J-A21030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MYLES RAMZEE

                            Appellant                   No. 23 EDA 2015


               Appeal from the PCRA Order November 26, 2014
                In the Court of Common Pleas of Carbon County
              Criminal Division at No(s): CP-13-CR-0000047-1998


BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                            FILED AUGUST 12, 2015

        Appellant, Myles Ramzee, appeals from the November 26, 2014 order

dismissing as untimely his sixth petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful consideration,

we affirm based on the thorough and well-supported opinion of the

Honorable Steven R. Serfass.

        The PCRA court has fully and accurately summarized the factual and

procedural history of this case in its February 12, 2015 opinion, which we

adopt and need not restate here in its entirety.         Briefly, Appellant was

convicted of first-degree murder and related offenses and sentenced to life

in prison on May 17, 1999. As held by a panel of this Court in an earlier

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
J-A21030-15


appeal, “[A]ppellant’s judgment of sentence became final on [] February 12,

2001, which was ninety days after our Supreme Court denied allocatur on

direct appeal and the date upon which the time expired for requesting a writ

of certiorari with the United States Supreme Court.” Commonwealth v.

Ramzee, 890 A.2d 1104 (Pa. Super. 2005) (unpublished memorandum at

2) (citations omitted) (Ramzee III). Appellant filed a pro se “petition for

Writ of Habeas Corpus” on May 21, 2012, which the PCRA court treated as

Appellant’s sixth PCRA petition.           The PCRA court appointed counsel to

represent Appellant, and Counsel filed a “First Amended Petition for Post-

Conviction Relief” on August 30, 2012. Following oral argument and briefing

by the parties, the PCRA court, on November 26, 2014, denied Appellant’s

petition as untimely. Appellant filed a timely notice of appeal on December

18, 2014.1

       On appeal, Appellant raises the following question for our review.

              I.     Should the petition for writ of habeas corpus
              (pursuant to 42 Pa.C.S. Section 6502-6503) as
              previously filed by [Appellant] on May 21, 2012, and
              the first amended petition for post-conviction relief
              as filed on August 30, 2012, be addressed on their
              merits as multiple miscarriages of justice occurred in
              this case and recognized exceptions to the otherwise
              one (1) year filing deadline set out at 42 Pa.C.S.A.
              Section 9545(b) apply here and to not do so would
              result in a gross injustice?

Appellant’s Brief at 6.
____________________________________________
1
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.


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J-A21030-15


              Our standard of review of the denial of a PCRA
              petition is limited to examining whether the court’s
              rulings are supported by the evidence of record and
              free of legal error. This Court treats the findings of
              the PCRA court with deference if the record supports
              those findings. It is an appellant’s burden to
              persuade this Court that the PCRA court erred and
              that relief is due.

Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)

(citation omitted).

      Instantly, the PCRA court dismissed Appellant’s sixth PCRA petition as

untimely. “[I]t is well-settled that … a question of timeliness implicates the

jurisdiction of our Court.”         Commonwealth v. Gandy, 38 A.3d 899,

902 (Pa. Super. 2012) (internal quotation marks and citation omitted),

appeal denied, 49 A.3d 442 (Pa. 2012).                   “Because these timeliness

requirements are mandatory and jurisdictional in nature, no court may

properly disregard or alter them in order to reach the merits of the claims

raised   in   a   PCRA   petition    that   is   filed   in   an   untimely   manner.”

Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa. 2012) (internal quotation

marks and citation omitted).         The PCRA “confers no authority upon this

Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]”

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted).

This is to “accord finality to the collateral review process.”           Id. (citation

omitted). “It is well settled that [a]ny and all PCRA petitions must be filed

[in a timely manner] unless one of three statutory exceptions applies.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061-1062 (Pa. Super. 2011)

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J-A21030-15


(internal quotation marks and citations omitted), appeal denied, 38 A.3d 823

(Pa. 2012). “We have repeatedly stated it is the appellant’s burden to allege

and prove that one of the timeliness exceptions applies.        Whether [the

a]ppellant has carried his burden is a threshold inquiry prior to considering

the merits of any claim.”    Commonwealth v. Edmiston, 65 A.3d 339,

346 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania,

134 S. Ct. 639 (2013).

     The Act provides for the following possible exceptions to the timeliness

requirement.


           § 9545. Jurisdiction and proceedings

                                      …

           (b) Time for filing petition.—

                  (1) Any petition under this subchapter,
           including a second or subsequent petition, shall be
           [timely] filed … 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

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J-A21030-15


                 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.

                 (2) Any petition invoking an exception
           provided in paragraph (1) shall be filed within 60
           days of the date the claim could have been
           presented.

                                      …

42 Pa.C.S.A. § 9545(b).

     Appellant’s sixth PCRA petition is facially untimely.    His sentence, as

noted above, became final on February 12, 2001. Therefore, Appellant had

until February 12, 2002, one year from that date, to file a first or any

subsequent PCRA petition.   See generally 42 Pa.C.S.A. § 9545(b)(3). As

noted, it is required that Appellant pleads and proves one of the statutory

exceptions to the PCRA’s time limits to invoke the PCRA or this Court’s

jurisdiction to consider his petition. See Edmiston, supra.

     Appellant advances a number of arguments why his PCRA petition

should be deemed timely or reviewable notwithstanding the timeliness

constraints of the PCRA.    Appellant’s Brief at 21-48.   Appellant avers the

PCRA court “failed to reconcile that case[]law establishes that what might

otherwise be deemed an untimely [PCRA] [p]etition can nevertheless be

characterized as timely for a reason expanding upon the [s]tatutory

exceptions or for a reason outside of any of those exceptions.” Id. at 32.

