J-S39001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                         Appellee

                    v.

JEROME BLANCHETT

                         Appellant                   No. 312 MDA 2018


          Appeal from the PCRA Order entered December 6, 2017
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No: CP-22-CR-0004472-2008


BEFORE: STABILE, MURRAY, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                     FILED SEPTEMBER 18, 2018

      Appellant, Jerome Blanchett, appeals pro se from the December 6, 2017

order entered in the Court of Common Pleas of Dauphin County, denying as

untimely his third petition for collateral relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Appellant contends

his petition is saved from the PCRA’s timeliness requirement based on newly-

discovered evidence. Upon review, we affirm.

      In a November 8, 2017 opinion in support of its Rule 907 notice of intent

to dismiss Appellant’s third petition, the PCRA court explained:

      Following a trial conducted March 30, 2009 through April 2, 2009,
      a jury found [Appellant] guilty of four counts of robbery, three
      counts of criminal conspiracy to commit robbery, and two counts
      of aggravated assault, arising out of the brutal assaults and
      robberies of pizza delivery men between March and May 2008.

      ....
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      On April 22, 2009, . . . the [c]ourt imposed an aggregate sentence
      of 52 to 104 years[’] incarceration in a state correctional
      institution. [Appellant] appealed. On April 16, 2010, the Superior
      Court affirmed the judgment of sentence. On September 13,
      2010, the Pennsylvania Supreme Court denied allowance of
      appeal.

PCRA Court Memorandum Opinion and Order, 11/8/17, at 1-2.             The PCRA

court detailed the filing of a first and second PCRA petition, both of which were

denied. Id. at 2. Subsequently, as the PCRA explained:

      On May 6, 2016, [Appellant] filed a document entitled “Motion
      Requesting Permission to Supplement and/or Amend a Claim of
      Actual Innocence to the [PCRA] Petition Held Before This Court
      Pursuant to Pa.R.Crim.P. Rule 905.”        On August 17, 2017,
      [Appellant] filed a “Motion to Compel.” In that Motion, [Appellant]
      attached a letter dated April 11, 2016, which he purportedly
      received from an attorney associated with the Pennsylvania
      Innocence Project. The letter apprised [Appellant] of receipt of a
      statement from a prisoner, Johnnie Mccollum. In the statement,
      Mccollum claimed that “there was some robberies that I did that
      Blanchett is actually innocent of.” (Motion to Compel, Exhibit A.).
      The Pennsylvania Innocence Project has not entered an
      appearance or filed any documents on behalf of [Appellant].

Id. at 2-3.

      The PCRA court directed the Commonwealth to file an answer to the

motion. In its response, the Commonwealth asserted that the court should

treat the motion as a PCRA petition and asked the court to direct Appellant to

file an amended petition. The court agreed and ordered Appellant to file an

amended PCRA petition. Appellant complied, filing an amended petition that

incorporated his claim that Mccollum admitted committing robberies of which




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Appellant was convicted.            Amended PCRA Petition, 12/29/16.      The

Commonwealth filed a response.

       As noted above, on November 8, 2017, the PCRA court filed its notice

of intent to dismiss Appellant’s amended PCRA petition. The court explained

that Appellant’s petition, his third PCRA petition, was facially untimely and

failed to plead an exception to the PCRA’s timeliness requirements. Appellant

filed a response, contending the PCRA court erred by relying on 42 Pa.C.S.A.

§ 9543(a)(2)(vi)1 and by failing to address the merits of his claim.

       By order entered December 6, 2017, the PCRA court dismissed

Appellant’s petition, noting that Appellant’s response to the court’s Rule 907

notice “fail[ed] to raise any issue not fully addressed in our Memorandum

Opinion filed November 8, 2017.” PCRA Order, 12/6/17, at 1. This appeal

followed.2 The PCRA court did not order Appellant to file a Rule 1925 concise


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1  The subsection to which Appellant refers involves a showing that a
petitioner’s conviction or sentence resulted from “[t]he unavailability at the
time of trial of exculpatory evidence that has subsequently become available
and would have changed the outcome of the trial if it had been introduced.”
42 Pa.C.S.A. § 9543(a)(2)(vi).

