Com. v. Harris, D.

• Court: Superior Court of Pennsylvania
• Decided: July 12, 2022
• Docket: 1402 WDA 2021
• Status: Unpublished

Opinion

J-S20030-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEANDRE LOPEZ HARRIS : : Appellant : No. 1402 WDA 2021

Appeal from the PCRA Order Entered October 20, 2021 In the Court of Common Pleas of Westmoreland County Criminal Division at CP-65-CR-0003549-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEANDRE L. HARRIS : : Appellant : No. 1403 WDA 2021

Appeal from the PCRA Order Entered October 20, 2021 In the Court of Common Pleas of Westmoreland County Criminal Division at CP-65-CR-0003550-2017

BEFORE: NICHOLS, J., MURRAY, J., and KING, J.

MEMORANDUM BY MURRAY, J.: FILED: July 12, 2022 J-S20030-22

Deandre Lopez Harris (Appellant) appeals from the order dismissing his

untimely petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546.1 We affirm.

In July 2017, the Commonwealth charged Appellant, on two bills of

information, with two counts each of possession with intent to deliver a

controlled substance (PWID), possession of a controlled substance, possession

of drug paraphernalia, and criminal conspiracy; and one count each of person

not to possess a firearm, and possessing a firearm with manufacturer number

altered.2 On May 3, 2019, Appellant entered a negotiated guilty plea to one

count of PWID, one count of criminal conspiracy, and the firearms charges.

The trial court sentenced Appellant in accordance with the plea to an

aggregate 8 - 20 years of imprisonment. Appellant did not file a post-sentence

motion or a direct appeal.

On July 10, 2020, Appellant pro se filed the instant PCRA petition, his

first. The PCRA court appointed counsel, who, after concluding Appellant’s

PCRA petition was time-barred, filed a “no-merit” letter and motion to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

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1 Appellant complied with Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018) (holding “where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each case.”). On January 13, 2022, this Court sua sponte consolidated the appeals. 2 35 P.S. §§ 780-113(a)(30), (16), (32); 18 Pa.C.S.A. §§ 903(a)(1), 6105(a)(1), and 6110.2(a).

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and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

The PCRA court granted counsel leave to withdraw on February 2, 2021.

Appellant retained counsel, who entered his appearance on behalf of

Appellant and filed an amended PCRA petition. While acknowledging the

petition was time-barred, counsel claimed it fell within the governmental

interference exception. See 42 Pa.C.S.A. § 9545(b)(1)(i). The PCRA court

held a hearing concerning the governmental interference exception on October

14, 2021. Appellant and Christina Haluska, a librarian at SCI Fayette, testified

about Department of Corrections (DOC) COVID-related library restrictions and

the impact on inmates. On October 20, 2021, the PCRA court dismissed the

petition as untimely. Appellant timely filed this appeal.3 He presents the

following question for review:

[Did] the [PCRA c]ourt err by ruling that [Appellant] failed to show a constitutional right had been violated by the DOC which impinged his ability to timely file his PCRA petition?

Appellant’s Brief at 2.

We review the PCRA court’s dismissal of Appellant’s petition to

determine “whether the PCRA court’s findings of fact are supported by the

record, and whether its conclusions of law are free from legal error.”

Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012). “Our scope of

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

3 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

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viewed in the light most favorable to the party who prevailed in the PCRA

court proceeding.” Id.

A PCRA petition must be filed within one year of the petitioner’s

judgment of sentence becoming final. 42 Pa.C.S.A. § 9545(b)(1). “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 the time for seeking

the review.” 42 Pa.C.S.A. § 9545(b)(3). The timeliness of a PCRA petition is

jurisdictional. If a PCRA petition is untimely, a court lacks jurisdiction.

Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa. 2005); see also

Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014) (courts

do not have jurisdiction over an untimely PCRA petition).

“Without jurisdiction, we simply do not have the legal authority to address the

substantive claims.” Commonwealth v. Lewis, 63 A.3d 1274, 1281 (Pa.

Super. 2013).