Appellant’s arguments center on his contention that his counsel, appointed


                                    -5-
J-A21030-15


by the PCRA court to represent him during his first timely PCRA, was

ineffective and effectively abandoned him during his appeal from the PCRA

court’s denial of that petition.         Id. at 24-26; see Commonwealth v.

Ramzee, 847 A.2d 760 (Pa. Super. 2004) (unpublished memorandum). 2 In

particular, Appellant claims his counsel was ineffective before the PCRA court

and this Court by failing to advance various PCRA claims and by

“abandoning” him by withdrawing prior to filing a timely petition for

allowance of appeal with our Supreme Court. Id.

       Appellant suggests the “abandonment” of PCRA counsel constitutes an

unknown fact not ascertainable through due diligence, pursuant to Section

9545(b)(1)(ii), and consonant with Commonwealth v. Bennett, 930 A.2d

1264 (Pa. 2007) and Commonwealth v. Smith, 35 A.3d 766 (Pa. Super.

2011), appeal denied, 53 A.3d 757 (Pa. 2012). Id. at 32-33.          Alternatively,

Appellant argues that the decisions by this Court in Commonwealth v.

Leasa, 759 A.2d 941 (Pa. Super. 2000), Commonwealth v. Peterson, 756

A.2d 687 (Pa. Super. 2000), and Commonwealth v. Robinson, 781 A.2d

152 (Pa. Super. 2001), reversed, 837 A.2d 1157 (Pa. 2003), treating claims

of PCRA counsel ineffectiveness as extensions of prior timely PCRA petitions

where PCRA counsel has failed to file an appellate brief, should be extended

to his instant PCRA petition.        Id. at 37-39.   Finally, Appellant argues that

____________________________________________
2
 Appellant’s pro se petition for allowance of appeal was denied on December
22, 2004. Supreme Court Order, 153 MAL 2004, 12/22/04, at 1.


                                           -6-
J-A21030-15


based on the United States Supreme Court case of Martinez v. Ryan, 132

S. Ct. 1309 (2012), Appellant should be afforded a merits review of his

ineffectiveness claims against initial PCRA counsel notwithstanding the time

constraints of the PCRA. Id. at 40-42.

     After careful review, we conclude that the trial court’s February 12,

2015 Rule 1925(a) memorandum opinion fully sets forth Appellant’s claims,

identifies the proper standards of review, discusses the relevant law, and

explains the bases for its conclusion that Appellant has failed to plead or

prove an exception to the timeliness requirements, statutory or otherwise, of

the PCRA.   We have carefully reviewed the entire record and Appellant’s

arguments, and we conclude that the thorough and well-reasoned opinion of

Judge Steven R. Serfass is in concert with our own views.

     Specifically, we agree that Appellant’s counsel during his first PCRA did

not abandon Appellant by withdrawing after this Court affirmed the PCRA

court’s denial of Appellant’s first PCRA on the merits and that Bennett and

Smith are inapposite to this case. We also agree that Appellant’s reliance

on the holdings in Leasa, Peterson, and this Court’s decision in Robinson

is misplaced. Our Supreme Court reversed Robinson and therein held “the

Superior Court’s decisions in [] Leasa[], and [] Peterson[] are hereby

expressly disapproved.”   Commonwealth v. Robinson, 837 A.2d 1157,

1163 (Pa. 2003). Finally, we agree with the PCRA court that, in light of this

Court’s decision in Commonwealth v. Saunders, 60 A.3d 162 (Pa. Super.


                                    -7-
J-A21030-15


2013), appeal denied, 72 A.3d 603 (Pa. 2013), cert. denied, Saunders v.

Pennsylvania, 134 S. Ct. 944 (2014), Martinez is inapplicable to the

timeliness of Appellant’s sixth PCRA petition and the jurisdiction of the PCRA

court.      Furthermore,   this   Court    addressed    and   rejected   Appellant’s

contentions relative to his entitlement to effective assistance of PCRA

counsel, and his alleged inability to raise those issues in a timely fashion, in

our disposition of his appeal from the denial of his second PCRA.              See

Ramzee III, supra.

         Accordingly, we adopt the February 12, 2015 opinion of the Honorable

Steven R. Serfass as our own for the purposes of our disposition of this

appeal.     We conclude the PCRA court committed no error in determining

Appellant’s sixth PCRA petition is untimely.           Additionally, concluding the

PCRA court and this Court are without jurisdiction to address the merits of

Appellant’s claims, we affirm the PCRA court’s November 26, 2014 order

dismissing his sixth PCRA petition.

         Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2015



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    IN THE COURT       OF COMMON     PLEAS OF CARBON COUNTY,          PENNSYLVANIA
                                      CRIMINAL DIVISION

    COMMONWEALTH OF PENNSYLVANIA

                 vs.                                        No.    047 CR 1998

    MYLES RAMZEE,
              Defendant


Gary F. Dobias, Esquire
     Assistant District   Attorney                    Counsel for the Commonwealth
                                                                               /}'.i
Michael P. Gough, Esquire                             Counsel for the Defendarftz:.(''.

                                     MEMORANDUM OPINION

         Serfass, J.       -    February 12,     2015

         Defendant,      Myles Ramzee,         (hereinafter       "Defendant")    , has

    taken this    appeal from       the Order       of Court entered on November

26,     2014 denying Defendant's "First Amended Petition for                        Post-

Conviction       Relief." We file the following Memorandum                   Opinion                    ~:~,
pursuant     to Pennsylvania          Rule     of Appellate Procedure 1925(a)                 and               tl-
                                                                                                                 1



recommend that          the aforesaid Order of Court be affirmed for the

reasons set forth hereinafter.

