J-S67041-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ARTHUR JOHNSON
Appellant No. 1508 EDA 2015
Appeal from the PCRA Order April 29, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1203951-1996
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 07, 2016
Arthur Johnson (“Appellant”) files this pro se appeal from the order
entered by the Court of Common Pleas of Philadelphia County denying his
third petition for collateral relief under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. § 9541 et seq., as untimely. As Appellant failed to
plead and prove that a statutory exception to the PCRA time-bar applies to
his case, we affirm.
The court, sitting as finder of fact in a waiver trial, convicted Appellant
of Murder in the Third Degree and Possession of an Instrument of Crime, 18
Pa.C.S. §§ 2502(c) and 907(a), respectively, and sentenced him, on
September 24, 1997, to an aggregate sentence of 12 to forty-five years’
incarceration. This Court affirmed judgment of sentence in a memorandum
*Former Justice specially assigned to the Superior Court. J-S67041-16
decision filed on June 8, 2001, and Appellant did not file a petition for
allowance of appeal with the Pennsylvania Supreme Court.
On October 21, 2001, Appellant filed a timely PCRA petition. The
PCRA court appointed counsel, who filed an amended petition claiming
ineffectiveness of appellate counsel on direct appeal. The PCRA court denied
relief on this claim, and we affirmed on February 17, 2005. The
Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on August 2, 2005.
On November 30, 2005, Appellant filed a second PCRA petition. The
PCRA court dismissed this petition as untimely, and Appellant filed no appeal
from that order.
On October 27, 2014, Appellant filed this, his third, PCRA petition. On
April 29, 2015, the PCRA court dismissed the petition as untimely. This
timely appeal followed.
Appellant presents for our review ten questions pertaining to alleged
ineffective assistance of prior counsel and court error for failing to regard
both his second and third PCRA petitions as extensions of his first timely
PCRA petition. He also baldly alleges that his failure to raise additional
claims previously was the result of interference by the PCRA court in
dismissing his first PCRA petition, where the court addressed only appointed
counsel’s amended petition to the exclusion of additional claims he had
raised in his pro se petition.
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Initially, we must determine whether Appellant timely filed his third
PCRA petition. See Commonwealth v. Hutchins, 760 A.2d 50 (Pa.Super.
2000). “Our standard of review of the denial of PCRA relief is clear; we are
limited to determining whether the PCRA court's findings are supported by
the record and without legal error.” Commonwealth v. Wojtaszek, 951
A.2d 1169, 1170 (Pa.Super. 2008) (quotation and quotation marks omitted).
We will not entertain a second or subsequent request for PCRA relief unless
the petitioner makes a strong prima facie showing that a miscarriage of
justice may have occurred.” Commonwealth v. Marshall, 947 A.2d 714,
719 (Pa. 2008).
Pennsylvania law makes it clear that no court has jurisdiction to hear
an untimely PCRA petition. Commonwealth v. Robinson, 837 A .2d 1157
(Pa. 2003). The most recent amendments to the PCRA, effective January
19, 1996, provide that a PCRA petition, including a second or subsequent
petition, shall be filed within one year of the date the underlying judgment
becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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 review.” 42 Pa.C.S.A. §
9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
-3- J-S67041-16
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or the law of this Commonwealth or the Constitution or law 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 Pennsylvania after the time period provide in this section and has been held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(l)(i)-(iii). “We emphasize that it is the petitioner
who bears the burden to allege and prove that one of the timeliness
exceptions applies.” Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa.
2008) (citations omitted).
There is no dispute that Appellant failed to file the instant third PCRA
petition within the one-year PCRA time-bar. See 42 Pa.C.S. § 9545(b)(1).
To the extent Appellant attempts to overcome the time-bar by asserting the
ineffective assistance of prior counsel, he may not prevail, for it is settled
that ineffectiveness claims do not constitute the type of after-discovered
evidence or interference encompassed by the PCRA time-bar exception. See
Commonwealth v. Gamboa–Taylor, 753 A.2d 780, 785 (Pa. 2000)
(holding ineffectiveness of counsel claims generally do not qualify as
exception to PCRA time requirements).
-4- J-S67041-16
Nor does Appellant’s extension theory merit relief, as the Pennsylvania
Supreme Court, in Commonwealth v. Robinson, 837 A.2d 1157 (Pa.
2003), expressly rejected such a theory as a means by which to circumvent
the timeliness requirements of the PCRA:
[T]he 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.... ...
the issue is simply whether the language of the PCRA contemplates or permits a court to innovate a non-textual exception to the PCRA's time-bar by indulging the fiction that a second or subsequent PCRA petition is an “extension” of a previous petition which was rejected on the merits in an order that has since become final. Since neither the language of the statute nor this Court's decisional law authorizes suspension of the time-bar in instances where the petitioner is seeking nunc pro tunc appellate relief or reiterating claims which were litigated on a previous petition, the statute obviously cannot bear [such an] interpretation. …
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J-S67041-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ARTHUR JOHNSON
Appellant No. 1508 EDA 2015
Appeal from the PCRA Order April 29, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1203951-1996
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 07, 2016
Arthur Johnson (“Appellant”) files this pro se appeal from the order
entered by the Court of Common Pleas of Philadelphia County denying his
third petition for collateral relief under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. § 9541 et seq., as untimely. As Appellant failed to
plead and prove that a statutory exception to the PCRA time-bar applies to
his case, we affirm.
The court, sitting as finder of fact in a waiver trial, convicted Appellant
of Murder in the Third Degree and Possession of an Instrument of Crime, 18
Pa.C.S. §§ 2502(c) and 907(a), respectively, and sentenced him, on
September 24, 1997, to an aggregate sentence of 12 to forty-five years’
incarceration. This Court affirmed judgment of sentence in a memorandum
*Former Justice specially assigned to the Superior Court. J-S67041-16
decision filed on June 8, 2001, and Appellant did not file a petition for
allowance of appeal with the Pennsylvania Supreme Court.
