Com. v. Mcpherson, W. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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* Retired Senior Judge assigned to the Superior Court.
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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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