J-S49004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 TROY J. STEINBURGER                     :
                                         :
                   Appellant             :   No. 222 MDA 2018

             Appeal from the Order Entered January 12, 2018
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0004040-2002


BEFORE:    SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                        FILED OCTOBER 23, 2018

      Appellant, Troy J. Steinburger, appeals from the order denying his sixth

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

      The PCRA court summarized the procedural history of this case as

follows:

           Following a trial conducted November 5-7, 2003, a jury
      found [Appellant] guilty of Murder in the First Degree,1 Criminal
      Conspiracy[,]2 and Possession of Instrument of Crime3. The Court
      imposed sentence as follows:

            Count 1 - Murder in the First Degree-Life
            imprisonment without parole; Restitution.
            Count 2- Criminal Conspiracy: Not less than 10 nor
            more than 20 years imprisonment, concurrent with
            Count 1 .
            Count 3- Possession of Instrument of Crime: Not less
            than 1 year nor more than 2 years imprisonment,
            Count 3- Possession of Instrument of Crime:
            concurrent with Count 1.
____________________________________
* Former Justice specially assigned to the Superior Court.
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           1   18 PA.C.S. § 2502(a)
           2   18 PA.C.S. § 903
           3   18 PA.C.S. § 907(b)

          [Appellant] appealed. The Superior Court affirmed the
     judgment of sentence on August 9, 2004. [Appellant] did not
     request allowance of appeal to the Pennsylvania Supreme Court.

            [Appellant] then filed a series of requests for relief under
     the Post Conviction Relief Act. On October 28, 2004, [Appellant]
     filed his first PCRA request, a pro se petition. The Court appointed
     PCRA counsel. On January 12, 2005, we granted PCRA counsel’s
     Motion to Withdraw and apprised [Appellant] of our intent to
     dismiss the Petition pursuant to Pennsylvania Rule of Criminal
     Procedure 907(1) (“Rule 907”). We dismissed the first PCRA
     Petition by Final Order filed February 23, 2005. [Appellant] did
     not appeal.

           On June 27, 2005, [Appellant] filed a second PCRA Petition,
     which, following notice pursuant to Rule 907, we dismissed by
     Final Order filed September 12, 2005. [Appellant] did not appeal.

            On July 21, 2006, [Appellant] filed a third PCRA Petition
     which, following notice pursuant to Rule 907, we dismissed by
     Final Order filed October 5, 2006. [Appellant] filed a timely
     appeal. The Superior Court dismissed [Appellant’s] appeal for
     failure to file a docketing statement as required by Pennsylvania
     Rule of Appellate Procedure 3517.

            On October 4, 2007, [Appellant] filed a fourth PCRA Petition.
     Following notice pursuant to Rule 907, [Appellant] filed objections.
     We dismissed the fourth PCRA Petition by Final Order filed
     November 15, 2007. On December 4, 2007, we filed an Amended
     Order. [Appellant] appealed. By Memorandum Opinion and Order
     filed July 18, 2008, the Superior Court affirmed the denial of relief.

            On January 15, 2013, [Appellant] filed a fifth PCRA Petition.
     By Order of February 12, 2013, we provided notice of intent to
     dismiss pursuant to Rule 907. On February 21, 2013, [Appellant]
     filed pro se correspondence requesting permission to withdraw his
     fifth PCRA Petition. By Order filed March 4, 2013, we granted
     [Appellant’s] request to withdraw the fifth PCRA Petition.


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             On July 24, 2017, [Appellant] filed a Motion to Open and
       Vacate Order/Sentence Pursuant to Pa.C.S.A. § 5505,[1] which we
       construe as [Appellant’s] sixth PCRA Petition.5

              5 See, Commonwealth v. Johnson, 803 A. 2d 1291
              (The PCRA provides the sole means for obtaining
              collateral review).

PCRA Court Opinion, 12/6/17, at 1-3 (footnote omitted).

       On December 6, 2017, the PCRA court issued notice of its intent to

dismiss pursuant to Pa.R.Crim.P. 907. Appellant filed a timely response. The

PCRA court denied Appellant’s petition on January 12, 2018.       This timely

appeal followed.      On February 7, 2018, the PCRA court issued an order

directing Appellant to file, within twenty-one days, a concise statement of

matters complained of on appeal pursuant to Pa.R.A.P. 1925(a). On March 7,

2018, the PCRA court received Appellant’s Pa.R.A.P. 1925(b) concise

statement (dated February 26, 2018) and the PCRA court filed its opinion

pursuant to Pa.R.A.P. 1925(a).

