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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                   v.

SAVOY S. ROBINSON,                                  No. 3487 EDA 2018

                        Appellant


          Appeal from the PCRA Order Entered November 9, 2018,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0807931-2004


BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JULY 24, 2019

      Savoy S. Robinson appeals pro se from the November 9, 20181 order

entered in the Court of Common Pleas of Philadelphia County denying his serial

petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

      The PCRA court set forth the following procedural history:

            On April 13, 2005, appellant was sentenced to life plus
            2 1/2 - 5 years['] incarceration after a jury found him
            guilty of first degree murder and possession of an
            instrument of crime in the shooting death of
            Geary Turner on July 11, 2004, at the Coleman Hall
            halfway house in Philadelphia.[Footnote 1] A direct
            appeal was taken and the judgment of sentence was
            affirmed by the Superior Court of Pennsylvania on
            November 14, 2006 ([Commonwealth v. Robinson,

1 We note that on November 2, 2018, the trial court issued an order dismissing
the instant PCRA petition, but that order was not filed until November 9, 2018.
The caption has been amended to reflect the date the order was docketed.
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          No. ]1676 EDA 2005[, unpublished memorandum
          (Pa.Super. filed November 14, 2006)]). The Supreme
          Court of Pennsylvania denied appellant's petition for
          review on May 15, 2007 ([Commonwealth v.
          Robinson,] 583 EAL 2006[, 923 A.2d 1173 (Pa.
          2007)]). On July 10[,] 2007, appellant filed a timely
          first PCRA [petition] which, following review, was
          dismissed without a hearing on October 3, 2008. The
          Superior   Court    affirmed   the   dismissal   on
          November 24, 2009 ([Commonwealth v. Robinson,
          No. ]2895 EDA 2008[, unpublished memorandum
          (Pa.Super. filed November 24, 2009)]). Appellant did
          not file a petition for allowance of appeal. On
          August 1, 2012, appellant filed a second PCRA petition
          but,   on September 10, 2013, the petition was
          withdrawn at appellant's request. On September 26,
          2013, appellant filed his third petition for PCRA relief.
          Following review and proper notice, appellant's
          petition for relief was dismissed as untimely on
          February 10, 2014. Dismissal was affirmed by the
          Superior     Court      on     January      16,    2015
          ([Commonwealth v. Robinson, No. ]805 EDA
          2014[, unpublished memorandum (Pa.Super filed
          January 16, 2015)]). On June 3, 2015, appellant filed
          his fourth PCRA petition claiming newly discovered
          evidence that his constitutional rights had been
          violated. On July 28, 2015, following review and
          proper notice, appellant's petition was dismissed as
          untimely.     The Superior Court affirmed          on
          February 18, 2016, ([Commonwealth v. Robinson,
          No. ]2437 EDA 2015[, unpublished memorandum
          (Pa.Super. filed February 18, 2016)]) and appellant's
          petition for allowance of appeal was denied on
          June 29, 2016 ([Commonwealth v. Robinson,] 97
          EAL 2016[, 141 A.3d 480 (Pa. 2016)]). On April 5,
          2017, appellant filed his fifth petition for PCRA relief,
          claiming the newly discovered facts and the newly
          recognized constitutional right exceptions to the PCRA
          timeliness requirements. Following review [of] the
          petition, the controlling law and proper notice, on
          June 23, 2017, appellant's petition was dismissed as
          untimely. Dismissal was affirmed on January 23,
          2018 ([Commonwealth v. Robinson, No. ]2281
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           EDA 2017[, unpublished memorandum (Pa.Super.
           filed January 23, 2018)]).

                 [Footnote 1] 18 Pa.C.S.[A.] §§ 2502 and
                 907, respectively.

