J-S29041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    TERRENCE BARKER                            :
                                               :
                      Appellant                :   No. 3482 EDA 2016

                 Appeal from the PCRA Order October 18, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0001937-2008


BEFORE:      LAZARUS, SOLANO, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED APRIL 28, 2017


        Appellant Terrence Barker appeals pro se from the order entered in the

Court of Common Pleas of Delaware County on October 18, 2016, dismissing

as untimely his second1 petition filed pursuant to the Post Conviction Relief

Act (PCRA).2 We affirm.


____________________________________________


*
   Former Justice specially assigned to the Superior Court.
1
   While Appellant filed two previous PCRA petitions, the first concerned the
restoration of his right to petition the Pennsylvania Supreme Court for
allowance of appeal nunc pro tunc. Thus, the trial court erroneously deemed
the current petition to be Appellant’s third PCRA petition. Trial Court Opinion,
filed 12/12/16, at 3. See Commonwealth v. Karanicolas, 836 A.2d 940,
944 (Pa.Super. 2003) (noting that “[w]hen a petitioner is granted a direct
appeal nunc pro tunc in his first PCRA petition, a subsequent PCRA petition is
considered a first PCRA petition for timeliness purposes”) (citation omitted).
2
    42 Pa.C.S.A. §§ 9541-9546.
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       A panel of this Court previously related the relevant facts and

procedural history herein as follows:

              On September 4, 2008, [Appellant] was convicted on two
       counts of rape, one count of burglary, and one count of criminal
       trespass. On December 18, 2008, [Appellant] was sentenced to
       an aggregate term of fourteen to forty years’ incarceration. Trial
       counsel filed a timely post-sentence motion alleging that the
       Commonwealth failed to turn over to the defense both
       documentation relating to the chain of custody of a knife and the
       victim’s medical records. The trial court denied the motion.
       [Appellant] then filed a notice of appeal. In its Rule 1925(a)
       opinion, the trial court found that [Appellant] suffered no
       prejudice from the Commonwealth’s failure to turn over that
       documentation. This Court adopted the trial court’s findings and
       rationale and affirmed the judgment of sentence. See
       Commonwealth v. Barker, 1152 EDA 2009 (Pa. Super. April
       30, 2010) (unpublished memorandum).[3]
              On July 22, 2010, [Appellant] filed a PCRA petition seeking
       the reinstatement of his right to file a petition for allowance of
       appeal with the Pennsylvania Supreme Court. On November 23,
       2010, the PCRA court granted the petition. [Appellant] filed his
       petition for allowance of appeal. On September 26, 2011, the
       Supreme Court denied the petition.[4]
              On March 14, 2012, [Appellant] filed a second PCRA
       petition. The court appointed counsel, who then filed an
       amended petition on January 22, 2013. The amended petition
       asserted that trial counsel was ineffective for various reasons,
       only two of which are relevant for the purposes of this appeal:
       that trial counsel was ineffective for entering into stipulations
       and that trial counsel was ineffective for failing to discuss those
       stipulations with [Appellant] prior to agreeing to them. On June
       13 and August 20, 2013, the PCRA court held hearings on the
       petition.

____________________________________________


3
  The official docket entries indicate this Court affirmed Appellant’s judgment
of sentence on June 14, 2010.
4
  The United States Supreme Court denied Appellant’s petition for writ of
certiorari on January 23, 2012. See Barker v. Pennsylvania, 565 U.S.
1181, 132 S.Ct. 1149, 181 L.Ed.2d. 1023 (2012).



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            The testimony at the PCRA hearing supports the following
     summary. At trial, [Appellant’s] counsel stipulated to the chain
     of custody of the knife that [Appellant] used during the
     commission of his crimes. Notes of Testimony (“N.T.”), PCRA
     Hearing, 8/20/2013, at 8. Trial counsel also stipulated to the
     victim’s medical records, which consisted of an emergency room
     report indicating that there was no apparent trauma noted
     during the victim’s examination. Id. at 14. After trial, trial
     counsel’s associate picked up discovery for an unrelated case
     and was given a discovery packet pertaining to the instant case.
     In that packet were four pages of property records, including the
     victim’s rape kit with the name of the nurse who provided the kit
     to the police and other items recovered. The knife in question
     was not among the items listed. Id. at 8, 15-16. Trial counsel
     testified that, had he known of this information prior to trial, he
     would not have entered into the stipulations. Id. at 16, 18.
            On September 25, 2013, the PCRA court issued an order
     denying the petition. As to the two issues discussed above, the
     PCRA court found that [Appellant] failed to demonstrate that he
     was prejudiced by either stipulation or by trial counsel’s failure
     to consult him.
            On October 16, 2013, [Appellant] filed a notice of appeal.
     The PCRA court ordered, and [Appellant] timely filed, a concise
     statement of errors complained of on appeal pursuant to
     Pa.R.A.P. 1925(b). On November 26, 2013, the PCRA court
     issued its Rule 1925(a) opinion, in which it incorporated the
     reasoning set forth in its September 25 order.

