Com. v. Graham, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARCUS LEE GRAHAM,
Appellant No. 1583 MDA 2016
Appeal from the PCRA Order September 1, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003377-2005, CP-06-CR-0003378-
2005
BEFORE: SHOGAN, MOULTON, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 22, 2017
Appellant, Marcus Lee Graham, appeals from the order denying his
second petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541–9546. We affirm.
A prior panel of this Court summarized the facts and initial procedural
history as follows:
Appellant pled guilty to first-degree murder, robbery,
conspiracy to commit robbery, and related charges of kidnapping
and burglary[1] stemming from an incident that occurred over a
two-day period commencing March 3, 2005. He and his co-
defendants, Luis Fargas and Michael Hall, abducted Jonathan
Yocum and stripped, bound, and threatened him until he
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 2502(a), 3701, 903, 2901, and 3502, respectively.
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provided the PIN number to his ATM card. Appellant continued to
hold Mr. Yocum prisoner while Fargas and Hall took the victim’s
Jeep and withdrew $500 from the victim’s account at a
convenience store ATM. The next day, the three men held Mr.
Yocum at gunpoint as they entered his home and stole his
checkbook, a PlayStation, and several large jugs of change.
They forced Mr. Yocum to fill out a withdrawal slip for $2,000,
drove him to the bank where he secured the cash, and then took
the money from the victim. The three co-conspirators continued
to hold Mr. Yocum while they had breakfast and shopped, and
later, forced him to make another withdrawal from a bank drive-
through using a personal check.
Appellant decided that Mr. Yocum had to be killed. He and
his coconspirators purchased plastic wrap and duct tape.
Appellant dropped off Fargas near his home after paying him
$200 for a gun and warning him not to tell anyone about the
events. Appellant and Hall wrapped Mr. Yocum’s head in
multiple layers of plastic wrap and his body in layers of duct
tape. Then, Appellant fatally shot Mr. Yocum in the head,
wrapped his body in a green blanket, and left it in the back seat
of his vehicle.
Appellant’s co-conspirator Hall was sentenced to life in
prison; Fargas was sentenced to twelve to twenty years
imprisonment. Appellant was charged with first-degree murder
and the Commonwealth notified him that it intended to seek the
death penalty. Appellant pled guilty to all charges and received
an aggregate sentence of life imprisonment plus forty to eighty
years incarceration.
Appellant filed a post-sentence motion challenging his
sentence as excessive, and subsequently sought to withdraw his
guilty plea alleging that his counsel coerced it. Trial counsel,
John Elder and Michael Dautrich, were permitted to withdraw
and new counsel was appointed. After a hearing on Appellant’s
petitions, the trial court denied relief. Appellant timely appealed
asserting the same issues. Appellate counsel Jill Scheidt filed an
Anders[2] brief and sought leave to withdraw. This Court
affirmed judgment of sentence on December 2, 2009, and
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2
Anders v. California, 386 U.S. 738 (1967).
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granted counsel’s motion to withdraw. Commonwealth v.
Graham, 990 A.2d 44[, 631 and 632 MDA 2008] (Pa. Super.
[filed December 2,] 2009) [(unpublished memorandum)].
Appellant’s petition seeking an extension of time to file a petition
for allocatur was denied on January 27, 2010.
Appellant filed [a] pro se PCRA petition on November 1,
2010, and the trial court appointed counsel. Counsel filed a no-
merit letter pursuant to Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213(Pa. Super. 1988) (en banc), and requested leave to withdraw as
counsel. Appellant filed a response. A hearing was held and
Appellant retained new counsel, who filed an amended PCRA
petition with the court’s permission. Following an evidentiary
hearing on October 23, 2013, the PCRA court denied relief.
Commonwealth v. Graham, 108 A.3d 127, 619 and 620 MDA 2014 (Pa.
Super. filed October 31, 2014) (unpublished memorandum at 2–4). This
Court affirmed the denial of PCRA relief, id., and our Supreme Court denied
Appellant’s petition for allowance of appeal. Commonwealth v. Graham,
112 A.3d 650 (Pa. filed March 10, 2015).
Appellant, pro se, filed the instant PCRA Petition, his second, on May
18, 2015, followed by an Amended PCRA Petition (“Amended Petition”) on
August 24, 2015. On June 22, 2016, the PCRA court entered its notice of
intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P.
