J-S07014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

ALEX LEROY LOVEJOY,

                         Appellant                 No. 1356 MDA 2014


             Appeal from the PCRA Order Entered June 16, 2014
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0003389-2001


BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED FEBRUARY 25, 2015

     Appellant, Alex Leroy Lovejoy, appeals pro se from the post-conviction

court’s June 16, 2014 order denying as untimely his petition for relief filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9451-9546.

We affirm.

     The PCRA court set forth the history of Appellant’s case as follows:

           On October 9, 2002, a jury found [A]ppellant guilty of
     Third-degree Murder, Aggravated Assault, Criminal Conspiracy,
     and Recklessly Endangering Another Person.         The charges
     stem[med] from a shooting on August 17, 2001, which resulted
     in the death of Marques Phelps. On December 13, 2002, this
     court sentenced Appellant to an aggregate term of incarceration
     of not less than twenty-three (23) years nor more than forty-six
     (46) years in a state correctional institution. Upon appeal,
     Appellant’s conviction was affirmed by the Superior Court on
     June 3, 2004. [Commonwealth v. Lovejoy, 858 A.2d 1277
     (Pa. Super. 2004) (unpublished memorandum). Appellant did
     not file a petition for allowance of appeal with our Supreme
     Court.]
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           Subsequently, Appellant filed a petition under the …
     []PCRA[] in 2004 for which counsel was appointed. After an
     appeal of this [c]ourt’s dismissal of the petition without a hearing
     and remand by the Superior Court for further proceedings,
     [Appellant’s] PCRA petition was dismissed and the dismissal was
     affirmed by the Superior Court on May 2, 2008.
     [Commonwealth v. Lovejoy, 953 A.2d 833 (Pa. Super. 2008)
     (unpublished memorandum).] The Pennsylvania Supreme Court
     denied his petition for allowance of appeal on December 31,
     2008. [Commonwealth v. Lovejoy, 962 A.2d 1196 (Pa.
     2008).]

            On April 28, 2014, Appellant filed another [pro se] PCRA
     petition which is the subject of the instant appeal.          Upon
     consideration of Appellant’s petition and the Commonwealth’s
     response thereto, and after conducting an independent review of
     the record, this [c]ourt determined that it is without jurisdiction
     to consider [] Appellant’s claims[,] as they have been untimely
     presented. Therefore, Appellant’s successive PCRA petition was
     dismissed without a hearing.

PCRA Court Opinion (PCO), 9/5/14, at 1-2.

     Appellant filed a timely pro se notice of appeal, as well as a timely,

court ordered Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal. Herein, Appellant raises the following four issues for our review,

which we reproduce verbatim:

     I. WHETHER THE PCRA COURT ERRED IN DISMISSING THE PCRA
     PETITION WITHOUT A HEARING TO DETERMINE WHETHER OR
     NOT PETITIONER’S CONVICTION WAS OBTAINED SOLELY ON
     THE PROSECUTOR’S INFRINGEMENT OF PETITIONER’S FIFTH
     AMENDMENT RIGHT IN WHICH VIOLATED PETITIONER’S DUE
     PROCESS,    THE   FOURTEENTH     AMENDMENT’S    EQUAL
     PROTECTION, AND PETITIONER’S SIXTH AMENDMENT?

     II. WHETHER THE PCRA COURT’S DISMISSAL OF PCRA PETITION
     VIOLATED THE PETITIONER’S SIXTH AMENDMENT RIGHT,
     FOURTEENTH AMENDMENT RIGHT AND FIFTH AMENDMENT
     RIGHT, DEPRIVING PETITIONER OF LIFE AND LIBERTY WITHOUT
     DUE PROCESS OF LAW?



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      III. WHETHER THE PCRA COURT ERRED IN DENYING
      PETITIONER A HEARING WHEN THE IMPOSITION OF SENTENCE
      GREATER THAN THE LAWFUL MAXIMUM IS IN QUESTION AND
      WHETHER THE PCRA COURT’S DISMISSAL VIOLATED THE
      CONSTITUTION    OF   THIS  COMMONWEALTH     OR   THE
      CONSTITUTION OF THE UNITED STATES WHICH, IN THE
      CIRCUMSTANCES OF THE PARTICULAR CASE, SO UNDERMINED
      THE TRUTH-DETERMINING PROCESS THAT NO RELIABLE
      ADJUDICATION OF GUILT OR INNOCENCE COULD HAVE TAKEN
      PLACE?

      IV. WHETHER THE PCRA COURT ERRED IN DISMISSING
      PETITIONER’S PCRA PETITION WITHOUT A HEARING, DENYING
      THE PETITIONER OF HIS FIFTH AMENDMENT RIGHT NOT TO BE
      DEPRIVED OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE
      PROCESS, HIS FOURTEENTH AMENDMENT RIGHT NOT TO BE
      DEPRIVED OF LIFE, LIBERTY OR PROPERTY, WITHOUT DUE
      PROCESS OF LAW: NOR BE DENIED THE EQUAL PROTECTION OF
      THE LAW?

Appellant’s Brief at 4.

      This Court’s 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). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified

record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

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

because the PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the merits of a petition.

