J-S84011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JAMES JONES,

                        Appellant                   No. 1234 EDA 2016


                 Appeal from the PCRA Order of April 4, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0205431-2002


BEFORE: OLSON, SOLANO and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED JANUARY 19, 2017

      Appellant, James Jones, appeals pro se from the order entered on April

4, 2016, dismissing his petition pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      We briefly summarize the facts and procedural history of this case as

follows.   Following a non-jury trial on July 26, 2002,      Appellant was

convicted of robbery, burglary, theft, receiving stolen property, criminal

mischief, criminal trespass, simple assault, and recklessly endangering

another person (“REAP”) for the January 10, 2002 burglary of Joel Beamon’s

residence in Philadelphia. On December 17, 2002, the trial court determined

that Appellant’s robbery and burglary convictions required the imposition of

mandatory minimum sentences for recidivists pursuant to 42 Pa.C.S.A.

§ 9714(a)(2) (sentences for second and subsequent offenses).      Thus, the



* Former Justice specially assigned to the Superior Court.
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trial court imposed two concurrent terms of twenty-five to fifty years’

imprisonment for robbery and burglary. No further penalties were imposed

on the remaining convictions.             We affirmed Appellant’s judgment of

sentence.    See Commonwealth v. Jones, 844 A.2d 1282 (Pa. Super.

2003) (unpublished memorandum).               Our Supreme Court denied further

review. See Commonwealth v. Jones, 853 A.2d 360 (Pa. 2004).

        Appellant subsequently filed a timely PCRA petition that the PCRA

court denied. On appeal, this Court vacated Appellant’s sentence as illegal

under    Commonwealth          v.    McClintic,    909   A.2d      1241   (Pa.   2006).

Specifically, we held that because Appellant’s burglary and robbery

convictions arose out of the same criminal transaction, a sentence

enhancement was proper for one, but not both, crimes of violence. At a new

sentencing hearing in October 2007, the trial court resentenced Appellant to

a mandatory term of imprisonment for the robbery conviction only, and

imposed a concurrent sentence of nine to eighteen years of incarceration for

burglary.      We   affirmed        Appellant’s   judgment    of    sentence.      See

Commonwealth v. Jones, 974 A.2d 1184 (Pa. Super. 2009) (unpublished

memorandum).        Our   Supreme         Court   denied     further   review.     See

Commonwealth v. Jones, 980 A.2d 606 (Pa. 2009).

        Since then, Appellant has filed pro se PCRA petitions that the PCRA

court denied as untimely, not subject to exception, and this Court has

subsequently affirmed.    See Commonwealth v. Jones, 24 A.3d 444 (Pa.

Super. 2010); see also Commonwealth v. Jones, 81 A.3d 1001 (Pa.

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Super. 2013). Currently, Appellant filed a pro se PCRA petition on July 8,

2014.     However, Appellant still had a prior PCRA petition that he was

litigating on appeal. Appellant ultimately discontinued that prior appeal on

July 24, 2014, so that he could litigate his July 8, 2014 PCRA petition.

Furthermore, on September 11, 2014 and October 23, 2014, Appellant filed

pro se amendments to his petitions.        On March 17, 2015, the PCRA court

sent Appellant notice pursuant to Pa.R.Crim.P. 907 of its intention to dismiss

the July 8, 2014 PCRA petition, as amended, without an evidentiary hearing

because it was untimely and not subject to exception. By order entered on

April 4, 2016, the PCRA court denied Appellant relief.         This timely pro se

appeal resulted.     On appeal, Appellant claims the PCRA court erred by

dismissing his twice amended PCRA petition as untimely without first

reviewing the merits of his claims. See Appellant’s Brief at 5.

        We previously determined:

          It is well-established that the PCRA's timeliness
          requirements are jurisdictional in nature and must be
          strictly construed; courts may not address the merits of the
          issues raised in a petition if it is not timely filed. Generally,
          a PCRA petition must be filed within one year of the date
          the judgment of sentence becomes final unless the
          petitioner meets his burden to plead and prove one of the
          exceptions enumerated in 42 Pa.C.S.A. § 9545(b)(1)(i)–
          (iii), which include: (1) the petitioner's inability to raise a
          claim as a result of governmental interference; (2) the
          discovery of previously unknown facts or evidence that
          would have supported a claim; or (3) a newly-recognized
          constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii).
          However, the PCRA limits the reach of the exceptions by
          providing that a petition invoking any of the exceptions



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         must be filed within 60 days of the date the claim first could
         have been presented.

Commonwealth v. Walters, 135 A.3d 589, 591–592 (Pa. Super. 2016)

(most citations omitted).

