Com. v. Cook Jr., J.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

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v. :

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:

JACKIE SHANDEAN COOK, JR. :

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Appellant : No. 63 MDA 2026

Appeal from the PCRA Order Entered September 9, 2025 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0006056-2002

BEFORE: PANELLA, P.J.E., NICHOLS, J., and NEUMAN, J. MEMORANDUM BY NICHOLS, J.: FILED: AUGUST 24, 2026 Appellant Jackie Shandean Cook, Jr., appeals from the order dismissing his serial Post-Conviction Relief Act (PCRA)1 petition. On appeal, Appellant claims that the PCRA court erred by dismissing his petition as untimely. After review, we affirm.

The facts of this case are not relevant to our disposition. Briefly, we note that Appellant was convicted after a jury trial of second-degree murder and conspiracy to commit kidnaping on February 5, 2004. That same day, the trial court sentenced Appellant to an aggregate sentence of life without the possibility of parole. Appellant did not file a direct appeal.

On August 6, 2020, more than sixteen years after his judgment of sentence became final, Appellant filed a PCRA petition, his first. Counsel was

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1 42 Pa.C.S. §§ 9541-9546.

appointed and later filed a Turner/Finley2 no merit letter. The PCRA court ultimately dismissed Appellant’s first PCRA petition on February 14, 2022.

On March 17, 2022, Appellant filed a pro se document challenging the validity of his convictions, which the PCRA court treated as a second PCRA petition. The PCRA court dismissed Appellant’s second PCRA petition on May 3, 2022. Appellant filed a notice of appeal on April 29, 2022, which did not identify the order from which he was attempting to appeal. Appellant later indicated that he wished to appeal from the February 14, 2022 order dismissing his first PCRA petition. Ultimately, this Court quashed his appeal as untimely. See Commonwealth v. Cook, 645 MDA 2022, 2022 WL 17881935 (Pa. Super. filed Dec. 23, 2022) (unpublished mem.).

On July 7, 2025, Appellant filed his third PCRA petition. The trial court issued a Rule 907 notice of its intent to dismiss Appellant’s petition on July 29, 2025. Appellant responded to the Court’s Rule 907 notice on August 26, 2025. On September 9, 2025, the PCRA court dismissed Appellant’s third PCRA petition. On November 21, 2025, Appellant filed a response to the PCRA court’s order, seeking reinstatement of his right to appeal the dismissal of his third PCRA petition nunc pro tunc because he did not receive the PCRA court’s dismissal order until after the appeal period had expired. The PCRA court reinstated Appellant’s right to appeal nunc pro tunc on December 5, 2025.

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2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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Appellant filed a notice of appeal on January 6, 2026.3 Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issues for our review:

1. Whether the PCRA court erred as a matter of law in [dismissing] Appellant[’s] PCRA petition as untimely where Appellant pled [a] statutory exception to the PCRA time-bar under 42 Pa. C.S. 9545(b).

2. Whether the PCRA court erred in concluding it lacked jurisdiction without addressing allegations of counsel abandonment and [government] interference that prevented timely litigation.

3. Whether the PCRA court erred by refusing to consider Appellant[’s] credible claim of actual innocence as a gateway to merits review to prevent a miscarriage justice.

4. Whether the PCRA court erred in dismissing the petition without an evidentiary [hearing] where genuine issues of material facts were pled.

Appellant’s Brief at 4 (some formatting altered).4

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3 While Appellant’s notice of appeal was filed more than thirty days after his

PCRA appellate rights were reinstated, we note that the PCRA court docket does not reflect that the order reinstating his appellate rights was served on Appellant. See Trial Ct. Docket at 20. Accordingly, we decline to quash this appeal. See Commonwealth v. Midgley, 289 A.3d 1111, 1117 (Pa. Super. 2023) (explaining that “[w]here the trial court docket in a criminal case does not indicate service on a party or the date of service, we will not quash the appeal or require further proceedings. Rather, we will treat the time in which to take an appeal as never having started to run and treat the appeal as timely”).

4 Appellant’s brief is only paginated for the two pages of his argument section.

See Appellant’s Brief at 7-8 (paginating the argument section as pages one and two). For the sake of clarity, we disregard the internal pagination and refer to the pages in Appellant’s brief as if the pagination began with the cover page as page one.

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In reviewing an order denying a PCRA petition, our standard of review is well settled:

Our standard of review from the denial of a PCRA petition is limited to examining whether the PCRA court’s determination is supported by the evidence of record and whether it is free of legal error. The PCRA court’s credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court’s legal conclusions.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citations omitted and some formatting altered).

The timeliness of a PCRA petition is a threshold jurisdictional question.

See Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014); see also Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa. Super. 2019) (stating that “no court has jurisdiction to hear an untimely PCRA petition” (citation omitted and emphasis in original)). “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).” Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (citation and footnote omitted). A judgment of sentence becomes final at the conclusion of direct review, or at the expiration of time for seeking such review. See id. at 17; 42 Pa.C.S. § 9545(b)(3).

Appellant’s judgment of sentence became final on March 6, 2004, when his time to appeal his judgment of sentence expired thirty days after he was sentenced. See Jones, 54 A.3d at 17; 42 Pa.C.S. § 9545(b)(3). Accordingly,

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Appellant had until March 7, 20055 to file a timely PCRA petition. Therefore, Appellant’s third PCRA petition, filed on July 7, 2025, is facially untimely. See Jones, 54 A.3d at 16-17.

