Com. v. Freeman, B. ( 2019 )

J-S56013-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BARRY D. FREEMAN :
:
Appellant : No. 219 EDA 2019
Appeal from the PCRA Order Entered December 26, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0600561-2000
BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 30, 2019
Barry D. Freeman appeals, pro se, from the order dismissing his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§
9541-9546, as untimely. Freeman’s petition is facially untimely, and he has
failed to prove any of the three statutory exceptions to the PCRA time-bar.
Therefore, the PCRA court rightfully concluded that it lacked jurisdiction to
consider the merits of his petition. Accordingly, we affirm.
On January 10, 2001, a jury found Freeman guilty of attempted rape,
robbery, and terroristic threats stemming from an incident in which Freeman
robbed and attempted to rape a victim while she was waiting at a bus stop.
J-S56013-19
Freeman was sentenced1 to an aggregate term of twenty-two and one-half to
fifty years’ incarceration. This Court affirmed the judgment of sentence and
our Supreme Court denied allowance of appeal on March 20, 2007. Freeman
subsequently filed numerous PCRA petitions between 2009 and 2013, serially
arguing that his sentence is illegal, and his PCRA counsel was ineffective.
These petitions were all dismissed as untimely. On April 3, 2018, Freeman
filed the instant PCRA petition. The PCRA court again denied the petition as
untimely. This timely appeal followed.
Prior to reaching the merits of Appellant’s claims on appeal, we must
first consider the timeliness of his PCRA petition. See Commonwealth v.
Miller, 102 A.3d 988, 992 (Pa. Super. 2014).
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence becomes final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration of
the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3).
____________________________________________
1 Although our record is limited, our review indicates that sentencing occurred
on multiple dates. On January 21, 2004, Freeman was sentenced to an
aggregate twelve and one-half to twenty-five years’ incarceration for the
robbery and terroristic threats convictions. The court deferred sentencing for
attempted rape until the Pennsylvania Supreme Court issued a ruling on the
constitutionality of Megan’s Law. Freeman filed a post sentence motion
arguing his sentences for robbery and terroristic threats should have merged.
The court resentenced Freeman to ten to twenty years’ incarceration for
robbery but deferred sentencing on his terroristic threats conviction. On
October 6, 2004, Freeman was sentenced to ten to twenty years’ incarceration
on his attempted rape conviction plus two and one-half to five years’
incarceration on his terroristic threats conviction, for an aggregate sentence
of twenty-two and one-half to fifty years’ incarceration on all counts.
-2-
J-S56013-19
The PCRA’s timeliness requirements are jurisdictional; therefore,
a court may not address the merits of the issues raised if the
petition was not timely filed. The timeliness requirements apply to
all PCRA petitions, regardless of the nature of the individual claims
raised therein. The PCRA squarely places upon the petitioner the
burden of proving an untimely petition fits within one of the three
exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (some internal
citations and footnote omitted).
Freeman’s judgment of sentence became final on June 18, 2007, ninety
days after his petition for allowance of appeal was denied by the Pennsylvania
Supreme Court, when time for filing a petition for writ of certiorari to the
United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.
Sup. Ct. R. 13. The instant petition – filed more than ten years later – is
patently untimely. Thus, the PCRA court lacked jurisdiction to review
Freeman’s petition unless he was able to successfully plead and prove one of
the statutory exceptions to the PCRA’s time-bar. See 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii).
The PCRA provides three exceptions to its time bar:
(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
-3-
J-S56013-19
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). A petitioner asserting one of these
exceptions must file a petition within one year of the date the claim could have
first been presented. See 42 Pa.C.S.A. § 9545(b)(2). Exceptions to the time-
bar must be pled in the petition, and may not be raised for the first time on
appeal. See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.
2007); see also Pa.R.A.P. 302(a) (providing that issues not raised before the
lower court are waived and cannot be raised for the first time on appeal).
Further,
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 may quash or dismiss an appeal if
an appellant fails to conform with the requirements set forth in
the Pennsylvania Rules of Appellate Procedure.
Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa. Super. 2003)
(citations omitted).
Even liberally construed, Freeman has failed to plead and prove that any
of his claims constitute a valid exception to the PCRA time-bar. To the best of
our ability to decipher Freeman’s rambling and frequently incoherent
argument, he attempts to circumvent the PCRA’s time-bar by asserting he has
obtained “newly obtained evidence.” Specifically, he contends he recently
learned (1) that the former District Attorney Seth Williams was convicted of
corruption; (2) that certain members of the District Attorney’s Office were
-4-
J-S56013-19
supposedly fired for “misconduct”; and (3) that officers involved in his case –
who he does not identify by name – were fired or on the “do not call list.”
While Freeman is correct that Williams was convicted on corruption
charges, he does not link any of those charges to this case. Further, we note
that Williams served as District Attorney from 2009 until 2017 – well after
Freeman was sentenced in this matter. We can discern no implicit connection
between Williams and this case. Similarly, he has not established how his
allegations regarding the firing of unnamed Assistant District Attorneys and
Philadelphia police officers affect this case, other than a summary allegation
that they were involved in this case.
Not only does Freeman’s brief fail to conform to the Rules of Appellate
Procedure2, he additionally fails to develop a meaningful argument for his
claim or provide any connection between his case and the individuals he lists.
As we agree with the PCRA court that Freeman failed to plead and prove an
exception to the PCRA’s time-bar, we are without jurisdiction to offer him
relief. We find the PCRA court properly dismissed his petition as untimely.
Order affirmed.
____________________________________________
2 “When a party’s brief fails to conform to the Rules of Appellate Procedure
and the defects are substantial, this Court may, in its discretion, quash or
dismiss the appeal pursuant to Rule 2101.” Giant Food Stores, LLC v. THF
Silver Spring Development, L.P., 959 A.2d 438, 443 (Pa. Super. 2008)
(citing Pa.R.A.P. 2101). Due to our disposition of the case, we decline to quash
the appeal.
-5-
J-S56013-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/19
-6-