                           FACTUAL AND PROCEDURAL HISTORY                                                   (!\
         The facts surrounding the murder of Tyrone Hill,                        a/k/a

Korran     Harrington          a/k/a Carona,    when viewed most        favorably        to

the Commonwealth          as verdict     winner,        find their genesis        in turf

wars between drug dealers.1              Five individuals          were charged with


1
  Reference  to the trial transcripts  is to the original first three volumes
filed on April 20,   1999 and the amended remaining volumes, filed on July 26,
                                                                                                            ~

                                                                                                       o
1999.  The amendments to Volumes IV through VII were made due to a problem
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 the        Murder      of     Carona:

       1.    Defendant;
       2.    Kaquwan Milligan   a/k/a Footy;
       3.    Dennis  Boney a/k/a Bunny;
       4.    Cetewayo Frails  a/k/a Cease;                                and
       5.    Verna Russman.

             During      1997,         the prosecution's                        primary witness,                  Verna

Russman,          was a crack                  cocaine        addict,            selling        drugs          for      Defendant

and Anthony              Cabey        a/k/a         V.A.      N.T.,           3/11/99,        pp.          136-141.          The

drugs         were     sold       primarily              in Monroe             County,        Id.,          and generated

approximately                  ten thousand                 dollars           ($10,000.00)             per week, which

was     shared         by Defendant,                  V.A.     and        the others            involved              in the

drug         trade,      including              Footy,        Cease and Bunny.                       Id.     at   164.           For

her part,             Verna       received            a place            to    stay and        crack           cocaine            to

support         her      habit.          Id.     at      164-165.

            In the spring                of     1997,        Verna        began          selling       drugs          for

Terrell         Owens         a/k/a Lite,               whom       Defendant              had brought             into           the

drug        operation           after          V.A. 's       arrest           and     incarceration.                  Id.        at

139-140;         N.T.,          3/17/99,          pp.        685-687.            In October            of      1997,         Lite

planned         to leave             the state              and brought               in Carona             as his

replacement.                 N.T.,       3/11/99,            pp.    141-142.              Defendant            admitted               his

involvement              in the drug               sales,          but claimed              to have quit                    the

operation             prior      to the murder                 arid,          thus,       denied       knowing              or

killing         Carona.          N.T.,          3/17/99,           pp.        685-693.

            On Saturday              October          25,     1997,           the day before                 the murder,

with    page numbering and in no way changed                                  the content      of these volumes.
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Verna        and Footy                spent        the day selling                     drugs        in Monroe               County,

where        they eventually                     met with Cease,                       Defendant              and Bunny.              N.T.,

 3/11/99,          pp.         44,      147-150;          N.T.,             3/12/99,       pp.           332-333.           During           the

visit,        Verna            smoked          crack      cocaine               and listened                to Defendant,

Cease,        Bunny and Footy                         plan      to        rob    Carona        of    his       money         and drugs

in order            to    cut         into      his     drug territory.                    Id.       at 150-151.

            Thereafter,                Verna          and Footy              returned          to        their       apartment               in

Palmerton,               Carbon          County,          which             they shared             with       several           people,

including               Lite         and Carona.              Id.       at 141-142.               She and Carona                     then

bagged        drugs        he had purchased                           earlier          that day.             Id.      at     44,      152.

Later,        Verna            took      Carona's             vehicle            to    sell      more        drugs,          while

Footy        remained                in Palmerton.                  Id.      at 142,       153.

         During           her         trip,      Verna was                  paged      to bring            Cease,           Defendant

and Bunny            to    the Palmerton                      apartment               to rob Carona                  as planned.

Id.     at 172.           The group              arrived             in two vehicles                      in the early

morning           hours         of     October          26,         1997.       Id.     at 154-156,                  177.     Verna

roused        Carona,                telling       him she             needed          an eight            ball       to     sell.       Id.

at 156.           Bunny sat down to play a video                                        game        while           Cease     stood

guard       by the door.                  Id.      at 157-158.                  Defendant            greeted            Carona         and

then     exited           the room              for    a few seconds.                    Id.        at     157.       Upon

returning,               Defendant              walked         up behind               Carona,           who was leaning

down to retrieve                       his      clothes,             and shot           him in the back                     of     the

head.       Id.     As Carona                started           to      fall,          Cease pushed               him backward,

causing           him     to     fall        face      up on the                floor.        Id.        Cease        and
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 Defendant              then           rifled          through         Carona's              pockets         and stole         his

 drugs.         Id.         at     159.

          In the meantime,                             Footy        dragged           an upset          Verna       from     the

 room,     while             all           four       men appeared              calm.         Id.      When     allowed        to

 return,         Verna             saw Carona's                body        covered            with blankets              on the

 floor.         Id.         at     160.          Defendant           then       ordered             Verna     to    drive

Carona's              car,        while           Cease,       Footy          and Bunny               followed       in another

vehicle.              Id.        at        160-161.          They      eventually              left      Verna       at an

apartment              in Monroe                  County.        Id.       at    162;        N.T.,       3/12/99,           pp.     336-

339.

          The         crime            scene          was    discovered               by the          landlord       on the

morning          of         the murder                 and was         consistent              with      Verna's

description.                     Id.        at    100-106.          A subsequent                    police      investigation

and autopsy                  revealed                 that Carona           died        of     a gunshot            wound      to the

back      of     his         head, consistent                       with        the victim              being       in a bent

over      position.                    Id.       at    52,    82-86.        Carona's             vehicle           was   eventually

found      in Brooklyn,                          New York,          containing               microscopic             hairs

similar          to         those          of     Bunny. N.T.,              3/12/99,             pp.     393-397;           N.T.,

3/16/99,          pp.            564-571.