Courts may consider a PCRA petition filed more than one year after a judgment of sentence becomes final if the petitioner pleads and proves one of the following three statutory exceptions:

(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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). A petitioner asserting one of these exceptions must file a petition within one year of the date the claim could have first been presented. See 42 Pa.C.S. § 9545(b)(2). It is the petitioner’s “burden to allege and prove that one of the timeliness exceptions applies.”

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5 One year from the date that Appellant’s judgment of sentence became final

fell on March 6, 2005, which was a Sunday. Accordingly, Appellant had until the following Monday, March 7, 2005, to file a timely PCRA petition. See 1 Pa.C.S. § 1908 (stating that for computations of time, if the last day of any such period shall fall on a Saturday, Sunday, or any legal holiday, such day shall be omitted from the computation).

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Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010) (citations omitted and some formatting altered).

Here, Appellant argues that he “pled facts supporting [the governmental] interference and newly discovered facts” exceptions to the PCRA’s jurisdictional time bar. Appellant’s Brief at 7.

To establish the newly discovered fact exception to the PCRA time bar, a petitioner must demonstrate that “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. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citation omitted). Due diligence requires that “the petitioner take reasonable steps to protect his own interests.” Id. (citation omitted). A petitioner must explain why he could not have learned these “new facts” earlier with the exercise of due diligence. Id.

“To establish the governmental interference exception, a petitioner must plead and prove: (1) the failure to previously raise the claim was the result of interference by government officials, and (2) the petitioner could not have obtained the information earlier with the exercise of due diligence.” Commonwealth v. Kennedy, 266 A.3d 1128, 1135 (Pa. Super. 2021) (citation omitted and some formatting altered).

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Here, the PCRA court concluded that Appellant failed to establish any of the exceptions to the PCRA’s jurisdictional time bar. See Rule 907 Notice, 7/29/25, at 4; PCRA Ct. Order, 9/9/25, at 2 (unpaginated).6 After our review, we conclude that PCRA court’s dismissal of Appellant’s third PCRA petition as untimely is supported by the record and free of legal error. See Sandusky, 203 A.3d at 1043. The record reflects that Appellant failed to plead or prove any of the PCRA’s time bar exceptions in his third PCRA petition. See Third PCRA Petition, 7/7/25; see also Albrecht, 994 A.2d at 1094. Appellant alludes to “newly discovered evidence” of “affidavits and testimony that would have changed the outcome” of his trial. Third PCRA Petition, 7/7/25 at 2 (unpaginated). However, Appellant appears to be referring to the after-discovered evidence ground for PCRA relief rather than the newly discovered fact timeliness exception. See Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017) (stating “the newly discovered facts exception to the time limitations of the PCRA, as set forth in [Section] 9545(b)(1)(ii), is distinct from the after-discovered evidence basis for relief delineated in 42 Pa.C.S. § 9543(a)(2)”(some formatting altered)). In any event, Appellant fails to provide the alleged affidavits or proposed testimony and fails to explain what new fact he discovered, when he discovered it, and why he could not have discovered this new fact earlier through the exercise

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6 We note that the PCRA court’s Rule 1925(a) opinion incorporated the PCRA

court’s analysis from its Rule 907 notice as well as its dismissal order. See PCRA Ct. Op., 2/5/25, at 3.

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of due diligence. See Third PCRA Petition, 7/7/25, at 2; Appellant’s Brief at 7; see also Brown, 111 A.3d at 176; Albrecht, 994 A.2d at 1094; Commonwealth v. Kretchmar, 189 A.3d 459, 467 (Pa. Super. 2018) (concluding a PCRA petitioner failed to establish the newly discovered fact exception where the petitioner failed to present any new facts).

Appellant also asserts that “the acquittal of co-defendant Roberto Soler”

“constitutes newly discovered evidence” but he fails to identify when he discovered Soler was acquitted and why he could not have discovered the fact of Soler’s acquittal earlier through the exercise of due diligence. See Third PCRA Petition, 7/7/25, at 5-6; see also Brown, 111 A.3d at 176; Albrecht, 994 A.2d at 1094.

As to the governmental interference exception, Appellant fails to allege that he was prevented from raising a claim earlier due to governmental interference and that he could not obtain the information earlier through the exercise of due diligence.7 See Third PCRA Petition, 7/7/25; see also Kennedy, 266 A.3d at 1135; Albrecht, 994 A.2d at 1094.

Based upon the reasons stated above, we conclude that the PCRA court’s

dismissal of Appellant’s third PCRA petition as untimely is supported by the

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7 Appellant asserts in his appellate brief that “attorney abandonment may constitute [governmental interference.]” See Appellant’s Brief at 7. However, Appellant failed to raise this argument in his third PCRA petition. See Third PCRA Petition, 7/7/25. Accordingly, it is waived on appeal. See Pa.R.A.P. 302(a) (stating “[i]ssues not raised in the trial court are waived and cannot be raised for the first time on appeal”). In any event, defense counsel, whether appointed or retained, are not government officials for the purposes of the governmental interference exception. See 42 Pa.C.S. § 9545(b)(4).

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record and free of legal error. See Sandusky, 203 A.3d at 1043. Accordingly, we are without jurisdiction to reach the merits of Appellant’s claims. See Ballance, 203 A.3d at 1031.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 08/24/2026