       In this case, Appellant’s judgment of sentence became final on

September 27, 2004, when the time to seek certiorari with the United States

Supreme Court expired.           See 42 Pa.C.S.A. § 9545(b)(3); U.S. Supreme

Court Rule 13(a).       As Appellant filed his PCRA petition on July 8, 2014,

almost ten years after his sentence became final, his petition is facially

untimely.

       To meet the PCRA’s jurisdictional timeliness requirement, Appellant

claims a newly recognized constitutional right under Section 9545(b)(1)(iii).

In particular, Appellant cites Commonwealth v. Walker, 92 A.3d 766 (Pa.

2014) in which our Supreme Court examined whether expert testimony

regarding eyewitness testimony was admissible under Pennsylvania’s rules

of evidence. Appellant filed his PCRA petition within 60 days of the Walker

decision.1 However, in considering whether Appellant has advanced a valid
____________________________________________


1
     Walker was decided on May 28, 2014. Appellant filed his PCRA petition
on July 8, 2014, within 60 days of the decision. We note that the PCRA
court should not have accepted the filing because a prior PCRA petition was
still pending. “[A] PCRA trial court cannot entertain a new PCRA petition
when a prior petition is still under review on appeal.” Commonwealth v.
Porter, 35 A.3d 4, 14 (Pa. 2012), citing Commonwealth v. Lark, 746 A.2d
585, 588 (Pa. 2000). However, Appellant discontinued his prior PCRA appeal
on July 24, 2014. He filed his next PCRA petition on September 11, 2014,
within 60 days of the discontinuance of the prior PCRA appeal. The PCRA
provides that any exception set forth in subsection (b)(1)(ii) must be pled
(Footnote Continued Next Page)


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claim asserting a newly-recognized constitutional right, as that phrase is

used in Section 9545(b)(1)(iii), our Supreme Court has noted:

         Subsection (iii) of Section 9545 [(b)(1)] has two
         requirements. First, it provides that the right asserted is a
         constitutional right that was recognized by the Supreme
         Court of the United States or [the Pennsylvania Supreme
         Court] after the time provided in this section. Second, it
         provides that the right “has been held” by “that court” to
         apply retroactively.

         Thus, a petitioner must prove that there is a “new”
         constitutional right and that the right “has been held” by
         that court to apply retroactively. The language “has been
         held” is in the past tense. These words mean that the action
         has already occurred, i.e., “that court” has already held the
         new constitutional right to be retroactive to cases on
         collateral review. By employing the past tense in writing this
         provision, the legislature clearly intended that the right was
         already recognized at the time the petition was filed.

Commonwealth v. Copenhefer, 941 A.2d 646, 649-50 (Pa. 2007).

      Walker did not recognize a new constitutional right within the

meaning of Section 9545(b)(1)(iii). In Walker, our Supreme Court granted

allocatur to determine “whether a trial court may, in its discretion, permit

expert testimony in the area of eyewitness identification, and [to] reconsider


                       _______________________
(Footnote Continued)

within 60 days of when it “could have been presented.” 42 Pa.C.S.A.
§ 9545(b)(2). In this instance, even if we overlook Appellant’s July 8, 2014
PCRA petition because it was filed during the pendency of a prior petition,
we conclude that Appellant’s September 11, 2014 petition (which included a
Walker-based timeliness claim) was filed within 60 days of the date it first
could have been presented, i.e., following Appellant’s discontinuance of his
prior appeal. Regardless, as discussed at length below, Walker does not
provide Appellant relief.



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[Pennsylvania’s]     decisional   law   which   absolutely   bans   such   expert

testimony.” Walker, 92 A.3d 766, 769 (Pa. 2014). The Walker majority

“reject[ed] reliance upon cross-examination and closing arguments as

sufficient to convey to the jury the possible factors impacting eyewitness

identification and as justification for an absolute bar of such expert

testimony, and recognize[d] the potential advantages of expert testimony as

a means to assist the jury where mistaken identity is a possibility.” Id. at

786. Thus, our Supreme Court held that “in Pennsylvania, the admission of

expert testimony regarding eyewitness identification is no longer per se

impermissible, and [it] join[ed] the vast majority of jurisdictions which leave

the admissibility of such expert testimony to the discretion of the trial court.”

Id. at 769. The Walker Court, however, declined to hold that the decision

was to be applied retroactively. Id. at 793 n.12. Thus, the Walker decision

created a new evidentiary rule, not a constitutional right, and it was not held

to be retroactive.

       In sum, Appellant’s various amended PCRA petitions were patently

untimely and he has not established an exception to the jurisdictional time

bar.   Hence, we agree with the PCRA court that it lacked jurisdiction to

address Appellant’s claims and discern no abuse of discretion or error of law.

Accordingly, we affirm the PCRA court’s determination.

       Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2017




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