On October 21, 2001, Appellant filed a timely PCRA petition. The
PCRA court appointed counsel, who filed an amended petition claiming
ineffectiveness of appellate counsel on direct appeal. The PCRA court denied
relief on this claim, and we affirmed on February 17, 2005. The
Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on August 2, 2005.
On November 30, 2005, Appellant filed a second PCRA petition. The
PCRA court dismissed this petition as untimely, and Appellant filed no appeal
from that order.
On October 27, 2014, Appellant filed this, his third, PCRA petition. On
April 29, 2015, the PCRA court dismissed the petition as untimely. This
timely appeal followed.
Appellant presents for our review ten questions pertaining to alleged
ineffective assistance of prior counsel and court error for failing to regard
both his second and third PCRA petitions as extensions of his first timely
PCRA petition. He also baldly alleges that his failure to raise additional
claims previously was the result of interference by the PCRA court in
dismissing his first PCRA petition, where the court addressed only appointed
counsel’s amended petition to the exclusion of additional claims he had
raised in his pro se petition.
-2- J-S67041-16
Initially, we must determine whether Appellant timely filed his third
PCRA petition. See Commonwealth v. Hutchins, 760 A.2d 50 (Pa.Super.
2000). “Our standard of review of the denial of PCRA relief is clear; we are
limited to determining whether the PCRA court's findings are supported by
the record and without legal error.” Commonwealth v. Wojtaszek, 951
A.2d 1169, 1170 (Pa.Super. 2008) (quotation and quotation marks omitted).
We will not entertain a second or subsequent request for PCRA relief unless
the petitioner makes a strong prima facie showing that a miscarriage of
justice may have occurred.” Commonwealth v. Marshall, 947 A.2d 714,
719 (Pa. 2008).
Pennsylvania law makes it clear that no court has jurisdiction to hear
an untimely PCRA petition. Commonwealth v. Robinson, 837 A .2d 1157
(Pa. 2003). The most recent amendments to the PCRA, effective January
19, 1996, provide that a PCRA petition, including a second or subsequent
petition, shall be filed within one year of the date the underlying judgment
becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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 review.” 42 Pa.C.S.A. §
9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
-3- J-S67041-16
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or the law of this Commonwealth or the Constitution or law 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 Pennsylvania after the time period provide in this section and has been held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(l)(i)-(iii). “We emphasize that it is the petitioner
who bears the burden to allege and prove that one of the timeliness
exceptions applies.” Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa.
2008) (citations omitted).
There is no dispute that Appellant failed to file the instant third PCRA
petition within the one-year PCRA time-bar. See 42 Pa.C.S. § 9545(b)(1).
To the extent Appellant attempts to overcome the time-bar by asserting the
ineffective assistance of prior counsel, he may not prevail, for it is settled
that ineffectiveness claims do not constitute the type of after-discovered
evidence or interference encompassed by the PCRA time-bar exception. See
Commonwealth v. Gamboa–Taylor, 753 A.2d 780, 785 (Pa. 2000)
(holding ineffectiveness of counsel claims generally do not qualify as
exception to PCRA time requirements).
-4- J-S67041-16
Nor does Appellant’s extension theory merit relief, as the Pennsylvania
Supreme Court, in Commonwealth v. Robinson, 837 A.2d 1157 (Pa.
2003), expressly rejected such a theory as a means by which to circumvent
the timeliness requirements of the PCRA:
[T]he 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.... ...
the issue is simply whether the language of the PCRA contemplates or permits a court to innovate a non-textual exception to the PCRA's time-bar by indulging the fiction that a second or subsequent PCRA petition is an “extension” of a previous petition which was rejected on the merits in an order that has since become final. Since neither the language of the statute nor this Court's decisional law authorizes suspension of the time-bar in instances where the petitioner is seeking nunc pro tunc appellate relief or reiterating claims which were litigated on a previous petition, the statute obviously cannot bear [such an] interpretation. …
Once a PCRA petition has been decided and the ruling on it has become final, there is nothing for a subsequent petition or pleading to “extend.”
Robinson, 837 A.2d at 1161–62 (citations and quotation marks omitted).
In light of such clear directive that we may not fashion equitable exceptions
to the PCRA time-bar, we discern no basis to conclude that Appellant's
petition was timely filed under an extension theory.1
____________________________________________
1 Relatedly, Appellant’s bald claim that his present PCRA petition is timely because, in his first PCRA proceedings, the PCRA court interfered with the presentation of his claim by addressing only the issues raised in appointed (Footnote Continued Next Page)
-5- J-S67041-16
Order is Affirmed. Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/7/2016
_______________________ (Footnote Continued)
counsel’s amended petition—which excluded several claims raised in the pro se petition—is frivolous. Since Appellant was actively represented by counsel, it was appropriate for the court to consider only Appellant’s counseled amended petition. See Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993) (“there is no constitutional right to hybrid representation either at trial or on appeal”); Commonwealth v. Pursell, 724 A.2d 293, 302 (Pa. 1999) (“[w]e will not require courts considering PCRA petitions to struggle through the pro se filings of [petitioners] when qualified counsel represent[s] those [petitioners]”). We, therefore, discern no governmental interference on this record. Moreover, even if there were arguable merit to Appellant’s claim—and there is not—we would observe to his detriment that he fails to support his claim with a pleading and proof that, with the exercise of due diligence, he could not have filed the claim earlier. See Marshall, 947 A.2d at 720.
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