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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                        :
                                             :
JOSEPH WILLIAM BURCH,                        :         No. 1650 WDA 2014
                                             :
                          Appellant          :


               Appeal from the PCRA Order, September 16, 2014
               in the Court of Common Pleas of Crawford County
               Criminal Division at No. CP-20-CR-0000570-2008


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED NOVEMBER 06, 2015

      Joseph    William    Burch      appeals,   pro   se,   from   the   order   of

September 16, 2014, dismissing his third petition for relief under the Post

Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq.           Finding no error, we

affirm.

                 The relevant facts and procedural history, as
           set forth by the PCRA court, are as follows.

                         On November 3, 2008, [Appellant]
                   pled guilty to Aggravated Indecent Child
                   Assault, 18 Pa.C.S.A. § 3125(b), after
                   allegedly    digitally   penetrating   the
                   genitals of victim, O.C. On January 5,
                   2009,     [Appellant]    pled   guilty  to
                   Prohibited        Offensive      Weapons,
                   18 Pa.C.S.A. § 908(a), and Possession of
                   Drug Paraphernalia, [35] P.S. § 780-113.
                   [Appellant] was sentenced on February
                   26, 2009 to serve 120 to 240 months in
                   prison for the Aggravated Indecent Child


* Retired Senior Judge assigned to the Superior Court.
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               Assault and 14 to 60 months in prison for
               the Prohibited Offensive Weapons and
               Paraphernalia charges.[Footnote 1]

                     [Footnote 1] Appellant did
                     not file a direct appeal.

                      Subsequently, [Appellant] filed a
               pro se PCRA petition alleging ineffective
               assistance       of      counsel     against
               Mr. Edward J. Hatheway, Esq., a plea of
               guilty     unlawfully       induced,     and
               unavailability at the time of trial of
               exculpatory     evidence.        [Appellant]
               averred     that     Mr.    Hatheway     was
               ineffective for allegedly failing to discuss
               with [Appellant] the negative effects of
               Forensic Nurse Rhonda Henderson’s
               (hereinafter “Nurse Henderson”) report
               on her examination of the victim, failing
               to inform [Appellant] of the option of
               retaining an expert to independently
               examine Nurse Henderson’s findings, and
               failing   to     inform     [Appellant]   of
               publications         challenging       Nurse
               Henderson’s methods and findings in
               cases similar to [Appellant’s].

                       [Appellant]’s PCRA [petition] was
               filed on October 18, 2010, approximately
               one year and eight months after
               [Appellant]       was     sentenced    on
               February 26, 2009. Despite the fact that
               this petition was filed outside of the
               one-year period for filing a PCRA, [the
               PCRA court] permitted [Appellant] to
               proceed with his petition because Nurse
               Henderson’s reports and examinations in
               cases similar to [Appellant]’s had been
               criticized.[Footnote 2] [The PCRA court]
               entered an order on April 7, 2011
               granting PCRA counsel, J. Wesley
               Rowden, Esq., time to have Nurse
               Henderson’s      records,   reports,  and


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               opinions evaluated by an expert. After
               granting a Motion to Continue Status
               Conference on August 17, 2011, a status
               conference was held on September 26,
               2011 to decide the need for an
               evidentiary hearing.

                    [Footnote 2] On October 18,
                    2010,      upon     receipt      of
                    Appellant’s pro se petition,
                    J. Wesley Rowden, Esquire
                    (Attorney     Rowden),        was
                    appointed       to     represent
                    Appellant.          Additionally,
                    Attorney      Rowden          was
                    granted 60 days to file an
                    amended PCRA petition on
                    behalf       of        Appellant.
                    Thereafter, on December 17,
                    2010, Attorney Rowden filed
                    Appellant’s amended PCRA
                    petition.    On January 10,
                    2011,      upon     review       of
                    Appellant’s amended PCRA
                    petition the PCRA court
                    determined          it        was
                    appropriate “to schedule the
                    argument on the question of
                    whether the issues raised are
                    time-barred and/or whether
                    an evidentiary hearing should
                    be held[.]”        PCRA Court
                    Order, 1/10/11.         Following
                    said argument, the PCRA
                    court determined Appellant’s
                    petition was untimely but
                    determined that “the one
                    issue that is not time-barred
                    to be the question of whether
                    there     is  after-discovered
                    evidence that may afford
                    [Appellant]      some      relief.”
                    PCRA Court Order, 3/15/11
                    at 4.


