J-S65014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                      v.

    PAUL PARHAM

                           Appellant                 No. 444 EDA 2017


                  Appeal from the PCRA Order January 5, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0506761-1997


BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                       FILED NOVEMBER 14, 2017

        Appellant, Paul Parham, appeals pro se from the January 5, 2017 order

dismissing his sixth petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The factual background and procedural history of this case are as

follows.   On December 4, 1989, Appellant was involved in a drug-related

dispute with Jetta James (“James”) and Leon Jones (“Jones”). Appellant shot

and killed James and Jones. On November 23, 1998, Appellant was convicted

of two counts of abuse of a corpse,1 third-degree murder,2 and criminal




1   18 Pa.C.S.A. § 5510.

2   18 Pa.C.S.A. § 2502(c).
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conspiracy.3 On February 4, 1999, the trial court sentenced Appellant to an

aggregate term of 11 to 22 years’ imprisonment. On direct appeal, this Court

affirmed     and   our    Supreme    Court   denied   allowance    of   appeal.

Commonwealth v. Parham, 761 A.2d 1237 (Pa. Super. 2000) (unpublished

memorandum), appeal denied, 771 A.2d 1282 (Pa. 2000).

        On December 18, 2001, Appellant filed a pro se PCRA petition. Counsel

was appointed and filed an amended petition. On March 7, 2003, the PCRA

court dismissed the petition.    Appellant did not appeal that dismissal.   On

August 25, 2004, Appellant filed his second pro se PCRA petition. On January

13, 2005, the PCRA court dismissed the petition. This Court affirmed and our

Supreme Court denied allowance of appeal. Commonwealth v. Parham,

889 A.2d 116 (Pa. Super. 2005) (unpublished memorandum), appeal denied,

897 A.2d 454 (Pa. 2006).

        On December 4, 2007, Appellant filed his third pro se PCRA petition. On

July 2, 2008, the PCRA court dismissed the petition. This Court affirmed the

dismissal    and    our   Supreme    Court   denied   allowance    of   appeal.

Commonwealth v. Parham, 981 A.2d 930 (Pa. Super. 2009) (unpublished

memorandum), appeal denied, 989 A.2d 916 (Pa. 2009).           On January 26,

2011, Appellant filed his fourth pro se PCRA petition. On July 24, 2015, the

PCRA court dismissed the petition. On September 21, 2015, Appellant filed




3   18 Pa.C.S.A. § 903.


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his fifth pro se PCRA petition. On June 15, 2016, the PCRA court dismissed

the petition.

      On July 28, 2016, Appellant filed his sixth pro se PCRA petition. On

September 9, 2016, the PCRA court issued notice of its intent to dismiss the

petition without an evidentiary hearing.       See Pa.R.Crim.P. 907.        On

September 27, 2016, Appellant filed his response to the Rule 907 notice. On

January 5, 2017, the PCRA court dismissed the petition. This timely appeal

followed.4

      Appellant presents one issue for our review:

      Whether this Court should [r]emand this matter to the [PCRA
      court] for [] further proceedings based on [newly-discovered
      facts] regarding the competency of [PCRA] counsel[?]

Appellant’s Brief at 3.

      “Crucial to the determination of any PCRA appeal is the timeliness of the

underlying petition.” Commonwealth v. Brown, 141 A.3d 491, 499 (Pa.

Super. 2016) (citation omitted).      The timeliness requirement for PCRA

petitions “is mandatory and jurisdictional in nature[.]” Commonwealth v.

Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citation omitted).

      A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1).         “[A]




4The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure
1925(b). Nonetheless, on March 17, 2017, the PCRA court issued a Rule
1925(a) opinion.


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judgment 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.A. § 9545(b)(3).       Appellant’s judgment of sentence

became final on March 20, 2001. See Sup. Ct. R. 13. Appellant’s sixth PCRA

petition was filed on July 28, 2016. Thus, the petition was patently untimely.

      An untimely PCRA petition may be considered if one of the following

three exceptions applies:

      (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). If an exception applies, a PCRA petition may be

considered if it is filed “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2). “The petitioner bears the burden to

plead and prove an applicable statutory exception.”         Commonwealth v.

Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017), appeal denied, 2017 WL

3614192 (Pa. Aug. 23, 2017).




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      In his lone appellate issue, Appellant argues that the PCRA court erred

in dismissing his petition as untimely because he satisfied the newly-

discovered fact exception to the PCRA’s one-year time bar.          The newly-

discovered fact exception

      has two components, which must be alleged and proved. Namely,
      the petitioner must establish that: 1) the facts upon which the
      claim was predicated were unknown and 2) could not have been
      ascertained by the exercise of due diligence. If the petitioner
      alleges and proves these two components, then the PCRA court
      has jurisdiction over the claim under this subsection.

Commonwealth. v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (internal

quotation marks and citations omitted; emphasis removed).

      Appellant argues that he recently discovered that PCRA counsel, who

was appointed to represent him with respect to his first PCRA petition, had

disciplinary and personal problems at the time Appellant’s first PCRA petition

was pending. Appellant argues that PCRA counsel abandoned him by failing

to appeal the March 7, 2003 order dismissing his first PCRA petition and failing

to consult Appellant regarding whether an appeal was appropriate. Appellant

contends that this newly-discovered fact, i.e., PCRA counsel’s disciplinary and

personal problems, helps establish that PCRA counsel was per se ineffective

for failing to file a notice of appeal and consult Appellant regarding whether

an appeal was appropriate.

      It is well-settled that “a conclusion that previous counsel was ineffective

is not a newly discovered fact entitling [a petitioner] to the benefit of the

exception for newly-discovered facts.     In sum, a conclusion that previous


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counsel was ineffective is not the type of newly-discovered fact encompassed

by the exception.” Commonwealth v. Mitchell, 141 A.3d 1277, 1285 (Pa.

2016) (internal quotation marks and citation omitted). There is, however, an

exception to this general rule if a petitioner discovers that prior counsel

abandoned him or her.       Bennett, 930 A.2d at 1273.        In such cases, a

petitioner can satisfy the newly-discovered fact exception if he or she files the

petition within 60 days of learning of such abandonment.

      In this   case,   Appellant was aware       of   PCRA counsel’s alleged

abandonment by December 12, 2008.           See Appellant’s Brief in 2769 EDA

2008, 12/12/08, at 12 (arguing that PCRA “counsel effectively abandoned

Appellant by failing to preserve and protect his appellate rights or notify

Appellant that he had failed to do so”). Appellant filed the instant petition on

July 28, 2016 – more than seven years after he became aware of PCRA

counsel’s alleged abandonment.       The discovery regarding PCRA counsel’s

disciplinary problems did not contribute to Appellant learning of PCRA

counsel’s alleged abandonment. Accordingly, Appellant failed to plead and

prove that applicability of the newly-discovered fact exception and the PCRA

court correctly held that it lacked jurisdiction to reach the merits of the

petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




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