J. S06043/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,        :    IN THE SUPERIOR COURT OF
                                     :         PENNSYLVANIA
                    Appellee         :
                                     :
               v.                    :
                                     :
THOMAS JOHN CROSSLEY,                :
                                     :
                    Appellant        :    No. 1905 EDA 2014

                Appeal from the PCRA Order June 2, 2014
           In the Court of Common Pleas of Delaware County
           Criminal Division No(s).: CP-23-CR-0004531-2009
                                     CP-23-CR-0005623-2009

COMMONWEALTH OF PENNSYLVANIA,        :    IN THE SUPERIOR COURT OF
                                     :         PENNSYLVANIA
                    Appellee         :
                                     :
               v.                    :
                                     :
THOMAS JOHN CROSSLEY,                :
                                     :
                    Appellant        :    No. 2002 EDA 2014

                Appeal from the PCRA Order June 2, 2014
           In the Court of Common Pleas of Delaware County
           Criminal Division No(s).: CP-23-CR-0004523-2009
                                     CP-23-CR-0004531-2009
                                     CP-23-CR-0005623-2009

COMMONWEALTH OF PENNSYLVANIA,        :    IN THE SUPERIOR COURT OF
                                     :         PENNSYLVANIA
                    Appellee         :
                                     :
               v.                    :
                                     :
THOMAS JOHN CROSSLEY,                :
                                     :
                    Appellant        :    No. 2071 EDA 2014
J. S06043/15


                    Appeal from the PCRA Order June 2, 2014
               In the Court of Common Pleas of Delaware County
               Criminal Division No(s).: CP-23-CR-0004523-2009
                                         CP-23-CR-0004531-2009
                                         CP-23-CR-0005623-2009


BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ.

JUDGMENT ORDER BY FITZGERALD, J.:                 FILED FEBRUARY 06, 2015

        Appellant, Thomas John Crossley, appeals pro se from the order of the

Delaware County Court of Common Pleas that dismissed his second Post

Conviction Relief Act1 (PCRA) petition without a hearing.      Appellant claims

the instant PCRA petition should be considered an extension of his first PCRA

petition because counsel in that proceeding “abandoned” him.         He further

asserts he is entitled to withdraw his guilty pleas because the trial court

threatened to sentence him to 160 years’ imprisonment. No relief is due.

        Having reviewed Appellant’s pro se arguments, the record, and the

PCRA court’s opinion, we conclude the PCRA court properly determined: (1)

the instant petition was not timely filed; and (2) Appellant failed to assert an

exception to the PCRA time-bar. See PCRA Ct. Op., 9/19/14, at 9, 10-13.

Because the PCRA court has summarized and applied the relevant law, we


*
    Former Justice specially assigned to the Superior Court.
1
  42 Pa.C.S. §§ 9541-9546. Appellant averred he deposited the instant
second PCRA petition with prison officials on April 30, 2012. See generally
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (discussing
prisoner mailbox rule). He challenges convictions that became final on April
2, 2010.



                                       -2-
J. S06043/15


affirm on the basis of its opinion that it lacked jurisdiction to consider the

merits of the instant petition. See id. As to Appellant’s arguments that the

present petition was a timely extension of his first petition, the Pennsylvania

Supreme Court has abrogated equitable exceptions to the PCRA time bar,

such as the “extension theory.”    See Commonwealth v. Robinson, 837

A.2d 1157, 1161-62 (Pa. 2003). As to Appellant’s contention that he was

“abandoned” by counsel during the first PCRA proceeding, that claim is

frivolous because counsel was permitted to withdraw by the PCRA court after

filing a Turner/Finley2 no-merit letter. See Commonwealth v. Crossley,

1067 EDA 2011 (unpublished memorandum) (Pa. Super. Apr. 2, 2012).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/6/2015




2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc); accord
Commonwealth v. Quail, 729 A.2d 571 (Pa. Super. 1999) (noting “once
counsel has entered an appearance on a defendant’s behalf he is obligated
to continue representation until the case is concluded or he is granted
leave by the court to withdraw his appearance” (emphasis added)).



                                     -3-
                                                                                Circulated 01/08/2015 01:32 PM




    IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                               CRIMINAlJ


    COMMONWEALTH OF PENNSYLVANIA                              NOS. 4523-09
                                                                   4531-09
                                                                   5623-09
                               v.


