Com. v. Moore, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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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JERONE ANDRE MOORE :

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Appellant : No. 790 MDA 2025

Appeal from the PCRA Order Entered May 2, 2025 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0003215-2015

BEFORE: PANELLA, P.J.E., NICHOLS, J., and NEUMAN, J. MEMORANDUM BY NEUMAN, J.: FILED: AUGUST 25, 2026 Appellant, Jerone Andre Moore, appeals from the post-conviction court’s May 2, 2025 order dismissing, as untimely, his petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

The facts underlying Appellant’s convictions are not relevant to our disposition of his instant appeal. The pertinent procedural history can be briefly summarized as follows. On February 24, 2017, Appellant was convicted by a jury of attempted murder (18 Pa.C.S. §§ 901, 2502) and kidnapping (18 Pa.C.S. § 2901(a)(3)). On April 10, 2017, the court sentenced him to an aggregate term of 26 to 60 years’ incarceration. Appellant filed a timely notice of appeal, and on August 10, 2018, this Court affirmed his judgment of sentence, after which our Supreme Court denied his subsequent petition for permission to appeal on March 11, 2019. See Commonwealth v. Moore,

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195 A.3d 987 (Pa. Super. 2018) (unpublished memorandum), appeal denied, 203 A.3d 983 (Pa. 2019).

Appellant thereafter filed a timely, pro se PCRA petition. Counsel was appointed and filed an amended petition on Appellant’s behalf. After conducting an evidentiary hearing, the PCRA court dismissed his petition on November 22, 2021. Appellant timely appealed, and this Court affirmed the order dismissing his petition on March 10, 2023. See Commonwealth v. Moore, 296 A.3d 597 (Pa. Super. 2023) (unpublished memorandum).

On April 16, 2024, Appellant filed a pro se document entitled, “Petition to Correct Illegality of Sentence,” which the court treated as a PCRA petition. On January 16, 2025, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition without a hearing. Appellant filed a pro se response on March 4, 2025, but the court issued an order dismissing his petition on May 2, 2025. Notably, the docket entry for that order does not specifically indicate service on pro se Appellant. See Pa.R.Crim.P. 114(C) (directing a trial court’s criminal docket entries shall contain, inter alia, “the date of service of the order or court notice”); Commonwealth v. Hess, 810 A.2d 1249, 1253 (Pa. 2002) (noting Rule 114’s language leaves no question that a clerk of court’s obligations regarding docket entries are not discretionary). Appellant filed a pro se notice of appeal on June 13, 2025. While Appellant’s notice of appeal was filed more than 30 days after the entry of the order dismissing his petition, see Pa.R.A.P. 903(a), we will excuse this untimeliness pursuant to Commonwealth v. Midgley, 289 A.3d 1111, 1117

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(Pa. Super. 2023) (“Where 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.”).

The trial court thereafter ordered Appellant to file a Pa.R.A.P. 1925(b)

statement, and he timely complied.1 Herein, Appellant states seven issues for our review, which we reproduce verbatim:

1]. Whether the PCRA Court erred as a matter of law when dismissing /or denying Appellants PCRA PETITION?

2]. Whether Trial, PCRA, and Appeal Counsel were ineffective when representing Appellant?

3]. Whether the arresting officer’s use of a single photo to identify Appellant was improper/or legal?

4]. Whether at Sentencing, did Trial Court err and abuse its discretion by violating the full faith and credit, and double jeopardy clause when it upgraded Appellants out-of-state Manslaughter conviction to Pennsylvania’s more serious charge of Murder in the 3rd degree?

5]. Whether at Trial, did the Commonwealth/Trial Counsels failure to call upon operating E.R. Physician and nurse as expert witnesses on the behalf of Appellant prejudiced Appellant?

6]. Whether at Trial, did the Commonwealth violate rules of discovery and prejudice appellant when it with-held evidence until the morning of Appellants Trial?

7]. Whether at Trial, did the Trial Court err and abuse its discretion by granting and allowing the Commonwealth to dismiss the lesser charge of aggravated assault?

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1 Again, the trial court’s docket does not indicate the Rule 1925(b) order was served on pro se Appellant.

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Appellant’s Brief at 3.

This Court’s standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the timeliness of Appellant’s petition, because the PCRA time limitations implicate our jurisdiction and may not be altered or disregarded in order to address the merits of a petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-conviction relief, including a second or subsequent one, must be filed within one year of the date the judgment of sentence becomes final, unless one of the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:

(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

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period provided in this section and has been held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, section 9545(b)(2) requires any petition attempting to invoke one of these exceptions “be filed within one year of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

Here, Appellant’s judgment of sentence became final in 2019, making his instant petition filed in 2024 facially untimely. Consequently, for this Court to have jurisdiction to review the merits thereof, Appellant must prove that he meets one of the timeliness exceptions set forth in 42 Pa.C.S. § 9545(b). Appellant fails to meet this burden. Initially, we note the “Argument” section of Appellant’s brief does not set forth his issues in the same order as his “Statement of the Questions Presented” section, and his discussion of each issue is confusing at best. Moreover, Appellant does not clearly assert, or attempt to meaningfully plead and prove, the applicability of any timeliness exception. Therefore, he has not demonstrated any error in the PCRA court’s decision to deny his petition as untimely.

In any event, even if Appellant’s petition were timely, we would deem most of his issues waived. Appellant raises various errors purportedly committed at his trial and sentencing, and also argues his trial and appellate counsel rendered ineffective assistance. These issues could have been raised on direct appeal or in his first PCRA petition; thus, they are waived. See 42 Pa.C.S. § 9543(a)(3) (stating that, to be eligible for PCRA relief, the petitioner must prove “[t]hat the allegation of error has not been previously litigated or waived”); 42 Pa.C.S. § 9544(b) (declaring “an issue is waived if the petitioner

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could have raised it but failed to do so before trial, at trial, during unitary review, on appeal[,] or in a prior state postconviction proceeding”).

Furthermore, to the extent Appellant also challenges the effectiveness of his first PCRA counsel, “[i]t is well settled that allegations of ineffective assistance of counsel will not overcome the jurisdictional timeliness requirements of the PCRA.” Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (citations omitted). Additionally, our Supreme Court’s decision in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), does not afford Appellant an avenue for raising the ineffectiveness of his PCRA counsel

herein.

In Bradley, our Supreme Court addressed the dilemma of when a defendant may raise claims of ineffective assistance of PCRA counsel and held that such claims may be raised for the first time during an appeal from the denial of a timely filed first PCRA petition where the PCRA counsel in question represented the defendant until the appeal.

Commonwealth v. Stahl, 292 A.3d 1130, 1135 (Pa. Super. 2023) (emphasis added). Here, on appeal from the dismissal of his first petition, Appellant did not seek to represent himself, or request to have new counsel appointed, so he could raise his PCRA counsel ineffectiveness claims. See id. (citations omitted). Our Supreme Court has also explicitly held that “Bradley did not create an exception to the PCRA’s time-bar” in order to allow for PCRA counsel ineffectiveness claims to be raised in an untimely petition. Commonwealth v. Laird, 331 A.3d 579, 598 (Pa. 2025). Accordingly, Appellant’s attempt to

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assert his PCRA counsel’s ineffectiveness in his instant, untimely petition does not trigger our jurisdiction.

Accordingly, as Appellant has failed to plead any exception to the PCRA’s one-year time-bar, we discern no error in the PCRA court’s dismissing his untimely petition.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 8/25/2026