Com. v. Patrick, R. ( 2016 )

J. S63009/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RICHARD PATRICK, : No. 2428 EDA 2015
:
Appellant :
Appeal from the PCRA Order, June 30, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0500781-2003
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 20, 2016
Richard Patrick appeals, pro se, from the order of June 30, 2015,
dismissing his second PCRA1 petition as untimely. We affirm.
On December 13, 2001, appellant shot and killed the victim,
Demetrius Highsmith.2 A jury trial commenced on April 29, 2004, following
which appellant was found guilty of third degree murder, carrying a firearm
* Former Justice specially assigned to the Superior Court.
1
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
The facts of this case, which are not germane to the instant appeal, may
be found in this court’s prior memorandum of September 15, 2010, affirming
the dismissal of appellant’s first PCRA petition. Commonwealth v. Patrick,
No. 1562 EDA 2009, unpublished memorandum at 1-6 (Pa.Super. filed
Sept. 15, 2010).
J. S63009/16
on public streets or public property, and possessing an instrument of crime. 3
On July 15, 2004, appellant was sentenced to an aggregate of 21 to
45 years’ incarceration. This court affirmed the judgment of sentence, and
our supreme court denied allowance of appeal. Commonwealth v.
Patrick, 895 A.2d 649 (Pa.Super. 2006) (unpublished memorandum),
appeal denied, 906 A.2d 541 (Pa. 2006).
Appellant did not file a petition for writ of certiorari with the United
States Supreme Court; however, on July 6, 2007, appellant filed a timely
pro se PCRA petition. Counsel was appointed and filed an amended petition
on appellant’s behalf. On May 4, 2009, following Rule 9074 notice,
appellant’s petition was dismissed without a hearing. On September 15,
2010, this court affirmed, and on March 29, 2011, our supreme court denied
appellant’s petition for allowance of appeal. Commonwealth v. Patrick,
13 A.3d 984 (Pa.Super. 2010) (unpublished memorandum), appeal denied,
19 A.3d 1050 (Pa. 2011).
3
18 Pa.C.S.A. §§ 2502, 6108, and 907, respectively.
4
Pa.R.Crim.P. 907.
-2-
J. S63009/16
Appellant filed the instant, untimely petition on February 6, 2015.
Appellant’s petition was dismissed as untimely filed on June 30, 2015.5 A
timely notice of appeal was filed on July 13, 2015. Appellant was not
ordered to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b); however, on March 22, 2016, the PCRA court
filed a Rule 1925(a) opinion.
Appellant has raised the following issues for this court’s review:
1. Was trial counsel ineffective for failing to locate
and subpoena defense witnesses?
2. Was trial counsel ineffective for failing to move
for suppression of identification evidence prior
to trial, and/or seek a line-up?
3. Did the prosecutor commit reversible error
when he argued facts not in the evidence
during his closing argument to the jury?
Appellant’s brief at 7 (capitalization deleted).
5
We note that appellant was not served with Rule 907 notice prior to
dismissal of his second petition; although he does not raise the issue in his
brief on appeal, appellant did object to the lack of Rule 907 notice in his
notice of appeal. (Docket #23.) Cf. Commonwealth v. Guthrie, 749 A.2d
502, 503 (Pa.Super. 2000) (defendant waived issue of trial court’s failure to
issue 20-day notice of intention to dismiss post-conviction petition, as
required by the Rules of Criminal Procedure, where defendant failed to raise
the issue on appeal). Rule 907 notice is mandatory, see Commonwealth
v. Feighery, 661 A.2d 437 (Pa.Super. 1995) (Feighery discussed
Pa.R.Crim.P. 1507, which was renumbered as Rule 907 as of April 1, 2001);
however, it is well established that this court will not remand for compliance
with the rule where the petition is manifestly untimely and no exception to
the jurisdictional one-year time bar applies, which is the case here. See
Commonwealth v. Lawson, 90 A.3d 1, 5-6 (Pa.Super. 2014) (where the
PCRA petition is untimely, the failure to provide Rule 907 notice is not
reversible error) (citations omitted).
-3-
J. S63009/16
The standard of review for an order denying post-
conviction relief is limited to whether the record
supports the PCRA court’s determination, and
whether that decision is free of legal error. The
PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified
record. Furthermore, a petitioner is not entitled to a
PCRA hearing as a matter of right; the PCRA court
can decline to hold a hearing if there is no genuine
issue concerning any material fact and the petitioner
is not entitled to post-conviction collateral relief, and
no purpose would be served by any further
proceedings.
Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008),
appeal denied, 956 A.2d 433 (Pa. 2008), quoting Commonwealth v.
Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007) (citations omitted).
Pennsylvania law makes clear no court has
jurisdiction to hear an untimely PCRA petition.