    THOMAS J. CROSSLEY

    A. Sheldon Kovach, Esquire - Deputy District Attorney for the Commonwealth
    Thomas Crossley - Pro Se

                                              OPINION

    Kelly, J.                                                        Date: September 19, 2014

           A criminal complaint was filed in No. 4531-09 by the Tinicum Township Police

    Department on May 27, 2009, inter alia, charging Thomas J. Crossley (hereinafter refened to as

    "Defendant" or "Crossley") with Robbery' and related offenses. The Defendant on July 22,

    2009, before the Magisterial District Judge per the advice and with the consent of counsel

    waived his Preliminary Hearing. Defendant Crossley was fOlTllally arraigned before the trial

court on August 20, 2009, at which time the Office of the District Attorney of Delaware County

lodged against him, inter alia, the following Criminal Informations: Information A - Robber/

and Information D - Possessing InstlUments of Crime. 3

           On June 8, 2009, the Pennsylvania State Police and Willistown Township Police

Depmiment filed a criminal complaint in No. 5623-09, inter alia, charging Defendant Crossley

with Burglm'y - 72 Counts;4 Criminal Conspiracy (Burglary) - 72 Counts;5 and Firearms Not to



I 18 Pa.C.S.    § 3701.
2 !d.
) 18 Pa.C.S.    § 907.
4 18 Pa.C.S.    § 3502.
5 18 Pa.C.S.    § 903(3502).
                                                                               Circulated 01/08/2015 01:32 PM




    be Carried Without a License (11 Counts).6 Before the Magisterial Dish'ict Court on September

    17, 2009, the multiple allegations of Firearms Not to be Carried Without a License? were

    withdrawn· by the prosecution seemingly in exchange for the Defendant's counseled waiver of

    his Preliminary Hearing as to the balance of charges.      Defendant Crossley was fOlmally

    arraigned before the trial comi on October 15,2009, at which time the Delaware County District

    Attorney's Office, infer alia, lodged against him the following Criminal Informations:

    InfOlmation A - Burglary - 72 Counts8 and Information B - Criminal Conspiracy (Burglary) -

    72 Counts. 9

           In case No. 4523-09, a criminal complaint was filed on June 8, 2009, by the Norwood

    Police Department, inter alia, charging Defendant Crossley with Robbery; 10 Criminal

    Conspiracy (Robbery and all other alleged offenses)/l Possessing Inshuments of Crime; 12 and

Prohibited Offensive Weapons,u The Defendant on July 22, 2009, with his attorney's advice

and consent waived his Preliminary Hearing before the Magisterial District COUIt. Defendant

Crossley was formally al1'aigned before the trial comt on August 20, 2009, at which time the

Office of the District Attorney of Delaware County, infer alia, lodged against him the following

Criminal Informations: Information A - Robbery; 14 Information B - Criminal Conspiracy




618 Pa.C.S. § 6106.
7   Id.
s 18 Pa.C.S. § 3502.
9 18 Pa.C.S. § 903(3502).
10 18 Pa.C.S. § 3701.
11 18 Pa.C.S. § 903.
12 18 Pa.C.S. § 907.
13 18 Pa.C.S. § 908.
14
   18 Pa.C.S. § 3701.
                                                 2
                                                                                           Circulated 01/08/2015 01:32 PM




     (Robbery and all other charged offenses - 6 Counts);IS Information C - Prohibited Offensive

     Weapons; 16 and Information F - Possessing Instruments of Crime. 17

             Defendant Crossley in these three (3) cases entered on March 3, 2010, counseled,
                                                                                                19
     negotiated guilty pleas before this court. 18 The Defendant regarding No. 5623-09               entered pleas

     of guilty to Information A - Burglary - 70 Counts20 and Infonnation B - Criminal Conspiracy

     (Burglary) - one (1) consolidated Count,21 The Defendant in No. 4531-09 entered a guilty plea

 to Infonnation A - Robbery (Threatens Serious Bodily Injury).22 As to No. 4523-09, Defendant

 Crossley as well entered a plea of guilty to Information A - Robbery (Threatens Serious Bodily

 InjUly).23 N.T. 3/3/10, pp. 3-37. A pre-sentence investigation was waived. N.T. 3/3/10, p. 37.



 IS   18 Pa.C.S. § 903.
 16   18 Pa.C.S. § 908.
 17   18 Pa.C.S. § 907.

18 The Office of the Public Defender of Delaware County detelmined at bar Defendant Crossley was eligible for that
office's professional services. The Public Defender's Office subsequently lodged a Petition for Appointment of
Conflict Counsel and the court resultantly appointed Amanda L. H. Brinton, Esquire as the Defendant's attomey pel'
order dated June 30, 2009. On 01' about January 12,2010, Ms. Brinton filed a Motion to Appoint Co-Counsel and
after such a hearing, this motion was granted by order of January 26, 2010, and C. Scott Shields, Esquire was
designated as co-counsel to assist Ms. Brinton in such a manner as the defense lawyers mutually agreed. See Orders
dated Jlllle 30, 2009, and January 26, 2010.

19 Material to No. 5623-09, immediately prior to entry of the Defendant's guilty pleas, without objection, and to
facilitate the attorneys' negotiations, the Commonwealth withdrew Counts I, 38, and 53 of Information A -
Burglary, and motioned to amend Information A to add Count 73 - Burglary, reflecting the residence at 1325
Baltimore Pike, Springfield, Pa. N.T. 3/3/10, pp. 4-5.