2 The deadline for filing an appeal to this Court was Friday, January 5, 2018.
Appellant’s notice of appeal was self-dated January 4, 2018 and included the
purported signature of a corrections officer with a notation indicating the
“Prisoner Mailbox Rule Applies.” However, the notice of appeal was not
received and docketed until Tuesday, January 10, 2018.

On April 16, 2018, we issued a rule to show cause why the appeal should not
be dismissed as untimely. Appellant did not respond. On May 3, 2018, the



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statement of errors complained of on appeal. On March 5, the PCRA court

issued a Rule 1925(a) opinion indicating that its reasons for dismissing

Appellant’s petition were set forth in its November 8, 2017 Memorandum

Opinion.

       In this appeal, Appellant asks us to consider one issue: “Whether the

PCRA court erred when the court denied an evidentuary [sic] hearing on a

claim of actual innocence?”           Appellant’s Brief at 3 (some capitalization

omitted).

       In Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008), our Supreme

Court stated:

       Our standard of review of the denial of PCRA relief is clear: we
       are “limited to determining whether the PCRA court's findings are
       supported     by   the   record  and    without   legal    error.”
____________________________________________


show-cause order was discharged and the issue was referred to this merits
panel.

Pa.R.A.P. 121(a) provides that a pro se filing by an incarcerated individual is
deemed filed on the date it is delivered to prison authorities for mailing, “as
evidenced by a properly executed prisoner cash slip or other reasonably
verifiable evidence of the date that the prisoner deposited the pro se filing
with the prison authorities.” Pa.R.A.P. 121(a) (emphasis added). We decline
to quash the appeal as untimely, recognizing that the date of receipt indicates
it is likely Appellant placed his notice of appeal into the hands of prison
authorities on or before Friday, January 5, 2018. See Commonwealth v.
Patterson, 931 A.2d 710, 714 (Pa. Super. 2007) (“Although the record is
bereft of the envelope in which the notice of appeal was mailed, and thus lacks
a postmark definitively noting the date of mailing, [based on the dates,
including an intervening weekend], in order for the trial court to have received
the notice of appeal by [the deadline], it is likely that [a]ppellant mailed his
notice of appeal on or before [the deadline]. Accordingly, we decline to quash
the appeal for untimeliness.”).


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       Commonwealth v. Hawkins, 953 A.2d 1248, 1251 (Pa. 2006).
       We note that a second or subsequent petition must present a
       strong prima facie showing that a miscarriage of justice may have
       occurred. Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d
       154, 160 (1999). Finally, the petition must be timely, as the Act’s
       timeliness restrictions are jurisdictional in nature and are to be
       strictly construed. Commonwealth v. Abu–Jamal, 596 Pa. 219,
       941 A.2d 1263, 1267–68 (2008).

Id. at 309.

       As noted above, in April 2009 a jury found Appellant guilty to various

offenses, including robbery, conspiracy, and aggravated assault.        He was

sentenced to 52 to 104 years in prison. After this Court affirmed Blanchett’s

judgment of sentence, our Supreme Court denied his petition for allowance of

appeal on September 13, 2010. Blanchett did not seek review from the United

States Supreme Court.         Therefore, his judgment of sentence was final on

December 13, 2010, 90 days after our Supreme Court denied his petition for

allowance of appeal,3 and Blanchett had until December 13, 2011 to file a

timely petition for collateral review.

       The instant appeal is from dismissal of Blanchett’s third petition for

collateral relief. This petition was filed on May 6, 2016, more than four years

after his judgment of sentence became final. Therefore, the petition is facially



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3 The 90th day was actually Sunday, December 12, 2010. Accordingly,
Appellant had until the following business day, Monday, December 13, 2010,
to file for a writ of certiorari to the Supreme Court of the United States. See
U.S. Sup.Ct. Rule 30.



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untimely and we may not consider it unless Blanchett has presented and

proved an exception to the PCRA’s timeliness requirement. 42 Pa.C.S.A. §

9545(b)(1). “The PCRA’s time restrictions are jurisdictional in nature. Thus,

[i]f a PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition. Without jurisdiction, we simply do not have the

legal authority to address the substantive claims.”      Commonwealth v.