       Appellant presents the following issues for our review:

       1. DID THE TRIAL COURT ERROR BY APPLYING THE P.C.R.A.
       TIME-BAR STATUTE WHEN STATUTORY CONSTRUCTION OF THE
       P.C.R.A. READS FRAUD IS NOT APPLICABLE UNDER 42 Pa.C.S.A.
       § 9541-9546?




____________________________________________


1  42 Pa.C.S. § 5505 (Modification of orders) provides: “Except as otherwise
provided or prescribed by law, a court upon notice to the parties may modify
or rescind any order within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such order has been taken
or allowed.”

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      2. DID THE TRIAL COURT DENY APPELLANT HIS STATE AND
      FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, WHEN IT
      ALLOWED THE COMMONWEATH TO COMMIT FRAUD?

      3. DID THE COMMONWEALTH COMMIT A NAPUE AND MASSIAH
      VIOLATION BY USING KNOWN PERJURED TESTIMONY VIOLATING
      APPELLANT’S DUE PROCESS RIGHTS TO A FAIR TRIAL AND HIS
      FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNTIED
      STATES CONSTITUTION?

      4. WHETHER APPELLANT IS ACTUALLY AND FACTUALLY
      INNOCENT BASED ON, “ON THE RECORD FRAUD” THAT WAS
      PERPETRATED BY THE COMMONWEALTH?

      5. DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN THE
      COURT DENIED APPELLANT HIS TRANSCRIPTS “OPENING
      STATEMENT?”

Appellant’s Brief at 4 (verbatim) (capitalization in original).

      We begin by determining whether Appellant’s “Motion To Open And

Vacate Order/Sentence Pursuant to Pa.C.S.A. § 5505” is properly considered

a PCRA petition. We reject Appellant’s attempt to circumvent the PCRA by

claiming his motion was a request for modification of an order under 42

Pa.C.S. § 5505.      Indeed, the very language of the rule itself defeats

Appellant’s argument. See n.1 supra. (setting forth entire context of Section

5505). An aggrieved party may seek modification or rescission of an order

within thirty days of entry of the order if no appeal has been filed.

Here, not only is Appellant’s modification request patently untimely, it was

filed in relation to a judgment of sentence from which Appellant sought a direct

appeal in 2003.    Accordingly, Appellant cannot seek relief pursuant to 42

Pa.C.S. § 5505.


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      Furthermore, we observe that the scope of the PCRA is explicitly defined

as follows:

      This subchapter provides for an action by which persons convicted
      of crimes they did not commit and persons serving illegal
      sentences may obtain collateral relief. The action established
      in this subchapter shall be the sole means of obtaining
      collateral relief and encompasses all other common law
      and statutory remedies for the same purpose that exist
      when this subchapter takes effect, including habeas corpus
      and coram nobis. This subchapter is not intended to limit the
      availability of remedies in the trial court or on direct appeal from
      the judgment of sentence, to provide a means for raising issues
      waived in prior proceedings or to provide relief from collateral
      consequences of a criminal conviction.

42 Pa.C.S. § 9542 (emphasis added).

      The plain language of the statute above demonstrates that the General

Assembly intended that claims that could be brought under the PCRA must

be brought under that Act. Commonwealth v. Hall, 771 A.2d 1232, 1235

(Pa. 2001) (emphasis in original). Where a defendant’s claims “are cognizable

under the PCRA, the common law and statutory remedies now subsumed by

the PCRA are not separately available to the defendant.”            Id. (citations

omitted). By its own language, and by judicial decisions interpreting such

language, the PCRA provides the sole means for obtaining state collateral

relief. Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999) (citations

omitted). Thus, it is well settled that any collateral petition raising issues with

respect to remedies offered under the PCRA will be considered a PCRA petition.

Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super. 2001).




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      The question then is whether the multiple claims at issue here, i.e.,

Appellant’s allegations that his constitutional rights to a fair trial were violated

such that the truth-determining process was undermined, are claims that were

available to him under the PCRA. The relevant portion of the PCRA provides

as follows:

      (a) General rule.--To be eligible for relief under this
      subchapter, the petitioner must plead and prove by a
      preponderance of the evidence all of the following:

                                     *    *    *

              (2) That the conviction or sentence 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.

