J-S30037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

EMMITT PERKINS

                        Appellant                  No. 3507 EDA 2014


             Appeal from the PCRA Order November 27, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0736521-1985

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                           FILED JUNE 04, 2015

     Emmitt Perkins, who is serving a life sentence for first degree murder,

appeals from an order dismissing his third petition seeking relief under the

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

     The factual and procedural history of this case is as follows: In June

1985, Perkins told Calvin Hill, who ran the C&L Lounge, that he believed that

Deborah Highter, a bartender at the Lounge, was interfering with his

relationship with Lynette "Cookie" Thrones.   Perkins told Hill to warn both

women that if that did not show him proper respect, he would kill them. On

the night of July 8, 1985, Highter was working at the Lounge and heard

Thrones and Perkins argue.     Perkins left, but he returned a few minutes

later, pulled out a gun and fired repeatedly at Thrones.   He then grabbed

Highter and tried to shoot her, but the gun did not fire. He put the gun to

her chest and again attempted to shoot her; again, the gun failed to fire.
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Perkins’ sister pulled him away. Thrones fled toward a nearby firehouse.

Perkins caught her there and fatally shot her in the chest and back in the

presence of three firefighters.

        Following a bench trial, the trial court found Perkins guilty of first

degree murder,1 aggravated assault2 and possession of an instrument of

crime.3    The    court   sentenced     Perkins   to   an   aggregate   term   of   life

imprisonment plus 4-10 years’ imprisonment. On direct appeal, the Superior

Court rejected Perkins’ challenge to the sufficiency of the evidence but

remanded for a hearing to determine whether trial counsel had a reasonable

basis for not calling Perkins’ sister as a witness.           During an evidentiary

hearing on February 23, 1988, the Commonwealth introduced Perkins’

sister’s pretrial statement incriminating Perkins. Trial counsel testified that

he spoke with Perkins’ sister before trial, who told him that she saw Perkins

fire his gun at and chase Thrones. The court credited the Commonwealth’s

evidence, rejected Perkins’ ineffective assistance claim and reimposed his

sentence.        On September 12, 1988, the Superior Court affirmed his

judgment of sentence. He did not file a petition for allowance of appeal.




____________________________________________


1
    18 Pa.C.S. § 2502(a).
2
    18 Pa.C.S. § 2702(a)(1).
3
    18 Pa.C.S. § 907.



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       On June 7, 1991, Perkins filed his first PCRA petition alleging that trial

counsel was ineffective for failing to call witnesses who allegedly would have

testified that Perkins was intoxicated at the time of the murder. The PCRA

court denied relief without a hearing. This Court affirmed, Commonwealth

v. Perkins, 652 A.2d 409 (Pa.Super.1994) (table), and the Pennsylvania

Supreme Court denied allocatur.           Commonwealth v. Perkins, 655 A.2d

986 (Pa.1995).

       Following the denial of a petition for writ of habeas corpus in federal

court, Perkins filed a second PCRA petition on November 17, 2008. He

voluntarily withdrew that petition on February 2, 2010.

       On August 12, 2010, Perkins filed a petition for writ of habeas corpus

in the court of common pleas alleging that: 1) he was tried for manslaughter

but improperly convicted of first degree murder;4 2) his acquittal of

possessing an instrument of crime barred his murder conviction; 5 3) pretrial

counsel was ineffective for failing to seek suppression of unspecified

evidence; and 4) he was intoxicated and therefore should have been



____________________________________________


4
  Perkins is incorrect. The trial court advised Perkins at the beginning of trial
that he was on trial for both first and third degree murder, and that the
penalty for a first degree murder conviction was “life … in prison or death by
electrocution.” N.T., 2/11/86, pp. 14-15.
5
  Perkins is incorrect. The docket reflects that the court found Perkins guilty
of several counts of possession of an instrument of crime but did not impose
further penalty. Docket, CP-51-CR-0736521-1985, pp. 2-3.



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convicted of voluntary manslaughter. The docket indicates that the habeas

corpus motion remains pending in the court of common pleas.