Commonwealth       v.   Barker,    No.    2897   EDA     2013,   unpublished

memorandum at 1-3 (Pa.Super. filed June 3, 2014).         Finding the issues

Appellant had raised for review lacked merit, this Court affirmed the PCRA

court’s order denying Appellant’s PCRA petition. Id. at 7. The Pennsylvania

Supreme Court denied Appellant’s Petition for Allowance of Appeal on

December 30, 2014.

     Appellant filed pro se the instant PCRA petition on September 6, 2016,

wherein he challenged the legality of his sentence. Pursuant to Pa.R.Crim.P.


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907, the PCRA court provided Appellant with notice of its intent to dismiss

his PCRA petition without a hearing on September 15, 2016, and on

September 30, 2016, Appellant filed a response thereto.

      On November 7, 2016, Appellant filed his concise statement of errors

complained of on appeal wherein he contended the following:

      A.    The lower court committed error by not allowing petitioner
      an evidentiary hearing on an illegal sentence.
      B.    The lower court errored [sic] when it gave [Appellant] 10
      years more than the maximum sentence required by law.
      C.    The lower court erred when it did not correct [Appellant’s]
      sentence.

       However, in his brief Appellant abandoned these claims and instead

presented the following Statement of Questions Involved, which we

reproduce verbatim:

      A.    Whether the Commonwealth through D.A. Pearl Kim Esq.
      committed prosecutorial misconduct when she deliberately
      withheld information that would have shown that petitioner and
      complaintant [sic] had consensual sex and that the medical
      report went against everything that the Commonwealth argued.
      B.    Whether the court erred when it allowed the Complaintant
      [sic] to use the Court to mislead and deceived them into
      believing that a crime occurred by stating [Appellant] broke into
      her home when in fact she offered for him to stay since he had
      no place to go.
      C.    Whether District Attorney Kim committed prosecutorial
      misconduct when she wrongfully stating [sic] that items
      stipulated into evidence when indeed they remained in the
      custody of the Chester Police Department.

Brief for Appellant at 2 (unnecessary capitalization omitted).

      When reviewing the propriety of an order denying PCRA relief, this

Court is limited to a determination of whether the evidence of record


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supports the PCRA court’s conclusions and whether its ruling is free of legal

error.     Commonwealth v. Robinson, ___ Pa. ____, ____, 139 A.3d 178,

185 (2016).       This Court will not disturb the PCRA court’s findings unless

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

Lippert, 85 A.3d 1095, 1100 (Pa.Super. 2014).

         At the outset, we consider whether this appeal is properly before us.

The question of whether a petition is timely raises a question of law, and

where a petitioner raises questions of law, our standard of review is de novo

and our scope of review is plenary. Commonwealth v. Callahan, 101 A.3d

118, 121 (Pa.Super. 2014).

         All PCRA petitions must be filed within one year of the date upon which

the judgment of sentence became final, unless one of the statutory

exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The

petitioner bears the burden of pleading and proving an applicable statutory

exception.     If the petition is untimely and the petitioner has not pled and

proven an exception, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits

of the petition.    Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super.

2013).

         42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:

         (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

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           date the judgment of sentence 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.A. § 9545(b)(1). In addition, 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.A. § 9545(b)(2).

