Com. v. Murphy, E., Jr. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDGAR B. MURPHY JR. :
:
Appellant : No. 1622 MDA 2019
Appeal from the PCRA Order Entered September 10, 2019,
in the Court of Common Pleas of Dauphin County,
Criminal Division at No(s): CP-22-CR-0004494-2006.
BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 05, 2020
Edgar B. Murphy appeals pro se from the order denying as untimely his
latest petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
When affirming the dismissal of a previous, untimely PCRA petition, this
Court summarized the pertinent facts and procedural history as follows:
Briefly, in February of 2007, [Murphy] was convicted,
following a jury trial, of involuntary deviate sexual
intercourse, sexual assault, and indecent assault committed
against his 33-year-old daughter. On November 8, 2017,
[Murphy] was sentenced to an aggregate term of 7 to 20
years’ incarceration. This Court affirmed his judgment of
sentence on direct appeal, and our Supreme Court denied
[Murphy’s] subsequent petition for allowance of appeal on
April 29, 2009. Accordingly, [Murphy’s] judgment of
sentence became final on July 28, 2009, at the conclusion
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* Former Justice specially assigned to the Superior Court.
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of the ninety-day time-period for seeking review with the
United States Supreme Court.
Between 2009 and 2015, [Murphy] filed several PCRA
petitions, all of which were denied. He filed the present, pro
se petition on August 4, 2016, as well as multiple
amendments/supplements to that petition, containing
nearly 200 pages of argument. Ultimately, the PCRA court
issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
[Murphy’s] petition, to which he filed several pro se
responses. On March 9, 2017, the court issued the order
denying [Murphy’s] petition.
Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018), unpublished
memorandum at 1-2 (citations omitted).
Murphy filed a timely pro se appeal to this Court. Although Murphy
raised twenty-five issues for our review, we did not address their merits
because the 2016 PCRA petition was untimely filed and Murphy failed to plead
and prove a timeliness exception. See id. at 4. Relevant to the present
appeal, this Court concluded that Murphy could not rely on our Supreme
Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) to
satisfy the “new retroactive right” exception found section 9545(b)(1)(iii) of
the PCRA. We explained:
Here, we acknowledge that this Court has declared that,
“Muniz created a substantive rule that retroactively applies
in the collateral context.” Commonwealth v. Rivera-
Figueroa, 174 A.3d 674, 678 (Pa. Super. 2017). However,
because [Murphy’s] PCRA petition is untimely (unlike the
petition at issue in Rivera-Figueroa), he must
demonstrate that the Pennsylvania Supreme Court has
held that Muniz applies retroactively in order to satisfy
section 9545(b)(1)(iii). See Commonwealth v. Abdul-
Salaam, [812 A.2d 497 (Pa. 2002)]. Because at this time,
no such holding has been issued by our Supreme Court,
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[Murphy] cannot rely on Muniz, to meet the timeliness
exception.
Murphy, unpublished memorandum at 6 (footnote omitted). Thus, on
February 20, 2018, we affirmed the PCRA court’s order denying Murphy post-
conviction relief.
Undaunted, Murphy filed the pro se PCRA petition at issue on March 15,
2019, which, according to the PCRA court, offered “the same vague,
disorganized series of arguments and issues as set forth in his previous
petitions.” Rule 907 Notice, 6/10/19, at 2. The PCRA court also noted that
Murphy subsequently filed various motions to amend this latest petition,
including a “Motion to be Removed from SORNA,” which we rejected in
Murphy, supra, as well as a pro se motion filed on April 24, 2019 asking the
PCRA court “to drop all charges and release him from prison.” In this latest
filing, Murphy claimed “his current petition [was] timely, citing ‘racism.’” Id.
at 3.
On June 10, 2019, the PCRA court issued a Rule 907 notice of its
intention to dismiss Murphy’s petition without a hearing because the court
“was without jurisdiction to entertain [Murphy’s latest] petition, as it [was]
untimely, and no exceptions apply.” Id. Murphy filed a response. By order
entered September 9, 2019, the PCRA court denied Murphy’s PCRA petition.
This timely appeal followed.
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Although Murphy raises seven issues on appeal, we must first determine
whether the PCRA court correctly concluded that it lacked jurisdiction to
consider Murphy’s claims because his latest petition was untimely filed.1
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and 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.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
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, that an exception
to the time limitation for filing the petition, set forth at 42 Pa.C.S.A. sections
9545(b)(1)(i), (ii), and (iii), is met.2 A PCRA petition invoking one of these
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1 The PCRA court concluded that all of Murphy’s appellate issues were waived
because he failed to file a timely Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. While we could affirm the denial of post-conviction
relief on this basis alone, we nevertheless review whether Murphy’s 2019
PCRA petition was timely filed.
2 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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.
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statutory exceptions must be filed within one year of the date the claims could
have been presented. 42 Pa.C.S.A. § 9545(b)(2). Asserted exceptions to the
time restrictions for a PCRA petition must be included in the petition, and may
not be raised for the first time on appeal. Commonwealth v. Furgess, 149
A.3d 90 (Pa. Super. 2016).
Here, this Court has previously held that Murphy’s judgment of sentence
became final on July 28, 2009. Thus, for purposes of the PCRA’s time bar,
Murphy had to file his PCRA petition by July 28, 2010. Murphy filed the PCRA
petition at issue on March 15, 2019. Thus, the petition is patently untimely,
unless Murphy has satisfied his burden of pleading and proving that one of the
enumerated exceptions applies.
Murphy has failed to plead and prove a timeliness exception. Within his
brief, Murphy asserts that counsel’s ineffectiveness, Brady3 violations, fraud,
abandonment of counsel, and racism, should not bar him from being denied
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(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), (ii), and (iii).
3 Brady v. Maryland, 373 U.S. 83 (1963).
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collateral relief based on the time limitations under the PCRA. Murphy’s Brief
at 3. He then refers to five different exhibits attached to his brief in an attempt
to meet his statutory burden.
In his prior appeal, we noted that Murphy “present[ed] a 58-page
“Argument” section that is not clearly divided into identifiable issues. Instead,
[Murphy] intermixes various claims together in an incoherent fashion, moving
from assertions of trial counsel’s ineffectiveness, to allegations of due process
violations, to accusations that the trial court and the Commonwealth
committed fraud.” Murphy, unpublished memorandum at 4. We note that
Murphy’s current brief suffers from the same deficiencies.4 Thus, we discern
no basis to disturb the PCRA court’s denial of post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2020
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4 To the extent we understand it, Murphy bases all his claims on the “false”
testimony that the victim in this case is his biological daughter and the
“knowing use of perjured information.” Murphy’s Brief, Exhibit One, at 4.
Murphy raises this claim in his first PCRA petition filed in 2009. See
Commonwealth v. Murphy, 32 A.2d 839 (Pa. Super. 2011), unpublished
memorandum at 7.
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