J-S65014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
PAUL PARHAM
Appellant No. 444 EDA 2017
Appeal from the PCRA Order January 5, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0506761-1997
BEFORE: OLSON, OTT and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 14, 2017
Appellant, Paul Parham, appeals pro se from the January 5, 2017 order
dismissing his sixth petition filed pursuant to the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The factual background and procedural history of this case are as
follows. On December 4, 1989, Appellant was involved in a drug-related
dispute with Jetta James (“James”) and Leon Jones (“Jones”). Appellant shot
and killed James and Jones. On November 23, 1998, Appellant was convicted
of two counts of abuse of a corpse,1 third-degree murder,2 and criminal
1 18 Pa.C.S.A. § 5510.
2 18 Pa.C.S.A. § 2502(c). J-S65014-17
conspiracy.3 On February 4, 1999, the trial court sentenced Appellant to an
aggregate term of 11 to 22 years’ imprisonment. On direct appeal, this Court
affirmed and our Supreme Court denied allowance of appeal.
Commonwealth v. Parham, 761 A.2d 1237 (Pa. Super. 2000) (unpublished
memorandum), appeal denied, 771 A.2d 1282 (Pa. 2000).
On December 18, 2001, Appellant filed a pro se PCRA petition. Counsel
was appointed and filed an amended petition. On March 7, 2003, the PCRA
court dismissed the petition. Appellant did not appeal that dismissal. On
August 25, 2004, Appellant filed his second pro se PCRA petition. On January
13, 2005, the PCRA court dismissed the petition. This Court affirmed and our
Supreme Court denied allowance of appeal. Commonwealth v. Parham,
889 A.2d 116 (Pa. Super. 2005) (unpublished memorandum), appeal denied,
897 A.2d 454 (Pa. 2006).
On December 4, 2007, Appellant filed his third pro se PCRA petition. On
July 2, 2008, the PCRA court dismissed the petition. This Court affirmed the
dismissal and our Supreme Court denied allowance of appeal.
Commonwealth v. Parham, 981 A.2d 930 (Pa. Super. 2009) (unpublished
memorandum), appeal denied, 989 A.2d 916 (Pa. 2009). On January 26,
2011, Appellant filed his fourth pro se PCRA petition. On July 24, 2015, the
PCRA court dismissed the petition. On September 21, 2015, Appellant filed
3 18 Pa.C.S.A. § 903.
-2- J-S65014-17
his fifth pro se PCRA petition. On June 15, 2016, the PCRA court dismissed
the petition.
On July 28, 2016, Appellant filed his sixth pro se PCRA petition. On
September 9, 2016, the PCRA court issued notice of its intent to dismiss the
petition without an evidentiary hearing. See Pa.R.Crim.P. 907. On
September 27, 2016, Appellant filed his response to the Rule 907 notice. On
January 5, 2017, the PCRA court dismissed the petition. This timely appeal
followed.4
Appellant presents one issue for our review:
Whether this Court should [r]emand this matter to the [PCRA court] for [] further proceedings based on [newly-discovered facts] regarding the competency of [PCRA] counsel[?]
Appellant’s Brief at 3.
“Crucial to the determination of any PCRA appeal is the timeliness of the
underlying petition.” Commonwealth v. Brown, 141 A.3d 491, 499 (Pa.
Super. 2016) (citation omitted). The timeliness requirement for PCRA
petitions “is mandatory and jurisdictional in nature[.]” Commonwealth v.
Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citation omitted).
A PCRA petition is timely if it is “filed within one year of the date the
judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1). “[A]
4The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Nonetheless, on March 17, 2017, the PCRA court issued a Rule 1925(a) opinion.
-3- J-S65014-17
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 time for seeking the
review.” 42 Pa.C.S.A. § 9545(b)(3). Appellant’s judgment of sentence
became final on March 20, 2001. See Sup. Ct. R. 13. Appellant’s sixth PCRA
petition was filed on July 28, 2016. Thus, the petition was patently untimely.
An untimely PCRA petition may be considered if one of the following
three exceptions applies:
(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). If an exception applies, a PCRA petition may be
considered if it is filed “within 60 days of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). “The petitioner bears the burden to
plead and prove an applicable statutory exception.” Commonwealth v.
Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017), appeal denied, 2017 WL
3614192 (Pa. Aug. 23, 2017).
-4- J-S65014-17
In his lone appellate issue, Appellant argues that the PCRA court erred
in dismissing his petition as untimely because he satisfied the newly-
discovered fact exception to the PCRA’s one-year time bar. The newly-
discovered fact exception
has two components, which must be alleged and proved. Namely, the petitioner must establish that: 1) the facts upon which the claim was predicated were unknown and 2) could not have been ascertained by the exercise of due diligence. If the petitioner alleges and proves these two components, then the PCRA court has jurisdiction over the claim under this subsection.
Commonwealth. v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (internal
quotation marks and citations omitted; emphasis removed).
Appellant argues that he recently discovered that PCRA counsel, who
was appointed to represent him with respect to his first PCRA petition, had
disciplinary and personal problems at the time Appellant’s first PCRA petition
was pending. Appellant argues that PCRA counsel abandoned him by failing
to appeal the March 7, 2003 order dismissing his first PCRA petition and failing
to consult Appellant regarding whether an appeal was appropriate. Appellant
contends that this newly-discovered fact, i.e., PCRA counsel’s disciplinary and
personal problems, helps establish that PCRA counsel was per se ineffective
for failing to file a notice of appeal and consult Appellant regarding whether
an appeal was appropriate.
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J-S65014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
PAUL PARHAM
Appellant No. 444 EDA 2017
Appeal from the PCRA Order January 5, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0506761-1997
BEFORE: OLSON, OTT and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 14, 2017
Appellant, Paul Parham, appeals pro se from the January 5, 2017 order
dismissing his sixth petition filed pursuant to the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The factual background and procedural history of this case are as
follows. On December 4, 1989, Appellant was involved in a drug-related
dispute with Jetta James (“James”) and Leon Jones (“Jones”). Appellant shot
and killed James and Jones. On November 23, 1998, Appellant was convicted
of two counts of abuse of a corpse,1 third-degree murder,2 and criminal
1 18 Pa.C.S.A. § 5510.
2 18 Pa.C.S.A. § 2502(c). J-S65014-17
conspiracy.3 On February 4, 1999, the trial court sentenced Appellant to an
aggregate term of 11 to 22 years’ imprisonment. On direct appeal, this Court
affirmed and our Supreme Court denied allowance of appeal.
Commonwealth v. Parham, 761 A.2d 1237 (Pa. Super. 2000) (unpublished
memorandum), appeal denied, 771 A.2d 1282 (Pa. 2000).
On December 18, 2001, Appellant filed a pro se PCRA petition. Counsel
was appointed and filed an amended petition. On March 7, 2003, the PCRA
court dismissed the petition. Appellant did not appeal that dismissal. On
August 25, 2004, Appellant filed his second pro se PCRA petition. On January
13, 2005, the PCRA court dismissed the petition. This Court affirmed and our
Supreme Court denied allowance of appeal. Commonwealth v. Parham,
889 A.2d 116 (Pa. Super. 2005) (unpublished memorandum), appeal denied,
897 A.2d 454 (Pa. 2006).
On December 4, 2007, Appellant filed his third pro se PCRA petition. On
July 2, 2008, the PCRA court dismissed the petition. This Court affirmed the
dismissal and our Supreme Court denied allowance of appeal.
Commonwealth v. Parham, 981 A.2d 930 (Pa. Super. 2009) (unpublished
memorandum), appeal denied, 989 A.2d 916 (Pa. 2009). On January 26,
2011, Appellant filed his fourth pro se PCRA petition. On July 24, 2015, the
PCRA court dismissed the petition. On September 21, 2015, Appellant filed
3 18 Pa.C.S.A. § 903.
-2- J-S65014-17
his fifth pro se PCRA petition. On June 15, 2016, the PCRA court dismissed
the petition.
On July 28, 2016, Appellant filed his sixth pro se PCRA petition. On
September 9, 2016, the PCRA court issued notice of its intent to dismiss the
petition without an evidentiary hearing. See Pa.R.Crim.P. 907. On
September 27, 2016, Appellant filed his response to the Rule 907 notice. On
January 5, 2017, the PCRA court dismissed the petition. This timely appeal
followed.4
Appellant presents one issue for our review:
Whether this Court should [r]emand this matter to the [PCRA court] for [] further proceedings based on [newly-discovered facts] regarding the competency of [PCRA] counsel[?]
