J-S79008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

KEITH ALEXANDER,

                          Appellant                  No. 1941 EDA 2013


                Appeal from the PCRA Order entered June 7, 2013,
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division, at No(s): CP-51-CR-0702301-2002


BEFORE: ALLEN, OLSON, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED DECEMBER 16, 2014

      Keith Alexander (“Appellant”) appeals pro se from the order denying

his untimely petition for post-conviction relief filed pursuant to the Post

Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The PCRA court summarized the pertinent facts and procedural history

as follows:

            [Appellant] drove codefendant to complainant, where
         he was sitting on steps rolling a blunt. Codefendant got
         out of the car, asked “Why you let him rob me?”, then shot
         the complainant in the left lower chest and abdomen area
         three to four times, paralyzing him.

            [Appellant] was convicted by a jury of attempted
         murder and related charges. He was sentenced to 300 to
         600 months [of] incarceration for attempted murder and a
         consecutive term of 18 to 72 months [of] incarceration for
         [a firearm violation]. [Appellant] filed a direct appeal, and



*Retired Senior Judge assigned to the Superior Court.
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        the sentence was affirmed.            [Commonwealth v.
        Alexander, 928 A.2d 1117 (Pa. Super. 2007)
        (unpublished memorandum). Our Supreme Court denied
        Appellant’s petition for allowance of appeal on October 24,
        2007. Commonwealth v. Alexander, 934 A.2d 1275
        (2007)].

           … [Appellant] filed a first pro se [PCRA petition]. PCRA
        counsel filed a Finley letter [Commonwealth v. Finley,
        550 A.2d 213 (Pa. Super. 1988) (en banc)], and this court
        agreed that the [PCRA petition] should be dismissed. This
        decision was affirmed on appeal. [Commonwealth v.
        Alexander, 990 A.2d 34 (Pa. Super. 2009) (unpublished
        memorandum). On August 6, 2010, our Supreme Court
        denied Appellant’s petition for allowance of appeal.
        Commonwealth v. Alexander, 4 A.3d 1050 (Pa. 2010)].

           On January 29, 2013, [Appellant] filed a second PCRA
        Petition, claiming violations of the Constitutions of
        Pennsylvania and/or the United States, and ineffective
        assistance of counsel. On April 5, 2013, this court sent
        [Appellant] a Notice pursuant to Pa.R.Crim.P. 907,
        informing [Appellant] that his [second] PCRA Petition was
        untimely filed pursuant to Pa.C.S. §9545(b). [On April 18,
        2013, Appellant filed a response.] On May 10, 2013
        [Appellant’s second] PCRA Petition was formally dismissed
        by the court as untimely filed.

PCRA Court Opinion, 8/19/13, at 1-2 (footnote omitted). This pro se appeal

follows. The PCRA court did not require Pa.R.A.P. 1925 compliance.

     This Court’s standard of review regarding an order dismissing 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. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). 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).

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      Before addressing the issues Appellant presents on appeal, we must

first consider whether the PCRA court properly determined that Appellant’s

petition was untimely.       The timeliness of a post-conviction petition is

jurisdictional.   Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010) (citation omitted). Thus, if a petition is untimely, neither an appellate

court nor the PCRA court has jurisdiction over the petition.             Id.    “Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims” raised in an untimely petition. Id.

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;   or    (3)    a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.         Commonwealth v. Burton, 936

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A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

      Here, Appellant’s judgment of sentence became final on January 22,

2008, when the ninety-day period for filing a writ of certiorari with the

United States Supreme Court expired. See U.S.Sup.Ct.R. 13; 42 Pa.C.S.A.

§9545(b)(3).     Therefore, Appellant had to file his petition by January 22,

2009, in order for it to be timely. As Appellant filed the instant petition on

January 29, 2013, it is untimely unless he has satisfied his burden of

pleading and proving that one of the enumerated exceptions applies.        See

Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).

      Appellant has failed to plead and prove any exception to the PCRA’s

time bar.    Indeed, as the PCRA court explained:        “In his second PCRA

Petition, [Appellant] did not even plead an exception to the timing

requirement under the PCRA[.]” PCRA Court Opinion, 8/19/13, at 2. Our

review of Appellant’s petition confirms this fact.      In his appellate brief,

Appellant essentially argues that the PCRA’s time bar is unconstitutional.

See Appellant’s Brief at 6-10.       Such a challenge has been repeatedly

rejected    by   the   appellate   courts   in   Pennsylvania.     See,   e.g.,

Commonwealth v. Peterkin, 722 A.2d 628 (Pa. 1998); Commonwealth

v. Johnson, 732 A.2d 639 (Pa. Super. 1999).




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      In sum, the PCRA court correctly determined that it lacked jurisdiction

to consider Appellant’s second PCRA petition. We therefore affirm the PCRA

court’s order denying Appellant post-conviction relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2014




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