Commonwealth v. Robinson, 575 Pa. 500, 508,
837 A.2d 1157, 1161 (2003). The most recent
amendments to the PCRA, effective January 16,
1996, provide a PCRA petition, including a second or
subsequent petition, shall be filed within one year of
the date the underlying judgment becomes final.
42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
Bretz, 830 A.2d 1273, 1275 (Pa.Super. 2003);
Commonwealth v. Vega, 754 A.2d 714, 717
(Pa.Super. 2000). A judgment is deemed 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).
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).
The three statutory exceptions to the timeliness
provisions in the PCRA allow for very limited
circumstances under which the late filing of a
petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
-4-
J. S63009/16
To invoke an exception, a petition must allege and
prove:
(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). “As such, when a
PCRA petition is not filed within one year of the
expiration of direct review, or not eligible for one of
the three limited exceptions, or entitled to one of the
exceptions, but not filed within 60 days of the date
that the claim could have been first brought, the trial
court has no power to address the substantive merits
of a petitioner’s PCRA claims.” Commonwealth v.
Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
(2000); 42 Pa.C.S.A. § 9545(b)(2).
Id. at 1079-1080. “To invoke an exception, the petitioner must plead it and
satisfy the burden of proof.” Commonwealth v. Geer, 936 A.2d 1075,
1077 (Pa.Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008), citing
Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).
-5-
J. S63009/16
“The PCRA’s time restrictions are jurisdictional in
nature. Thus, [i]f a PCRA petition is untimely,
neither this Court nor the trial court has jurisdiction
over the petition. Without jurisdiction, we simply do
not have the legal authority to address the
substantive claims.” Commonwealth v. Albrecht,
606 Pa. 64, 994 A.2d 1091, 1093 (2010) (quoting
Commonwealth v. Chester, 586 Pa. 468, 895 A.2d
520, 522 (2006)). Statutory time limitations “are
mandatory and interpreted literally; thus, a court has
no authority to extend filing periods except as the
statute permits.” [Commonwealth v.] Fahy, 737
A.2d [214] at 222 [Pa. 1999].
Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa.Super. 2014).
Instantly, the Supreme Court of Pennsylvania denied appellant’s
petition for allowance of appeal on August 29, 2006. Commonwealth v.
Patrick, 906 A.2d 541 (Pa. 2006). Therefore, appellant’s judgment of
sentence became final for PCRA purposes on Monday, November 27, 2006,
upon expiration of the time to file a petition for writ of certiorari with the
United States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3);
U.S.Sup.Ct.R. 13.1 (petition for writ of certiorari is deemed timely when it
is filed within 90 days after denial of allocatur). Appellant filed the current
petition, his second, on February 6, 2015, over 9 years later. Therefore,
appellant’s current PCRA petition is manifestly untimely on its face.
Appellant raises several claims of trial counsel ineffectiveness,
including failure to call Deanna Myers as a witness, failure to request a
line-up identification prior to trial, failure to request a Kloiber6 instruction
6
Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
-6-
J. S63009/16
regarding the testimony of Russell Sims, and failure to object to alleged
prosecutorial misconduct during closing argument. It is well settled that
claims of trial counsel ineffectiveness do not operate as an independent
exception to the one-year jurisdictional time bar of the PCRA. See
Gamboa-Taylor, 753 A.2d at 783 (holding a claim of ineffective assistance
of counsel does not save an otherwise untimely petition for review on the
merits); see also Commonwealth v. Breakiron, 781 A.2d 94, 97 (Pa.
2001) (allegations of ineffective assistance of counsel will not avoid the
timeliness requirement of the PCRA). Cf. Commonwealth v. Bennett, 930
A.2d 1264 (Pa. 2007) (where appointed counsel had abandoned the
appellant by failing to file an appellate brief, resulting in dismissal of the
appeal, this allegation brought the appellant’s claim within the ambit of
Subsection 9545(b)(1)(ii)).
Appellant has failed to plead any exception to the one-year filing
requirement. As appellant’s petition is untimely, the PCRA court correctly
concluded that it lacked jurisdiction to consider it, as does this court.
Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa.Super. 2002) (PCRA
court lacks jurisdiction to hear an untimely petition); Bennett, supra (PCRA
time limitations implicate our jurisdiction and may not be altered or
disregarded to address the merits of the petition); Commonwealth v.
Johnson, 803 A.2d 1291, 1294 (Pa.Super. 2002) (Superior Court lacks
-7-
J. S63009/16
jurisdiction to reach the merits of an appeal from an untimely PCRA
petition).
As appellant’s petition, his second, is patently untimely and appellant
has failed to plead and prove the applicability of any exception to the PCRA’s
time-of-filing requirements, the PCRA court lacked jurisdiction to consider
the merits of appellant’s issues and did not err in dismissing appellant’s
petition without an evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2016
-8-