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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                   v.                    :
                                         :
JESSE D. BOND,                           :          No. 743 EDA 2018
                                         :
                        Appellant        :


               Appeal from the PCRA Order, February 2, 2018,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-2217781-1992


BEFORE: STABILE, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 19, 2019

      Jesse D. Bond appeals pro se from the February 2, 2018 order entered

in the Court of Common Pleas of Philadelphia County that dismissed, without

a hearing, his second petition filed pursuant to the Post Conviction Relief Act

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

      The PCRA court set forth the following:

            On February 8, 1993 a jury sitting before the
            Honorable David N. Savitt found [appellant] guilty of
            murder of the first degree, 18 Pa.C.S.[A.]
            Section 2502,      robbery,      18       Pa.C.S.[A.]
            Section 3701(A)(1)(i), possession of an instrument of
            crime, 18 Pa.C.S.[A.] Section 907 and criminal
            conspiracy, 18 Pa.C.S.[A.] Section 903(A)(1).
            Following a penalty hearing, the jury returned a
            sentence of death for murder. On July 28, 1993, the
            Honorable David N. Savitt imposed sentence.

            The Supreme Court of Pennsylvania affirmed
            judgment of sentence including the death penalty at
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            Commonwealth v. Bond, 652 A.2d 308 (Pa. 1995).
            In its Opinion, the Supreme Court held that the
            conviction was supported by sufficient evidence.

            ....

            On June 6, 1995, [appellant] filed his first PCRA
            Petition. The Honorable David. N. Savitt denied relief.
            The Supreme Court of Pennsylvania affirmed the
            denial of relief at Commonwealth v. Bond, 819 A.2d
            33 (Pa. 2002).

            On November 22, 2002, [appellant] filed a Federal
            habeas corpus petition. In 2008, the United States
            Court of Appeals for the Third Circuit remanded the
            matter for a new sentencing hearing on grounds that
            [appellant] had received ineffective assistance of
            counsel at the penalty phase hearing. See Bond v.
            Beard, 539 F.3d 256 (3rd Cir. 2008) (Opinion filed
            August 20, 2008, Amended Opinion filed October 17,
            2008). Significantly, the Third Circuit did not overturn
            the guilty verdict.

            On November 15, 2012, [appellant] appeared before
            the Honorable Benjamin Lerner. The Commonwealth
            did not move for the death penalty. Judge Lerner
            sentenced [appellant] to concurrent terms of
            imprisonment of life without parole for murder, ten to
            twenty years for robbery, two and one-half to five
            years for possession of an instrument of crime, and
            five to ten years for criminal conspiracy.

            On July 1, 2013, [appellant] filed a PCRA Petition,
            followed by approximately eight pleadings labeled as
            amended and supplemental PCRA Petitions.

Trial court opinion, 6/5/18 at 1-3.

      On November 22, 2017, the PCRA court filed its notice of intent to

dismiss appellant’s petition pursuant to Pa.R.Crim.P. 907. Appellant did not

file a response.   On February 2, 2018, the trial court entered an order



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dismissing appellant’s PCRA petition. Appellant filed a timely notice of appeal.

The PCRA court ordered appellant to file a statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b). Following the grant of an extension

of time, appellant timely filed an 11-issue Rule 1925(b) statement.

Subsequently, the PCRA court filed its Rule 1925(a) opinion.

      With respect to timeliness, all PCRA petitions, including second and

subsequent petitions, must be filed within one year of when a defendant’s

judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). “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 the time for seeking the review.”

42 Pa.C.S.A. § 9545(b)(3). The Supreme Court of Pennsylvania has held that

the PCRA’s time restriction is constitutionally sound.         Commonwealth v.

Cruz, 852 A.2d 287, 292 (Pa. 2004). In addition, our supreme court has

instructed that the timeliness of a PCRA petition is jurisdictional. If a PCRA

petition   is   untimely,   a   court   lacks   jurisdiction   over   the   petition.

Commonwealth v. Callahan, 101 A.3d 118, 120-121 (Pa.Super. 2014)

(courts do not have jurisdiction over an untimely PCRA); see also

Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

      Here, the trial court sentenced appellant on July 28, 1993. Our supreme

court affirmed appellant’s judgment of sentence on January 12, 1995.

