J-S04001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
DALIYL RAA’ID MUHAMMAD                   :
                                         :
                   Appellant             :   No. 761 MDA 2017

                 Appeal from the PCRA Order April 7, 2017
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0002967-2002,
                         CP-22-CR-0003009-2002


BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 21, 2018

      Appellant, Daliyl Raa’id Muhammad, appeals pro se from the April 7,

2017 order denying his serial petition filed pursuant to the Post Conviction

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

      A prior panel of this Court set forth the relevant factual history of this

case as follows:

            The evidence presented establishes that on the evening of
      January 13, 2002, James Nickol called appellant in order to
      purchase marijuana. Appellant indicated he could sell Nickol
      three pounds of the drug for $2,400, and agreed to meet Nickol
      later that evening on South 14th Street in Harrisburg,
      Pennsylvania. Nickol and a companion, Derrick Kleugel, then
      drove to Harrisburg. Upon their arrival, appellant informed them
      they would have to walk a few blocks to get the marijuana.
      Appellant was accompanied by another man, later identified as
      co-defendant Michael Cameron. At some point while the four
      men were walking down South 15th Street, appellant and
      Cameron slowly began to lag behind the victims. Gunfire then
      rang out and Nickol was shot three times in the back, three
J-S04001-18


       times in the stomach, and once in the hip. Kleugel was shot
       twice in the back and once in the hip. Nickol testified that
       immediately after the incident, he felt a burning sensation and
       fell to the ground. He further testified that appellant then
       climbed on top of him while holding a shiny object in his hand
       and demanded money. Kleugel also testified that after he fell,
       someone searched him and demanded money. N.T., 8/6/03, at
       81-83, 85-88, 90-94; N.T., 8/7/03, at 162-164, 166.

             Appellant fled the scene before police and emergency
       personnel responded to the victims. He was apprehended
       following considerable resistance on July 7, 2002, almost six
       months later. N.T., 8/7/03, at 179, 182-183, 209-211.

Commonwealth v. Muhammad, 860 A.2d 1132, 1767 MDA 2003 (Pa.

Super. filed August 17, 2004) (unpublished memorandum at 2-3).

       Following a jury trial, Appellant was found guilty of criminal attempt to

commit homicide, robbery, conspiracy, two counts of aggravated assault,

flight to avoid apprehension, escape, resisting arrest, and false identification

to   law   enforcement.1         Muhammad,       1767   MDA   2003   (unpublished

memorandum at 1).          Appellant filed a timely appeal, and on August 17,

2004, this Court affirmed Appellant’s judgment of sentence in part and

vacated in part. Id. This Court concluded that Appellant’s convictions for

the attempted homicide and aggravated assault on James Nickol should

have merged, and therefore, one of his sentences for aggravated assault

was vacated. Id. at 12. However, we explained that because Appellant was
____________________________________________


1 18 Pa.C.S. §§ 901, 3701(a)(1)(i), 903, 2702(a)(1), 5126, 5121(a), 5104,
and 4914(a) respectively. We note that the PCRA court erroneously stated
that false identification to law enforcement was a violation of 18 Pa.C.S.
§ 4906(a). PCRA Court Opinion, 7/10/17, at 1 n.10.



                                           -2-
J-S04001-18


convicted of two counts of aggravated assault for which the trial court

imposed concurrent sentences, this Court’s disposition did not upset the trial

court’s sentencing scheme, and thus, remand for resentencing was not

required.   Id. (citing Commonwealth v. Robinson, 817 A.2d 1153 (Pa.

Super. 2003)). Appellant did not file a petition for allowance of appeal in the

Pennsylvania Supreme Court. Therefore, Appellant’s judgment of sentence

became final on September 16, 2004, when the time to pursue allowance of

appeal in our Supreme Court expired. See Pa.R.A.P. 1113(a) (“a petition for

allowance of appeal shall be filed with the Prothonotary of the Supreme

Court within 30 days after the entry of the order of the Superior Court or the

Commonwealth Court sought to be reviewed.”); see also 42 Pa.C.S.

§ 9545(b)(3) (a defendant’s judgment of sentence “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 the time for seeking the review”).      Over the next decade,

Appellant filed four PCRA petitions, and each petition was denied.