          The     day following                         the    murder,           Verna         contacted            the police            to

tell      them about                    the killing.                She     was       subsequently                 arrested.

N.T.,      3/11/99,                   p.     164.       At    the      time      of     trial,          Verna       had been         in

jail      for approximately                             fifteen         (15)      months,              charged       with     the

same      crimes            as her               co-defendants.                 Id.     at     134,      163.       No promises
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had been made in exchange                               for her        testimony.                 Id.     at     163.       She

testified          because          she     believed            the      killing            should          not       have

occurred          and the truth needed                         to be told.               Id.

         On November            19,        1997,         the police             arrived             at    Defendant's

Brooklyn          residence           to    execute          a warrant                for    his         arrest.         N.T.,

3/17/99,          pp.    643-645.           After         repeatedly                 knocking            on the apartment

door     and hearing movement                           inside,       an officer               announced                that       he

was a police             officer           with a warrant.                     Id.     at    646-647.             Defendant

eventually          opened          the door,             but when asked                    his      identity,              he gave

the name of             McCormick           and a false               date of birth.                      Id.     at     649-650.

Defendant          was then           arrested,            as the             officer        was able             to     surmise

that     the      individual           was actually                  Defendant              based         upon        the

address,          a matching           description                  and Defendant's                      inability            to

spell      the alias.          Id.         at   650-651.             On December               2,        1997,        Defendant

was     transported           to    Pennsylvania                    to face           the charges                of     First

Degree      Murder,          Robbery,           Aggravated              Assault             and Criminal

Conspiracy.

         Defendant           asserted           an alibi            defense,            indicating                that        he had

spent     the entire           weekend             of     October         25 and 26,                 1997        with       friends

and     family      in Brooklyn,                New York.             N.T.,           3/17/99,            pp.     664-670,

676;     N.T.,      3/18/99,          pp.       715-716,            725-727,            730-733,               738-744.            He

further          claimed     he had not                 been      in Pennsylvania                        during         the

entire      month       of   October            1997.       N.T.,         3/17/99,             pp.        684-685.

        The prosecution                 presented              Verna's               testimony           placing
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Defendant             at    the scene            of     the crime.            Additionally,                      five        other

witnesses            placed           him in Pennsylvania,                      in an adjacent                      county,              on

the day the conspiracy                           developed           and/or           the day of                 the murder,

including:                Rebecca        Hoffman,         N.T.,           3/16/99,           pp.     331-339;               Anthony

Bennett,            Id.     at     349-348;           Stella      Russman,              Id.        at 375-378;                Lykette

Bennett,            N.T.,        3/16/99,          490-495;          and Defendant's                    friend,               Kadias

Murdaugh            a/k/a        Soup.      Id.       at 498-507.

              On March           19,     1999,        following            a six-day               jury trial,

Defendant            was found            guilty         of     First Degree Murder,                         Robbery,

Aggravated                Assault        and Criminal             Conspiracy.                 On May 17,                   1999,

Defendant            was sentenced                 to    life     imprisonment                 on the First Degree

Murder         charge and to                one-hundred-fifty                        (150)     months minimum                         and

three-hundred                 (300)       months         maximum,           consecutive                to    the           life

sentence,            on the Robbery                   and Criminal             Conspiracy               charges.                   The

Aggravated            Assault            charge         merged with             the Murder              charge              for

purposes         of        sentencing.            Defendant's               direct           appeal         of     his

conviction                to the Superior                Court       of     Pennsylvania                was denied                    as

was     his    Petition             for Allowance               of    Appeal           filed         with         the Supreme

Court     of    Pennsylvania.

         On June 18,                2001,        Defendant           filed       his         first      Post          Conviction

Relief        Act         (PCRA)       Petition,          which       was amended                  on June            5,      2002.

On April        14,         2003,        the Honorable               Richard           W.     Webb issued                   an Order

and Opinion               denying         and dismissing                  Defendant's                PCRA Petition.

The     Pennsylvania                Superior            Court    affirmed              the denial                of
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Defendant's           petition         on January           12,   2004    and,     on December            22,

2004,     the    Supreme        Court        of    Pennsylvania          denied        Defendant's

Petition        for    Allowance         of       Appeal     concerning          his    first    PCRA

Petition.

         On February           7,    2005,        Defendant       filed    a second         PCRA

Petition,        prose.         On February 14, 2005,                    Judge Webb dismissed                    and

denied Defendant's                  second petition.              Defendant        subsequently             filed

a timely        appeal        of Judge Webb's dismissal                    and denial           to the

Superior        Court of Pennsylvania.                      On November 14,             2005,    the

Superior Court affirmed                      the denial of Defendant's second                            PCRA

Petition.        Defendant           then filed a Writ of Habeas Corpus in the

United States District                   Court        for    the Middle      District           of

Pennsylvania on May 20,                      2005.     Defendant's Writ of Habeas Corpus

was denied on December 20,                         2006,    as was a Certificate                 of

Appealability.            Defendant           then filed an appeal with the United

States      Court of Appeals                 for     the Third Circuit, which was denied

on July 20,           2007.

         On August 3,          2010, Defendant                filed his third PCRA Petition,

which was denied by Judge Webb on April 12, 2011.                                         On December             5,

2011,     the Superior              Court of Pennsylvania                 affirmed Judge Webb's

denial     of Defendant's              third PCRA Petition.                 On May 30,           2012,          the

Supreme Court of Pennsylvania denied Defendant's Petition for

Allowance of Appeal Nunc Pro Tune.

