J-S51031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PAUL RUSSELL,

                            Appellant                  No. 400 EDA 2016


                  Appeal from the PCRA Order January 14, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0611781-1991


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED AUGUST 10, 2016

        Appellant, Paul Russell, appeals, pro se, from the order of January 14,

2016, denying as untimely his second petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        We take the underlying facts and procedural history in this matter

from our independent review of the certified record.

        On July 23, 1992, a jury convicted Appellant of murder in the first

degree and possession of an instrument of crime (PIC). On June 27, 1995,

the trial court sentenced Appellant to a term of incarceration of life. 1   On

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 The court also imposed a concurrent sentence of not less than one nor
more than two years’ imprisonment on the PIC conviction.
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October 28, 1996, this Court affirmed the judgment of sentence.           (See

Commonwealth v. Russell, No. 2647 Philadelphia 1995, unpublished

memorandum (Pa. Super. filed Oct. 28, 1996)).           Appellant did not seek

leave to appeal the Pennsylvania Supreme Court.

       On October 17, 1997, Appellant filed his first PCRA petition. The PCRA

court appointed counsel, who filed an amended petition on July 28, 1998.

On October 6, 1999, the PCRA court dismissed the petition. On August 29,

2000, this Court affirmed the dismissal on appeal. (See Commonwealth v.

Russell, 764 A.2d 1128 (Pa. Super. 2000)). On May 14, 2001, the

Pennsylvania Supreme Court denied leave to appeal. (See Commonwealth

v. Russell, 781 A.2d 143 (Pa. 2001)).

       On April 13, 2015, Appellant filed the instant, pro se, second PCRA

petition. On August 25, 2015, the PCRA court filed a Rule 907 notice of its

intention to dismiss Appellant’s PCRA petition without a hearing.          See

Pa.R.Crim.P. 907(1).        Appellant did not file a response.   On January 14,

2016, the PCRA court dismissed Appellant’s second PCRA petition. Appellant

timely appealed.2

       On appeal, Appellant raises five questions for this Court’s review. All

of Appellant’s claims concern alleged ineffective assistance of counsel and
____________________________________________


2
 Appellant was not ordered to file a concise statement of errors raised on
appeal. See Pa.R.A.P. 1925(b). The PCRA court did not file any additional
opinions. See Pa.R.A.P. 1925(a).




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are identical to those raised in his first PCRA petition. (See Appellant’s Brief,

at 4; Commonwealth v. Russell, No. 3073 EDA 1999, unpublished

memorandum, at **2-3 (Pa. Super. filed Aug. 29, 2000)).

      Our standard of review for an order denying PCRA relief is well-settled:

            This Court’s standard of review regarding a PCRA court’s
      order is whether the determination of the PCRA court is
      supported by the evidence of record and is free of legal error.
      Great deference is granted to the findings of the PCRA court, and
      these findings will not be disturbed unless they have no support
      in the certified record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a

trial court has no jurisdiction to entertain the petition.” Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

      Here, Appellant filed his second PCRA petition on August 13, 2015.

The PCRA provides that “[a]ny petition under this subchapter, including a

second or subsequent petition, shall be filed within one year of the date the

judgment becomes final[.]”        42 Pa.C.S.A. § 9545(b)(1).         Appellant’s

judgment of sentence became final on November 27, 1996, thirty days after

this Court affirmed the judgment of sentence and Appellant failed to seek

leave to appeal to the Pennsylvania Supreme Court. See Pa.R.A.P. 1113; 42

Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had one year, until November

27, 1997, to file a timely PCRA petition. Because Appellant did not file his

current petition until August 13, 2015, the petition is facially untimely.




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Thus, he must plead and prove that he falls under one of the exceptions at

Section 9545(b) of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1).

      Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully proves that:

            (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. at § 9545(b)(1)(i)-(iii).   Further, a petitioner who wishes to invoke any

of the above exceptions must file the petition “within [sixty] days of the date

the claim could have been presented.”            Id. at § 9545(b)(2).      The

Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s

burden to plead and prove that one of the above-enumerated exceptions

applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268

(Pa. 2008), cert. denied, 555 U.S. 916 (2008).

      Here, Appellant has not invoked any of the statutory exceptions. (See

Appellant’s Brief, at 7-21).    While he argued in the PCRA court that his

petition fell under    the   third exception of Section 9545(b)(1), (see

Appellant’s Petition for Post[-]Conviction Relief, 4/13/15, at unnumbered

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page 1; PCRA Court Opinion, 1/14/16, at unnumbered pages 2-4); see also

42 Pa.C.S.A. § 9545(b)(1)(iii) (providing relief where appellant proves

newly-recognized constitutional right), he has abandoned that claim on

appeal.   (See Appellant’s Brief, at 7-21).    Since Appellant’s petition is

untimely with no statutory exception to the time-bar pleaded and proven,

the PCRA court was without jurisdiction to address the merits of Appellant’s

claims.

      Accordingly, because Appellant failed to plead and prove that his

petition falls within one of the enumerated exceptions to the PCRA time-bar,

it is untimely.   We are without jurisdiction to consider the merits of his

appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/10/2016




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