J-S58022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JACK EDWARD ALLEN,

                            Appellant                 No. 153 WDA 2014


             Appeal from the PCRA Order Entered January 16, 2014
               In the Court of Common Pleas of Clearfield County
              Criminal Division at No(s): CP-17-CR-0000738-1995


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 05, 2014

        Appellant, Jack Edward Allen, appeals pro se

January 16, 2014 order denying, as untimely, his petition for relief filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

We affirm.

        The PCRA court summarized the facts and procedural history of this

case as follows:

                                           inter alia, first degree murder
        and was sentenced to an aggregate term of life imprisonment in
        1996, after shooting his wife, Teresa Allen, in the back of her
        head in the presence of several witnesses on July 19, 1995.
        Mrs. Allen later passed away as a result of her ghastly injuries.
        [Appellant] subsequently filed a petit
        after which he received relief in the form of [the] reinstatement
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     of his appellate rights nunc pro tunc.      As a result [of his

     judgment of sentence. Commonwealth v. Allen, 895 A.2d 644
     (Pa. Super. Ct. 2006) (unpublished memorandum), appeal
     denied, 906 A.2d 537 (Pa. 2006).


     [Appellant] was again convicted of first degree murder, along
     with other charges. On December 20, 2006, [Appellant] was, for
     a second time, sentenced to an aggregate term of life
     imprisonment. [Appellant] appealed his conviction, and the
     Superior Court affirmed the judgment of sentence on June 3,
     2008. Commonwealth v. Allen, 959 A.2d 456 (Pa. Super. Ct.
     2008) (unpublished memorandum), appeal denied, 959 A.2d 927
     (Pa. 2008). During the pendency of the direct appeal process,
     [Appellant] filed numerous PCRA petitions that were dismissed
     by this [c]ourt without prejudice due to the pendency of other
     actions on direct appeal.

            This Opinion stems from a pro se PCRA petition, which was
     filed on July 25, 2011, and a pro se Motion for New Trial that
     was filed on September 15, 2011.          The [c]ourt originally
                                                     ice of Intent to
     Dismiss, the [c]ourt characterized these petitions as untimely
     and determined that [Appellant] was not entitled to an attorney.

                                                    order dismissing
     the petitions and remanded for the appointment of counsel in
     order for [Appellant] to file an amended petition or take other

     Commonwealth v. Allen, 60 A.3d 851 (Pa. Super. Ct. 2012)
     (unpublished memorandum).

           On remand, this [c]ourt appointed Attorney Patrick Lavelle
     as counsel for [Appellant]. On January 30, 2013, the [c]ourt
     granted Attorney Lavelle thirty (30) days to file an Amended
     PCRA petition or other pleading. In lieu of proceeding with

     petition to withdraw as counsel and a no-merit letter pursuant to
     Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
     Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988).
     On March 25, 2013, the [c]ourt, upon review of the record and
                           -
     withdraw and dismissed the PCRA petition. [Appellant] once


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             The Superior Court, on November 14, 2013, vacated this

     remanded this case back to this [c]ourt. Commonwealth v.
     Allen, [91 A.3d 1285] (Pa. Super. Ct. 2013) (unpublished
     memorandum). The Superior Court found that this [c]ourt erred
     in not allowing [Appellant] an opportunity to respond to Attorney
                  -merit letter.    In addition, the Superior Court
     expressed that it was improper for this [c]ourt to adopt the no-
     merit letter in lieu of writing an Opinion on the matter. The
     Superior Court lastly dictated that this [c]ourt should allow

     and evaluate any response by [Appellant].

                                                          d written
                                     -merit letter on November 26,
     2013.     The [c]ourt, on December 11, 2013, abiding by the

     its Notice of Intent to Dismiss, written pursuant to Pa.R.Crim.P.
     907. In the interests of justice, the [c]ourt clearly outlined what
     procedural steps [Appellant] needed to take in filing a proper
     PCRA petition. The [c]ourt, in its Notice of Intent to Dismiss,
     allowed [Appellant] to file an amended PCRA petition that would
     indicate which of the three (3) statutory exceptions to the
     timeliness provisions, permitted by the PCRA statute, would
     entitle [Appellant] to relief.    The [c]ourt further instructed
     [Appellant] that, only after a showing that he met an exception

     claim, or claims, which were cognizable under the PCRA and that
     have merit.      [Appellant] filed said document, pro se, on
     December 23, 2013. However, [Appellant] did not state an
     exception to the timeliness requirement as requested by the
     [c]ourt and 42 Pa.C.S.A. § 9545. [Appellant] stated that he was
     entitled to relief under two (2) of the exceptions, but failed to
     state what those exceptions were or proffer facts in support of
     those exceptions.

