Com. v. Mcpherson, W.

• Court: Superior Court of Pennsylvania
• Decided: November 6, 2018
• Docket: 3356 EDA 2017
• Status: Unpublished

Opinion

J-S57017-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : v. : : WINSTON MCPHERSON : : Appellant : : No. 3356 EDA 2017

Appeal from the PCRA Order September 19, 2017 in the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0409911-1995

BEFORE: PANELLA, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 06, 2018

Appellant, Winston McPherson, appeals pro se from the order dismissing

his third petition pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541–9546, as untimely. We affirm.

A jury convicted Appellant of first-degree murder and possession of an

instrument of crime for the fatal shooting of Kenroy Daley outside a West

Philadelphia restaurant in 1993.1 The trial court sentenced him to life

imprisonment for the murder followed by a five-year probationary term for

the weapons offense. This Court affirmed on August 15, 1997. Appellant did

not seek review with our Supreme Court.

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1 After the shooting, Appellant fled Pennsylvania, but was apprehended a year later in New Jersey. ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S57017-18

There is no dispute that Appellant’s judgment of sentence became final

on September 15, 1997. Accordingly, he had until September 15, 1998 to file

a timely petition. He filed this third petition on June 27, 2016, almost eighteen

years too late. The PCRA court dismissed Appellant’s third petition, after

proper notice, on September 19, 2017. This appeal followed.

Appellant presents two overlapping questions for our review, which we

reproduce verbatim except for the omission of unnecessary capitalization:

I. Whether (in) reviewing the (property) [sic] of the (PCRA) court’s dismissal of Appellant’s PCRA filing, it was an abuse of discretion for the (PCRA) court to determine that it was untimely . . . (sic) where the petition was timely filed under title 42 [Pa.C.S.A.] §§9545(b)(1) (ii) & (iii) and §9545(b)(2), because newly discovered facts were presented and newly recognized constitution rights were enacted by the United States Supreme Court [sic] applying to Appellant retroactively?

II. Whether the PCRA court erred and denied Appellant his federal and state constitutional rights to due process of law by dismissing Appellant’s second/subsequent PCRA petition without an evidentiary hearing and appointment of counsel. . . where Appellant raised substantial questions of disputed facts regarding the timeliness of his second/subsequent PCRA petition?

(Appellant’s Brief, at 4).

Our standard and scope of review for PCRA claims are well-settled:

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court’s decision on any grounds if the record supports it. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Further, where the

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petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation

omitted). Additionally,

[T]he time limitations pursuant to . . . the PCRA are jurisdictional. [Jurisdictional time] limitations are mandatory and interpreted literally; thus, a court has no authority to extend filing periods except as the statute permits. If the petition is determined to be untimely, and no exception has been pled and proven, the petition must be dismissed without a hearing because Pennsylvania courts are without jurisdiction to consider the merits of the petition.

Id. at 140–41 (citations omitted).2

As a prefatory matter, although this Court is willing to construe liberally materials filed by a pro se litigant, pro se status generally confers no special benefit upon an appellant. Accordingly, a pro se litigant must comply with the procedural rules set forth in the Pennsylvania Rules of the Court. This Court ____________________________________________

2 The three exceptions to the PCRA time-bar are:

(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.A. § 9545(b)(1) (i-iii).

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may quash or dismiss an appeal if an appellant fails to conform with the requirements set forth in the Pennsylvania Rules of Appellate Procedure. . . . Pa.R.A.P. 2101.

Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa. Super. 2003), appeal

denied, 879 A.2d 782 (Pa. 2005) (case citation omitted).

Here, before we may consider the merits of Appellant’s claims, we must

first determine whether the PCRA court correctly concluded that because

Appellant’s third PCRA petition was not filed within the time limits required by

the PCRA, or pleaded and proved one of the three statutory exceptions to the

PCRA time bar, the court lacked jurisdiction to consider the petition.

As noted, the timeliness of a post-conviction petition is jurisdictional.

See Reed, supra at 140-41. Generally, a petition for relief under the PCRA,

including a second or subsequent petition, must be filed within one year of the

date the judgment is final unless the petition alleges and the petitioner proves

one of the three exceptions to the time limitations for filing the petition set

forth in Section 9545(b)(1) of the statute. In addition, a PCRA petition

invoking one of these statutory exceptions must “be filed within 60 days of

the date the claim could have been presented.” See 42 Pa.C.S.A. §

9545(b)(2).

In this appeal, Appellant candidly concedes his petition is untimely on

its face. (See Appellant’s Brief, at 8). However, he claims two exceptions to

the PCRA time bar: newly discovered facts, and newly recognized

constitutional law. (See id. at 8-16).

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Most notable among a variety of procedural and substantive defects,

Appellant’s instant third PCRA petition raises claims already raised in his

second petition. (See Commonwealth v. McPherson, No. 1102 EDA 2015,

unpublished memorandum at *4 (Pa. Super. filed November 4, 2015), appeal

denied, 135 A.3d 584 (Pa. 2016)). Therefore, not only are Appellant’s claims

(of ineffectiveness of plea counsel) previously litigated, they fail to establish

“newly discovered facts.”

Similarly, Appellant’s claim that his allegation of ineffective assistance

of plea counsel represented a newly recognized constitutional right pursuant

to Lafler v. Cooper, 566 U.S. 156, 175 (2012) and Missouri v. Frye, 566

U.S. 134, 140 (2012), was also previously litigated, and rejected by this Court.

(See McPherson, supra at *5).

Accordingly, Appellant has failed to establish a cognizable exception to

the PCRA time-bar. The PCRA court properly dismissed Appellant’s third

petition as untimely with no exception to the time-bar pleaded and proven.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/6/18

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