      On October 7, 2016, and October 28, 2016, Appellant filed what were

nominally his fifth and sixth PCRA petitions, respectively.    These petitions

were duplicative in substance, and the PCRA court treated them as a single

PCRA petition. PCRA Court Opinion, 7/10/17, at 4. On February 14, 2017,

the PCRA court issued notice of its intent to dismiss the petition as untimely.




                                     -3-
J-S04001-18


On April 7, 2017, the PCRA court dismissed the petition, and this timely

appeal followed.

      On appeal, Appellant raises the following issues:

      I. WHETHER THE PCRA COURT DENIED DEFENDANT DUE
      PROCESS BY REFUSING HIM AN OPPORTUNITY TO AMEND HIS
      PCRA?

      II. WHETHER THE AFFIDAVIT OF JOYETTA FOSTER DETAILING
      JUDGE CLARK’S BIAS AGAINST MUSLIMS MET THE AFTER
      DISCOVERED   FACTS   AND   MISCARRIAGE    OF  JUSTICE
      EXCEPTIONS AND IS DEFENDANT ENTITLED TO A NEW TRIAL
      OR REMAND FOR AN EVIDENTIARY HEARING?

      III. WHETHER THE PCRA COURT ERRED IN REQUIRING
      DEFENDANT TO PLEAD/PROVE DUE DILIGENCE UNDER THE
      GOVERNMENTAL INTERFERENCE EXCEPTION WHEN THE
      STATUTE DOES NOT CONTAIN SUCH LANGAUGE, AND HAS THE
      STATE COURTS ESTABLISHED A CLEAR DEFINITION FOR
      GOVERNMENTAL INTERFERENCE?

      IV. WHETHER THE LOSS, ALTERATION, OR FAILURE TO
      PROVIDE A FULL/COMPLEE COPY OF THE TRIAL PROCEEDINGS
      BY THE COURT OR ITS OFFICERS AMOUNT TO GOVERNMENTAL
      INTERFERENCE/MISCARRIAGE    OF    JUSTICE   RENDERING
      DEFENDANT’S UNDERLYING CLAIM OF DENIAL OF A FAIR TRIAL,
      APPEAL, JUDICIAL BIAS REVIEWABLE ON THE MERITS, OR A
      REM, A REMAND FOR AN EVIDENTIARY HEARING?

      V. WHETHER THE PCRA COURT ERRED, AS A MATTER OF LAW,
      IN ITS ASSESSMENT OF THE SUBSTANCE/TIMELINESS OF
      MICHAEL HILL’S AFFIDAVIT/STATEMENT WHICH MET THE AFTER
      DISCOVERED FACTS/MISCARRIAGE OF JUSTICE STANDARD:
      AND IS DEFENDANT ENTITLED TO A NEW TRIAL OR REMAND
      FOR AN EVIDENTIARY HEARING?

Appellant’s Brief at vi (verbatim).

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether that court’s


                                      -4-
J-S04001-18


determination is free of legal error. Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record. Id.

       A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final.            42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.       Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). A judgment of sentence

“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. § 9545(b)(3).

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.2 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim first could have been presented. 42

____________________________________________


2   The exceptions to the timeliness requirement are:

       (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;

(Footnote Continued Next Page)


                                           -5-
J-S04001-18


Pa.C.S. § 9545(b)(2).        In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Hernandez, 79 A.3d at 652.

      We have reviewed the briefs of the parties, the relevant law, the

certified record before us, and the PCRA court’s opinion. We discern no error

in the PCRA court’s analysis and conclusion that Appellant’s PCRA petition

was   untimely     and   that   no    exceptions   to   the   PCRA’s   time-for-filing

requirements were satisfied. Accordingly, we affirm the April 7, 2017 order

based on the PCRA court’s opinion, and we adopt its analysis and reasoning

as our own. The parties are directed to attach a copy of the PCRA court’s

July 10, 2017 opinion, which incorporated the PCRA court’s February 14,

2017 memorandum opinion, in the event of further proceedings in this

matter.

      Order affirmed.

(Footnote Continued) _______________________

      (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. § 9545(b)(1)(i), (ii), and (iii).




                                          -6-
J-S04001-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/21/2018




                          -7-
