J-S28014-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

PERCY ST. GEORGE,

                        Appellant                  No. 1419 EDA 2015


                Appeal from the PCRA Order April 28, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0403962-1997


BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED APRIL 12, 2016

     Acting pro se, Percy St. George appeals the order entered on April 28,

2015, wherein the trial court dismissed his second PCRA petition as

untimely. We affirm.

     On December 2, 1998, a jury convicted Appellant of two counts each

of robbery, kidnapping, and false imprisonment, and one count each of

possessing instruments of crime and criminal conspiracy in relation to the

December 4, 1996 kidnapping and robbery of Felicita Agosto and Larnell

Gunby.    Specifically, Appellant and his accomplices kidnapped the two

victims at gunpoint while they were driving to work at a check-cashing store.

The conspirators intended to use the victims in order to gain access to the

store and rob it. On April 27, 1999, the trial court imposed ten to twenty


* Retired Senior Judge assigned to the Superior Court.
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years imprisonment. On February 15, 2002, we affirmed the judgment of

sentence. Commonwealth v. St. George, 797 A.2d 1026 (Pa.Super. 2002)

(unpublished memorandum).

       On April 10, 2002, Appellant filed a pro se PCRA petition. Counsel was

appointed but she eventually filed a Turner/Finley1 no-merit letter and

sought to withdraw.         On April 29, 2004, following proper notice under

Pa.R.A.P. 907, the PCRA court dismissed the petition as lacking merit.

Appellant did not appeal that order. The PCRA court summarized the

remaining procedural history as follows:

              On May 29, 2012, Petitioner filed the instant pro se PCRA
       petition (styled as motion for modification of sentence nunc pro
       tunc). Pursuant to Pennsylvania Rule of Criminal Procedure 907,
       Petitioner was served with notice of this court's intention to
       dismiss his PCRA petition on February 10, 2014. Petitioner filed a
       response to the court's Rule 907 letter on February 27, 2014. On
       April 28, 2015, the lower court dismissed his petition without a
       hearing. The instant notice of appeal was timely filed to the
       Superior Court on May 8, 2015.

PCRA Court Opinion, 6/11/15, at 1-2.

       Initially, we note, “[a]n appellate court reviews the PCRA court's

findings of fact to determine whether they are supported by the record, and

reviews its conclusions of law to determine whether they are free from legal

error."   Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “The

____________________________________________


1
  Commonwealth v. Turner, 544 A.2d 927 (1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).



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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

trial level.” Id.

      Herein, the PCRA court concluded that Appellant’s petition was barred

by the PCRA time requirements and that Appellant’s allegation of a newly-

recognized constitutional right did not fall within an exception to the time

bar. For the following reasons, we agree.

      The time limitations imposed by the PCRA implicate our jurisdiction

and they may not be altered or disregarded in order to address the merits of

a petition.    See Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa.Super. 2010) (“Pennsylvania law makes clear no court has jurisdiction to

hear an untimely PCRA petition.”).          Appellant’s judgment of sentence

became final on March 15, 2002, thirty days after we affirmed on direct

appeal and upon the expiration of the period to file a petition for allowance

of appeal with our Supreme Court. Accordingly, in order to comply with the

time requirements, Appellant’s petition had to be filed by March 15, 2003.

Appellant filed the instant petition on May 29, 2012; thus, unless one of the

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies, the petition is

barred as untimely.

      Section 9545 provides the following three exceptions that allow for

review of an untimely PCRA petition: (1) petitioner’s inability to raise a claim

as a result of governmental interference; (2) the discovery of previously

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unknown facts that could not have been ascertained by the exercise of due

diligence; and (3) a newly-recognized constitutional right.           42 Pa.C.S. §

9545 (b)(1)(i)-(iii). To invoke an exception, the petitioner must plead it and

satisfy the burden of proof. Commonwealth v. Beasley, 741 A.2d 1258,

1261-62 (Pa. 1999). In addition, any exception must be raised within sixty

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

9545(b)(2).