  Also, regarding No. 5623-09, as part of the plea agreement, counsel agreed that while the Defendant would plead
guilty to Information A - Burglary - 70 Counts, these seventy (70) counts merged for sentencing purposes to only
five (5) counts, those being as follows: Count 34 (Home-Person Present on January 6, 2009); Count 19 (Home-
Person Present on October 23, 2008); Count 39 (Home-Person Present on December 16,2008); Count 4 (Home-No
Person Present on September 26, 2008); and Count 73 (Home-No Person Present on October 28, 2008). N.T.
3/3/10, pp. 5-10. Pumtant to the lawyers' understanding it was similarly agreed that the Defendant would plead
guilty to one (I) consolidated count of Conspiracy to Commit Burglary - Home-Person Present with the offense
dates encompassing the applicable times of the seventy (70) object burglaries (September 12, 2008 - January 7,
2009). N.T. 3/3/10, PI'. 9-10.

20    18 Pa.C.S. § 3502.
21   18 Pa.C.S. § 903(3502).
22   18 Pa.C.S. § 3701(a)(I)(ii).
23   !d.
                                                       3
                                                                                  Circulated 01/08/2015 01:32 PM




            Wholly consistent with the attorneys' negotiations, the court oil that same date (March 3,

     2010) sentenced Defendant Crossley in No. 5623-09 to a period of incarceration at a state

     correctional institntion of two (2) tlll'ough six (6) years on Count Nos. 34, 19,4,73, and 39 of

     Information A - Burglarl4 with each count's term to be served consecutive to the other.

 Regarding Infonnation B - Conspiracy to Commit Burgl ary25 - one (I) merged count, the court

 again pursuant to counsel's agreement directed a ten (10) year period of state probationary

 oversight to be served consecutively to the sentences of imprisol1l'nent imposed under

 Infonnation A - Burglary26 - (Counts 34, 19,4, 73 and 39). See Certificate of Imposition of

 Judgment of Sentence - No. 5623-09.

            In accord with the lawyers' negotiations, the cOUli as well on March 3, 2010, sentenced

 Defendant Crossley in No. 4531-09 to a term of incarceration of five (5) through ten (10) years

 per Information A - Robberl7 and directed that tltis sentence was to run concurrent to that

 imposed at No. 5623-09. See Certificate of Imposition of Judgment of Sentence - No. 4531-09.

           Consistent with counsel's plea understanding, the court also on March 3, 2010, sentenced

Defendant Crossley in No. 4523-09 under Information A - Robber/ 8 to a period of

imprisomnent of five (5) through ten (l0) years and directed that this sentence was to run

concurrently with those imposed at Nos. 4531-09 and 5623-09. See Certificate ofImposition of

Judgment of Sentence - No. 4523-09.

           Thus, the aggregate sentence the cOUli imposed pursuant to the plea negotiations of the

lawyers was ten (10) tlll'ough thirty (30) years incarceration followed by ten (10) years



24 18 Pa.C.S.   § 3502.
25 18 Pa.C.S.   § 903(3502).
26 18 Pa.C.S.   § 3502.
27 18 Pa.C.S.   § 3701.
28 [d.

                                                   4
                                                                                Circulated 01/08/2015 01:32 PM




 consecutive state, probationary supervision. N.T. 3/3/10, pp. 10-13,40-46. See also Certificates

 of Imposition of Judgment of Sentence. The court as well concluded at sentencing, without

 objection, that the Defendant was not eligible for recidivism risk reduction incentive (RRRl)

 consideration due to his past criminal history and/or the nature of his convictions at bal'. See 61

 Pa.C.S. §§ 4501 et seq. See also N.T. 3/3/10, pp. 44-46.

        No timely post-sentence motions were lodged, including any pleading requesting

modification of sentence and/or withdrawal of Defendant Crossley's previously entered guilty

pleas. No direct appeal to the Superior Court ofPellllsylvania was filed.

        Defendant Crossley lodged collectively in the above-captioned matters a pro se Motion to

Modify Sentence on or about August 23, 2010, which this court was constrained to treat as a Post

Conviction Collateral Relief Act filing. See Commonwealth v. Stout, 978 A.2d 984, 986-87

(Pa.Super. 2009); Commonwealth v. Fowler, 930 A.2d 586, 591-92 (pa.Super. 2007);

Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001); and Commonwealth v.

Evans, 866 A.2d 442, 443 (Pa.Super. 2005) citing Commonwealth v. Hockenbmy, 455 Pa.Super.

626, 635, 689 A.2d 283, 288 (1997). Henry DiBenedetto Forrest, Esquire was appointed by the

cOUli on or about September 7, 2010, for purposes of the then pending collateral motion to

represent Defendant Crossley. See COlllmonwealth v. Luckett, 700 A.2d 1014, 1016 (Pa.Super.

1997). See also Order dated September 7,2010.