42 Pa.C.S. § 9543(a)(2)(i). Thus, the statute in this matter clearly provides

that claims raising constitutional violations are cognizable under the PCRA. 42

Pa.C.S. § 9543(a)(2)(i). Hence, because Appellant’s claim is cognizable under

the PCRA regardless of the caption of the petition, the PCRA court had no

authority to entertain the claim except under the strictures of the PCRA.

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

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”    Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

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2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).   This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016).   The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).

      A PCRA petition must be filed within one year of the date that the

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

of sentence “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. § 9545(b)(3). This time requirement is mandatory and

jurisdictional in nature, and the court may not ignore it in order to reach the

merits of the petition. Commonwealth v. Hernandez, 79 A.3d 649, 651

(Pa. Super. 2013).

      However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and




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(iii), is met.2 A petition invoking one of these exceptions must be filed within

sixty days of the date the claim could first have been presented. 42 Pa.C.S.

§ 9545(b)(2). In order to be entitled to the exceptions to the PCRA’s one-

year filing deadline, “the petitioner must plead and prove specific facts that

demonstrate his claim was raised within the sixty-day time frame” under

section 9545(b)(2).       Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa.

Super. 2001).

       Our review of the record reflects that the trial court imposed Appellant’s

judgment of sentence on November 7, 2003, and this Court affirmed the

judgment of sentence on August 9, 2004. Appellant did not seek review in

the Pennsylvania Supreme Court.                Accordingly, Appellant’s judgment of

sentence became final on September 8, 2004, thirty days after this Court



____________________________________________


2   The exceptions to the timeliness requirement are:

       (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. § 9545(b)(1)(i), (ii), and (iii).


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affirmed Appellant’s judgment of sentence, and the time for filing a petition

for allowance of appeal with the Pennsylvania Supreme Court expired. 42

Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a).        Therefore, Appellant had until

September 8, 2005, to file a timely PCRA petition.          See 42 Pa.C.S. §

9545(b)(3) (stating that, for purposes of calculating the timeliness of a

petition, 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”). Appellant filed the instant PCRA petition on July 24, 2017, which

was over twelve years after his judgment of sentence became final.

Consequently, the instant PCRA petition is patently untimely.

      As previously stated, if a petitioner does not file a timely PCRA petition,

his petition nevertheless may be received under any of the three limited

exceptions to the timeliness requirements of the PCRA.              42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted. 42

Pa.C.S. § 9545(b)(2).

      Our review of the certified record reflects that Appellant did not

specifically raise the issue of timeliness and did not specifically plead any

exception to the timeliness requirement in his filings with the PCRA court.

Even if Appellant’s allegation that the Commonwealth committed fraud upon

the trial court is construed as an attempt to invoke the exception that the facts


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upon which his claim is predicated were unknown to Appellant, we observe

that Appellant has failed to present evidence to establish that this PCRA

petition was presented within the applicable sixty-day time frame under 42

Pa.C.S. § 9545(b)(2). Thus, Appellant has not carried his burden to plead and

prove applicability of one of the exceptions to the timeliness requirement.

Hence, the PCRA court did not commit any error in dismissing Appellant’s

petition as untimely.3

       In summary, the PCRA petition was untimely and no exceptions apply.

Therefore, the PCRA court lacked jurisdiction to address any claims presented.

See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002)

(holding that PCRA court lacks jurisdiction to hear an untimely petition).

Likewise, we lack the authority to address the merits of any substantive claims

raised in the PCRA petition.        See Commonwealth v. Bennett, 930 A.2d

____________________________________________


3 We note that after this matter was submitted to this panel for consideration,
Appellant filed with this Court a letter dated August 9, 2018, which we deemed
to be an application for post-submission relief pursuant to Pa.R.A.P. 2501(b).
Within his filing, he asks that we apply to his case the reasoning set forth in
Reeves v. SCI, 897 F.3d 154 (3d Cir. 2018), in which the court addressed
the “actual innocence exception” to the time bar for federal habeas corpus
petitions. Essentially, Appellant seeks to bolster his original arguments
pertaining to the PCRA court’s handling of the timeliness of his PCRA petition.
Generally, we will accept an application for post-submission communication
when there has been a change in authority relied upon in the brief of the party.
Pa.R.A.P. 2501(b). No such change occurred herein. Hence, we deny
Appellant’s application.     Furthermore, while Reeves may represent a
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. Accordingly, the ruling in Reeves fails to
provide Appellant an exception to the time bar of the PCRA.


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1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to a court’s right or

competency to adjudicate a controversy.”).

     Application for post-submission relief denied. Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/23/2018




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