907. Appellant filed a response on July 12, 2016. The court dismissed the
PCRA petition on August 31, 2016. Appellant filed a timely notice of appeal
to this Court. Appellant filed a Pa.R.A.P. 1925(b) statement; the PCRA court
filed a Rule 1925(a) opinion appending its March 13, 2014 opinion denying
Appellant’s first PCRA opinion, stating it “fully address[ed] the issues raised
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in Appellant’s [present] concise statement.” PCRA Court Opinion, 12/13/16,
at 4.
Appellant presents the following issues in his pro se appellate brief:
1. DID THE PCRA COURT ERROR BY FINDING THAT PCRA
COUNSEL WAS NOT INEFFECTIVE PURSUANT TO Pa.R.Crim.P.
904(F)(2) FOR FAILING TO ARGUE, AMEND, DEVELOP AND
PRESERVE ON INITIAL COLLATERAL REVIEW PETITIONER’S
SIXTH AMENDMENT OF THE U.S. CONSTITUTION RIGHT TO
EFFECTIVE COUNSEL AND FOURTEENTH AMENDMENT OF THE
U.S. CONSTITUTION RIGHT TO DUE PROCESS WAS VIOLATED
WHEN PLEA COUNSEL(S) USED COERCION AND AIDED IN
KEEPING AND FARTHER MAKING APPELLANT INCOMPETENT AND
ABSENT OF REQUEST TRIAL COURT FAILED TO CONDUCT A
COMPETENCY HEARING BEFORE ALLOWING HIM TO PLEAD
GUILTY.
2. DID THE PCRA COURT ERROR BY FINDING THAT PCRA
COUNSEL WAS NOT INEFFECTIVE PURSUANT TO Pa.R.Crim.P.
904(F)(2) FOR FAILING TO ARGUE, AMEND, DEVELOP AND
PRESERVE ON INITIAL COLLATERAL REVIEW THE FULL FACTUAL
BASIS OF APPELLANT’S CLAIM PLEA COUNSEL WAS
INEFFECTIVE UNDER THE SIXTH AMENDMENT OF THE U.S.
CONSTITUTION FOR ADVISING PETITIONER TO PLEAD GUILTY
WHEN COUNSEL FAILED TO INVESTIGATE AND INTERVIEW
ALIBI WITNESSES; FAILED TO INVESTIGATE AND SUBPOENA
INCONTROVERTIBLE PHYSICAL FACT(S) IN THE FORM OF
CELLULAR AND HOME TELEPHONE RECORD(S) THAT
CORROBORATE WITH INCONTROVERTIBLE PHYSICAL FACT(S)
IN THE FORM OF CHAIN OF EVENT(S) IN THE CRIME(S)
CORROBORATING WITH PETITIONER’S ALIBI WITNESSES
STATEMENT(S); AND FAILED TO TIMELY NOTICE ALIBI
DEFENSE.
3. DID THE PCRA COURT VIOLATE APPELLANT’S RIGHTS UNDER
THE SIXTH AND FOURTEENTH AMENDMENTS BY FINDING THAT
PCRA COUNSEL WAS NOT INEFFECTIVE PURSUANT TO
Pa.R.Crim.P. 904(F)(2) FOR FAILING TO DEVELOP PREJUDICE
DURING INITIAL COLLATERAL PROCEEDING CONCERNING PLEA
COUNSEL BEING INEFFECTIVE UNDER THE SIXTH AMENDMENT
OF THE U.S. CONSTITUTION FOR ADVISING PETITIONER AS TO
THE COMMONWEALTH’S EXPERT OPINION AND FAILING TO
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MOVE TO SUPPRESS AN ALLEGED INCRIMINATING LETTER
WHICH APPELLANT AVERRED HAD BEEN TAMPERED WITH
AND/OR FORGED BY CO-DEFENDANT LUIS FARGAS.
4. DID THE PCRA COURT ERROR BY FINDING THAT PCRA
COUNSEL WAS NOT INEFFECTIVE PURSUANT TO Pa.R.Crim.P.
904(F)(2) FOR FAILING TO DISCOVER, RAISE, AMEND AND
PRESERVE THE FULL FACTUAL BASIS OF APPELLANT’S CLAIM
PLEA COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE UNDER
THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION AND
ARTICLE 9, SECTION AND ARTICLE 5, SECTION 9 OF THE
PENNSYLVANIA CONSTITUTION IN THAT COUNSEL FAILED TO
EXPLAIN OR REQUIRE THE COURT TO EXPLAIN THE ELEMENTS
OF EACH OFFENSE SO THAT APPELLANT COULD MAKE A
KNOWING AND INTELLIGENT DECISION WHETHER TO PLEAD
GUILTY.