       Mr. DiBenedetto Forrest on November 4, 2010, filed an "Application to Withdraw

Appearance" and suppOliillg "No Merit Letter." See "Application to Withdraw Appearance" and

"No Merit Letter" dated November 4,2010. By order dated January 20, 2011, the cOUli granted

the application of court appointed counsel to withdraw and served notice on the Defendant that it



                                                 5
                                                                                            Circulated 01/08/2015 01:32 PM




 intended to dismiss his then outstanding collateral motion, absent a hearing. See Order and

 Dismissal Notice dated January 20, 2011.

          Defendant Crossley on Febmary 8, 2011, lodged a pro se Answer to the court's Dismissal

 Notice. See Defendant's Answer dated Febmary 8,2011. Per order of April 5, 2011, the court

 dismissed the Defendant's pro se PCRA petition in the form of his Motion to Modify Sentence.

 See Order dated April 5, 2011. Defendant Crossley pro se filed a timely Notice of Appeal on

 April 15,2011, to the Superior Court of Pennsylvania from the order dismissing his collateral

 pleading. These appeals were individually docketed before the appellate cOUli at Nos. 1067

 EDA 2011, 1068 EDA 2011, and 1070 EDA 2011. See Superior COUli Nos. 1067 EDA 2011,

 1068 EDA 2011, and 1070 EDA 2011. 29

         This court via order dated April 28, 2011, directed Defendant Crossley to file of-record a

 Concise Statement of Matters Complained of on Appeal.                    See Order dated April 28, 2011.

Responding to this order, the Defendant lodged on May 10, 2011, a statement of such appellate

complaints. See Statement of Matters Complained of on Appeal, May 10, 2011. Although the

Defendant by this statement advanced four (4) separate assignments of errol', the collective thmst

of his appellate complaint was the failure of his trial attorneys to challenge what he characterized

as an excessive and unduly harsh sentence tlU'ough the timely filing of a sentencing modification

motion as he purpOltedly requested of them.                See Statement of Matters Complained of on

Appeal, April 28, 2011.

         Tllis COUIt issued its opinion on October 25, 20 II, in support of dismissing the

Defendant's first collateral filing. The Superior Court by memorandum opinion dated April 2,

2012, affirmed the dismissal of the Defendant's original collateral pleading concluding, inter

29 The Superior Court by order of August 12. 20 II. for briefing and argument purposes consolidated these appeals.
See Superior COUlt Nos. 1067 EDA 2011.1068 EDA 2011. and 1070 EDA 2011.
                                                         6
                                                                                               Circulated 01/08/2015 01:32 PM




  alia, that" ... Crossley's issue raised on appeal is waived, and in any event, meritless." See

  Superior COUli Nos. 1067 EDA 2011,1068 EDA 2011, and 1070 EDA 2011, Opinion, p. 4.

          Defendant Crossley lodged collectively in the above-captioned matters his second and

 current Petition for Post Conviction Collateral Relief on or about May 1, 2012. See Petition for

 Post Conviction Collateral Relief. By this subsequent PCRA filing, the Defendant generally

 maintained that his pleas of guilty were unlawfully induced under ciIcumstances that made it

 likely that the inducement caused him to plead guilty, and he is innocent of all those crimes

 forming his convictions' basis?O See Defendant's Petition, p. 3.

          By order of cOUlt, Henry DiBenedetto Forrest, Esquire for purposes of the instant

 collateral action was once more appointed to represent Defendant Crossley. Mr. DiBenedetto

 Fonest filed on or about July 30, 2012, an Application to Withdraw Appearance grounded in

30Although  he averred in his most recent PCRA his "i1111ocence," Defendant Crossley by his first collateral pleading
lodged with this comi to the contrary admitted that "[H]e under stands [sic] the wrong he has done and frilly takes
responsibility of his actions." See Defendant's Motion to Modify Sentence, August 23, 2010. The Defendant's
belated claim of i1mocence was not only contradicted by his first PCRA filing's acknowledgment of guilty, but as
well belied by the material case records.

  In No. 5623-09, the evidence against Defendant Crossley is comprehensively set forth by the fifty (50) page
criminal complaint supporting probable cause affidavit which reveals, inter alia, the Defendant was identified along
with a co-defendant, John Cartlidge, Sr., by at least three (3) employees of different pawn shops as seIling items on
numerous occasions taken during celiain of the burglaries. Defendant Crossley was also identified by a bmglarized
home owner and a neighbor of another burglary victim as well as by employees of a storage facility from which
investigators recovered various propeliy taken during the course of the burglaries. TIle Defendant's wife
acknowledged to investigators her teenage daughter was given a Chrishnas gift by the Defendant which she knew he
had stolen during one of the burglaries. See Criminal Complaint and Probable Cause Affidavit, No. 5623-09.

  Regarding No. 4523-09, inter alia, the knife point robbery was caphlred on the store's security tape. From the
surveillance video, the Defendant's wife identified him to investigators. His wife also advised investigators that
Defendant Crossley admitted to her committing this robbery. See Criminal Complaint and Probable Cause
Affidavit, No. 4523-09.

