J-S18016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

PETER MOBLEY,

                         Appellant                    No. 898 EDA 2014


          Appeal from the PCRA Order entered February 28, 2014,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-1201751-2004.


BEFORE: BENDER, P.J.E., ALLEN, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED MARCH 23, 2015

      Peter Mobley (“Appellant”) appeals from the order denying his first

petition for post-conviction relief filed pursuant to the Post Conviction Relief

Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The PCRA court summarized the pertinent facts as follows:

             On August 18, 2004, at approximately seven o’clock in
         the evening, Philadelphia Police Officers Michael Trask and
         James Crown were working in the confines of the Twenty-
         [Fourth] District in the areas of Frankford and East Orleans
         Street.   While they were conducting surveillance from
         inside a bar in that area, they observed [Appellant] argue
         with Curtis Page outside the bar. During the argument,
         [Appellant] took a .380 caliber handgun from his waist and
         fired at Mr. Page. Immediately, the officers exited the bar
         and identified themselves to [Appellant] by yelling,
         “freeze, police.” One of the officers displayed a badge
         around his neck. [Appellant] responded by turning and
         firing one shot across Frankford Avenue in the direction of
         the officers. [Appellant] fled on East Orleans Street with
         the officers in pursuit, who were again ordering, “freeze,
         police, get down, drop the gun.” [Appellant] turned and
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         fired at least three more times at Officers Crown and
         Trask. [Appellant] fired his shots in the direction of the
         officers’ heads and torso area. Police eventually captured
         and arrested [Appellant] on East Orleans Street. Police
         recovered the firearm nearby and placed [it] on a property
         receipt. Ballistics evidence from the scene included fired
         cartridge casings, projectiles and copper jackets. Police
         found this evidence across Frankford Avenue, the place
         from which [Appellant] had fired the shots.

PCRA Court Opinion, 6/30/14, at 4-5 (citations omitted).

      The Commonwealth chose to charge Appellant at two different docket

numbers; Appellant was charged for his actions toward Officer Crown at CP-

51-CR-1207921-2004 (“the Crown charges”), and for his actions toward

Police Officer Trask at CP-51-CR-1201751-2004 (“the Trask charges”).

      The PCRA court summarized the subsequent, protracted procedural

history at both dockets as follows:

             On April 11, 2008, [the Commonwealth tried Appellant
         at both dockets. He] was found guilty on [the Crown
         charges] of Aggravated Assault on Police Officer James
         Crown of the Philadelphia Police Department, [and various
         firearm and weapon counts,] before [the trial court] sitting
         with a jury. . . . The jury was hung on several other
         charges: Aggravated Assault on Police Officer Michael
         Trask of the Philadelphia Police Department, Attempted
         Murder on Officer Trask, and Attempted Murder on Officer
         Crown. To avoid retrial, on April 28, 2008, on [the Trask
         charges, Appellant] pled guilty to Aggravated Assault on
         Officer Trask, on [the Crown Charges, Appellant] pled
         guilty to Attempted Murder on Officer Crown, and the
         Commonwealth nolle prossed the charge for Attempted
         Murder on Officer Trask. On June 30, 2008, this Court
         sentenced [Appellant to an aggregate sentence of
         seventeen and a half to thirty five years of incarceration at
         both dockets]. On July 17, 2008, [Appellant] filed a timely
         post sentence motion, pro se, for [the Crown charges],
         which was denied by operation of law on January 9, 2009.

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           On January 29, 2009, [Appellant] filed a Notice of
       Appeal for [the Crown charges], and this Court filed a
       [Pa.R.A.P.] 1925(b) order directing [Appellant] to file his
       Statement of [Errors] Complained of on Appeal.          On
       February 2, 2009, [Appellant] wrote a letter to this Court
       requesting counsel. The [PCRA court] appointed [PCRA
       counsel] to represent [Appellant].        [PCRA counsel]
       requested an extension of time to submit a Statement of
       [Errors]. [PCRA counsel] subsequently filed a Statement
       of [Errors] on March 30, 2009. On March 30, 2010, the
       Superior Court vacated this Court’s denial of [Appellant’s]
       pro se post-sentence motion and remanded the case so
       that a counseled post-sentence motion could be filed nunc
       pro tunc. On April 15, 2010, this Court issued an order
       allowing [Appellant] to file a nunc pro tunc post-sentence
       motion.

          On May 7, 2010, [PCRA counsel] drafted a post-
       sentence motion titled Petition to Withdraw Guilty Plea.
       However, it appears this motion was never properly filed
       and thus never docketed. On January 10, 2011, [PCRA
       counsel] drafted a Petition for Appeal Nunc Pro Tunc. As
       with his post-sentence motion, however, [PCRA counsel’s]
       Petition for Appeal Nunc Pro Tunc was never properly filed
       and thus never docketed.

