J-S43030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARTIN TISDALL

                            Appellant                   No. 2898 EDA 2014


                Appeal from the PCRA Order September 19, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0308871-1998


BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J.                              FILED AUGUST 28, 2015

        Appellant, Martin Tisdall, appeals pro se from the order entered

September 19, 2014, in the Court of Common Pleas of Philadelphia County,

which dismissed his PCRA1 petition. We affirm.

        On November 22, 1999, Tisdall entered a guilty plea to four counts

each of robbery, criminal conspiracy, and possessing an instrument of crime.

On March 1, 2000, the trial court sentenced Tisdall to 32½ to 65 years in

prison, to be followed by 60 years’ probation. Tisdall sought to modify his

sentence, and later moved to withdraw his guilty plea. The trial court denied

both motions. Tisdall did not file a direct appeal.2
____________________________________________


1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
  Defense counsel was permitted to withdraw his representation and new
counsel subsequently sought to challenge trial counsel’s effectiveness. The
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      On January 22, 2013, Tisdall filed a pro se PCRA petition. The PCRA

court appointed counsel, and appointed counsel filed a Petition to Withdraw

and a Turner/Finley3 no-merit letter. The PCRA court filed a Pa.R.Crim.P.

907 Notice of Intent to Dismiss Tisdall’s PCRA petition as untimely; Tisdall

filed an amended PCRA petition in response thereto. The PCRA court later

dismissed the petition and granted appointed counsel permission to

withdraw. This timely pro se appeal followed.

      Before we may address the merits of a PCRA petition, we must first

consider the petition’s timeliness because it implicates the jurisdiction of

both this Court and the PCRA court. See Commonwealth v. Williams, 35

A.3d 44, 52 (Pa. Super. 2011). “Pennsylvania law makes clear no court has

jurisdiction to hear an untimely PCRA petition.” Id. (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). “A petition for relief under

the PCRA, including a second or subsequent petition, must be filed within
                       _______________________
(Footnote Continued)

trial court denied Tisdall’s ineffective assistance of counsel claims following a
hearing, and this Court affirmed that decision on appeal.                    See
Commonwealth v. Tisdall, 833 A.2d 1151 (Pa. Super. 2003) (Table)
(unpublished memorandum).
3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).




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one year of the date the judgment becomes final unless the petition alleges,

and the petitioner proves, that an exception to the time for filing the

petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met.”

Commonwealth v. Harris, 972 A.2d 1196, 1199-1200 (Pa. Super. 2009).

      Section 9545 provides, in relevant part, as follows.

            (b) Time for filing petition.—

              (1) Any petition under this subchapter, including a
              second or subsequent petition, shall be filed within
              one year of the date the judgment becomes final,
              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 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.

                                       …



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42 Pa.C.S.A. § 9545(b).

     Instantly, Tisdall’s judgment of sentence became final on March 31,

2000, 30 days following the imposition of sentence when the time for filing a

direct appeal expired.    See Pa.R.A.P. 903(a).   Thus, Tisdall’s petition filed

January 22, 2013, is patently untimely and he must plead and prove in his

petition one of the three enumerated statutory exceptions to the time-bar.

See 42 Pa.C.S.A. § 9545(b)(1).

     In his amended PCRA petition, Tisdall asserts that he “cannot be held

legally responsible for filing a late PCRA petition because he was rendered

mentally disabled as a direct result of his severe [gunshot] wound to the

head.” Amended PCRA Petition, 8/18/14 at 2. Regrettably, Tisdall does not

inform this Court when he sustained this gunshot wound.             He claims,

however, that his alleged incompetency qualifies under the after-discovered

facts exception to the PCRA time-bar exception under Section 9545(b)(1)(ii).

Appellant relies on the case of Commonwealth v. Cruz, 852 A.2d 287 (Pa.

2003). Cruz provides no relief.

     In Cruz, appellant shot and killed three people and injured four others,

and then attempted suicide and shot himself in the head.        According to a

psychiatrist, the self-inflicted gunshot wound left appellant “lobotomized”

and unable to express emotions or to discuss the facts of the case in any

discernible manner.   The Pennsylvania Supreme Court found that “mental

incompetence at the relevant times, if proven, may satisfy the requirements


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of Section 9545(b)(1)(ii), in which case, the claims defaulted by operation of

that incompetence may be entertained.” 852 A.2d at 288 (emphasis in

original). The Supreme Court remanded the case for a hearing to determine

whether “(1) [Cruz] was and remained incompetent throughout the period

during which his right to file a PCRA petition lapsed; and (2) [Cruz’s] current

petition was timely filed within 60 days of his becoming sufficiently

competent to ascertain the facts upon which his underlying claims are

predicated.” Id.

      Tisdall’s allegation of incompetence is contradicted by the record.

Prior to sentencing, the trial court had prepared a psychiatric report and

mental status evaluation. When reviewing the report at sentencing, the trial

court noted that although Tisdall had previously sustained a gunshot wound

to the back of the head, the bullet did not affect any brain structure and

“defendant denies any neurological sequela from these gunshot wounds.”

N.T., Sentencing, 3/1/00 at 49.     The report further indicated that Tisdall

“does not display any neurological deficits” and “does not show any signs of

organicity or cognitive defects.” Id. at 51-52.

      As there simply is no evidence to substantiate Tisdall’s claim of

incompetency, or that the incompetency caused Tisdall to be unable to

timely file a PCRA petition, this claim cannot qualify as a fact which was

previously unknown and could not have been ascertained by the exercise of




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due diligence.    Accordingly, the PCRA court properly dismissed Tisdall’s

petition.

      Order affirmed. Appellant’s Request for Court to Take Judicial Notice

denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2015




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