J-S74029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                               Appellee

                        v.

 MICHAEL O. ANDREWS

                               Appellant             No. 2986 EDA 2017


                  Appeal from the PCRA Order August 15, 2017
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-1006871-1995

BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.:                          FILED MARCH 15, 2019

      Appellant, Michael O. Andrews, appeals from an order dismissing his

fourth petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-46, as untimely. We affirm.

      On September 19, 1995, Appellant shot and killed Jamal Pettis following

a heated argument. On November 22, 2000, a jury found Appellant guilty of

second degree murder, robbery and possession of an instrument of crime. On

January 25, 2001, the trial court sentenced him to life imprisonment.

Appellant filed a direct appeal, which this Court dismissed on March 28, 2001

for failure to file a brief.

      On August 28, 2002, Appellant filed a PCRA petition seeking

reinstatement of his direct appeal rights. The PCRA court granted his petition.

Appellant filed a direct appeal, and this Court affirmed in a memorandum
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issued on March 22, 2004. Commonwealth v. Andrews, 276 EDA 2003 (Pa.

Super., Mar. 22, 2004).

      Appellant’s first claim of error on direct appeal was that “the trial court

erred when it sustained [the] Commonwealth’s objection and ‘admonished’

Appellant not to address the jury.” Id. at 4. This incident took place during

Appellant’s testimony, when instead of answering his attorney’s question, he

turned to the jury and asked “Y’all get a good look at this?” referring to a

photograph of the scene of the shooting. The Commonwealth objected and

asked the court to instruct Appellant not to address the jury. The court stated:

“Yes, please do not do that.”     Trial counsel never objected.     Due to trial

counsel’s silence, this Court held that Appellant waived this issue. Id.

      Appellant’s second claim of error was that the Commonwealth

committed prosecutorial misconduct by stating in its closing argument that

Appellant was a thief and a criminal. Once again, we held that this issue was

waived because trial counsel did not lodge an objection.         Id. at 5.   We

“dismiss[ed] this issue without prejudice to Appellant to raise it in a PCRA

petition.” Id. at 9.

      Appellant did not file a petition for allowance of appeal in the Supreme

Court. Thus, his judgment became final for PCRA purposes on April 21, 2004,

the deadline for filing his petition for allowance of appeal.

      In 2005, 2008, and 2012, Appellant filed PCRA petitions, none of which

resulted in relief.    On March 11, 2015, Appellant filed the PCRA petition

presently under review, his fourth since his direct appeal. On May 9, 2017,

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Appellant filed an amended PCRA petition through counsel. On June 14, 2017,

the PCRA court issued notice of its intent to dismiss the petition without a

hearing pursuant to Pa.R.Crim.P. 907. On August 15, 2017, the PCRA court

dismissed his petition. Appellant filed a timely appeal, and both Appellant and

the PCRA court complied with Pa.R.A.P. 1925.

      Appellant raises three issues in this appeal:

      I. DOES THE FAILURE OF THE STATE TO AFFORD APPELLANT A
      DIRECT APPEAL AFTER SEVERAL ATTEMPTS AS TO HIS
      CONVICTIONS OF MURDER AND RELATED CRIMES—WHERE THE
      MERITS OF HIS CLAIMS SEEKING A NEW TRIAL WERE REACHED
      AND REVIEWED—COMPRISE A DUE PROCESS VIOLATION WHICH
      PREVENTED HIS CONVICTION FROM BECOMING FINAL UNDER 42
      Pa.C.S.[A] § 9545(b)(1) WHICH REQUIRES A PCRA PETITION TO
      BE FILED WITHIN ONE YEAR OF THE DATE THE CONVICTION
      BECOMES FINAL?

      II. IS APPELLANT ELIGIBLE FOR PCRA RELIEF?

      III. CAN A STATE JURISDICTIONAL TIME BAR BE INVOKED WHICH
      FORCES THE DUE PROCESS VIOLATION DELINEATED HEREIN TO
      BE OVERLOOKED?

Appellant’s Brief at 4.

      In essence, Appellant contends that due to ineffectiveness of his

previous attorneys, “he never had any appellate review of the merits of his

claims seeking a new trial on direct or collateral appeal.” Id. at 5 (emphasis

in original). Consequently, Appellant continues, as a matter of due process,

this Court should grant him leave to raise his arguments in a direct appeal.




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      As a threshold matter, we must determine whether the court erred in

dismissing as untimely Appellant’s PCRA petition.         The PCRA contains the

following restrictions governing the timeliness of any PCRA petition.

      (b) Time for filing petition.--

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:

             (i) the failure to raise the claim previously was      the
             result of interference by government officials with    the
             presentation of the claim in violation of              the
             Constitution or laws of this Commonwealth or           the
             Constitution or laws of the United States;

             (ii) the facts upon which the claim is predicated were
             unknown to the petitioner and could not have been
             ascertained by the exercise of due diligence; or

             (iii) the right asserted is a constitutional right that was
             recognized by the Supreme Court of the United States
             or the Supreme Court of Pennsylvania after the time
             period provided in this section and has been held by
             that court to apply retroactively.

      (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.

      (3) For purposes of this subchapter, a judgment becomes final at
      the conclusion of direct review, including discretionary review in
      the Supreme Court of the United States and the Supreme Court
      of Pennsylvania, or at the expiration of time for seeking the
      review.

42   Pa.C.S.A.    §   9545(b).     Section    9545’s   timeliness   provisions   are

jurisdictional.   Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).

Additionally, we have emphasized repeatedly that “the PCRA confers no

authority upon this Court to fashion ad hoc equitable exceptions to the PCRA

time-bar in addition to those exceptions expressly delineated in the Act.”



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Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

omitted).

      Here, the record reflects that Appellant’s judgment of sentence became

final on April 21, 2004. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).

Because Appellant had one year from this date to file his PCRA petition, the

present petition filed on March 11, 2015 is facially untimely.

      Appellant can overcome the one-year time limitation if he alleges and

proves one of the three exceptions set forth in Section 9545(b)(1)(i)-(iii) of

the PCRA. Here, Appellant has failed to allege, let alone prove, any exception

to the one-year time bar. He does not assert that interference by government

officials prevented him from filing this petition earlier. He does not allege that

he discovered new facts that he previously could not have ascertained through

the exercise of due diligence. He does not claim that the right in question is

a constitutional right that was recognized by the Supreme Court of the United

States or the Supreme Court of Pennsylvania after the one-year limitation

period and has been held by that court to apply retroactively.

      Appellant claims that he has a constitutional right to relief, as a matter

of due process, because he never had any appellate review of the merits of

his claims seeking a new trial.     But because the present PCRA petition is

untimely, we lack jurisdiction to provide relief. Following our decision on direct

appeal that he waived both of his arguments, Andrews, 276 EDA 2003, he

either had to file a PCRA petition within the one-year statute of limitation or

file a petition beyond the one-year statute that satisfied one or more of the

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three exceptions delineated above. He failed to meet either requirement in

his present petition, and we are powerless to fashion any “ad hoc equitable

exception” to the statute of limitations such as the due process exception

suggested in Appellant’s brief. Robinson, 837 A.2d at 1161.

      Accordingly, the PCRA court correctly dismissed Appellant’s present

PCRA petition for want of jurisdiction.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/19




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