  Concerning No. 453 I -09, inter alia, this knife point robbelY was also captured by that convenience store's video
surveillance system. Once more, Defendant Crossley's wife readily identified him to investigators from the
surveillance tape and further admitted to her participation in this crime as the Defendant's driver. See Criminal
Complaint and Probable Cause Affidavit, No. 453 1-09.

  Salient to all three (3) prosecutions, the Commonwealth long had in place a cooperative plea agreement with the
co-defendants, John Cmilidge, Sr. and Jolm Cmilidge, Jr., requiring their testimony at the Defendant's trials, as the
prosecution deemed necessary.
                                                         7
                                                                               Circulated 01/08/2015 01:32 PM




 concerns of the attorney - client relationship being materially lUptnred. By order dated July 31,

 2012, Mr. DiBenedetto Forrest was permitted to step aside and Stephen D. Molineux, Esquire

 was appointed stewardship of the Defendant's pending collateral interests.

        Mr. Molineux in compliance with the dictates of Commonwealth v. Finley, 481 U.S. 551,

 558-59,107 S.Ct. 1990,1995 (1987), COllllllonwealth v. Tumer, 518 Pa. 491, 495, 544 A.2d 927,

 928-29 (1988), and COllllllonwealth v. Friend, 896 A.2d 607, 614-15 (Pa.Super. 2006) filed an

"Application to Withdraw Appearance" and suppOliing "No Merit Letter." The Defendant's

lawyer concluded that the instant pro se collateral petition was untimely lodged and/or otherwise

ave11'ed no meritorious issues. "No Merit Letter," pp. 3-4. Per order dated January 7, 2014, the

cOUli granted Mr. Molineux's withdrawal application and entered a related Notice of Intent to

Dismiss Without a Hearing. See Order and Dismissal Notice dated Janumy 7, 2014. The court

by order dated June 2, 2014, dismissed the Defendant's present PCRA petition. See Order dated

June 2, 2014.

       On June 25, 2014, the Defendant timely filed a pro se Notice of Appeal. See Notice of

Appeal. The COUlt by order of June 26, 2014, instlUcted Defendant Crossley to lodge a statement

of appellant complaints. See Order dated June 26, 2014. Responding to tlllS order (June 26,

2014), Defendant Crossley timely filed on July 16, 2014, a Statement of Matters Complained of

on Appeal raising the below discussed assignments of error.

       I. Whether Appellant's guilty plea was improperly coerced by the Court's threats to
    sentence him to 160 years and he would die in prison, thus his plea was invalid. When
 Defense counsei condoned such conduct by the court it had Appellant to believe the Court's
   admonition to be true. Defense counsel fwd no reasonable basis for failing to clarify tile
consequences witlt Appellant or seek to withdraw the guilty plea based upon the conduct of the
     court, and Defense COlli/set should have conferred witlt Appellant regarding possible
 altematives instead of allowing Appellant to proceed based on assumption regarding itOII' to
  proceed givell the court's conduct. Such conduct of COUIISel was ineffective and induced
                        Appellallt to enter all invoiunimy guilty plea.

                                                8
                                                                                Circulated 01/08/2015 01:32 PM




     II. Appellant's second post conviction petition was not untimely,' ratlter in tlte interest of
  justice should be considered merely an extellsion of litigation of appellant's timely first post
      conviction petition, which involved tlte wit/u/r(l)v!ll by defense counsel alld counsel's
                                   abandonment of appellant.

        Foremost, this court lacks the requisite jurisdiction to deciding the merits, if any, of

 Defendant Crossley's immediate past collateral filing. Moreover, the Defendant has waived for

 purposes of Post Conviction Relief Act review those challenges tlus PCRA petition advanced

 and/or the previous litigation relevant to Ius guilty pleas' legal validity during his long since

 concluded 20 I 0 collateral action now renders Defendant Crossley ineligible for Post Conviction

 Relief Act remedy grounded in an attack on Ius guilty pleas' lawfulness.

        A defendant must file a PCRA petition, including a second or subsequent one(s) within

one (1) year from the date judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(l). A

sentencing judgment becomes final for purposes of the Post Conviction Relief Act " ... at the

conclusion of direct review, including discretionary review in the Supreme COUli of the United

States and the Supreme COUli of Pelillsylvania, or at the expiration of time for seeking the

review." 42 Pa.C.S. § 9545(b)(3). This otherwise mandated one (I) year filing date is excused

only if a defendant alleges and proves one of the statutOly exceptions set fOl1h in subsections (i),

(ii) and/or (iii) of the Act's Section 9545, relating to government interference, newly discovered

evidence, or a constitutional right recogluzed by the federal and/or state Supreme Courts that is

applied retroactively. 42 Pa.C.S. § 9545(b)(1)(i)(ii)(iii). Even should one or more of these

enumerated exceptions to the one (1) year lodging requisite attach, a defendant for purposes of

the COUIt's necessary jurisdiction must file any such collateral pleading" ... witlun 60 days of

the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).




