J-S42022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

BERNARD FIELDING

                            Appellant                  No. 3462 EDA 2014


                  Appeal from the PCRA Order October 29, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1036801-1992


BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                       FILED SEPTEMBER 28, 2015

        Appellant, Bernard Fielding, appeals pro se from the October 29, 2014

order, dismissing, without a hearing, his fifth petition filed pursuant to the

Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.           After careful

consideration, we affirm.

        The PCRA court summarized the procedural history of this case as

follows.

                    On April 18, 1994, following a jury trial …
              [Appellant] was found guilty of [s]econd[-d]egree
              [m]urder,     [b]urglary,    [r]obbery,    [c]riminal
              [c]onspiracy, and [p]ossession of an [i]nstrument of
              [c]rime.[1]    [Appellant] was sentenced to an
              aggregate term of life imprisonment. [Appellant]
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(b), 3502, 3701, 903, and 907, respectively.
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          appealed, and on December 26, 1995, the Superior
          Court    affirmed   the    judgment    of   sentence.
          [Commonwealth v. Fielding, 676 A.2d 280 (Pa.
          Super. 1995) (unpublished memorandum), appeal
          denied, 681 A.2d 1341 (Pa. 1996).] On August 9,
          1996, the Pennsylvania Supreme Court denied
          allocatur. [No further direct appeal was pursued.]

                 On September 2, 1997, [Appellant] filed his
          first petition pursuant to the [PCRA].      Court-
          appointed counsel subsequently 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), and the
          petition was dismissed. No appeal followed.

                [Appellant] filed his second PCRA petition on
          December 19, 2001, and it was subsequently
          dismissed.     The Superior Court affirmed the
          dismissal on May 23, 2003, and no appeal followed.
          [Commonwealth v. Fielding, 829 A.2d 356 (Pa.
          Super. 2003) (unpublished memorandum).]

                [Appellant] filed his third PCRA petition on May
          26, 2004, and it was subsequently dismissed. The
          Superior Court affirmed the dismissal on July 13,
          2006, and no appeal followed. [Commonwealth v.
          Fielding, 907 A.2d 1132 (Pa. Super. 2006)
          (unpublished memorandum).]

                [Appellant] filed his fourth PCRA petition on
          July 12, 2010, and it was dismissed [as untimely]
          February 17, 1012. The Superior Court affirmed the
          dismissal on March 5, 2013. [Commonwealth v.
          Fielding, 69 A.3d 1282 (Pa. Super. 2013)
          (unpublished memorandum).]

                [Appellant] filed the instant petition, his fifth,
          on April 15, 2014. After conducting an extensive
          and exhaustive review of these filings, the record,
          and applicable case law, [the PCRA] court
          determined that the instant petition was untimely
          filed and that none of the timeliness exceptions
          applied. On August 14, 2014, [the PCRA court]

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              provided [Appellant] with notice of its intent to
              dismiss his petition without a hearing pursuant to
              Pa.R.Crim.P. 907, and [Appellant] filed a response
              on August 28, 2014. [The PCRA court] subsequently
              dismissed the petition on October 29, 2014.
              [Appellant] filed a [timely] notice of appeal from that
              order [on November 25, 2014].

PCRA Court’s Opinion, 1/22/15, at 1-2.2

       Appellant has neglected to state any questions presented for review as

required by Pa.R.A.P. 2116(a).            Such an omission may be grounds for

dismissal of an appeal.        See generally Pa.R.A.P. 2101.     Appellant does

state that, “Appellant submits the PCRA court erred by summarily denying

the claim presented … without a hearing” in a section captioned “Summary.”

Appellant’s Brief at 6. Because this deficiency does not impede our review of

the timeliness of Appellant’s PCRA petition, we decline to dismiss the appeal.

See Commonwealth v. Dupre, 866 A.2d 1089, 1096 (Pa. Super. 2005),

appeal denied, 879 A.2d 781 (Pa. 2005) (declining to dismiss appeal where

appellate brief’s deficient questions presented on appeal did not impede

review).

       We briefly note our standard of review in this matter.

              Our standard of review of the denial of a PCRA
              petition is limited to examining whether the court’s
              rulings are supported by the evidence of record and
____________________________________________
2
  The 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). The PCRA court issued its Rule 1925(a) opinion on
January 22, 2015.



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              free of legal error. This Court treats the findings of
              the PCRA court with deference if the record supports
              those findings. It is an appellant’s burden to
              persuade this Court that the PCRA court erred and
              that relief is due.

Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)

(citation omitted).