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                        A Memorandum and Order issued
                 by [the PCRA court] on November 14,
                 2011 denied [Appellant]’s request for an
                 evidentiary hearing . . . .      In that
                 Memorandum and Order, [the PCRA
                 court] allowed [Appellant] 20 days to
                 respond to the Order, and PCRA counsel
                 filed a Response to the Judge’s Intention
                 to Dismiss the PCRA on December 2,
                 2011. Therein, [Appellant] alleged he
                 could prove that he learned of the
                 challenges     to   Nurse    Henderson’s
                 credibility on August 11, 2010 and
                 mailed “the required advisory to the
                 appropriate source,” on October 5,
                 201[0].      [Appellant]’s Response to
                 Judge’s Intention to Dismiss at ¶ 2. As a
                 result, [the PCRA court] scheduled an
                 evidentiary hearing for April 5, 2012 to
                 address any new issues in this case and
                 hear testimony regarding Mr. Hatheway’s
                 alleged ineffectiveness.

           PCRA Court Opinion, 7/5/12, at 1-2.

Commonwealth v. Burch, No. 1198 WDA 2012, unpublished memorandum

at 1-3 (Pa.Super. filed March 8, 2013).

                  On July 5, 2012, following the April 5, 2012
           hearing, the PCRA court denied Appellant’s PCRA
           petition on the basis that it was untimely. Id. at 5.
           Specifically, the PCRA court held that Appellant’s
           PCRA petition was not filed until October 18, 2010,
           more than 60 days after Appellant discovered the
           alleged new fact on August 11, 2010. Id. at 4.
           Therefore, the PCRA court determined Appellant’s
           petition was patently untimely, and that it lacked
           jurisdiction to address his PCRA petition. Id. On
           July 31, 2012, Appellant filed a timely notice of
           appeal.




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Id. at 3-4 (footnote omitted). On appeal, this court affirmed, finding that

appellant’s petition was untimely filed.      According to appellant’s own

testimony, he learned of the issue with Nurse Henderson’s reports on

August 11, 2010.    Id. at 9.   Therefore, he had until October 10, 2010,

60 days later, to file his PCRA petition.   Id.   As appellant did not file his

PCRA petition until October 18, 2010, he failed to meet his burden under

Section 9545(b)(1)(ii), the after-discovered facts exception to the PCRA’s

jurisdictional one-year time bar. Id. at 9-10. While appellant alleged, for

the first time on appeal, that he handed his petition to prison officials for

mailing on October 5, 2010, he provided no proof of said filing. Id. at 9-10.

Therefore, we concluded that the PCRA court correctly denied appellant’s

petition as untimely. Appellant filed a petition for allowance of appeal with

the Pennsylvania Supreme Court which was denied on August 15, 2013.

Commonwealth v. Burch, 72 A.3d 600 (Pa. 2013).

     Appellant filed a second pro se PCRA petition on September 18, 2013,

which was also dismissed as untimely on October 29, 2013. (Docket #67.)

That order was not appealed. Appellant filed the instant petition, his third,

on August 5, 2014. On August 26, 2014, the PCRA court issued notice of its

intention to dismiss appellant’s petition as untimely, without an evidentiary

hearing, within 20 days pursuant to Pa.R.Crim.P., Rule 907, Pa.C.S.A.

(Docket #69.)    Appellant filed a pro se response to Rule 907 notice on

September 12, 2014; and on September 16, 2014, appellant’s PCRA petition



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was finally dismissed as untimely.     (Memorandum and Order, 9/16/14;

docket #71.) On October 7, 2014, appellant filed a timely pro se notice of

appeal, and the PCRA court filed a Rule 1925(a) opinion, relying on its prior

memoranda and orders dated November 14, 2011, July 5, 2012, and

August 26, 2014, as the reasons for its order. Appellant was not directed to

file a Rule 1925(b) concise statement of errors complained of on appeal.

     Appellant has set forth the following issues for this court’s review:

           I.     WAS APPELLANT’S GUILTY PLEA UNKNOWING,
                  INVOLUNTARY, AND THEREFORE INVALID AS
                  IN THAT IT WAS ENTERED AT THE ADVICE OF
                  COUNSEL WHO HIMSELF WAS INEFFECTIVE AS
                  A RESULT OF COUNSEL’S FAILURE TO
                  REQUEST A COMPETENCY HEARING FOR THE
                  JUVENILE WITNESS/VICTIM IN THIS MATTER?

           II.    WAS APPELLANT DENIED A FAIR TRIAL AND
                  DUE PROCESS OF THE LAW IN THAT THE
                  PROSECUTION INTRODUCED FALSE AND
                  PERJURED EXPERT WITNESS TESTIMONY IN
                  ORDER TO INDUCE APPELLANT TO ENTER A
                  PLEA OF GUILTY?