         On March 19,          2012,         while Defendant's             Petition        for Allowance
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of    Appeal          Nunc       Pro        Tune was pending,                              Defendant         filed      a "Notice

of    Appeal."              On March              29,         2012,        we entered              an Order          treating          the

Notice         of     Appeal          as Defendant's                         fourth          PCRA        Petition.         On April

11,    2012,          we dismissed                      the same             as premature                 because       of

Defendant's                 pending          matter              before           the Supreme              Court      of

Pennsylvania.                  On April                 12,      2012,         Defendant            filed      his      fifth         PCRA

Petition.             On April              19,         2012,          we issued             a Notice         of     Intent      to

Dismiss         Defendant's                   PCRA            Petition.              Pursuant         to that         notice,         we

dismissed             Defendant's                  fifth              PCRA     Petition            on May 31,           2012.

        On May 21,                   2012,         Defendant                 filed          what    he     titled       "A Petition

for    Writ         of     Habeas       Corpus."                      On June         12,     2012,        we issued          an Order

treating            Defendant's                   Habeas              Corpus         Petition         as a PCRA Petition

and appointed                 Michael              P.         Gough,         Esquire          as Defendant's                 counsel.

Attorney            Gough was           directed                      to either             file    a letter          indicating

that    the         PCRA      Petition                  was non-meritorious                         or to file             an amended

petition            raising           all         meritorious                 claims.

        On August               30,     2012,                 Defendant,              through         Attorney         Gough,

filed     a "First              Amended                 Petition             for Post-Conviction                      Relief."         On

November            20,      2012,      the             Commonwealth                  filed        its     Answer       to

Defendant's                petition,               titled              "Commonwealth's                   Answer       to

Defendant's                Amended           Sixth             Petition              for     Post-Conviction

Collateral                Relief."           On July              17,        2014,         Defendant          filed        a Praecipe

for    Argument             with       respect                 to his         "First Amended                  Petition          for

Post-Conviction                    Relief."                   On July         22,      2014, we issued                 an Order
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scheduling         oral   argument          for September       19,    2014.

         After     consideration         of     Defendant's      "First        Amended      Petition

for   Post-Conviction              Relief,"      the Commonwealth's              Answer     thereto,

review     of     the parties'        briefs,       and    following      oral     argument

thereon,        we issued         our Order      of Court      dated    November       26,    2014

denying     Defendant's           petition.

                                               DISCUSSION

         On December        18,     2014,     Defendant       filed his Notice            of Appeal.

Via Order dated December                 18,     2014,    we directed          Defendant      to file

a concise        statement of matters              complained         of on appeal pursuant

to Pennsylvania           Rule of Appellate               Procedure     1925(b).       In

compliance with our Order,                    Defendant      filed his concise             statement

on December 31,           2014.

         In his    concise statement, Defendant                   raises the following

issues     on appeal:

           1. That we erred in dismissing the most recent Post-
              Conviction Relief Act filing by Defendant, and the
              Amended Petition filed on behalf of the Defendant by
              his current counsel, as untimely;

           2. That we erred in failing to recognize or to properly
              construe the argument advanced by Defendant as to his
              being abandoned by former counsel Robert M. Buttner,
              Esquire who failed to raise in the Superior Court of
              Pennsylvania,  issues Defendant then wished raised and
              who also failed to withdraw from the case when
              Defendant asked that he do so, and thus such
              abandonment constitutes  a newly-discovered    fact as
              referenced in 42 Pa. C.S.A.   § 9545(b) (1) (ii);

           3. That the Supreme Court of Pennsylvania has not
              expressly overruled the decisions in Commonwealth                                   v.
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               Leasa,    759 A.2d 941 (Pa.         Super.    2000),    Commonwealth     v.
               Peterson,     756 A.2d     687    (Pa. Super.     2000),      and
               Commonwealth      v. Robinson,        781 A.2d 152       (Pa.   Super.
               2001),    respectively,        and thus those cases still           afford
               support for the proposition              that the claims        advanced
               by Defendant      in his most recent filings               are merely   an
               extension     of those advanced in his initial and earlier
               Post-Conviction       Relief     Act Petitions       and thus we have
               jurisdiction      to address same.

          4.   The United States  Supreme Court decision                 in Martinez
               v. Ryan, 123 s. Ct. 1309 (2012) applies   to this case
               sub judice as per 42 Pa. C.S.A.   Section
               9545(b) (1) (iii) and was expanded by the recent
               decision of the United States Court of Appeals,   Third
               Circuit in Cox v. Horn, Number 13-2982 (Decided August
               7, 2014);   and

          5. That we erred in our conclusion that Defendant was
             required to file his Post-Conviction Relief Act
             Petition on or before February 12, 2002.

I.     Dismissal     of Defendant's       Most Recent Petition           as Untimely

       We will    address the first           and fifth issues      raised     in

Defendant's      concise    statement      together, as the underlying

determination       to be derived       relative      to both issues is the date

representing      the deadline       for Defendant         to have filed a timely

PCRA petition.

       Pursuant to 42       Pa.C.S.A.     §    9543(a),     in order to make out a

claim under the PCRA,           a petitioner       must plead    and prove by a

preponderance       of the evidence       that he has been convicted                of a

criminal offense        under    the laws of this Commonwealth and is

currently      serving a term of imprisonment,               probation    or parole

for   that crime,     awaiting execution           of a sentence of death for

the crime,     or serving another          sentence       which must expire before
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the disputed          sentence       begins,      and that       the conviction          resulted

from     one    or more     of     the   following:

         (i)      A violation     of the Constitution               of this Commonwealth
                  or the Constitution      or laws 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;

         (ii)     Ineffective   assistance  of counsel 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;

         (iii)A     plea of guilty unlawfully induced where the
                  circumstances   make it likely that the inducement
                  caused the petitioner     to plead guilty and the
                  petitioner   is innocent;

         (iv)     The improper    obstruction  by government officials   of
                  the petitioner's     right of appeal where a meritorious
                  appealable   issue existed   and was properly preserved                              in
                  the trial court.