Appellant’s Brief at 3.
“Crucial to the determination of any PCRA appeal is the timeliness of the
underlying petition.” Commonwealth v. Brown, 141 A.3d 491, 499 (Pa.
Super. 2016) (citation omitted). The timeliness requirement for PCRA
petitions “is mandatory and jurisdictional in nature[.]” Commonwealth v.
Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citation omitted).
A PCRA petition is timely if it is “filed within one year of the date the
judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1). “[A]
4The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Nonetheless, on March 17, 2017, the PCRA court issued a Rule 1925(a) opinion.
-3- J-S65014-17
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 time for seeking the
review.” 42 Pa.C.S.A. § 9545(b)(3). Appellant’s judgment of sentence
became final on March 20, 2001. See Sup. Ct. R. 13. Appellant’s sixth PCRA
petition was filed on July 28, 2016. Thus, the petition was patently untimely.
An untimely PCRA petition may be considered if one of the following
three exceptions applies:
(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). If an exception applies, a PCRA petition may be
considered if it is filed “within 60 days of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). “The petitioner bears the burden to
plead and prove an applicable statutory exception.” Commonwealth v.
Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017), appeal denied, 2017 WL
3614192 (Pa. Aug. 23, 2017).
-4- J-S65014-17
In his lone appellate issue, Appellant argues that the PCRA court erred
in dismissing his petition as untimely because he satisfied the newly-
discovered fact exception to the PCRA’s one-year time bar. The newly-
discovered fact exception
has two components, which must be alleged and proved. Namely, the petitioner must establish that: 1) the facts upon which the claim was predicated were unknown and 2) could not have been ascertained by the exercise of due diligence. If the petitioner alleges and proves these two components, then the PCRA court has jurisdiction over the claim under this subsection.
Commonwealth. v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (internal
quotation marks and citations omitted; emphasis removed).
Appellant argues that he recently discovered that PCRA counsel, who
was appointed to represent him with respect to his first PCRA petition, had
disciplinary and personal problems at the time Appellant’s first PCRA petition
was pending. Appellant argues that PCRA counsel abandoned him by failing
to appeal the March 7, 2003 order dismissing his first PCRA petition and failing
to consult Appellant regarding whether an appeal was appropriate. Appellant
contends that this newly-discovered fact, i.e., PCRA counsel’s disciplinary and
personal problems, helps establish that PCRA counsel was per se ineffective
for failing to file a notice of appeal and consult Appellant regarding whether
an appeal was appropriate.
It is well-settled that “a conclusion that previous counsel was ineffective
is not a newly discovered fact entitling [a petitioner] to the benefit of the
exception for newly-discovered facts. In sum, a conclusion that previous
-5- J-S65014-17
counsel was ineffective is not the type of newly-discovered fact encompassed
by the exception.” Commonwealth v. Mitchell, 141 A.3d 1277, 1285 (Pa.
2016) (internal quotation marks and citation omitted). There is, however, an
exception to this general rule if a petitioner discovers that prior counsel
abandoned him or her. Bennett, 930 A.2d at 1273. In such cases, a
petitioner can satisfy the newly-discovered fact exception if he or she files the
petition within 60 days of learning of such abandonment.
In this case, Appellant was aware of PCRA counsel’s alleged
abandonment by December 12, 2008. See Appellant’s Brief in 2769 EDA
2008, 12/12/08, at 12 (arguing that PCRA “counsel effectively abandoned
Appellant by failing to preserve and protect his appellate rights or notify
Appellant that he had failed to do so”). Appellant filed the instant petition on
July 28, 2016 – more than seven years after he became aware of PCRA
counsel’s alleged abandonment. The discovery regarding PCRA counsel’s
disciplinary problems did not contribute to Appellant learning of PCRA
counsel’s alleged abandonment. Accordingly, Appellant failed to plead and
prove that applicability of the newly-discovered fact exception and the PCRA
court correctly held that it lacked jurisdiction to reach the merits of the
petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/14/2017
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