5. DID THE PCRA COURT ERROR BY FINDING THAT PCRA
COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE ON
INITIAL COLLATERAL REVIEW THE LEGAL AND/OR FACTUAL
BASIS OF APPELLANT’S CLAIM PLEA COUNSEL WAS
INEFFECTIVE UNDER THE SIXTH AMENDMENT OF THE U.S.
CONSTITUTION FOR ADVISING APPELLANT TO PLEAD GUILTY
WHEN SAID ADVICE WAS OBJECTIONABY UNREASONABLE DUE
TO COUNSEL’S LACK OF INVESTIGATION.
6. DID THE PCRA COURT ERROR BY FINDING THAT PCRA
COUNSEL WAS NOT INEFFECTIVE PURSUANT TO Pa.R.Crim.P.
904(F)(2) FOR ERROROUSLY ADVISING APPELLANT HE COULD
NOT RAISE CLAIM PLEA COUNSEL(S) WERE INEFFECTIVE UNDER
THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION FOR
COERCING APPELLANT TO PLEAD GUILTY BASED ON HIS
MOTHER WANTING HIM TO PLEAD GUILTY.
7. DID THE PCRA COURT ERROR BY FINDING THAT PCRA
COUNSEL WAS NOT INEFFECTIVE PURSUANT TO Pa.R.Crim.P.
904(F)(2) FOR FAILING TO AMEND INITIAL COLLATERAL
REVIEW PETITION THAT PROSECUTION COMMITTED BRADY
VIOLATION AND VIOLATED APPELLANT’S FOURTEENTH
AMENDMENT OF THE U.S. CONSTITUTION RIGHT TO DUE
PROCESS WHEN THE PROSECUTION SUPPRESSES
EXCULPATORY EVIDENCE OF PRIOR COERCION AND CORRUPT
POLICE TACTIC(S) USED BY C.I. ANGEL CABRERA ON THE
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ORDERS OF FORMER D.A. MARK C. BLADWIN IN ORDER TO GET
CONVICTIONS BEFORE ALLOWING HIM TO PLEAD GUILTY.
8. DID THE PCRA COURT ERROR BY FINDING THAT PCRA
COUNSEL WAS NOT INEFFECTIVE PURSUANT TO Pa.R.Crim.P.
904(F)(2) FOR FAILING TO RAISE ON INITIAL COLLATERAL
REVIEW THE FACTUAL BASIS OF APPELLANT'S CLAIM BEING
ENTITLED TO RELIEF PURSUANT TO MILLER V. ALABAMA, THE
EIGHTH AND FOURTEENTH AMENDMENT OF THE U.S.
CONSTITUTION.
Appellant’s Brief at 3–5 (verbatim).
When reviewing the propriety of an order denying PCRA relief, this
Court is limited to determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA
court’s findings will not be disturbed unless there is no support for them in
the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.
Super. 2014).
Initially, we must address whether this appeal is properly before us.
The PCRA court addressed the timeliness of Appellant’s PCRA petition in its
order and notice of intent to dismiss pursuant to Pa.R.Crim.P. 907. Order,
6/22/16. However, it curiously failed to address the timeliness of the
petition when it filed its Pa.R.A.P. 1925(a) opinion. The timeliness of a PCRA
petition is a jurisdictional threshold that may not be disregarded in order to
reach the merits of the claims raised in a PCRA petition that is untimely.
Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).
“Whether [a petitioner] has carried his burden is a threshold inquiry prior to
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considering the merits of any claim.” Commonwealth v. Edmiston, 65
A.3d 339, 346 (Pa. 2013). Moreover, as the timeliness of a PCRA petition is
a question of law, our standard of review is de novo and our scope of review
is plenary.” Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super.
2014) (citation omitted).
In order to be considered timely, a first or any subsequent PCRA
petition must be filed within one year of the date the petitioner’s judgment
of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment of
sentence “becomes 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. § 9545(b)(3).