     Herein, this Court affirmed Appellant’s judgment of sentence on June

14, 2010. On September 26, 2011, the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal filed nunc pro tunc, and the

United States Supreme Court denied his petition for writ of certiorari on

January 23, 2012. Thus, Appellant’s judgment of sentence became final for

purposes of the PCRA on January 23, 2012. See 42 Pa.C.S.A. § 9545(b)(3)

(“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 time for seeking the

review”); see also U.S. Sup.Ct.R. 13.1.   A timely PCRA petition had to have

been filed by January 23, 2013; therefore, the instant petition filed on


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September 6, 2016, is patently untimely, and the burden fell upon Appellant

to plead and prove that one of the enumerated exceptions to the one-year

time-bar   applied    to   his   case.    See   42   Pa.C.S.A.   §   9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa.Super. 2008) (to

invoke a statutory exception to the PCRA time-bar, a petitioner must

properly plead and prove all required elements of the exception).

      Appellant’s issues presented in his appellate brief are without merit or

waived because he either raised them or could have raised them on direct

appeal or failed to preserve them for our review by failing to include them in

his Rule 1925(b) statement. See 42 Pa.C.S.A. § 9543(a)(3) (requiring that

the allegation of error an appellant presents in a PCRA petition has not been

previously litigated or waived); see also 42 Pa.C.S.A. § 9544(a)(2) (an

issue is previously litigated if “the highest appellate court in which the

petitioner could have had review as a matter of right has ruled on the merits

of the issue”); See also Commonwealth v. Turetsky, 925 A.2d 876, 879

(Pa.Super. 2007), appeal denied, 940 A.2d 365 (Pa. 2007) (finding a claim

raised in a PCRA petition waived because appellant could have raised it on

direct appeal but failed to do so); 42 Pa.C.S.A. § 9544(b) (stating, “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”).




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      In addition, it is well-settled that issues not raised in a PCRA or

amended PCRA petition are waived on appeal. See Commonwealth v.

Lauro, 819 A.2d 100, 103 (Pa.Super. 2003), appeal denied, 830 A.2d 975

(Pa. 2003) (waiving five issues not in original or amended PCRA petition).

Further, an appellant cannot raise a new legal theory for the first time on

appeal. See Commonwealth v. Hanford, 937 A.2d 1094, 1098 n. 3 (Pa.

Super. 2007), appeal denied, 956 A.2d 432 (Pa. 2008); Pa.R.A.P. 302(a).

Moreover, Pennsylvania Rule of Appellate Procedure 1925 provides that

issues not included in the Rule 1925(b) statement or raised in accordance

with Rule 1925(b)(4) are waived. See Pa.R.A.P. 1925(b)(4)(vii); see also

Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 308 (1998).

      Insofar as Appellant asserted in his PCRA petition that his sentence is

greater than the lawful maximum, See PCRA petition, filed 9/6/16, at 4, he

did not actually argue therein that his sentence is illegal. See id. Rather, as

the trial court noted in its Rule 1925(a) Opinion, Appellant’s challenge to the

legality of his sentence was premised upon his misunderstanding of the

length of his sentence, for the sentencing court “was deliberate in its

sentencing, which was based on the sentencing guidelines and meticulous as

to its reason for Appellant’s sentence.” Trial Court Opinion, filed 12/12/16,

at 5 citing N.T. Sentencing, 12/18/08 at 17-21.      Thus, Appellant has not

raised a non-waivable challenge to the legality of his sentence.




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      Indeed, the fact that Appellant purported to challenge the legality of

his   sentence   does   not   allow   him    to   evade   the   PCRA's   timeliness

requirements. In Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214

(1999), the Pennsylvania Supreme Court rejected this contention. The Fahy

Court stated, “[a]lthough legality of sentence is always subject to review

within the PCRA, claims must still first satisfy the PCRA's time limits or one

of the exceptions thereto.” Id. at 331, 737 A.2d at 223 (citation omitted).

Thus, Appellant cannot escape the PCRA's timeliness requirements based

upon a claim of an illegal sentence. See id. Furthermore, Appellant failed to

develop an argument in his appellate brief that his sentence is illegal in light

of any specific statutory provision or recent holding in any case.

      As Appellant has failed to plead and prove one of the aforementioned

exceptions to the PCRA time-bar, the courts of this Commonwealth are

without jurisdiction to offer Appellant any form of relief. Commonwealth v.

Jackson, 30 A.3d 516, 523 (Pa.Super. 2011).          Accordingly, the PCRA court

properly denied Appellant’s patently untimely PCRA petition without a

hearing.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2017




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