Because appellant did not seek review with the United States Supreme Court,



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his judgment of sentence became final 90 days later, on April 12, 1995. 1 See

42 Pa.C.S.A. § 9545(b)(3); U.S. S. Ct. R. 13. Appellant had one year from

that date, or until April 12, 1996, to file a timely PCRA petition. Therefore,

appellant’s petition, filed on July 1, 2013 is facially untimely. As a result, the

PCRA court lacked jurisdiction to review appellant’s petition, unless appellant

alleged and proved one of the statutory exceptions to the time-bar, as set

forth in 42 Pa.C.S.A. § 9545(b)(1).

      Those three narrow exceptions to the one-year time-bar are: when the

government has interfered with the petitioner’s ability to present the claim,

when the petition has recently discovered facts upon which his PCRA claim is

predicated, or when either the Supreme Court of Pennsylvania or the Supreme

Court of the United States has recognized a new constitutional right and made

that right retroactive. 42 Pa.C.S.A. § 9545(b)(1)(i-iii); Commonwealth v.

Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The petitioner bears the

burden   of   pleading   and   proving   the   applicability   of   any   exception.

42 Pa.C.S.A. § 9545(b)(1). If a petitioner fails to invoke a valid exception to




1 We note that although the United States Court of Appeals for the Third Circuit
granted appellant federal habeas corpus relief in the form of a new penalty
hearing, that relief did not “reset the clock” for finality of appellant’s judgment
of sentence because it neither restored his direct appeal rights nor disturbed
his convictions but only affected his sentence. See Commonwealth v.
McKeever, 947 A.2d 782, 794 (Pa.Super. 2008) (reiterating that a successful
collateral appeal does not “reset the clock” for calculation of the final judgment
of sentence where such relief neither restores the petitioner’s direct appeal
rights nor disturbs petitioner’s conviction but only affects petitioner’s
sentence).


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the PCRA time-bar, this court may not review the petition. See 42 Pa.C.S.A.

§ 9545(b)(1)(i-iii).

      At the outset, we note that appellant’s brief to this court does not

conform in all material respects with the requirements of Chapter 21 of the

Rules of Appellate Procedure. Appellant’s brief fails to contain a statement of

jurisdiction, the order appealed from, a statement of both the scope of review

and the standard of review, a summary of the argument, and a short

conclusion stating the precise relief sought.     Appellant’s brief also fails to

include a statement of questions involved. “The rule requiring a statement of

questions involved is to be considered in the highest degree mandatory,

admitting of no exception; ordinarily no point will be considered which is not

set forth in the statement of questions involved or suggested thereby.”

Commonwealth v. Maris, 629 A.2d 1014, 1016 (Pa.Super. 1993), citing

Pa.R.A.P. 2116(a) (internal quotation marks omitted). Therefore, it would be

within the province of this court to dismiss the claims raised in the argument

section of appellant’s brief.    See Pa.R.A.P. 2101 (authorizing quashal or

dismissal of appeal where defects in an appellant’s brief are substantial). In

the interest of justice, however, we will address the arguments that we are

able to reasonably discern.     Commonwealth v. Freeland, 106 A.3d 768,

776-77 (Pa.Super. 2014) (reiterating that this court may address arguments

reasonably discerned in a defective brief in the interest of justice).




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       In his brief, appellant claims that his mental incompetence rendered him

unable to file a timely PCRA petition so that his untimeliness should be

excused. In so claiming, appellant relies on Commonwealth v. Haag, 809

A.2d   271   (Pa.   2002),   cert.   denied,   539   U.S.   918   (2003),   and

Commonwealth v. Cruz, 852 A.2d 287 (Pa. 2004).                Following those

decisions, this court explained that:

             [o]nly under a very limited circumstance has the
             Supreme Court ever allowed a form of mental illness
             or incompetence to excuse an otherwise untimely
             PCRA petition. See, e.g., [] Cruz, [] 852 A.2d [at]
             294-97 [] (holding defendant’s claims may fall under
             after discovered facts exception to PCRA timeliness
             requirements where his mental incompetence
             prevented defendant from timely raising or
             communicating claims). But see [Commonwealth
             v.] Sam, [952 A.2d 565 (Pa. 2008),] and its
             companion case Commonwealth v. Watson, 52
             A.2d 541 ([Pa.] 2008) (holding court erred in denying
             Commonwealth's         request     for    involuntary
             administration of antipsychotic medication to restore
             death-row inmate competency so that he could
             participate in timely instituted post-conviction
             proceedings). Thus, the general rule remains that
             mental illness or psychological condition, absent
             more, will not serve as an exception to the PCRA’s
             jurisdictional time requirements. Commonwealth v.
             Hoffman, [] 780 A.2d 700, 703 (Pa.Super. 2001).

Commonwealth v. Monaco, 966 A.2d 1076, 1080-1081 (Pa.Super. 2010).