As noted previously, this Court affirmed the judgment of sentence on
December 2, 2009. Appellant did not file a petition for allowance of appeal
to our Supreme Court.3 Appellant’s judgment of sentence became final on
January 4, 2010, when the time for filing a petition for allowance of appeal
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3
Appellant’s filing of a petition for extension of time to file a petition for
allowance of appeal did not extend the finality computation for his judgment
of sentence. As we noted in our prior decision affirming the denial of
Appellant’s first petition for PCRA relief, Appellant merely filed a petition
seeking an extension of time to file such petition. Graham, 108 A.3d 127(unpublished memorandum at 3). The actual filing of a petition for
allowance of appeal is the pertinent document for our purposes, and the
record reflects that one was never filed.
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with the Pennsylvania Supreme Court expired.4 Therefore, Appellant had to
file the current PCRA petition by January 4, 2011, in order for it to be timely.
42 Pa.C.S. § 9545(b)(3). The instant petition, filed May 18, 2015, is facially
untimely.
An untimely petition may be received when the petition alleges and
the petitioner proves that any of the three limited exceptions to the time for
filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii), is
met.5 In order to be entitled to the exceptions to the PCRA’s one-year filing
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4
The thirty-day period for filing a petition of allowance of appeal to the
Pennsylvania Supreme Court ended on Friday, January 1, 2010, which was
New Year’s Day, a legal holiday. Thus, Appellant had until Monday, January
4, 2010, to timely file his petition. See 1 Pa.C.S. § 1908 (whenever the last
day of any time period referred to in a statute falls on a Saturday, Sunday,
or legal holiday, we omit those days from the computation).
5
The exceptions to the timeliness requirement 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. § 9545(b)(1)(i), (ii), and (iii).
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deadline, “the petitioner must plead and prove specific facts that
demonstrate his claim was raised within the sixty-day time frame” under
section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa.
Super. 2001).
Appellant has not cogently asserted applicability of any of the
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii) in his brief to
this Court. We glean two implied bases, however, from Appellant’s May 18,
2015 PCRA Petition and Amended Petition. Appellant maintains that he
uncovered a new violation of the Commonwealth’s due process obligation to
disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83(1963), and its progeny, a fact allegedly unknown to Appellant that could
not have been discovered through due diligence. Amended Petition,
8/24/15, at 89–91. As noted by the PCRA court, Appellant contends the
filing of the Brady claim resulted from the ineffective assistance of PCRA
counsel. Order and Notice of Intent to Dismiss, 6/22/16, at 5. In this claim,
Appellant alleged that an affidavit from Bryant Graham, containing hearsay
information from Joseph Stajkowski, proved that Angel Cabrera, a criminal
investigator, coerced witnesses to lie at the request of former District
Attorney Mark Baldwin. Amended Petition, 8/24/15, at 89–91; Appellant’s
Brief at 86. In his Amended Petition, Appellant alleged he first learned of
this affidavit on October 22, 2013, but did not obtain a copy of it until
January 3, 2014. Amended Petition, 8/24/15, at 89–91. Even assuming
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these dates are accurate, 42 Pa.C.S. § 9545(b)(2) requires the filing of any
claim related to this affidavit no later than March 3, 2014, sixty days after
January 3, 2014. While Appellant maintains that the delay in raising this
claim resulted from errors of first PCRA counsel, Appellant’s claim of PCRA
counsel’s ineffectiveness does not satisfy an exception to the PCRA time bar.
Commonwealth v. Zeigler, 148 A.3d 849, 853–854 (Pa. Super. 2016)
(citing Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000)
(explaining general rule that claim of ineffective assistance of counsel does
not save otherwise untimely PCRA petition for review on merits)).
Suggesting applicability of the third exception of 42 Pa.C.S. §
9545(b)(1), Appellant cites to Miller v. Alabama, ___ U.S. ___, 132 S.Ct.
2455 (2012), in the Amended Petition. Amended Petition, 8/24/15, at 97.
In Miller, the Supreme Court held that sentencing a juvenile convicted of a
homicide offense to mandatory life imprisonment without parole violates the
Eighth Amendment’s prohibition against cruel and unusual punishment.
Accordingly, such sentences cannot be handed down unless a judge or jury
first considers mitigating circumstances. Id. at 2475.