         PCRA     claims    must    be   filed within        one year       of     the date      the

judgment        becomes     final. 42       Pa.   C.S.A.     §   9545(b)    (1).     A judgment

becomes final for purposes of the PCRA when either                                  the direct

review     is completed          or the time for direct review has passed.

42 Pa.     C.S.A.     §    9545(b) (3).        In order    to file        a petition        under

the PCRA beyond            that one-year limitation,                42 Pa. C.S.A.           §


9545(b) (1)       sets     forth the following three                (3)    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;

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              (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.

          Any petition                 invoking          an exception             pursuant         to     the

aforementioned                     sub-section           must      be    filed within            sixty          (60)         days

of      the date             the claim        could         have been presented.                   42     Pa.      C.S.A.

§9545(b)             (2).     When     the    merits         of an issue            have    been        ruled          upon by

the highest                  appellate        court in which               the petitioner                could          have

had review                 as a matter            of   right,       or where         the    petitioner                 could

have raised                  the     issue    in a prior            proceeding,            the     issue         is

considered                 waived.      42    Pa.      C.S.A.       § 9544.

          The         time     limitations             of    the    PCRA      are    jurisdictional                    in

nature;              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,              753 A.2d          780,      783         (Pa.

2000)     .

          Defendant                was convicted             on March       19,      1999 and sentenced                       on

May 17,              1999.     The Superior             Court      of    Pennsylvania             denied
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Defendant's             direct      appeal and affirmed                 the judgment               of    sentence.

Defendant         thereafter            filed     a Petition          for     Allowance            of    Appeal,

which        was denied          by the Supreme             Court     of     Pennsylvania               on

November        14,      2000.      Defendant's         judgment            then became            final       ninety

 (90)    days subsequent                to the Supreme Court's                  denial           of     his

Petition        for      Allowance         of    Appeal.          Defendant's      ability              to request

PCRA     relief        under      his     allotted      one-year            limitation           expired        on

February        12,      2002.      Defendant's         current        PCRA     Petition              was     filed

on May 21,            2012,      more     than    ten      (10)     years     beyond     the          expiration

of his        filing          deadline.     Accordingly,             in order      for       this        Court        to

have had jurisdiction                     over Defendant's             current      PCRA Petition,

one     of   the exceptions               set forth        in 42 Pa.          C.S.A.     §       9545(b) (1)

would have had to apply.                        However,      Defendant         failed - as more

thoroughly discussed below - to demonstrate the applicability                                                           of

any of the PCRA's three (3) statutory exceptions to the

timeliness            requirement          set forth in 42 Pa. C.S.A.                        §    9545(b)        (1),

which would allow him to extend the one-year                                     time limitation.

Therefore,            the deadline          for Defendant             to file a timely PCRA

petition was properly calculated. Accordingly, because we lacked

jurisdiction            to consider             the merits         of Defendant's                "First

Amended Petition                 for Post-Conviction                Relief,"      said petition                  was

properly denied.




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II.     Abandonment        by Former      Counsel

         In an attempt        to strengthen        a meritless argument,                       Defendant

attempts       to divide      his claim        of abandonment by former                      counsel

into two separate issues in his                   concise          statement.           Because

Defendant's        issues     two and four        both pertain                to an alleged

abandonment        by counsel,        we will address those                   issues       herein.

        A.      Issue Number Two

        In issue number two of his concise                       statement,             Defendant

alleges       that because his         former counsel,              Robert M.           Buttner,

Esquire,       "failed     to raise ... issues           the Defendant             then wished

raised       and ... failed    to withdraw        from the case when the Defendant

asked that he do so... " such alleged actions                           and/ or inactions

constitute       newly-discovered             facts as referenced                 in 42 Pa.        C.S.A.

§   9545 (b) (1) (ii).

       As explained         in Section        I hereinabove,             in order to qualify

for   the newly-discovered             evidence exception                to the one-year time

limitation       set forth at 42 Pa.            C.S.A.       §   9545(b)        (1),     a claim must

be brought       "within      sixty    (60)    days of the date the claim could

have been presented."               42 Pa. C.S.A.        §   9545(b) (2). Exception

(b) (1) (ii)     requires a petitioner             to allege and prove that there

were facts       upon which his         claim     is predicated that                    were unknown

to him and that he could not have ascertained those facts                                          by the

exercise of due diligence.               42 Pa.     C.S.A.         §    9545(b)        (1) (ii);

Commonwealth       v.    Lambert,     57 A.3d 645,           648       (Pa.    Super.        2012)
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However,        prior          PCRA counsel's              performance                 does         not constitute                 a

newly-discovered                    fact which           would      entitle            Defendant             to the

benefit      of the exception                      set    forth         at      section        9545(b)         (1) (ii)

Commonwealth             v.    Gamboa-Taylor,                753        A.2d      780,     785         (Pa.     2000).

