J-S69028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA :                 IN THE SUPERIOR COURT OF
                              :                      PENNSYLVANIA
                              :
           v.                 :
                              :
                              :
 FREDRICK EARL TAYLOR         :
                              :
                Appellant     :                 No. 630 WDA 2017

               Appeal from the PCRA Order February 28, 2017
  In the Court of Common Pleas of Westmoreland County Criminal Division
                    at No(s): CP-65-CR-0005082-2008


BEFORE:    BOWES, J., RANSOM, J., and STEVENS*, P.J.E.

MEMORANDUM BY RANSOM, J.                          FILED JANUARY 03, 2018

      Appellant, Fredrick Earl Taylor, appeals from the order entered February

28, 2017, denying as untimely his serial petition for collateral relief filed under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The facts and procedural history are as follows:
      [Appellant] was convicted of one count each of robbery, theft by
      unlawful taking-movable property, theft by receiving stolen
      property, and of simple assault-physical menace. [Appellant] was
      sentenced to ten to twenty years in prison on September 9, 2010.
      On June 1, 2011, this Court affirmed the judgment of sentence
      and on September 27, 2011, our Supreme Court denied allowance
      of appeal. See Commonwealth v. Taylor, 31 A.3d 732 (Pa.
      Super. 2011) (unpublished memorandum), appeal denied, 30
      A.3d 488 (Pa. 2011).

      On March 27, 2013, [Appellant] filed a pro se PCRA Petition in
      which he alleged ineffective assistance of counsel. After
      appropriate [n]otice, the PCRA court dismissed [Appellant]’s
      Petition.

Commonwealth v. Taylor, 105 A.3d 801 (Pa. Super. 2014) (“Taylor,


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* Former Justice specially assigned to the Superior Court.
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supra”) (rejecting Appellant’s attempt to invoke the newly discovered facts

exception     to   the   PCRA’s    timeliness    requirements)    (unpublished

memorandum), appeal denied, 108 A.3d 35 (Pa. 2015).

      On July 20, 2016, Appellant pro se filed a second PCRA petition.      The

PCRA court appointed Timothy Andrews, Esq. as PCRA counsel.                After

reviewing the claim, PCRA Counsel filed a “no merit” letter and an application

seeking to withdraw representation, pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988).

      After reviewing PCRA counsel’s Turner/Finley letter, the PCRA court

issued notice of intent to dismiss Appellant’s petition without an evidentiary

hearing pursuant to Pa.Crim.R.P. 907.      See 907 Notice, 1/30/2017, at 1.

Appellant filed no response in opposition to the PCRA court’s notice of intent

to dismiss.   Thereafter, the PCRA court dismissed Appellant’s petition and

granted PCRA counsel’s motion to withdraw from the representation.         See

Order, 2/28/2017.    On March 13, 2017, Appellant pro se filed a notice of

appeal.

      The PCRA court did not order Appellant to file a concise statement. On

May 3, 2017, Appellant filed a 1925(b) statement. The PCRA court issued an

opinion incorporating its 907 notice of intent to dismiss as the reasons for the

decision to dismiss. See Decree Pursuant to Rule 1925(a), 5/4/2017.

      Appellant raises three issues on appeal:


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       1. Whether PCRA court erred where it failed to consider
          [Appellant’s] timely filed opposition to the PCRA court’s intent
          to dismiss his post-conviction relief petition in light of the
          ‘Mailbox Rule’ under the Institutionalized Persons Act?

       2. Whether all prior PCRA counsel abandoned [Appellant] at
          crucial stages of his PCRA petition where counsel’s choice was
          Turner/Finley letter instead of properly reviewing the record
          and amending [Appellant’s] PCRA petition?

       3. Whether PCRA court misconstrued the statutory intent of 42
          Pa.C.S. §§ 9541-9546 by its usage of dictum to deny
          [Appellant’s] actual innocence claims under the newly
          discovered evidence under the exceptions clauses of §§ 9541-
          9546?

Appellant's Br. at 4.1

       The standard of review regarding an order denying a petition under the

PCRA is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error. Commonwealth v. Ragan, 923

A.2d 1169, 1170 (Pa. 2007). We afford the court’s factual findings deference

unless there is no support for them in the certified record. Commonwealth

v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v.

Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

       We begin by addressing the timeliness of Appellant’s petition, as the


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1  We note that Appellant lodges various claims of PCRA counsel’s
ineffectiveness in his brief.   This Court has held “claims of PCRA counsel
ineffectiveness cannot be raised for the first time after a notice of appeal has
been taken from the underlying PCRA matter.” Commonwealth v. Ford, 44
A.3d 1190, 1201 (Pa. Super. 2012). Claims that are not raised in a PCRA
petition may not be raised for the first time on appeal. See Commonwealth
v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014); Commonwealth v. Rigg, 84
A.2d 1080, 1084 (Pa. 2014); see also Pa.R.A.P. 302(a).

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PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded     in   order    to   address     the   merits   of   his   claims.   See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for relief, including second and subsequent petitions, must

be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three exceptions:

       (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).         Any petition attempting to invoke these

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000).

       Appellant’s PCRA petition was untimely filed.2              Nevertheless, in his



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2 Appellant’s judgment of sentence became final on December 26, 2011, when
the 90 day period for filing a writ of certiorari with the United States Supreme
Court expired. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. Rule 13. The
instant PCRA petition was filed on July 20, 2016, more than four years after
the judgment became final.

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petition, Appellant asserted that he is entitled to relief based on a newly

recognized constitutional right. See PCRA Petition, 7/20/2016, at 8 (citing in

support Foster v. Chatman, 136 S.Ct. 1737 (2016)). When asserting the

newly recognized constitutional right exception under Section 9545(b)(1)(iii),

a petitioner must establish a new constitutional right and that the right has

been held to apply retroactively. Commonwealth v. Chambers, 35 A.3d

34, 41 (Pa. Super. 2011), appeal denied, 46 A.3d 715 (Pa. 2012).

      In Foster, the United States Supreme Court considered whether a state

court had erred in applying the doctrine of res judicata to preclude review of

the petitioner’s Batson challenge. See Foster, 136 S.Ct. at 1747; see also

Batson v. Kentucky, 476 U.S. 79 (1986) (forbidding peremptory strikes for

a discriminatory purpose).     The Foster Court did not recognize a new

constitutional right. Rather, it merely applied the longstanding rule set forth

in Batson to facts of that case. Accordingly, Appellant has not established an

exception to the PCRA timeliness requirements. See Chambers, 35 A.3d at

41.

      Appellant’s petition is untimely, and he has not satisfied a timeliness

exception to the requirements of the PCRA. Consequently, the PCRA court

was without jurisdiction to review the merits of Appellant’s claim, and properly

dismissed his petition. See Ragan, 932 A.2d at 1170.

      Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2018




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