      Instantly, Appellant fails to assert a specific exception to the PCRA

time bar.     His central argument is that the trial court imposed an illegal

sentence.     It is a well-ensconced principle of law that, while a claim

implicating the legality of sentence can never be waived, it must be raised in

a timely filed PCRA petition or the statute’s jurisdictional limitations will

prevent the trial court from addressing it. See Commonwealth v. Fahy,

737 A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is always

subject to review within the PCRA, claims must still first satisfy the PCRA’s

time limits or one of the exceptions thereto.”); Commonwealth v. Jones,

932 A.2d 179, 182 (Pa.Super. 2007).

      As a secondary issue, Appellant asserts that prior PCRA counsel

provided    ineffective   assistance.    Stated   plainly,   claims   of   counsel’s

ineffectiveness cannot be used to salvage an otherwise untimely PCRA. See

Fahy, supra at 223. Moreover, we reject Appellant’s insinuation that PCRA

counsel’s representation was so inept as to be considered tantamount to a

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waiver of Appellant’s due process rights.      He asserts that, as a first-time

PCRA petitioner, he should have been afforded meaningful representation,

which counsel failed to provide when she submitted a no-merit letter and

sought to withdraw her representation. This contention implicates aspects of

our Supreme Court’s holding in Commonwealth v. Bennett, 930 A.2d

1264 (Pa. 2007).

      In   Bennett,   our   Supreme    Court    addressed   whether   a     PCRA

petitioner’s allegation that he recently discovered that PCRA counsel had

abandoned him during his appeal from the order denying his timely first

PCRA petition permitted him to circumvent the PCRA time bar under §

9545(b)(1)(ii).   The Supreme Court first explained that § 9545(b)(1)(ii) is

triggered “when 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.”   Id. at 1270 (quoting 42 Pa.C.S. § 9545(b)(1)(ii)).          It then

concluded that where a petitioner pleads and proves both components of

this exception, the PCRA court has jurisdiction over the claim.

      In reaching its determination that the petitioner was entitled to assert

the previously-unknown-fact exception to the PCRA time limitations, the

High Court stressed the significance of the difference between a specific

allegation that PCRA counsel abandoned a petitioner and a general allegation

that PCRA counsel provided ineffective assistance. See Bennett, supra at

1272-1274.     The Court then reiterated that the alleged discovery of the

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latter form of ineffectiveness was not grounds for circumventing the § 9545

time restrictions.   Id. at 1272; Commonwealth v. Gamboa-Taylor, 753

A.2d 780, 785 (Pa. 2000) (“In sum, a conclusion that previous counsel was

ineffective is not the type of after-discovered evidence encompassed by the

exception”). However, analogizing a PCRA petitioner’s rule-based right to a

counseled first petition to a criminal defendant’s Sixth Amendment right to

counsel during criminal proceedings, the Supreme Court reasoned that §

9545 could not be applied to preclude review of a previously unknown claim

alleging the complete denial of the assistance of counsel during the appeal

from the order denying the first PCRA petition.   Accordingly, the Bennett

Court held that the petitioner’s allegations fell within the previously-

unknown-fact exception to the time bar, and it remanded the matter for this

Court to determine whether counsel’s abandonment was unknown to the

petitioner and could not have been ascertained through due diligence.

      Unlike the defendant in Bennett, however, Appellant did not invoke

the previously-unknown-fact exception to the PCRA’s time requirements

pursuant to § 9545(b)(1)(ii) or even attempt to assert that he was

abandoned by prior PCRA counsel. Instead of framing an exception under §

9545(b)(1)(ii), Appellant’s claim appears to challenge PCRA counsel’s

stewardship in assessing the merits of his first petition and in seeking to




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withdraw from representation pursuant to Turner and Finley.2       Thus, the

concerns underlying our Supreme Court’s rationale in Bennett are absent

herein.

       Having found that Appellant’s second PCRA petition was untimely filed

and that no exceptions to the statutory time bar apply, we affirm the order

dismissing his petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2016




____________________________________________


2
 To the extent that Appellant possessed viable challenges to the propriety of
PCRA counsel’s petition to withdraw or the PCRA court’s Turner/Finely
analysis, his remedy would have been to appeal the order dismissing his first
PCRA petition. He did not appeal that order, and he cannot resurrect these
assertions in a subsequent petition.



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