                                                 9
                                                                                 Circulated 01/08/2015 01:32 PM




         The Superior Court has repeatedly held second or subsequent PCRA petitions untimely

 when such collateral pleadings were not filed within one (1) year after a defendant's judgment of

 sentence became final. Commonwealth v. Johnson, 945 A.2d 185, 188 (pa.Super. 2008) and

 Commonwealth v. Davis, 916 A.2d 1206, 1208-09 (Pa.Super. 2007). Moreover, a second or

 additional PCRA petition will only be considered if a defendant demonstrates that the

 proceedings resulting in his conviction were so unfair that a misca!Tiage of justice occurred

 which no civilized society can tolerate, or a defendant is innocent of the convicted crimes.

 Commonwealth v. Lawson, 519 Pa. 504, 513-14, 549 A.2d 107, 112 (1988) and Commonwealth

 v. SZlichon, 534 Pa. 483, 487, 633 A.2d 1098, 1100 (1993).

        Salient to all of the above-captioned matters, no direct appeal from the sentencing

judgments resulting from Defendant Crossley's guilty pleas was ever sought.           Hence, these

sentence judgments became final on April 2, 2010. 42 Pa.C.S. § 9545(b)(3). Thus, in order to

satisfy the Post Conviction Relief Act's one (1) year filing mandate, the Defendant was required

to lodge his present PCRA pleading no later than April 2, 2011. 42 Pa.C.S. § 9545(b)(1 )(3). As

it was filed on or about May 1,2012, the Defendant's Post Conviction Relief Petition was lodged

belatedly. The instant PCRA petition was filed some approximate thirteen (13) months beyond

the date his sentencing judgments at bar became final and accordingly, this collateral filing was

on its face patently untimely.

       Implicitly conceding the belated nature of his cunent PCRA petition, Defendant Crossley

maintains that this" ... second post conviction petition was not untimely; rather in the interest of

justice should be considered merely an extension of litigation of appellant's timely first post

conviction petition [sic] .... " See Statement of Matters Complained, No.2. The Defendant's

contention that his present Post Conviction Relief Petition should be considered merely an

                                                10
                                                                                 Circulated 01/08/2015 01:32 PM




 extension of his original 2010 collateral lodging is misguided. "Once a PCRA petition has been

 decided and the ruling on it has become final, there is nothing for a subsequent petition             01'


 pleading to 'extend.' Far from continuing into perpetuity, the trial cOUli's jurisdiction over a

 matter generally ends once an appeal is taken from a fmal order or, if no appeal is taken, thitiy

 days elapse after the final order. See 42 Pa.C.S. § 5505." Commonwealth v. Robinson, 575 Pa.

 500, 508, 837 A.2d 1157, 1162 (2003). When Defendant Crossley filed his second PCRA

 petition there was no ongoing collateral litigation before this court. His first collateral pleading

 had since been dismissed by this court, the dismissal appealed to the Superior COUli, and the

 appellate cOUli had affirmed the original PCRA filing's dismissal. See Dismissal Notice dated

Janmny 20, 2011; Order dated April 5, 2011; Superior Court Nos. 1067 EDA 2011, 1068 EDA

2011, and 1070 EDA 2011, Opinion, p. 4. In sh01t, on the present collateral petition's lodging,

" '" there was nothing for a subsequent petition 01' pleading to 'extend.' " Id. The Defendant's

attempt to impute the timeliness of his first Post Conviction Relief Act filing to his current and

clearly tardy collateral petition in an effort to vest this cOUli with the requisite jUl'isdiction

necessary to an adjudication of its merit simply fails.

         Hence, the Defendant's only remaining avenues to asselt the jUl'isdiction necessary for

his sought after collateral relief through this court were the exceptions enumerated within the

Post Conviction Relief Act relating to government interference, newly discovered evidence,       01'    a

constitutional right recognized by the federal and/or state Supreme COUltS that is applied

retroactively. Id. 575 Pa. at 509-10, 837 A.2d at 1162-63. See also 42 Pa.C.S.

§ 9545(b)(1 )(i)(ii)(iii).

        Via the Defendant's PCRA petition, but not in his statement of appellate complaints, he

alleged the applicability of two (2) exceptions to the Act's one (1) year filing date.           See

                                                 11
                                                                                  Circulated 01/08/2015 01:32 PM




 Defendant's Petition, p. 2. Defendant Crossley maintained that his failure to previously raise the

 challenges at bar was the result of govermnental official intelference and/or that the salient facts

 underlining the instant claims were unknown to him and could not have been previously

 discerned with the exercise of due diligence. Defendant's Petition, p. 2. See also 42 Pa.C.S.

 § 9545(b)(1 )(i)(ii). Even from a cursory review of the case records, it is readily evident these

 contentions lack any support.