Chester, 895 A.2d 520, 522 (Pa. 2006) (first alteration in original) (internal

citations and quotation marks omitted). Because timeliness is separate and

distinct from the merits of Blanchett’s underlying claims, we must first

determine whether this PCRA petition is timely filed. See Stokes, 959 A.2d

at 310 (consideration of Brady claim separate from consideration of its

timeliness).

      Blanchett asserts that his current petition is saved from the PCRA’s time

bar based on newly-discovered facts set forth in the letter from Johnnie

Mccollum in which Mccollum admitted committing robberies for which

Appellant was convicted. Appellant’s Brief at 6.

      As this Court stated in Commonwealth v. Medina, 92 A.3d 1210 (Pa.

Super. 2014) (en banc):

      Our Supreme Court has previously described a petitioner’s burden
      under the newly-discovered fact exception as follows.
         [S]ubsection (b)(1)(ii) has two components, which must be
         alleged and proved. Namely, the petitioner must establish
         that: 1) “the facts upon which the claim was predicated
         were unknown” and 2) “could not have been ascertained by



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         the exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii)
         (emphasis added).

Id. at 1216 (quoting Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa.

2007)). The focus of the exception is “on facts, not on a newly discovered or

newly willing source for previously known facts.”         Commonwealth v.

Marshall, 947 A.2d 714, 721 (Pa. 2008) (citation omitted) (emphasis in

original).

      Blanchett has not met this burden. As the PCRA court recognized,

      [Appellant’s] presentation of an after-trial confession fails to
      satisfy his burden of proving the timeliness exception. First,
      [Appellant] fails to plead why Mccollum’s alleged involvement
      could not have been obtained at or prior to the conclusion of trial
      by the exercise of reasonable diligence. In spite of thorough
      investigation of the robberies, [Appellant’s] representation by
      experienced counsel, and the defense theory that [Appellant] did
      not commit the crimes, the evidence contained no mention of
      Johnnie Mccollum. The issue of [Appellant’s] involvement in the
      crimes is cumulative of matters fully addressed at trial.
      [Further, Appellant] offers Mccollum’s statement solely to impeach
      the credibility of trial witnesses who identified [Appellant] as the
      assailant.

PCRA Court Memorandum Opinion and Order, 11/7/17, at 7.

      Our review of Appellant’s amended PCRA petition confirms the PCRA

court’s findings. In his amended petition, Appellant simply pronounces that

his “claim of Actual Innocence raised in this present petition could not have

been presented in [his] original PCRA petition nor in [his] subsequent




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petition.” Amended Petition, Appendix at 2.4 He suggests that by filing the

petition within 60 days of his receipt of the letter from Johnnie Mccollum, his

petition is timely.     However, he does not allege, let alone prove, that his

“newly-discovered facts” could not have been ascertained by the exercise of

due diligence, as required by 42 Pa.C.S.A. § 9545(b)(1)(ii).

       We agree with the PCRA court’s conclusion that Appellant’s third PCRA

petition was untimely and that Appellant failed to plead or prove any exception

to the PCRA’s timeliness requirements. Therefore, like the PCRA court, this

Court does not have the authority to hear Appellant’s claims.5

       Order affirmed.




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4 The quoted statement appeared in Appellant’s May 6, 2016 motion seeking
to supplement his PCRA petition. That motion was appended to Appellant’s
amended PCRA petition filed on December 29, 2016.

5Appellant contends the PCRA court erred by not conducting an evidentiary
hearing before dismissing his petition. As this Court has recognized:

       [A] petitioner is not entitled to a PCRA hearing as a matter of
       right; the PCRA court can decline to hold a hearing if there is no
       genuine issue concerning any material fact and the petitioner is
       not entitled to post-conviction collateral relief, and no purpose
       would be served by any further proceedings.

Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa. Super. 2008) (quoting
Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa. Super. 2007)).
Because Appellant’s third PCRA petition was untimely filed, no purpose would
have been served by holding a hearing.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/18/2018




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