           III.   DID A MANIFEST INJUSTICE OCCUR AS A
                  RESULT OF THE TRIAL COURT’S FAILURE TO
                  HOLD   THE    MANDATORY     COMPETENCY
                  HEARING FOR THE JUVENILE WITNESS/VICTIM
                  BEFORE ACCEPTING APPELLANT’S GUILTY
                  PLEA?

           IV.    WAS     APPELLANT     DENIED EFFECTIVE
                  ASSISTANCE OF COUNSEL IN THAT COUNSEL
                  FAILED TO CONDUCT AN INVESTIGATION
                  THAT WOULD HAVE REVEALED APPELLANT’S
                  HISTORY OF MENTAL HEALTH ISSUES AND
                  RAISED QUESTIONS AS TO APPELLANT’S
                  COMPETENCE TO STAND TRIAL OR ENTER A
                  GUILTY OF GUILTY [SIC]?


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            V.     WAS APPELLANT ABANDON [SIC] BY COUNSEL
                   THAT FAILED TO FILE A DIRECT APPEAL AS
                   REQUESTED ON APPELLANT’S BEHALF?

            VI.    WAS    APPELLANT    DENIED EFFECTIVE
                   ASSISTANCE OF COUNSEL IN THAT PLEA
                   COUNSEL DID NOT DISCUSS WITH, OR
                   ADVISE APPELLANT OF THE SENTENCE
                   BEFORE IT WAS IMPOSED?

            VII.   DID THE PCRA COURT ABUSE ITS DISCRETION
                   AND DENY APPELLANT DUE PROCESS OF THE
                   LAW WHEN [THE] COURT ORDERED AN
                   EVIDENTIARY HEARING ON APPELLANT’S
                   NEWLY DISCOVERED EVIDENCE CLAIM, AND
                   THEN RULED APPELLANT’S PCRA PETITION TO
                   BE UNTIMELY FILED WITHOUT ADDRESSING
                   THE   MERITS   OF   APPELLANT’S   NEWLY
                   DISCOVERED EVIDENCE?

            VII[I]. WAS APPELLANT DENIED DUE PROCESS OF
                  THE LAW AND EFFECTIVE ASSISTANCE OF
                  COUNSEL IN THAT TRIAL COUNSEL FAILED TO
                  ADVISE APPELLANT OF HIS RIGHT TO HAVE
                  AND [SIC] EXPERT WITNESS TO TESTIFY IN
                  HIS DEFENSE?

            IX.    WAS APPELLANT DENIED DUE PROCESS OF
                   THE LAW AND EFFECTIVE ASSISTANCE OF
                   COUNSEL IN THAT PCRA COUNSEL FAILED TO
                   OBJECT OR PRESERVE ON THE RECORD FOR
                   FURTHER REVIEW THE PCRA COURT’S FAILURE
                   TO    ADDRESS     APPELLANT’S    NEWLY
                   DISCOVERED   EVIDENCE   CLAIM   BEFORE
                   RULING THAT APPELLANT’S PCRA PETITION
                   WAS UNTIMELY FILED?

Appellant’s brief at v-vi.

            The standard of review for an order denying post-
            conviction relief is limited to whether the record
            supports the PCRA court’s determination, and
            whether that decision is free of legal error. The


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           PCRA court’s findings will not be disturbed unless
           there is no support for the findings in the certified
           record. Furthermore, a petitioner is not entitled to a
           PCRA hearing as a matter of right; the PCRA court
           can decline to hold a hearing if there is no genuine
           issue concerning any material fact and the petitioner
           is not entitled to post-conviction collateral relief, and
           no purpose would be served by any further
           proceedings.

Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008),

appeal denied, 956 A.2d 433 (Pa. 2008), quoting Commonwealth v.

Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007) (citations omitted).

           Pennsylvania law makes clear no court has
           jurisdiction to hear an untimely PCRA petition.
           Commonwealth v. Robinson, 575 Pa. 500, 508,
           837 A.2d 1157, 1161 (2003). The most recent
           amendments to the PCRA, effective January 16,
           1996, provide a PCRA petition, including a second or
           subsequent petition, shall be filed within one year of
           the date the underlying judgment becomes final.
           42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
           Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003);
           Commonwealth v. Vega, 754 A.2d 714, 717
           (Pa.Super.2000). A judgment is deemed 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.” 42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).