It is undisputed that Appellant’s petition is untimely. Appellant’s

judgment of sentence became final on June 2, 2019, and he did not file his

pro se petition until July 10, 2020. A petitioner may overcome the time-bar

if he pleads and proves one of the three statutory exceptions set forth in 42

Pa.C.S.A. § 9545(b)(1). Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa.

2017). The three exceptions are: “(1) interference by government officials in

the presentation of the claim; (2) newly discovered facts; and (3) an after-

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recognized constitutional right.” Commonwealth v. Brandon, 51 A.3d 231,

233-34 (Pa. Super. 2012); see also 42 Pa.C.S.A. § 9545(b)(1)(i-iii). If a

petitioner fails to invoke a valid exception, the court lacks jurisdiction to

review the petition or provide relief. Spotz, 171 A.3d at 676.

Appellant contends he was unable to file a timely PCRA petition because

of various COVID-related law library closures at SCI Fayette, as well as

restrictions implemented by the DOC, and these restrictions constitute

governmental interference. See Appellant’s Brief at 11-24. We disagree.

To plead and prove the governmental interference exception codified at

42 Pa.C.S.A. § 9545(b)(1)(i), Appellant must show “the failure to raise the

claim previously was the result of interference by government officials[.]” Id.

We have stated that to make a successful claim under this exception, an

appellant must show a “violation of his rights under constitutional or state

law.” Commonwealth v. Rizvi, 166 A.3d 344, 348 (Pa. Super. 2017); see

also Commonwealth v. Bankhead, 217 A.3d 1245, 1248 (Pa. Super. 2019)

(“without an assertion of illegality on the part of government officials,

restrictions on access to prison resources does not qualify a petition for the

governmental interference exception.”).

Appellant acknowledges the above law, but argues it was not

“established by statute or judicial gloss.” Appellant’s Brief at 15. He maintains

the standard should not be whether government officials acted illegally or

unconstitutionally, but “whether the government interfered with [his] ability

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to present his claim.” Id. at 16. He asserts the PCRA court erred in failing to

find that the DOC’s policies “impeded his ability to more timely file his

petition.” Id. at 17.

Appellant has waived his claim that COVID-related law library

restrictions violated his constitutional rights, as he did not raise the claim in

his amended PCRA petition or argue it at the evidentiary hearing. See

Amended PCRA Petition, 2/26/21, at 1-15; N.T., 10/14/21, at 1-56. We have

long held that an appellant waives on appeal issues that he did not raise in

the PCRA petition. See Commonwealth v. Lauro, 819 A.2d 100, 103-04

(Pa. Super. 2003) (waiving five issues not in the original or amended PCRA

petition); Pa.R.A.P. 302(a).

Waiver notwithstanding, the record demonstrates Appellant failed to

plead and prove that prison officials “impeded his ability to more timely file

his petition.” Appellant’s Brief at 17. As the PCRA explained,

there were no COVID-19 protocols in place from June 2, 2019, when the judgment became final, until the COVID protocols were put in place [in the beginning of April 2020]. … [Appellant] would have had more than nine (9) months to work on his PCRA petition before the restrictions were put into place.

PCRA Court Opinion, 10/20/21, at 6 (emphasis added).

The PCRA court also stated:

[D]espite [Appellant’s] testimony, it does not appear that he even attempted to access the law library before the end of the [PCRA] deadline. There is no evidence that he ever appeared at the library until one-and-one-half months after the deadline had passed and three days after the PCRA Petition was filed. The fact that he did not appear at the library before filing the Petition would

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indicate that he did not even need the library. But even if he did, Ms. Haluska, [who the PCRA court] found to be credible, testified that there was no evidence that he had ever attempted to contact her for permission to use the library before the end of the deadline. With all of this in mind, the restrictions on library use appear to be a mere ruse on [Appellant’s] part to excuse the late filing.

Id. at 5-6.

The PCRA court’s credibility findings “are to be accorded great

deference, and where supported by the record, such determinations are

binding on a reviewing court.” Commonwealth v. Williams, 141 A.3d 440,

452 (Pa. 2016). As the record supports the PCRA court’s factual findings and

legal analysis, we, like the PCRA court, lack jurisdiction and “legal authority

to address [any] substantive claims.” Lewis, supra.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/12/2022

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