     On May 8, 2012, Perkins filed his third PCRA petition, repeating his

claim that he was improperly convicted of an uncharged crime, and claiming

that he timely raised his claim under Martinez v. Ryan, -- U.S. --, 132

S.Ct. 1309 (2012). The PCRA court dismissed the petition on November 17,

2014. This appeal followed.

     Perkins raises three issues in this appeal:

           1. Whether the lower court erred when it dismissed
           appellant’s successive PCRA petition as untimely
           whereas as a corrective venue issues presented
           warranted    reasonable  review    upon    matters
           complained upon.

           2. Whether the lower court erred when it dismissed
           appellant’s current PCRA petition without conducting
           a full evidentiary hearing and appointing counsel to
           show cause why relief sought should not be granted.

           3. The wording ‘time-barred’ is an over-used and
           abused method to dismiss meritorious out-of-time
           PCRA petitions.

Brief for Appellant, p. 4 (with minor grammatical revisions).         We do not

reach the merits of these issues, because we lack jurisdiction over this

appeal due to the untimeliness of Perkins’ PCRA petition.

     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

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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 time bar provide 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
            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).    A petition invoking an exception to the

PCRA time-bar must “be filed within 60 days of the date the claim could

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




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       Perkins’ judgment of sentence became final on October 12, 1988, the

final day for filing a petition for allowance of appeal with the Supreme Court.

See 42 Pa.C.S. § 9545(b)(3) (judgment is final at the conclusion of direct

review or at the expiration of time for seeking review). Perkins did not file

the present PCRA petition until May 2012, over 23 years later. Therefore,

his petition is untimely on its face.6

       Perkins does not satisfy any of the three exceptions to the one year

statute of limitations.        His PCRA petition did not allege governmental

interference, newly discovered evidence, or retroactive application of a

constitutional right. The thrust of this disjointed petition is that Perkins was

tried improperly for murder instead of manslaughter, which not only is

factually incorrect, see n. 4, supra, but does not fit within any of the three

exceptions to the statute of limitations.

       Perkins suggests that his petition is timely because it was filed within

sixty days of the Supreme Court’s decision in Martinez v. Ryan, -- U.S. --,
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6
  For the sake of completeness, we observe that “[a] petition where the
judgment of sentence became final before the effective date of the [1995]
amendments [to the PCRA] shall be deemed timely if the petitioner’s first
petition was filed within one year of the effective date of the [1995]
amendments [to the PCRA].” Commonwealth v. Thomas, 718 A.2d 326,
328 (Pa.Super.1998); Act of November 17, 1995, P.L. 1118, No. 32 (Spec.
Sess. No. 1), § 3(1). “Because the effective date of the amendments is
January 16 1996, the operative deadline for first-time PCRA petitions is
January 16, 1997.”      Commonwealth v. Crider, 735 A.2d 730, 732
(Pa.Super.1999) (citations omitted).      These precepts do not apply to
Perkins, because he filed his first PCRA petition in 1991, prior to the January
1996 amendments to the PCRA.



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132 S.Ct. 1309 (2012) (petitioner was entitled to seek federal habeas corpus

relief based on ineffectiveness of postconviction counsel).      We have held,

however, that Martinez does not control whether petitions are timely filed

under the PCRA.          Commonwealth v. Saunders, 60 A.3d 162, 165

(Pa.Super.2013) (“while Martinez represents a significant development in

federal habeas corpus law, it is of no moment with respect to the way

Pennsylvania courts apply the plain language of the time bar set forth in

section 9545(b)(1) of the PCRA”).7

       Perkins’ PCRA petition is untimely, and he has not established any

exception to the PCRA time bar. Accordingly, we lack jurisdiction to address

his petition, and we affirm the order dismissing his petition.

       Order affirmed.

       President Judge Emeritus Ford Elliott joins in the memorandum.

       President Judge Gantman concurs in the result.




____________________________________________


7
   We add, as an academic observation, that we might lack jurisdiction
because Perkins’ habeas corpus petition remains undecided in the court of
common pleas. It is well-settled that a subsequent PCRA petition cannot be
filed until the resolution of a pending PCRA petition by the highest state
court in which review is sought. Commonwealth v. Ligons, 971 A.2d
1125, 1140 (Pa.2009).         Analogously, the law might also prohibit a
subsequent PCRA petition until the resolution of any pending habeas corpus
petition -- although we know of no case that addresses this question. We
need not address it here, because we have already determined that we lack
jurisdiction for the other reasons provided above.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/2015




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