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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                             Appellee

                        v.

ALLEN ONEIL BALTIMORE A/K/A ALLEN
FITZGERALD

                             Appellant              No. 666 WDA 2014


                  Appeal from the PCRA Order March 19, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0017389-2001


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                       FILED JANUARY 27, 2015

        Allen O’Neil Baltimore, a/k/a Allen Fitzgerald, (“Appellant”) appeals

from the order of the Allegheny County Court of Common Pleas dismissing

as untimely his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. § 9541 et seq. We affirm.

        On October 10, 2002, a jury found Appellant guilty of robbery,1

receiving stolen property,2 and criminal conspiracy.3    The Commonwealth

provided notice of its intention to proceed pursuant to the mandatory

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1
    18 Pa.C.S. § 3701.
2
    18 Pa.C.S. § 3925.
3
    18 Pa.C.S. § 903.
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sentencing provisions of 42 Pa.C.S. § 9714(a)(2),4 due to Appellant’s prior

violent crime convictions.5          On January 2, 2003, the court sentenced

Appellant to 25 to 50 years’ incarceration.6      Appellant filed post-sentence

motions, which the court denied. He appealed, and, on October 22, 2003,

this Court dismissed the appeal for a failure to file a docketing statement

pursuant to Pennsylvania Rule of Appellate Procedure 3517.

       On June 23, 2003, Appellant filed a pro se PCRA petition requesting

reinstatement of his appellate rights nunc pro tunc. On January 14, 2004,

the PCRA court appointed counsel and reinstated Appellant’s appeal rights.



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4
  Although the notice contained in the certified record is a notice of the
Commonwealth’s intention to proceed pursuant to the mandatory sentencing
provisions of 42 Pa.C.S.§ 9712, at sentencing, the parties and the court
discussed the mandatory sentencing provisions of 42 Pa.C.S. § 9714, and
defense counsel stated the Commonwealth provided notice of its intention to
request a mandatory sentence pursuant to 42 Pa.C.S.§ 9714(a)(2). N.T.,
1/2/2003, at 4-19.
5
  Although the Supreme Court of the United States found facts that increase
mandatory minimum sentences must be submitted to the jury, it noted there
was “a narrow exception to this general rule for the fact of a prior
conviction.” Alleyne v. United States, 133 S.Ct. 2151, 2160 n.1, 2163, ---
U.S. --- (U.S. 2013). Because the parties did not challenge the validity of
the exception, the Supreme Court did not revisit it. Id., at 2160 n.1.
6
   The trial court sentenced Appellant to a term of 25 to 50 years’
incarceration for robbery and a concurrent term of 10 to 20 years’
incarceration for conspiracy. N.T., 1/2/2003, at 18-19. Appellant did not
receive a sentence for receiving stolen property. Id. Appellant was also
charged with a summary count of reckless driving. The court fined him
$200.00 for this summary violation. N.T., 1/2/2003, at 19.



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      On February 9, 2004, Appellant filed a notice of appeal. On June 21,

2005, this Court affirmed the judgment of sentence.      Commonwealth v.

Baltimore, No. 298 WDA 2004 (Pa.Super. filed June 21, 2005) (unpublished

memorandum).      On June 6, 2006, the Supreme Court of Pennsylvania

denied Appellant’s petition for allowance of appeal. Appellant did not seek

further review in the Supreme Court of the United States.

      On March 29, 2007, Appellant filed a PCRA petition. The PCRA court

appointed counsel, who filed an amended petition. Appellant then filed a pro

se amended petition. On January 24, 2008, the court issued a notice of its

intent to dismiss the petition without a hearing pursuant to Pennsylvania

Rule of Criminal Procedure 907. On February 21, 2008, the court dismissed

the petition. Appellant appealed, and this Court affirmed. Commonwealth

v. Baltimore, No. 597 WDA 2008 (Pa.Super. filed Dec. 30, 2008)

(unpublished memorandum). On September 29, 2009, the Supreme Court

of Pennsylvania denied Appellant’s petition for allowance of appeal.

      On December 9, 2011, Appellant filed a third PCRA petition.          On

December 14, 2011, the PCRA court issued a notice of intent to dismiss the

petition, and, on January 17, 2012, it dismissed the petition. Appellant filed

a notice of appeal and, on March 5, 2013, this Court affirmed the dismissal.

Commonwealth v. Baltimore, No. 874 WDA 2012 (Pa.Super. filed Mar. 5,

2013) (unpublished memorandum).

      On February 14, 2014, Appellant filed the instant PCRA petition. On

February 25, 2014, the PCRA court issued a notice of intent to dismiss the

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petition and, on March 19, 2014, it dismissed the petition as untimely.       On

April 14, 2014, Appellant filed a timely notice of appeal. 7 Both Appellant and

the PCRA court complied with Pennsylvania Rule of Appellate Procedure

1925.