           On March 8, 2011, [Appellant] filed a pro se PCRA
       petition. The [PCRA court] appointed [present counsel] to
       represent [Appellant] on September 8, 2011. On February
       6, 2012, [present counsel] filed an amended PCRA
       petition. On May 3, 2013, [she] filed a supplemental
       amended PCRA petition. On September 12, 2013, the
       Commonwealth filed a response to [Appellant’s] amended
       petition, asking this Court to allow [Appellant] to properly
       file a counseled post-sentence motion nunc pro tunc for
       [the Crown Charges], and to deny [Appellant’s] amended
       PCRA petition as untimely for [the Trask charges]. On
       October 18, 2013, [present counsel] filed another
       supplemental PCRA petition in response. On February 28,
       2014, regarding [the Trask charges], this Court[, after
       issuing Pa.R.Crim.P. 907 notice,] formally dismissed
       [Appellant’s] petition as untimely.




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PCRA Court Opinion, 6/30/14, at 1-3 (footnotes omitted).1                   This appeal

followed. Both Appellant and the PCRA court have complied with Pa.R.A.P.

1925.

        This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported     by   the    evidence     of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).          Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

        Before addressing the issues Appellant presents on appeal, we must

first consider whether the PCRA court properly determined that his petition

was untimely. The timeliness of a post-conviction petition is jurisdictional.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation

____________________________________________


1
   With regard to the Crown charges, the PCRA court permitted Appellant to
file a post-sentence motion nunc pro tunc, which the PCRA court
subsequently denied. Appellant filed a separate appeal challenging his
judgment of sentence at No. 1348 EDA 2014.




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omitted). Thus, if a petition is untimely, neither an appellate court nor the

PCRA court has jurisdiction over the petition. Id. “Without jurisdiction, we

simply do not have the legal authority to address the substantive claims”

raised in an untimely petition. Id.

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;   or   (3)   a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.         Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).


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      Appellant’s judgment of sentence for the Trask charges became final

on July 30, 2008, thirty days after the time for filing a direct appeal to this

Court had expired. 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had to

file his PCRA petition by July 30, 2009, in order for it to be timely.      As

Appellant filed his PCRA petition on March 8, 2011, it is untimely unless he

has satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261

(Pa. 1999).

      Appellant has failed to plead and prove any exception to the PCRA’s

time bar.     Instead, Appellant seeks to establish the section 9545(b)(1)(ii)

time bar exception based on “newly discovered” evidence of ineffective

assistance of counsel.      See Appellant’s Brief at 10.    Unfortunately for

Appellant, he did not raise this exception in any of his PCRA petitions. Thus,

the claim is being raised for the first time on appeal and is waived. Burton,

supra.

      Within his final amended petition, Appellant asserts that his claim for

post-conviction relief was timely under section 9545(b)(1)(i) because the

county clerk “failed to correctly docket material pleadings in this case[.]”

Appellant’s Brief at 11.     The PCRA court rejected Appellant’s claim, and

explained:


            [Appellant’s] argument that failure to raise the claim
         previously was the result of government interference is
         faulty. It was [Appellant] who filed both his post-sentence

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          motion and his Notice of Appeal with only one [docket]
          number, and both of those matters were properly docketed
          for that [docket] number. His own error in failing to
          include both [docket] numbers does not constitute
          interference by the government. Surely, the Clerk of the
          Philadelphia Court of Common Pleas did not interfere with
          [Appellant’s] constitutional rights when [Appellant’s]
          matters were properly docketed based on what [Appellant]
          himself provided. . . . Thus, [Appellant’s] PCRA petition is
          untimely and this Court does not have jurisdiction.

PCRA Court Opinion, 6/30/14, at 6-7 (footnote and citations omitted).

       Our   review of the        certified record supports the   PCRA court’s

conclusions.2     Thus, the PCRA court correctly determined that it lacked

jurisdiction to consider Appellant’s substantive issues raised in his PCRA

petition. We therefore affirm the PCRA court’s order denying Appellant post-

conviction relief.

       Order affirmed.




____________________________________________


2
  Although, after remand, the trial court entered an order at both dockets
that permitted Appellant to file nunc pro tunc motions, see Order, 4/15/10,
our remand concerned only the Crown charges, and therefore, the trial court
lacked jurisdiction to enter such an order with regard to the Trask charges.
See generally, 42 Pa.C.S.A. § 5505.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2015




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