        The Defendant's assertion that he was previously precluded from raising the challenges at

bar because of governmental official interference is without modest specificity and/or

particularity. The govermnent authorities allegedly interfering with the Defendant's ability to

timely bring these claims are not explicitly or impliedly identified.         Celiainly, there is no

evidence at bar that the Commonwealth in any marmer precluded Defendant Crossley from

pursuing prior the grounds the collateral petition on appeal advances. Assuming the Defendant

is refelTing to this court as the interfering govermnental official, the collective case records are

simply devoid of suppOliing evidence. Moreover, the Defendant's complaints about this          COUIt'S


supposed commentary were offered directly to him in counsel's presence some two (2) years

before the instant PCRA petition on appeal was lodged. See Defendant's Petition, pp. 3-4. See

also Statement of Matters Complained. Accordingly, the complained about comments of this

court cannot reasonably excuse the Defendant from having not timely moved forward previous

with such a collateral challenge. By relevant statutory definition,   COUIt   appointed trial counsel

for purposes of the Post Conviction Relief Act's filing exceptions are not govemment officials.

42 Pa.C.S. § 9545(b)(4). See also Defendant's Petition, p. 2.

       As material to his seeming attempt to bring the belatedly lodged collateral pleading at bar

within an exception to the one (I) year filing mandate, Defendant Crossley in his current PCRA

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 petition incredulously aven-ed that even with the exercise of due diligence the facts on which the

 current collateral claims on appeal are predicated were unknown to him. Unquestionably, the

 comments of this court that the Defendant now takes issue with in both his present PCRA filing

 and the instant appeal were by his very own acknowledgment previously known to him. See

 Defendant's Petition, pp. 3-4. See also Statement of Matters Complained, No.2. Per his current

 PCRA petition's plain terms, the Defendant averred that the court offered such purported

commentary directly to him on FeblUary 26, 2010. Defendant's Petition, p. 3. Defendant

 Crossley's assertion that this information was past unknown to him and only came to his

attention on the exercise of due diligence within sixty (60) days of his present PCRA pleading's

lodging is unquestionably refuted by his collateral petition's plain averments.

        The statutory time-bar set fOlih in the Post Conviction Relief Act's Section 9545 is

mandatory as well as jurisdictional in nature and hence, may not be altered or disregarded to

reach the merits of claims raised in a belated collateral filing. Commonwealth v. Taylor, 933

A.2d 1035, 1038 (pa.Super. 2007) citing Commonwealth v. Murray, 562 Pa. 1,4,753 A.2d 201,

203 (2000). See also 42 Pa.C.S. § 9545. COUlis simply cannot adjudicate those issues raised in

an nntimely PCRA petition. COllllllonwealth v. Brown, 596 Pa. 354, 359-60, 943 A.2d 264, 267

(2008) and COlllmonwealth v. Crews, 581 Pa. 45, 50-51, 863 A.2d 498, 501 (2004). See also

Commonwealth v. Beasley, 559 Pa. 604, 609, 741 A.2d 1258, 1261 (1999). This court clearly

lacked the requisite jurisdiction necessary to deciding the merits, if any, of Defendant Crossley's

most recent collateral filing. Id. See also Commonwealth v. Murray supra 562 Pa. at 4, 753

A.2d at 203.

       Section 9543 ofthe Post Conviction Relief Act (PCRA), inter alia, provides to be eligible

for relief a defendant must establish by a preponderance of the evidence that the conviction(s)

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 resulted from one or more of the Act's specifically enumerated errors and/or defects and that

 such have not been waived. See 42 Pa.C.SA § 9543(a)(1)(2)(3). See also COllllllonwealth v.

 Banks, 540 Pa. 143, 148-149, 656 A.2d 467, 469 (1995). A collateral claim is waived for

 purposes of the Post Conviction Relief Act" ... if the petitioner could have raised it but failed to

 do so before trial, at trial, during unitary review, on appeal or in a prior state post conviction

 proceeding." 42 Pa.C.S. § 9544(b).

           As detailed above, those circumstances averred by Defendant Crossley in SUppOlt of the

 subsection (ii) filing exception were personal to him and have been well known to him since at

least March 3, 2010, the date of his guilty pleas and resultant sentencings. See 42 Pa.C.S.

 § 9545(b)(ii). Having failed to raise the issues of this COUlt'S supposed inducement and his trial

attorney's alleged ineffectiveness for then failing to address such" ... before trial, at trial, during

unitary review, on appeal or in a prior state post conviction proceeding '" ," the Defendant has

waived any such collateral challenge as a basis of Post Conviction Relief Act remedy, assuming

arguendo this cOUlt even has requisite jurisdiction. See 42 Pa.C.S. § 9544(b). See also 42

Pa.C.S. § 9543(a)(4).