           On August 13, 2018, appellant filed the instant
           petition for relief asserting all three exceptions to the
           PCRA timeliness requirements. Specifically, appellant
           complains that the Court, having served as a
           prosecutor in the Homicide Division of the District
           Attorney's Office, which he alleges constitutes a
           conflict of interest, and the Court's denial of his
           previously    filed   PCRA  petitions, establishes
           governmental interference. He became aware of the
           alleged governmental interference as defined by
            Williams v. Pennsylvania, 136 S.Ct. 1899 (2016)[,]
           and Commonwealth v. Williams, 641 Pa[.] 283,
           168 A.3d 97 (Pa. 2017)[,] on July 31, 2018. The
           Court reviewed both cases and determined that
           appellant's assertions were insufficient to overcome
           the PCRA time bar. On August 24, 2018, a notice
           pursuant to Pa.R.Crim.P. 907 was filed and served on
           appellant.  On September 14, 2018, the Court
           received appellant's response to the notice, alleging a
           miscarriage of justice as all prior counsel were
           ineffective; that trial counsel's failure to request a
           copy of the VHS tape, relying instead upon the
           Commonwealth's   representations           rather    than
           conducting his own investigation,          constituted a
           miscarriage of justice. Following a second review,
           appellant's sixth petition for PCRA relief was dismissed
           as untimely. This appeal followed.

PCRA court opinion, 12/19/18 at 1-3 (footnote 2 omitted). The PCRA court

did not require appellant to file a concise statement of errors complained of




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on appeal pursuant to      Pa.R.A.P.   1925(b).2   The PCRA court filed its

Rule 1925(a) opinion on December 19, 2018.

      Appellant raises the following issues for our review:

             [1.]   WHETHER THE PCRA COURT ERRED WHEN THE
                    COURT DETERMINED THAT [APPELLANT'S]
                    PCRA PETITION WAS UNTIMELY WHEREAS A
                    SHOWING OF GOVERNMENTAL INTERFERENCE
                    WAS ESTABLISHED WHICH SATISFIED THE
                    EXCEPTION TO THE TIMELINESS PROVISION?

             [2.]   WHETHER THE PCRA COURT ERRED WHEN THE
                    COURT DETERMINED THAT [APPELLANT'S]
                    PCRA PETITION WAS UNTIMELY WHEREAS A
                    SHOWING OF MISCARRIAGE OF JUSTICE
                    ENTITLE [SIC] [APPELLANT] RELIEF ON HIS
                    SIXTH PCRA PETITION WHEREAS AN ILLEGAL
                    ALIEN AND/OR A NON -AMERICAN CITIZEN
                    SERVED ON [APPELLANT'S] JURY PANEL AND
                    DEFENSE COUNSEL PROVIDED PREJUDICIAL
                    INEFFECTIVE ASSISTANCE?

             [3.]   WHETHER THE PCRA COURT ERRED WHEN THE
                    COURT DETERMINED THAT [APPELLANT'S]
                    PCRA PETITION WAS UNTIMELY WHEREAS A
                    SHOWING OF MISCARRIAGE OF JUSTICE
                    ENTITLE [SIC] [APPELLANT] RELIEF ON HIS
                    SIXTH PCRA    PETITION WHEREAS TRIAL
                    COUNSEL'S INACTION USURPED THE JURORS
                    [SIC] AUTHORITY TO DETERMINE THE VALUE
                    OF THE VHS TAPE RECORDED FOOTAGE?

Appellant's brief at 3.3




2 We note that while appellant was not ordered to file a Rule 1925(b)
statement, appellant did list "all issues being appealed" in the caption of his
notice of appeal. (See appellant's notice of appeal, 11/28/18.)

3 For ease of disposition, appellant's issues have been re -ordered.

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      In order to be timely filed, a PCRA petition, including second and
subsequent petitions, must be filed within one year of when an appellant's

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

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."
42 Pa.C.S.A. § 9545(b)(3). The Supreme Court of Pennsylvania has held that

the PCRA's time restriction is constitutionally sound. See Commonwealth

v. Cruz, 852 A.2d 287, 292 (Pa. 2004). In addition, our supreme court has

instructed that the timeliness of a PCRA petition is jurisdictional. If a PCRA

petition   is   untimely, a court lacks jurisdiction over the petition.       See

Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa. 2005); see also
Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa.Super. 2014) (holding

that courts do not have jurisdiction over an untimely PCRA).

      Here, appellant's judgment of sentence became final on August 13,

2007, 90 days after our supreme court denied discretionary review and the

deadline for filing a petition for writ of certiorari in the Supreme Court of the

United States expired. See 42 Pa.C.S.A. § 9545(b)(3); see also U.S. Sup.

