Com. v. Moore, T. ( 2017 )


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  • J-S50015-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    v.
    THOMAS MOORE
    Appellant                  No. 921 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-1105912-2003
    BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.
    MEMORANDUM BY PANELLA, J.                        FILED OCTOBER 03, 2017
    Appellant, Thomas Moore, appeals pro se from the order dismissing his
    latest pro se petition—his fourth—filed pursuant to the Post Conviction Relief
    Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
    The PCRA court summarized the relevant facts and procedural history
    as follows:
    On April 10, 2006, following a non-jury trial before the
    Honorable Chris R. Wogan, [Moore] was convicted of robbery
    and theft charges. On July 12, 2006, [Moore] was sentenced to a
    term of ten to twenty years’ incarceration. The Superior Court
    affirmed the judgment of sentence on January 8, 2008, and the
    Pennsylvania Supreme Court denied allocator on July 10, 2008.
    On November 5, 2008, [Moore] timely filed his first pro se
    PCRA petition. David S. Rudenstein, Esquire was appointed [and]
    subsequently filed a [Turner/Finley] no-merit letter. The PCRA
    court denied the petition on September 24, 2009 and granted
    counsel leave to withdraw. [Moore] did not appeal the denial of
    relief.
    J-S50015-17
    On April 26, 2012, [Moore] filed his second pro se PCRA
    petition. On April 1, 2014, the PCRA court dismissed the
    untimely petition. [Moore’s] appeal was dismissed by the
    Superior Court for failure to substantially comply with the Rules
    of Appellate Procedure.
    On August 31, 2015, [Moore] filed his third pro se PCRA
    petition. On June 1, 2016, the PCRA court dismissed his petition
    as untimely. [Moore] did not appeal the dismissal.
    On June 13, 2016, [Moore] filed the instant pro se PCRA
    petition, his fourth. [Moore] subsequently submitted numerous
    supplemental filings. Pursuant to the Pennsylvania Rule of
    Criminal Procedure 907, [Moore] was served notice of [the PCRA
    court’s] intention to dismiss his PCRA petition on September 9,
    2016. [Moore] submitted numerous responses to the Rule 907
    notice. On January 5, 2017, the instant notice of appeal was
    timely filed to the Superior Court.
    PCRA Court Opinion, 3/31/17, at 1-2 (footnotes omitted).
    Prior to reaching the merits of Moore’s claims, 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).      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).
    -2-
    J-S50015-17
    Instantly, Moore’s judgment of sentence became final on October 8,
    2008, when his time for seeking a writ of certiorari with the United States
    Supreme Court expired. His fourth PCRA petition, filed over seven years later
    on June 13, 2016, is patently untimely. Thus, the PCRA court lacked
    jurisdiction to review Moore’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).
    A petitioner asserting one of these exceptions must file a petition
    within 60 days 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).
    Our review of the record reveals that Moore has failed to successfully
    plead any of the exceptions to the PCRA’s time bar. Through his petition,
    Moore attempts to plead an exception to the PCRA time bar under 42
    Pa.C.S.A. § 9545(b)(1)(iii); i.e., a newly announced constitutional right. See
    PCRA Petition, filed 6/13/16. Moore claims the United States Supreme
    Court’s holding in Welch v. United States, 
    136 S.Ct. 1257
     (2016),
    mandates that Alleyne v. United States, 
    133 S.Ct. 2151
     (2013), be
    applied retroactively to all cases on collateral review.
    -3-
    J-S50015-17
    There are three problems with Moore’s position. First, Moore’s reliance
    on Welch is entirely misplaced. The sole purpose of the Welch decision was
    to determine whether Johnson v. United States, 
    135 S.Ct. 2551
     (2015),
    applied retroactively to cases on collateral review. In Johnson, the Court
    held that the “residual clause” of 
    18 U.S.C. § 924
    (e)(2)(B)(ii) was
    unconstitutionally vague. Obviously, Moore was not sentenced under this
    provision; thus, the Welch holding mandating retroactive invalidation of
    sentences pursuant to § 924(e)(2)(B)(ii) has no bearing on Moore’s
    sentence. Second, neither Welch nor Johnson even addresses Alleyne and
    thus cannot reasonably be found to mandate the retroactive application of
    Alleyne. Finally, Moore fails to assert this exception in his appellate brief. By
    abandoning his argument, he has waived all claims that the newly
    discovered constitutional right exception applies to his PCRA petition. See
    Commonwealth v. Price, 
    876 A.2d 988
    , 996 (Pa. Super. 2005) (holding
    that an issue identified on appeal, but not developed in an appellate brief is
    waived).
    Additionally, in his appellate brief, Moore attempts to raise the
    governmental interference exception to the PCRA time bar, see 42 Pa.C.S.A.
    § 9545(b)(1)(i), by asserting that a detective suppressed a promissory
    -4-
    J-S50015-17
    note.1 See Appellate Brief, at 3. In order for a petitioner to obtain relief from
    the PCRA’s time bar under this exception, he must plead that there was
    governmental interference that prevented him from presenting his claim.
    Moore, however, failed to raise this issue in his petition. See PCRA Petition,
    filed 6/13/16. While Moore did raise this issue with the PCRA court in a
    series of responses to the PCRA court’s Rule 907 notice, he failed to plead or
    prove that he filed his petition within 60 days of discovering the
    governmental interference or the newly discovered evidence. Thus, he has
    waived this issues on appeal. See Burton, 
    936 A.2d at 525
    ; 42 Pa.C.S.A. §
    9545(b)(2).
    In sum, Moore’s latest PCRA petition is patently untimely, and he has
    failed to plead and prove an exception to the time bar. Therefore, the PCRA
    court properly concluded that it lacked jurisdiction and correctly denied
    Moore post-conviction relief.
    Order affirmed.
    ____________________________________________
    1
    Through his appellate brief, Moore also asserts that he was raped in prison
    immediately prior to the waiver trial and trial counsel was ineffective for
    failing to inform the trial court. See Appellant Brief, at 12. This allegation,
    while disturbing, does not establish a time-bar exception. See
    Commonwealth v. Wharton, 
    886 A.2d 1120
    , 1127 (“It is well settled that
    allegations of ineffective assistance of counsel will not overcome the
    jurisdictional timeliness requirements of the PCRA.”)
    -5-
    J-S50015-17
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/3/2017
    -6-
    

Document Info

Docket Number: 921 EDA 2017

Filed Date: 10/3/2017

Precedential Status: Non-Precedential

Modified Date: 12/13/2024