vii) (relief available under PCRA

where petitioner pleads and proves imposition of sentence greater than the

trial court properly treated his self-styled habeas corpus petition as an

untimely PCRA petition. Brown did not plead or offer to prove any of the

exceptions to the PCRA time bar; accordingly, he was properly denied relief. ____________________________________________

1 The PCRA subsumes the remedy of habeas corpus with respect to remedies offered under the PCRA. Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998). However, the writ continues to exist in cases in which there is no remedy under the PCRA. Id.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/9/2014

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