      Instantly, the PCRA court dismissed Appellant’s fifth PCRA petition as

untimely. “[I]t is well-settled that … a question of timeliness implicates the

jurisdiction of our Court.”         Commonwealth v. Gandy, 38 A.3d 899,

902 (Pa. Super. 2012) (internal quotation marks and citation omitted),

appeal denied, 49 A.3d 442 (Pa. 2012).                   “Because these timeliness

requirements are mandatory and jurisdictional in nature, no court may

properly disregard or alter them in order to reach the merits of the claims

raised   in   a   PCRA   petition    that   is   filed   in   an   untimely   manner.”

Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa. 2012) (internal quotation

marks and citation omitted).         The PCRA “confers no authority upon this

Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]”

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted).

This is to “accord finality to the collateral review process.”           Id. (citation

omitted). “It is well settled that [a]ny and all PCRA petitions must be filed

[in a timely manner] unless one of three statutory exceptions applies.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061-1062 (Pa. Super. 2011)

(internal quotation marks and citations omitted), appeal denied, 38 A.3d 823


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(Pa. 2012). “We have repeatedly stated it is the appellant’s burden to allege

and prove that one of the timeliness exceptions applies.        Whether [the

a]ppellant has carried his burden is a threshold inquiry prior to considering

the merits of any claim.”    Commonwealth v. Edmiston, 65 A.3d 339,

346 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania,

134 S. Ct. 639 (2013).

     The Act provides for the following possible exceptions to the timeliness

requirement.

           § 9545. Jurisdiction and proceedings

                                      …

           (b) Time for filing petition.—

                  (1) Any petition under this subchapter,
           including a second or subsequent petition, shall be
           [timely] filed … unless the petition alleges and the
           petitioner 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


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                  provided in this section and has been held by
                  that court to apply retroactively.

                  (2) Any petition invoking an exception
            provided in paragraph (1) shall be filed within 60
            days of the date the claim could have been
            presented.

                                         …

42 Pa.C.S.A. § 9545(b).

      Instantly, Appellant’s fifth PCRA petition is facially untimely.       His

judgment of sentence became final on November 7, 1996, ninety days after

our Supreme Court denied Appellant’s petition for allowance of appeal, when

the time to file for a writ of certiorari to the United States Supreme Court

expired. See generally U.S.Sup.Ct.R. 13(1). Therefore, Appellant had until

November 7, 1997, one year from that date, to file a timely first or

subsequent PCRA petition.     See generally 42 Pa.C.S.A. § 9545(b)(3). As

noted, it is required that Appellant pleads and proves one of the statutory

exceptions to the PCRA’s time limits to invoke the PCRA or this Court’s

jurisdiction to consider his petition. See Edmiston, supra.

      In neither his PCRA petition, his response to the PCRA court’s Rule 907

notice, nor his Appellate brief, does Appellant allege the applicability of any

of   the   enumerated     statutory   exceptions   to   the   PCRA’s   timeliness

requirements.   Rather, Appellant avers “[c]laims of Actual Innocence are

never time barred.” Appellant’s Brief at 7A. Appellant asserts he has made




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out a strong prima facie case for innocence and manifest injustice such that

it “will equitably toll limitations period.” Id.

      Such arguments have been clearly rejected as misconstruing the

jurisdictional nature of the PCRA’s timeliness provisions. See Lopez, supra.

            This court has determined that in reviewing claims
            for relief in a second or subsequent collateral attack
            on a conviction and judgment of sentence, the
            request will not be entertained unless a strong prima
            facie showing is demonstrated that that[sic] a
            miscarriage of justice occurred. Commonwealth v.
            Lawson, 519 Pa. 504, 549 A.2d 107 (1988). “An
            appellant makes such a prima facie case only if he
            demonstrates that either the proceedings which
            resulted in his conviction were so unfair that a
            miscarriage of justice occurred which no civilized
            society could tolerate, or that he was innocent of the
            crimes charged.” Commonwealth v. Morales, 549
            Pa. 400, 701 A.2d 516 (1997).           However, the
            Lawson miscarriage of justice standard affords
            Appellant no relief in this case.

            Again, Appellant fails to understand that this court …
            clearly noted that the time requirements under the
            amendments to the PCRA are jurisdictional. Thus,
            while the court would consider a timely petition
            under the Lawson standard, the court has no
            jurisdiction to address an untimely petition….

Commonwealth v. Fahy, 737 A.2d 214, 223, (Pa. 1999).

      As noted, Appellant’s petition is facially untimely. Appellant has failed

to plead or prove any exception to the one-year time limit for filing a PCRA

petition.   We therefore conclude the PCRA court and this Court lack

jurisdiction to review the merits of Appellant’s claims. See id. Accordingly,

we affirm the PCRA court’s October 29, 2014 dismissal order.


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      Order affirmed.

      Judge Shogan joins the memorandum.

      Justice Fitzgerald did not participate in the consideration or decision of

this case.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2015




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