Subsequently, the United States Supreme Court issued its decision in
Montgomery v. Louisiana, 136 S.Ct. 718 (2016), clarifying that Miller
applies retroactively. Montgomery, 136 S.Ct. at 735-736. In
Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa. Super. 2016), this Court
held that the filing date of Montgomery is to be used when calculating
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whether a petition is timely filed under the sixty-day rule of 42 Pa.C.S. §
9545(b)(2). Secreti, 134 A.3d at 82. Accordingly, pursuant to Secreti,
Appellant has satisfied the sixty-day rule of section 9545(b)(2) because the
instant PCRA petition was pending when Montgomery was decided on
January 25, 2016.
The holding in Miller, however, was limited to those offenders who
were under the age of eighteen at the time they committed their crimes.
Miller, 132 S.Ct. at 2460. In Commonwealth v. Cintora, 69 A.3d 759(Pa. Super. 2013), this Court held that Miller is not an exception under
section 9545(b)(1)(iii) to those age eighteen or over at the time of the
commission of their crimes. Cintora, 69 A.3d at 764. In Commonwealth
v. Furgess, 149 A.3d 90 (Pa. Super. 2016), we reaffirmed our holding in
Cintora. In Furgess, the appellant, who was nineteen years old when he
committed his crimes, presented an argument similar to Appellant’s claim
that because “his brain had not completed its maturation and development,”
he was similar to a juvenile. Amended Petition, 8/24/15, at 97; Furgess,
149 A.3d at 94. We rejected this contention. Furgess, 149 A.3d at 94.
Our review of the certified record reflects that Appellant’s date of birth
is October 12, 1986. The crimes for which Appellant was convicted occurred
in March of 2005. Thus, Appellant was not a juvenile when he committed his
crimes. Based on our holdings in Cintora and Furgess, it is apparent that
the rule announced in Miller cannot apply to Appellant, who was not under
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eighteen years old when he committed murder. Accordingly, Appellant’s
arguments that Miller should apply to his case cannot satisfy the timeliness
exception of section 9545(b)(1)(iii).
Because Appellant’s PCRA petition was untimely and no exceptions
apply, the PCRA court properly dismissed the PCRA petition and denied
relief. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super.
2002) (holding that PCRA court lacks jurisdiction to hear untimely petition).
Likewise, we lack the authority to address the merits of any substantive
claims raised in the PCRA petition. See Commonwealth v. Bennett, 930
A.2d 1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to a court’s right
or competency to adjudicate a controversy.”).6
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6
We are compelled to comment on the brief Appellant has filed in this
appeal. Appellant submitted a 110-page principal brief and a seventeen-
page reply brief with sixty-eight pages of attachments. He does not certify a
word-count for the reply brief; he includes a certification of a 24,245 word-
count for the principal brief. Appellant’s Brief at unnumbered page
preceding page i. Pursuant to Pa.R.A.P. 2135, “a principal brief shall not
exceed 14,000 words and a reply brief shall not exceed 7,000 words.”
Pa.R.A.P. 2135(a)(1). If a principal brief exceeds thirty pages and/or a reply
brief exceeds fifteen pages, the appellant must certify with the appellate
court that the brief complies with the word limitation. Id. (emphasis
added). Appellant’s principal brief exceeds the page limit by eighty pages,
nearly four times the limit, and the word count by 10,245 words, which is
nearly double the word limit of Rule 2135.
It is apparent that Appellant is in violation of Rule 2135. In
Commonwealth v. Spuck, 86 A.3d 870 (Pa. Super. 2014), this Court
quashed the appeal relying upon, inter alia, Pa.R.A.P. 2135. Further,
Pa.R.A.P. 2101 underscores the seriousness with which the appellate courts
take deviations from procedural rules, as it permits us to quash or dismiss
(Footnote Continued Next Page)
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2017
_______________________
(Footnote Continued)
an appeal for procedural noncompliance. Pa.R.A.P. 2101; Commonwealth
v. Lyons, 833 A.2d 245 (Pa. Super. 2003). “[P]ro se status confers no
special benefit upon the appellant.” Id. at 252. To the contrary, “any
person choosing to represent himself in a legal proceeding must, to a
reasonable extent, assume that his lack of expertise and legal training will
be his undoing.” Commonwealth v. Adams, 882 A.2d 496, 497–498 (Pa.
Super. 2005).
As in Spuck, if the instant petition was timely, we would conclude that
quashal is the appropriate remedy in this case. Appellant’s brief is nearly
two hundred percent too long, and it appears to be nothing but an
exhaustive rehash of the issues presented in his previous PCRA petition and
appeal.
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