       Assuming arguendo, Defendant Crossley is in some way able to demonstrate this court

enjoyed the jurisdiction necessary to deciding the merits of his CUlTent PCRA filing and he has

not under the Post Conviction Relief Act waived such a claim via his failure to advance the same

in his fust lodged PCRA pleading (2010), the Defendant's instant challenge to the lawfulness of

his pleas of guilty should be seen as "previously litigated" during the course of his 2010

collateral action thus rendering Defendant Crossley ineligible for Post Conviction Relief Act

remedy grounded in an attack on his guilty pleas' legal validity. 42 Pa.C.S. §§ 9543(a)(3) and

9S44(a).

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         Section 9544 of the Post Conviction Relief Act provides in material pali as follows

 regarding the past litigation of a collateral claim. "For purposes of this subchapter, an issue has

 been previously litigated if: ... it has been raised and decided in a proceeding collaterally

 attacking the conviction or sentence." 42 Pa.C.S. § 9544(a)(3).

        Resulting from Defendant Crossley's 2010 PCRA pleading, this court in its Dismissal

Notice made explicit findings of fact and conclusions of law related to the lawfulness of the

Defendant's guilty pleas. See Dismissal Notice, January 20, 2011, pp. 10-15. Similal'ly, this

cOUli in its opinion to suppOli the dismissal of Defendant Crossley's 2010 collateral filing fully

discussed the Defendant's pleas of guilty being legally valid. Trial COUli Opinion, October 25,

2011, pp. 14-20. In affirming the dismissal of Defendant Crossley's first collateral action, the

Superior Court, inter alia, concluded that" ... even if Crossley had not waived his claim, his

argument lacks merit for the following reasons: ... the record suppOlis a fmding that Crossley's

pleas were knowingly, intelligently, and voluntarily offered." Superior Comi Nos. 1067 EDA

2011, 1068 EDA 2011, and 1070 EDA 2011, Opinion, pp. 3-4. On such a case record, it most

celiainly appears that the Defendant's CUl1'ent challenge to the lawfulness oflns guilty pleas was

past" ... decided in a proceeding collaterally attacking the conviction or sentence." 42 Pa.C.S.

§ 9S44(a)(3). Defendant Crossley is thus ineligible for Post Conviction Relief Act Remedy

grounded in his present attack on his pleas of guilty supposedly being unlawful. 42 Pa.C.S.

§ 9S43(a)(3).

        "The right to an evidentiary hearing on a post-conviction petition is not absolute. A

PCRA court may decline to hold a hearing if the petition's claim is patently frivolous and

without a trace of suppoli in either the record or from other evidence." COllllllonwealth v. Payne,

794 A.2d 902, 906 (Pa.Super. 2002) citing COllllllonwealth v. Jordan, 772 A.2d 1011, 1014

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 (Pa.Super. 2001). "The controlling factor in determining whether a petition may be dismissed

 without a hearing is the status of the substantive assertions in the petition." Jd. at 906 quoting

 Comlllonwealth v. Weddington, 514 Pa. 46, 50, 522 A.2d 1050, 1052 (1987).

         The Superior Court has held that appellate review of a PCRA's dismissal is conducted:

                [I)n the light most favorable to the prevailing party at the PCRA
                level. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa.Super.
                2010). TIlls review is Iinlited to the fmdings of the PCRA cOUli
                and the evidence of record. Jd. We will not disturb a PCRA
                court's lUling if it is supported by evidence of record and is free of
                legal error. Jd. This COUli may affirm a PCRA court's decision on
               any grounds if the record suppOlis it. Jd. We grant great deference
               to the factual findings of the PCRA court and will not disturb those
               fmdings unless they have no support in the record. Commonwealth
               v. Cartel; 21 A.3d 680, 682 (Pa.Super. 2011). However, we afford
               no such deference to its legal conclusions. Commonwealth v.
               Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011); Commonwealth v.
               Reaves, 592 Pa. 134, 923 A.2d 1119, 1124 (2007). FUlther, where
               the petitioner raises questions of law, our standard of review is de
               novo and our scope of review is plenary. COlllmonwealth v.
               Colavita, 606 Pa. 1,993 A.2d 874,886 (2010).

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (pa.Super. 2012) quoting COllllllonwealth v.
Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012).

        Salient to Defendant Crossley's present and secondary collateral pleading at bar, tillS

comt in light of the foregoing concluded that no reasoned purpose would be served by any

further proceedings as there were no genuine issues of material fact, it lacked necessary

jurisdiction, the instant collateral claim had otherwise been waived as well as past litigated, and

resultantly, the Defendant was not entitled to Post Conviction Act Relief remedy. These fmdings

of this court are amply suppOlied by the instant case records, and it committed no related legal

error. Jd.




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       For the aforementioned reasons, tlus comt's dismissal of Defendant Crossley's current

pro se Motion for Post Conviction Relief, should be affirmed.



                                                           BY THE COURT:




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                                                                                   - -.1 ---,
                                                                                    ;i---;:--


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