           The three statutory exceptions to the timeliness
           provisions in the PCRA allow for very limited
           circumstances under which the late filing of a
           petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
           To invoke an exception, a petition must allege and
           prove:




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           (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)(i)-(iii). “As such, when a
           PCRA petition is not filed within one year of the
           expiration of direct review, or not eligible for one of
           the three limited exceptions, or entitled to one of the
           exceptions, but not filed within 60 days of the date
           that the claim could have been first brought, the trial
           court has no power to address the substantive merits
           of a petitioner’s PCRA claims.” Commonwealth v.
           Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
           (2000); 42 Pa.C.S.A. § 9545(b)(2).

Id. at 1079-1080. “To invoke an exception, the petitioner must plead it and

satisfy the burden of proof.”     Commonwealth v. Geer, 936 A.2d 1075,

1077 (Pa.Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008), citing

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

           “The PCRA’s time restrictions are jurisdictional in
           nature.    Thus, [i]f a PCRA petition is untimely,
           neither this Court nor the trial court has jurisdiction


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            over the petition. Without jurisdiction, we simply do
            not have the legal authority to address the
            substantive claims.” Commonwealth v. Albrecht,
            606 Pa. 64, 994 A.2d 1091, 1093 (2010) (quoting
            Commonwealth v. Chester, 586 Pa. 468, 895 A.2d
            520, 522 (2006)). Statutory time limitations “are
            mandatory and interpreted literally; thus, a court has
            no authority to extend filing periods except as the
            statute permits.” [Commonwealth v.] Fahy, 737
            A.2d [214] at 222 [Pa. 1999].

Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa.Super. 2014).

      Instantly, appellant was sentenced on February 26, 2009, and did not

file a direct appeal. As a result, appellant’s judgment of sentence became

final on March 30, 2009, when the 30-day period to file a direct appeal with

this court expired. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a); Geer,

supra. Therefore, appellant had until March 30, 2010, to file a timely PCRA

petition and the instant petition, filed August 5, 2014, is manifestly untimely.

      Many of appellant’s claims relate to newly discovered evidence in the

form of Nurse Henderson’s reports, which have already been litigated.        As

summarized above, on appeal from the denial of appellant’s first PCRA

petition, this court affirmed the PCRA court’s order denying appellant’s

petition as untimely. We determined that appellant did not file his petition

within 60 days of discovering the information regarding Nurse Henderson’s

reports. Furthermore, in appellant’s current petition, his third, he has failed

to plead any exception to the one-year filing requirement.      (Memorandum

and Order, 8/26/14 at 2.)




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      Appellant   raises    several   claims       of    trial   counsel   ineffectiveness,

including   failure    to   request   a    competency            hearing   for   the   child

victim/witness, failure to investigate appellant’s alleged history of mental

health issues, failure to advise appellant of his right to direct appeal, and

failure to consult with appellant regarding the sentence to be imposed. It is

well settled that claims of trial counsel ineffectiveness do not operate as an

independent exception to the one-year jurisdictional time bar of the PCRA.

See Gamboa-Taylor, 753 A.2d at 783 (holding a claim of ineffective

assistance of counsel does not save an otherwise untimely petition for

review on the merits); see also Commonwealth v. Breakiron, 781 A.2d

94, 97 (Pa. 2001) (allegations of ineffective assistance of counsel will not

avoid the timeliness requirement of the PCRA).                    Cf. Commonwealth v.

Bennett, 930 A.2d 1264 (Pa. 2007) (where appointed counsel had

abandoned the appellant by failing to file an appellate brief, resulting in

dismissal of the appeal, this allegation brought the appellant’s claim within

the ambit of Subsection 9545(b)(1)(ii)).

      In his brief on appeal, appellant claims that the government

interference exception, 42 Pa.C.S.A. § 9545(b)(1)(i), applies because the

Commonwealth          withheld   exculpatory            and      impeachment     evidence.

(Appellant’s brief at 21.) According to appellant, the Commonwealth knew

in July 2011 that Nurse Henderson had given false and perjured testimony in

other cases.    (Id. at 21-22.)       As described above, this issue concerning



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Nurse Henderson’s expert reports was already litigated in appellant’s first

PCRA petition.    Appellant attempted to invoke the after-discovered facts

exception to the one-year filing requirement, and we determined that it was

inapplicable where appellant failed to file his petition within 60 days.    The

analysis is the same with regard to the government interference exception.

      As appellant’s petition, his third, is patently untimely and appellant has

failed to plead and prove the applicability of any exception to the PCRA’s

time-of-filing requirements, the PCRA court lacked jurisdiction to consider

the merits of appellant’s issues and did not err in dismissing appellant’s

petition without an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/6/2015




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