         Defendant,            in his            "Memorandum            of      Law in Support                 of    First

Amended      Petition               for     Post-Conviction                  Relief,"          argued          that

Attorney        Buttner             abandoned        him during                 the    appeal         process          and

that such         abandonment                constituted            a newly-discovered                         fact.      In

support      of    this        argument,            Defendant             attempted            to     rely      on

Commonwealth             v.    Smith,          35 A.3d       766         (Pa.     Super.        2011).          The

Superior        Court         in Smith,           relying          on Commonwealth                    v.    Bennett,             930

A.2d     1264     (Pa.        2007),        held     that,         because            the defendant's                  initial

appeal     was     dismissed              as     a result          of    counsel          failing            to file         a

brief,     such      action           by counsel           was      an abandonment                    of     the

defendant.         In the            instant       matter,          Attorney             Buttner           did not

abandon      Defendant.               Rather,        after         the       Superior          Court        had issued

its    Memorandum             and Judgment               affirming             Judge Webb's                Order,

Attorney        Buttner         filed          a petition           to withdraw                as counsel.

Defendant's          appeal           was      decided       on the merits.                    It     was     not

dismissed         as a result               of    a procedural               default           and,        therefore,             is

not analogous             to    the situation                in Smith.

         After distinguishing                      between          Smith         and the           instant         matter

in the     footnote            of     our November            26,        2014         Order,        Defendant,           in

his    concise      statement,                 now asserts              that     we failed             to     recognize
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or     to properly               construe      his        abandonment            of    counsel         argument             -

that Attorney               Buttner          failed        to raise           specifically             requested

issues        and did           not withdraw              as    counsel        upon Defendant's                   request.

However,         Defendant's             abandonment                  claim    still        fails.         Attorney

Buttner        did       not      abandon      Defendant               by,    allegedly,             not    raising

every     issue           that     Defendant           had      requested.            See Commonwealth                 v.

Grosella,          902      A.2d 1290,             1294        (Pa.     Super.        2006)      (holding          that

the defendant               was not abandoned                    by his        counsel         when        his    counsel

failed        to raise all             issues requested                      to be raised             by the

defendant          on direct           appeal).            Furthermore,               we are unable               to find

the logic          in Defendant's                  argument            that Attorney            Buttner's

alleged       failure             to withdraw           as counsel             upon Defendant's                   request

amounts       to     abandonment.             Accordingly,                   Defendant         cannot

demonstrate              that      any alleged             insufficiency               of     representation,                   or

abandonment,              by Attorney              Buttner            constitutes           a newly-discovered

fact     under       42     Pa.     C.S.A.         §   9545(b)         (1) (ii)

         B.        Issue Number              Four

         Defendant             argues in issue                 number four             of his concise

statement          that Martinez              v.       Ryan,      supra,         affords him a mechanism

by which he can now bring a PCRA petition                                             to challenge               the

effectiveness of counsel.                          Martinez             held that where state law

requires an ineffective assistance of counsel claim to be raised

in an initial              review       collateral proceeding,                          a procedural default

will not bar a federal habeas court from hearing the ineffective
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assistance            of counsel           claim.     Martinez          v.    Ryan,     123    S.    Ct.    1309,

1316      (2012).          Defendant        further      argues         that    Martinez        has been

expanded            by the Third           Circuit      Court     of Appeals            in Cox v.          Horn,

757    F.3d         113    (3d Cir.        2014).

         Martinez           is    inapposite         to Defendant's             case in light              of    the

recent        Pennsylvania               Superior     Court     decision         of     Commonwealth             v.

Saunders,            60   A.3d     162     (Pa.     Super.     2013).         In that     case,       Saunders

filed      a second prose                  PCRA petition          alleging            that his direct

appeal        counsel        was ineffective             for    failing         to raise the

ineffectiveness                  of his trial         counsel,          and that his first PCRA

counsel was ineffective                       for failing         to raise his direct                  appeal

counsel's            ineffectiveness.               Saunders      argued that Martinez

supported           his claim that                a petitioner          is permitted           to file a

second PCRA petition                     within      sixty     days of discovering                   the

ineffectiveness                  of his PCRA counsel.              The Superior               Court

disagreed           with    Saunders' interpretation                         of Martinez        and held

that     "[w]hile          Martinez         represents         a significant            development              in

federal       habeas corpus law,                    it is of no moment with respect                             to

the way Pennsylvania                     courts apply the plain language                            of the time

bar set forth              in section 9545(b) (1)                of the PCRA."                Saunders at

165.    Furthermore,              although Defendant               claims        that the Cox case

has expanded Martinez,                      Cox still        specifically             pertains        to

federal       habeas corpus               law.      Ninety-two          (92) days after             the United

States      Supreme Court issued its ruling in Martinez,                                        the
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defendant                  in Cox          filed     a motion               pursuant       to    Fed.R.Civ.P.

60(b)       (6)       whereby              he sought          to reopen            his    federal         habeas

proceeding                 based           on the significant                     change        created        by the

Martinez              decision               relative         to      federal       habeas        corpus         law.       In

vacating              the     District              Court's           order,       which        denied     the

defendant's                 Fed.R.Civ.P.                  60(b)       (6)     motion,         and remanding             the case

for     further             proceedings,                  the Third Circuit                     Court     of     Appeals

merely            discussed                certain        factors            to be considered              by the

District              Court           when       it reexamined                the defendant's              Fed.R.Civ.P.