        Appellant raises the following two issues on appeal:

          I. Where during appellants initial review collateral
          proceedings a miscarriage of justice occurred that no
          civilized society can tolerate for the substantial reasons of
          conflict of interest, fraud and continuing governmental
          interference should not this court remand this matter for
          the filing of a timely initial review collateral petition for the
          substantial reasons states?

          II. Whether the lower court abused its discretion in finding
          Appellant did not establish a prima facie case of
          fundamental miscarriage of justice, in the totality of the
          after-discovered and newly discovered evidence presented
          under the factual and procedural history of the case,
          warranting a new trial where petition is innocent, and/or in
          light of McQuiggins v. Perkins, 133 S.Ct. 1924 (2013)
          that would warrant, at a minimum, a remand for a
          hearing?

Appellant’s Brief at 4 (verbatim from brief; capitalization removed).




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7
  Although the notice of appeal was not docketed until April 22, 2014,
Appellant certified that he mailed the document on April 14, 2014. “Pursuant
to the ‘prisoner mailbox rule,’ we deem [an appellant’s] documents filed on
the date when he placed them in the hands of prison authorities for mailing.”
Commonwealth v. Hopfer, 965 A.2d 270, 272 n. 2 (Pa.Super.2009) (citing
Commonwealth v. Castro, 766 A.2d 1283, 1287 (Pa.Super.2001)).
Accordingly, Appellant timely filed his notice of appeal.




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      Pursuant to Pennsylvania law, no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa.Super.2010) (citing Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa.2003)). The PCRA provides that a petition, “including a second or

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

becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Monaco, 996 A.2d at

1079; Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). A

judgment is 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).

      Three exceptions to the PCRA’s statute of limitations exist.             The

exceptions allow for very limited circumstances under which a court may

excuse the late filing of a PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco,

996 A.2d at 1079.     The late filing of a petition will be excused if a petitioner

alleges and proves:

            (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


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              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)-(iii).              When invoking an exception outlined

above, the petition must “be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

       Appellant’s judgment of conviction became final on September 5,

2006, when the time to seek review by the Supreme Court of the United

States expired.8 He had one year from that date, i.e., September 5, 2007,

to file a timely PCRA petition.          Therefore, his current petition, filed on

February 13, 2014, is facially untimely.

       Appellant initially maintains the PCRA court lacked jurisdiction to

address his first timely PCRA petition because he initiated the proceedings

using a form provided by the Department of Corrections (“DOC”). This claim

lacks merit. Prisoners often initiate PCRA proceedings by using the standard

PCRA forms provided by the DOC.                That the DOC provides the forms does

not create any conflict of interest or affect the PCRA court’s jurisdiction.

Further, the other alleged deficiencies in the form, including an alleged lack

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8
   Appellant had 90 days from the date the Pennsylvania Supreme Court
denied his petition for allowance of appeal to file a petition for a writ of
certiorari with the Supreme Court of the United States. See U.S. Sup. Ct. R.
13. Ninety days from June 6, 2006, the date the Pennsylvania Supreme
Court denied Appellant’s petition for review was Monday, September 4,
2006, which was Labor Day.        Therefore, Appellant had until Tuesday,
September 5, 2006 to appeal to the Supreme Court of the United States.



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of a jurisdictional statement, do not deprive the court of jurisdiction.              The

form is a proper device utilized to initiate PCRA proceedings and the PCRA

court had jurisdiction to address any issues raised therein.

       Appellant next alleges he has pled and proved the after-acquired

evidence exception applies, i.e., “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.”   See   42    Pa.C.S.   §

9545(b)(1)(ii).      Appellant      maintains        the    Commonwealth         withheld

impeachment evidence, i.e., a transcript from a prosecution witness’s plea

and sentencing proceeding for retail theft.                 Appellant’s Brief, at 33.

Appellant maintains the transcript establishes the witness suffered from

schizophrenia, which counsel should have used to impeach the witness’s

credibility. Id. This claim lacks merit.

       It is unclear when counsel or Appellant obtained the transcript.

Pursuant to Appellant’s brief, Appellant possessed the material as early as

April 23, 2007.9 Appellant’s Brief, at 33. This is more than 60 days before

he filed the current PCRA petition on February 13, 2014.                      Accordingly,

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9
 Further, it appears Appellant had received the transcript from direct appeal
counsel, and Appellant challenged the witness’s credibility on direct appeal
because of his retail theft conviction. Appellant’s Brief, at 33; Concise
Statement of Matters Complained of on Appeal, at ¶ 7, Commonwealth v.
Baltimore, No. 2001-17389 (Pa.Super. filed Mar. 10, 2004). Accordingly,
Appellant could have ascertained the witness’s alleged schizophrenia in the
exercise of due diligence.



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Appellant did not timely raise his after acquired-evidence claim.   See   42

Pa.C.S. § 9545(b)(2) (to invoke an exception to the PCRA time bar, the

petition must “be filed within 60 days of the date the claim could have been

presented”).

     Accordingly, the trial court did not err when it dismissed Baltimore’s

PCRA petition as untimely.

     Order affirmed. Appellant’s Application for Recusal and Disqualification

denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2015




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