       To support his claimed mental incompetence, appellant asserts that

when he filed his first PCRA petition, he “possessed the mental age of

13 years, 5 months, and an abstract reasoning age capability of 11 years

5 months.” (Appellant’s brief at 5.) Appellant then cites to an exhibit that he



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attached to his brief, which is a list that he prepared summarizing his “mental

health deficits.” (Appellant’s brief at Exhibit 1.) Appellant then claims that

because various trial courts have denied his requests to proceed pro se over

the years, those denials constitute findings of his mental incompetence. (Id.

at 5.)   Appellant further claims that because the PCRA court granted his

motion to proceed pro se in this appeal on February 19, 2016, “[a]ppellant’s

competency has returned” and he “had 60[2] days from that date of

February 19, 2016, to file a PCRA asserting the claims he was unable to raise

due to his past incompetency.” (Id. at 5-6.) Appellant is mistaken. A claim

of mental incompetence, without more, does not serve as an exception to the

PCRA’s jurisdictional time requirements. See Monaco, supra at 1080-1081.

Moreover, nothing in the law supports appellant’s bald assertion that a trial

court’s denial or grant of a defendant’s motion to proceed pro se is the

equivalent of a mental competency determination.

      That being said, a review of appellant’s March 31, 2016 amended PCRA

petition reveals that appellant did not raise his current claim that his

self-proclaimed mental incapacity is a newly discovered fact that could not




2 The 60-day rule applicable to appellant’s claim was codified at 42 Pa.C.S.A.
§ 9545(b)(2) and required that “[a]ny petition invoking a exception . . . shall
be filed within 60 days of the date the claim could have been presented.” A
2018 amendment to Section 9545(b)(2) substituted “within one year” for
“within 60 days.” The effective date of the amendment is December 24, 2018,
and the amendment applies to claims arising one year before the effective
date or thereafter. See Act 2018-146, § 3. Therefore, because appellant’s
claim arose prior to December 24, 2017, the 60-day rule applies.


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have been asserted with due diligence. (See appellant’s “amended petition

for [PCRA] relief requesting new trial due to newly-discovered evidence,

Brady, actual/factual innocence, and withholding of known exculpatory

evidence – and – request for relief pursuant to § 5505 regarding fraud upon

the court by court officers,” 3/31/16.) Therefore, because appellant raises

this issue for the first time on appeal, he waives the issue on appeal. See

Pa.R.A.P. 302 (stating that “[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”).

         Appellant next claims that “there are claims in the petition that are

newly discovered and were raised within the sixty (60) days deadline for

raising claims newly discovered.” (Appellant’s brief at 7 (full capitalization

omitted).) To qualify under the newly discovered fact exception, “a petitioner

need only establish that the facts upon which the claim is based were unknown

to him and could not have been ascertained by the exercise of due diligence.”

Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017). Our supreme

court has articulated that due diligence “does not require perfect vigilance and

punctilious care, but merely a showing the party has put forth reasonable

effort    to   obtain   the   information   upon   which   a   claim   is   based.”

Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016) (citation and

quotation marks omitted).

         Here, appellant does nothing more than list what he deems “newly

discovered evidence,” the alleged date of the discovery of the alleged newly



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discovered evidence, and the date on which appellant raised the issue in the

PCRA court. (Appellant’s brief at 7-8.) For example, appellant alleges that he

discovered “exculpatory policy [and] reports withheld by the Commonwealth

regarding fingerprint evidence of [appellant’s] actual innocence” on March 3,

2014, which he “raised in the PCRA proceedings on [April 3, 2014,] well before

the 60th day.” (Id.) Appellant falls far short of pleading and proving the

applicability of the newly discovered fact exception to the PCRA’s time-bar

because he entirely fails to establish that the facts upon which the claim is

based were unknown to him and could not have been ascertained by the

exercise of due diligence.

      Appellant finally complains that “the         circumstances     surrounding

[appellant’s] warrant for arrest being invalid where no affidavit of probable

cause for arrest exist in this case may make the time bar non-applicable.”

(Id. at 8.) Appellant is mistaken. The three narrow exceptions to the PCRA’s

time-bar are statutory and must be alleged and proved. Appellant has failed

to allege and prove the applicability of any exception.

      Therefore, the PCRA court lacked jurisdiction to review appellant’s

petition, and we may not review the petition on appeal.

      Order affirmed.3




3 Appellant’s application for extension of time to file reply brief is granted, and
this court has reviewed the brief in reaching this disposition.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 8/19/19




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