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

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

disregarded to address the merits of the petition); Commonwealth v.


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Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding the Superior

Court lacks jurisdiction to reach merits of an appeal from an untimely PCRA

petition). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the exceptions set forth

in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant

part:
        (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

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

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

        Here, Appellant’s judgment of sentence became final on July 3, 2004,

at the expiration of the thirty-day period for seeking review with the

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Pennsylvania Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (directing that

judgment of sentence becomes final at the conclusion of direct review or the

expiration of the time for seeking the review); Pa.R.A.P. 1113(a) (stating

that “a petition for allowance of appeal shall be filed with the Prothonotary of

the Supreme Court within 30 days of the entry of the order of the Superior

Court sought to be reviewed”). Therefore, Appellant had until July 3, 2005,

to file a timely petition. Consequently, his April 28, 2014 pro se petition is

facially untimely and, for this Court to have jurisdiction to review the merits

thereof, Appellant must prove that he meets one of the exceptions to the

timeliness requirements set forth in section 9545(b)(1)(i)-(iii).

      The arguments Appellant presents in his first three issues can be

summarized as follows.      First, Appellant contends that his “conviction is

unlawful” because, during trial, the prosecutor improperly commented on his

Fifth Amendment right to remain silent.      Appellant’s Brief at 14.   Second,

Appellant contends that his trial counsel was ineffective for failing “to

present impeachment evidence that would have acquitted [Appellant] of this

crime.” Id. at 15. Third, Appellant maintains that his sentence is illegal in

several regards.

      Initially, Appellant does not attempt to allege, let alone prove, that any

of these claims meets one of the above-stated exceptions to the PCRA’s

timeliness requirement.     Moreover, it is apparent that his first claim is

waived because it could have been raised on direct appeal. See 42 Pa.C.S.

§ 9543(a)(3) (mandating that, to be eligible for PCRA relief, the petitioner

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must prove “[t]hat the allegation of error has not been previously litigated or

waived”); 42 Pa.C.S. § 9544(b) (directing that “an issue is waived if the

petitioner could have raised it but failed to do so before trial, at trial, during

unitary review, on appeal or in a prior state post[-]conviction proceeding”).

Appellant’s second and third issues, involving claims of ineffective assistance

of counsel and an illegal sentence, also do not satisfy - in and of themselves

- any exception to the PCRA time-bar. See Commonwealth v. Wharton,

886 A.2d 1120, 1127 (Pa. 2005) (“It is well settled that allegations of

ineffective assistance of counsel will not overcome the jurisdictional

timeliness requirements of the PCRA.”) (citations omitted); Commonwealth

v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (holding that claims challenging the

legality of sentence are subject to review within PCRA, but must first satisfy

the PCRA’s time limits).

      In Appellant’s fourth issue, he alleges “[t]he improper obstruction by

government officials of [his] right of appeal where a meritorious appealable

issues exist[s]….” Appellant’s Brief at 24. From what we can ascertain from

Appellant’s confusing argument, he essentially contends that he, and his

prior attorneys, have consistently been denied access to the record and

transcripts in this case.   Our review of Appellant’s pro se petition reveals

that he did not assert this claim therein. Consequently, it is waived. See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”); Commonwealth v. Rainey,




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928 A.2d 215, 226 (Pa. 2007) (holding that claims not raised in the PCRA

petition are waived).

        However, Appellant also argues in his fourth issue “that the PCRA

court has violated [his] constitutional right to due process of law, and equal

protection   of   the   laws”   by   denying    Appellant’s   request   for   certain

documents. Appellant’s Brief at 24. Specifically, in his pro se PCRA petition,

Appellant sought “[a]ny and all legal documents in the [Commonwealth’s]

possession, such as, all statements that were made before, during and after

trial   concerning   [Appellant’s]   case…[,]    [t]he   complete   copy      of   the

preliminary hearing transcript, complete copy of the testimonies given at the

grand jury [proceeding], and for the production of any and all finger print

[sic] analysis performed on the bullet casings.” PCRA Petition, 4/28/14, at

6.

        Essentially, this portion of Appellant’s PCRA petition constituted a

discovery request. Because we agree with the PCRA court that Appellant’s

petition is untimely and he has failed to satisfy any exception set forth in

section 9545(b)(1)(i)-(iii), the PCRA court lacked jurisdiction to issue a

discovery order in this case. See Commonwealth v. Frey, 41 A.3d 605,

610 (Pa. Super. 2012) (holding that if a PCRA petition is untimely, the court

lacks jurisdiction to issue a discovery order).       Nevertheless, we also note

that Pennsylvania Rule of Criminal Procedure 902(E)(1) states that “no

discovery shall be permitted at any stage of the [PCRA] proceedings, except

upon leave of court after a showing of exceptional circumstances.”

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Pa.R.Crim.P. 902(E)(1) (emphasis added).      Appellant did not state in his

PCRA petition what ‘exceptional circumstances’ necessitated discovery of the

requested documents.        Therefore, even if the PCRA court had had

jurisdiction to grant Appellant’s discovery request, we would conclude that it

did not err by declining to do so.

      Order affirmed.

      Judge Ott joins this memorandum.

      Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/25/2015




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