J-S62014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEITH B. COX                               :
                                               :
                       Appellant               :   No. 3570 EDA 2017

                  Appeal from the PCRA Order October 3, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0109501-1995


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                          FILED NOVEMBER 05, 2018

        Keith B. Cox appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, denying his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”).1 Upon careful review, we affirm.

        The PCRA court succinctly set forth the relevant factual and procedural

history of this matter as follows:

        [Cox] was arrested and subsequently charged in connection with
        the fatal shootings of two drug dealers in 1988. After fleeing to
        Canada, [Cox] was arrested for a minor offense and subsequently
        returned to Philadelphia in 1994. On February 28, 1996, following
        a jury trial presided over by the Honorable James A. Lineberger,
        [Cox] was convicted of two counts of first-degree murder, two
        counts of robbery, and one count each of conspiracy and
        possession of an instrument of crime. The trial court immediately
        sentenced [Cox] to the mandatory term of life imprisonment for
        both murder convictions. On June 17, 1996, the trial court
        sentenced [Cox] to an aggregate consecutive term of ten to thirty
        years’ imprisonment for the remaining convictions. Following a
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
J-S62014-18


       direct appeal, the Superior Court affirmed the judgment of
       sentence on July 10, 1997. The Pennsylvania Supreme Court
       denied allocatur on February 23, 1998.

       On March 2, 1999, [Cox] filed his first pro se PCRA petition.
       Counsel    was   appointed[,]    who   subsequently     filed  a
       Turner/Finley[2] “no-merit” letter. The PCRA court denied relief
       on February 19, 2003. On September 30, 2008, the Superior
       Court affirmed the PCRA court’s denial of post-conviction relief.
       The Pennsylvania Supreme Court thereafter denied allocatur.

       On October 4, 2016, [Cox] filed the instant pro se PCRA petition,
       his second. [Cox] also submitted numerous supplemental filings
       which were reviewed jointly with his petition.         Pursuant to
       Pennsylvania Rule of Criminal Procedure 907, [Cox] was served
       notice of the PCRA court’s intention to dismiss his petition on July
       6, 2017. [Cox] submitted responses to the Rule 907 notice on
       July 21 and September 26, 2017. On October 3, 2017, the PCRA
       court dismissed his PCRA petition as untimely. On October 18,
       2017, the instant notice of appeal was timely filed to the Superior
       Court.

PCRA Court Opinion, 1/2/18, at 1-2 (footnotes omitted).

       Cox raises the following issues for our review, verbatim:

       1. Whether unconstitutional government interference exist, by
       the appointment of counsel who participated in prosecution in the
       same matter violated [Cox’s] right to conflict-free due process
       guarantee, creating impermissible risk of actual bias?

       2. Whether unconstitutional government interference exist, by
       the concealment of the ‘agreement-deal, of pardon assistance in
       exchange for testimony’ inducement, when denial by witness,
       uncorrected by prosecution violated due process clause?

       3. Whether evidence was insufficient to sustain the verdict or
       support the weight of first degree murder conviction when sole
       witness claimed his account unreliable, shock the conscience
       standard of substantive due process?

____________________________________________


2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

                                           -2-
J-S62014-18


      4. Whether unconstitutional government interference exist by the
      concealment of international treaty negotiation to prosecutor’s
      claimed legal extradition record omission absent terms of
      assurances sought by Canadian government violation of due
      process and fair trial?

      5. Whether unconstitutional infirm jury instruction charge that did
      not comport to evidence presentation, by trial judge that included
      fabricated factual assertion, relieve prosecution of beyond
      reasonable doubt requirement to every element of crime charged,
      a due process violation?

Brief of Appellant, at 5.

      We begin by noting that our review of a PCRA court’s decision is limited

to examining whether the PCRA court’s findings of fact are supported by the

record, and whether its conclusions of law are free from legal error.

Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010). The scope of

review is limited to the findings of the PCRA court and the evidence of record,

viewed in the light most favorable to the prevailing party at the PCRA court

level. Id.

      Prior to addressing the merits of Cox’s appeal, we must address the

timeliness of his petition. A PCRA petition must be filed within one year of the

date that the judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1).

This time requirement is mandatory and jurisdictional in nature, and the court

may not ignore it in order to reach the merits of the petition. Commonwealth

v. Murray, 753 A.2d 201, 203 (Pa. 2000). 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,




                                     -3-
J-S62014-18



or at the expiration of time for seeking the review.”            42 Pa.C.S.A. §

9545(b)(3).

      However, the court may consider the merits of an untimely petition

when the petition alleges, and the petitioner proves, any of the three limited

exceptions to the time for filing the petition, as set forth at 42 Pa.C.S.A. §

9545(b)(1)(i), (ii), and (iii). These exceptions 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.

Id. A petition invoking one of these exceptions must be filed within sixty days

of the date the claim could first have been presented.           42 Pa.C.S.A. §

9545(b)(2). In order to satisfy the exceptions to the PCRA's one-year filing

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).

      Here, Cox’s judgment of sentence became final on or about May 25,

1998, when the time for seeking certiorari in the United States Supreme Court



                                      -4-
J-S62014-18



expired. See 42 Pa.C.S.A. § 9545(b)(3); Sup. Ct. R. 13. Cox filed the instant

petition on October 4, 2016, more than 18 years after his judgment of

sentence became final. Accordingly, Cox’s petition was patently untimely and

the PCRA court was without jurisdiction to consider it unless he pled and

proved one of the exceptions to the time bar.

       Cox attempts to invoke the “governmental interference” exception to

the time bar by asserting that his counsel had a conflict of interest and that

the Commonwealth concealed both a plea agreement with a witness and the

terms of Cox’s extradition from Canada. However, Cox raised these claims on

appeal from the dismissal of his first PCRA petition and this Court deemed

them    waived   for   failure   to   raise   them   in   the   PCRA   court.   See

Commonwealth v. Cox, 1005 EDA 2003 (Pa. Super. filed 9/30/08)

(unpublished memorandum decision).             The PCRA requires that any claim

invoking one of the timeliness exceptions be raised within 60 days of the date

it could have been presented. See 42 Pa.C.S.A. § 9545(b)(2). The fact that

Cox raised these same claims in his prior appeal demonstrates that he was

aware of the claims as early as 2003, when he filed the earlier appeal.

Accordingly, he cannot satisfy the 60-day requirement set forth in section

9545(b)(2) and his attempt to overcome the jurisdictional time bar must fail.

       Similarly, Cox’s invocation of the “newly recognized constitutional right”

exception under section 9545(b)(1)(iii) is without avail. Cox asserts that he

is entitled to relief under Williams v. Pennsylvania, 136 S. Ct. 1899 (2016),

in which the Supreme Court held that due process requires a judge to recuse

                                         -5-
J-S62014-18



himself when he previously had significant, personal involvement as a

prosecutor in a critical decision regarding the defendant’s case. However, Cox

has failed to establish that the holding in Williams applies retroactively, as

required under section 9545(b)(1)(iii). Moreover, Williams was decided on

June 9, 2016; Cox filed the instant PCRA petition on October 4, 2016, more

than sixty days after Williams was issued.       Accordingly, he has failed to

establish an exception to the time bar under section 9545(b)(1)(iii).3

       Because Cox has failed to properly plead and prove any exception to the

jurisdictional time bar, the PCRA court properly dismissed his petition as

untimely.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/18




____________________________________________


3 In any event, Williams is inapplicable to Cox’s case, as it involved the
recusal of a judge rather than the disqualification of defense counsel.

                                           -6-