Ct. R. 13(1) (stating, "A petition for a writ of certiorari seeking review of a

judgment of a lower state court that is subject to discretionary review by the

state court of last resort is timely when it is filed with the Clerk within 90 days

after entry of the order denying discretionary review."). Therefore, appellant's



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PCRA petition filed on August 13, 2018, 11 years after his judgment of
sentence became final, is patently untimely.

      If a PCRA petition is untimely filed, the jurisdictional time -bar can only

be overcome if appellant alleges and proves one of the three statutory
exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). See Commonwealth

v. Spotz, 171 A.3d 675, 678 (Pa. 2017); see also Wharton, 886 A.2d at
1126 (citation omitted).      The three narrow statutory exceptions to the
one-year time -bar are as follows: "(1) interference by government officials in

the presentation of the claim; (2) newly discovered facts; and (3) an
after -recognized constitutional right." Commonwealth v. Brandon, 51 A.3d

231, 233-234 (Pa.Super. 2012), citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii).           A

petition invoking an exception to the time -bar must be filed within one year

of the date that the claim could have been presented.4 See 42 Pa.C.S.A.

§ 9545(b)(2).    If appellant fails to invoke a valid exception to the PCRA
time -bar, courts are without jurisdiction to review the petition or provide relief.

See Spotz, 171 A.3d at 676.




4 We note that effective December 24, 2018, the time period in which to file
a petition invoking one of the three exceptions was extended from sixty days
to one year. See 42 Pa.C.S.A. § 9545(b)(2). This amendment applies to
claims arising one year prior to the effective date of the amendment; arising
December 24, 2017 or later. See Act 2018, Oct. 24, P.L. 894, No. 146, § 3.
Because appellant filed his sixth PCRA petition on August 13, 2018, this
amendment applies.

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      Here, appellant attempts to assert the governmental interference
exception to the jurisdictional time -bar under Section 9545(b)(1)(i).     Our

supreme court has held that:

            to satisfy the governmental interference exception,
            the petitioner must demonstrate (1) that interference
            by   governmental    officials   prevented   him   from
            discovering and bringing his [] claim sooner, and
            (2) that he could not have known of the governmental
            interference earlier through the exercise of reasonable
            diligence.

Williams, 168 A.3d at 106, citing Commonwealth v. Abu-.7amal, 941 A.2d

1263, 1268 (Pa. 2008).

     Appellant argues that the trial judge, who presided over appellant's jury

trial and later denied his subsequent serial PCRA petitions, was a former

employee of the Philadelphia District Attorney's Office Homicide Division.

(Appellant's brief at 12.) Appellant contends that the trial judge:

            had an earlier significant and personal involvement as
            a pre-trial and trial judge in petitioner's case and
            made earlier significant and critical adverse decisions
            against petitioner during his judicial proceedings in
            the court of Common Pleas. Thusly, [sic] constituting
            governmental      interference which violated the
            petitioner's rights to due process of law to a fair and
            impartial PCRA proceeding.

Id. at 12-13. Appellant relies on the Supreme Court of the United States'
decision in Williams to support his argument that the trial judge's former
employment violated his due process rights when she later served as judge

during his jury trial and subsequent PCRA petitions.     (See appellant's brief

at 14; see also Williams v. Pennsylvania, 136 S.Ct. 1899 (2016).)

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      In Williams, the Supreme Court held that "[w]here a judge has had an

earlier significant, personal involvement as a prosecutor in a critical decision

in the defendant's case, the risk of actual bias in the judicial proceeding rises

to an unconstitutional level" violating the defendant's due process rights.

Williams, 136 S.Ct. at 1910 (emphasis added). Here, the trial judge was not

the prosecutor in appellant's case but, rather, merely worked at some point

in her career for the same District Attorney's Office that later prosecuted
appellant. Appellant's reliance on Williams is misplaced, and he has failed to

invoke the governmental interference exception to the PCRA time -bar.

      Therefore, the PCRA court lacked jurisdiction to review appellant's sixth

PCRA petition, and we may not review the petition on appeal.5

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn,
Prothonotary




Date: 7/24/19




5 Inasmuch as appellant raises claims of ineffective assistance of trial counsel,
such a claim is not one of the three narrow statutory exceptions to the PCRA
time -bar. See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

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