60(b) (6)            motion.               As    in Martinez,                the opinion          in Cox contains                 no

discussion                 relative              to this         Commonwealth's                 Post Conviction

Relief            Act.      Therefore,               we apply               the   reasoning        in Saunders               with

respect             to     the Superior                  Court's        analysis          of    Martinez           in reaching

our conclusion                        that       Cox has         no    impact       on the        plain        language          of

42    Pa.         C.S.A.          §    9545(b) (1).

III. Extension                        of Defendant's                  Previously-Advanced                  PCRA Claims

            Defendant                 argues        in issue           number three of his                     concise

statement that the claims                                  advanced in the most recent PCRA

filing            are merely                an extension               of those          advanced in his initial

and earlier                 PCRA petitions,                      thereby conferring upon this Court

jurisdiction                 to hear those arguments.                               Defendant           cites       the cases

of Commonwealth                       v.        Leasa,     759        A. 2d 941        (Pa.     Super.         2000)    I




Commonwealth                 v.        Peterson,           756        A. 2d 687 (Pa. Super.                    2 000) , and

Commonwealth                 v.       Robinson,            781 A. 2d 152 (Pa.                   Super.         2001)        in
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    support       of     his         extension         argument.           In all     three        of      those        cases,

    the     Superior           Court held that             the defendants'                     second,        and third

    in the case of                   Robinson,         untimely       filed        PCRA petitions                   were

    merely       extensions             of    their      first     timely          filed        PCRA       petitions

    because       the      first        petitions         were dismissed                  "without          prejudice            to

    [their]       rights         under        the Post      Conviction              Relief         Actll      as     a result

    of     each defendants'                  counsel      failing           to    file     a brief.           Leasa,           759

    A.2d     at 942;           Peterson,         756     A.2d    at        689;    Robinson,            781     A.2d       at

    158-159.

             Defendant           asserts         that     because           the    Supreme         Court        of

    Pennsylvania               has     not    expressly         overruled           the        decisions           in Leasa,

Peterson            and Robinson,                those cases           control           and we have

jurisdiction                   to address         his     most recent              PCRA        petition.           We

disagree.               Although         the Supreme            Court of           Pennsylvania               has       not

expressly               overruled            the three      cases           upon    which        Defendant              relies

to bolster               his     position,         it has        expressly           disapproved                of all

three          cases.          See Commonwealth             v.     Robinson,             837     A.2d       1157        (Pa.

2003).          Accordingly,                 Defendant's         reliance           on these            cases        in

support           of     his     extension         argument           is      clearly          misplaced.2



2
   Despite the fact that we are not in a position          to consider    the cases of
Commonwealth v. Leasa,      759 A.2d 941 (Pa.    Super.   2000),    Commonwealth  v.
Peterson,    756 A.2d  687 (Pa. Super.   2000),   and Commonwealth      v. Robinson,  781
A.2d   152 (Pa. Super.   2001)  as a result of the Supreme Court's ruling in
Commonwealth v. Robinson,      837 A.2d 1157 (Pa.     2003),     we note that all three
cases are inapposite to the case at bar. Unlike those three cases, Defendant
in the instant matter was not abandoned by counsel during his first PCRA
petition,   or at any time thereafter.      Therefore, even if those cases were
still good law, they would not be controlling           in the instant matter.
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         The      Superior          Court's          Leasa/Peterson/Robinson                               exception          to

the     PCRA time-bar               held that,                 to the extent               the     defendant's

serial      PCRA      petition            either          renewed             issues       that     were       raised         and

rejected          in his       initial            PCRA petition                   or    sought      reinstatement                  of

the     initial        PCRA     appeal,             it    would           be considered             a mere

"extension"           of      the    first         petition               which        would     not       be subject          to

the PCRA's           time      restriction.                 Id.       at      1160.      In vacating              the

judgment        of    the Superior                 Court          and dismissing                  the underlying

serial     PCRA       as time-barred,                     the Supreme                  Court     noted       that       the

"extension"           theory         is     not      one        of    the three           exceptions              to    the

time-bar        recognized             in the            PCRA        itself        and    that the           theory

should     not       be permitted                 to operate               as    an extra          PCRA      conduit          by

which     the      jurisdictional                  time-bar               may be nullified.                  Moreover,

the Supreme           Court         "has      repeatedly                  stated        that     the PCRA

timeliness           requirements              are        jurisdictional                  in nature            and,

accordingly,           a PCRA         court          cannot           hear       untimely         PCRA petitions."

Commonwealth           v.     Rienzi,          827        A.2d        369,       371     (Pa.     2003).        See also

Commonwealth           v.     Hall,         771 A.2d              1232,         1234     (Pa.     2001)

("Pennsylvania               courts         lack         jurisdiction                  to entertain           untimely

PCRA petitions").

         "Once       a PCRA petition                     has     been        decided        and the          ruling       on it

has become           final,         there      is        nothing           for     a subsequent             petition           or

pleading        to    'extend.'             Far      from        continuing              into     perpetuity,             the

trial     court's           jurisdiction                 over        a matter          generally           ends        once   an
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appeal         is    taken     from       a final           order      or,    if no appeal          is taken,

thirty     days elapse               after         the      final      order."      Commonwealth            v.

Robinson,            837 A.2d        at    1162.          Here,       Defendant's         initial      PCRA

petition            was decided           when     Judge Webb entered                 his    final         order     of

denial/dismissal                on April            14,      2003.      Defendant         appealed         that

order,     but his            appeal       was     rejected            on the     merits     by the         Superior

Court     via        memorandum           opinion          and order          dated   January        12,     2004.

The Supreme            Court      then       denied          Defendant's          motion     for allowance

of     appeal        on December           22,     2004.         Therefore,         Defendant's

subsequent            petitions           represent           entirely         new collateral              actions

and,     as such,         they       are subject              to the time           and serial        petition

restrictions            of§       9545(b)          of      the    PCRA.

                                                          CONCLUSION

         For        the foregoing           reasons,             we respectfully            recommend that

Defendant's            appeal be denied and that                             our Order of Court entered

on November 26,               2014        denying Defendant's                    "First     Amended Petition

for    Post-Conviction                Relief"             be affirmed accordingly.



                                                            BY THE COURT:




                                                            Steven
                                                                  ~90~    R. Serfass,        J.




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