           The [c]ourt, in an Order dated January 16, 2014,
     dismissed the pro se PCRA petition filed by [Appellant] for the

     dated December 11, 2013. [Appellant] filed a Notice of Appeal
     on January 22, 2014, appealing the aforementioned Order of this
     [c]ourt to the Superior Court. The [c]ourt, on January 24, 2014,
     instructed [Appellant] to file a concise statement of the matters
     complained of on appeal, per Rule of Appellate Procedure


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       1925(b).        [Appellant] filed said document on February 28,
                 [1]




PCRA Court Opinion (PCO), 4/2/14, at 1-4.

       On appeal, Appellant lists 12 issues for our review in the Statement of

the Questions Involved section of his brief.2           However, before we may



petition, because the PCRA time limitations implicate our jurisdiction and

may not be altered or disregarded in order to address the merits of a

petition.   Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007)

(stating PCRA time limitations implicate our jurisdiction and may not be

altered     or    disregarded    to    address   the   merits   of   the   petition);

Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)

(holding the Superior Court lacks jurisdiction to reach merits of an appeal

from an untimely PCRA petition).




____________________________________________


1

was dated January 24, 2014, it was not filed until February 24, 2014. Thus,


2
                                      -page, single spaced Argument section is not

is one uninterrupted discussion without any headings indicating what issue
Appellant is addressing. See Pa.R.A.P. 2119(a).




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        Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the exceptions set forth

in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant

part:

        (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of




        Here, this Court affirme

2008, and our Supreme Court denied his subsequent petition for allowance




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became final 90 day thereafter, or on January 12, 2009. See 42 Pa.C.S. §

9545(b)(3) (stating that a judgment of sentence becomes final at the

conclusion of direct review or the expiration of the time for seeking the

review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998)

(directing that under the PCRA, petit

final ninety days after our Supreme Court rejects his or her petition for

allowance of appeal since petitioner had ninety additional days to seek

review with the United States Supreme Court). Consequently, Appellant had

until January 12, 2010, to file a timely PCRA petition.   He did not file the

instant pro se petition until July 25, 2011.   Accordingly, for this Court to

have jurisdiction to review the merits thereof, Appellant must prove that he

meets one of the exceptions to the timeliness requirements set forth in 42

Pa.C.S. § 9545(b).



ascertain, his principal contention is that he received ineffective assistance

from all prior counsel and, in particular, from Attorney Lavelle.        See

                                                               previously and

repeatedly explained, a claim of ineffective assistance of counsel does not



Commonwealth v. Morris, 822 A.2d 684, 694-695 (Pa. 2003) (citing

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)).                    Thus,



                     -year time-bar.

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J-S58022-14



      Appellant also avers that his petition is timely because it was filed

within one year of the judgment becoming final on a federal petition for writ

of habeas corpus filed by Appellant.    On December 13, 2010, the United

                                                            certiorari in that

case. See Allen v. Britton, 131 S.Ct. 823 (US 2010). Appellant maintains

that, as such, he had until December 13, 2011, to file a timely PCRA

petition. However, in Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999),

our Supreme Court rejected a similar claim that filing a federal habeas



                                                                       habeas

relief has been filed would undermine the federal policy of initial state



Id. at 223. In light of Fahy                                           habeas

petition in federal court has no bearing on the timeliness of his PCRA

petition. U

January 12, 2009, making his pro se PCRA petition facially untimely.

      Appellant proffers one other argument that could be construed as an

attempt to invoke a timeliness exception.       He maintains that he has




capitalization omitted).   Appellant also claims that he has documents that

were handw

demonstrate that she is not deceased. Id.

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      Appellant indicates that he raised these claims before the PCRA court

in his pro se amended petition filed on December 23, 2013. Our review of

that do



                                  Pro Se Amended Petition, 12/23/13, at 7.



unknown to petitioner, needs to be investigated and searched out for these

               Id.

documents purportedly drafted by the victim after her death, Appellant



             Id. Consequently, Appellant did not attach any proof of these

handwritten documents.

                                                        mpt to invoke the after-



unverified claim that he has proof that the victim is still alive is insufficient to

meet his burden of pleading and proving the applicability of that exception.




requirement.     On appeal, Appellant offers no argument to convince us

otherwise.   Consequently, we ascertain n

deny his petition without a hearing. See Commonwealth v. Ragan, 923



regarding an order denying a petition under the PCRA is whether the

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determination of the PCRA court is supported by the evidence of record and

is free of legal error).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/2014




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