J-S02030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JAMES E. FRANKS

                        Appellant                  No. 2005 EDA 2016


                Appeal from the PCRA Order April 15, 2016
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-0709691-2001


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.

MEMORANDUM BY STABILE, J.:                        FILED MARCH 22, 2017

     Appellant, James E. Franks, appeals pro se from the April 15, 2016

order entered in the Court of Common Pleas of Philadelphia County (“PCRA

court”) dismissing his petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

     The underlying facts of this case have been summarized by this Court

on direct appeal, and quoted by this Court following Appellant’s first PCRA

appeal.

           Beginning in 1993, Appellant lived with his girlfriend, Ms.
     Farley, their daughter, K.F. (born November 1993), and Ms.
     Farley’s two daughters from previous relationships, V.M. (born
     February 1990) and B.F. When V.M. was 5 and 6 years old and
     no one else was home, Appellant would come into her bedroom
     and tell her to sit on the bed or kneel, take off her clothes, and
     close her eyes. Appellant would then force his penis inside of
     her mouth, and at times he would force her to lie face down on
     the bed and force his penis into her vagina.           Afterwards,
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        Appellant would indicate that if V.M. told her mother, he would
        hurt her mother and then come after her. In 1996, Appellant
        and Ms. Farley ended their relationship and V.M. stopped seeing
        him.

                Subsequently, when K.F. reached the age of 6 or 7, Ms.
        Farley began taking her to visit Appellant every two weeks.
        During one of the visits, Appellant told K.F. he wanted to play a
        little game with her and told her to get on her knees, close her
        eyes, and open her mouth. Appellant then put his penis into his
        daughter’s mouth. Later, K.F. reported the incident to V.M. who
        then told their mother.

Commonwealth v. Franks, 2359 EDA 2010, unpublished memorandum at

2-3 (Pa. Super. filed Nov. 15, 2011) (quoting Commonwealth v. Frank

[sic], 913 A.2d 940 (Pa. Super. 2006) (unpublished memorandum at 1-2),

appeal denied, 945 A.2d 167 (Pa. 2008)).

        This Court summarized the procedural history following Appellant’s

first PCRA appeal.

              Following a jury trial, [A]ppellant was found guilty of rape,
        involuntary deviate sexual intercourse (“IDSI”) (two counts),
        and corrupting the morals of a minor (two counts). On June 26,
        2002, [A]ppellant was sentenced to an aggregate of 15 to 45
        years’ imprisonment followed by 5 years’ probation. Following
        reinstatement of his direct appeal rights nunc pro tunc,
        [A]ppellant appealed to this [C]ourt, which affirmed the
        judgment of sentence. Our [S]upreme [C]ourt denied allowance
        of appeal on March 12, 2008.

               On May 1, 2008, [A]ppellant filed a timely pro se PCRA
        petition, and counsel was appointed to represent him. Appointed
        counsel filed a petition to withdraw and accompanying
        Turner/Finley “no merit’ letter; and on July 30, 2010, following
        [the PCRA court issuing a] Rule 907[1] notice, the PCRA court
____________________________________________


1
    Pa.R.Crim.P. 907.



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        dismissed [A]ppellant’s PCRA petition without a hearing and
        granted counsel permission to withdraw. A timely pro se notice
        of appeal was filed on August 12, 2010. Appellant [] complied
        with Rule 1925(b), and the PCRA court [] filed an opinion.
Id. (citations and footnotes omitted). This Court affirmed the PCRA court’s

dismissal of Appellant’s first PCRA petition on November 15, 2011.

        On June 25, 2015, Appellant filed a second PCRA petition on June 25,

2015; however, the document was titled a petition for writ of habeas

corpus.2    On March 15, 2016, the PCRA court sent a Rule 907 Notice to

Appellant finding that the petition failed to satisfy any of the timeliness

exceptions to the PCRA. See 42 Pa.C.S.A. § 9545(b). On April 15, 2016,

the PCRA court dismissed Appellant’s PCRA petition. Appellant filed a timely

notice of appeal on May 10, 2016. After the trial court directed compliance

with Pa.R.A.P. 1925(b), Appellant filed a concise statement on May 23,

2016. The PCRA court issued an opinion on July 7, 2016.

        Before this Court addresses the merits of Appellant’s issues,3 we must

determine whether this Court can entertain Appellant’s appeal. The PCRA’s

____________________________________________


2
 It is irrelevant that Appellant styled his petition as a writ of habeas corpus.
The PCRA has subsumed habeas relief. See 42 Pa.C.S.A. § 9542.
3
    Appellant raises the following issues on appeal, which we quote verbatim

        Was trial Counsel ineffective for failure to “object” when
        Commonwealth’s Prosecutor gave faulty jury instructions” Was
        trial counsel ineffective for failure to call upon character
        witnesses for defendant? YES! Was trail counsel ineffective for
        failure to impeach Commonwealth’s witness?      AFFIRMATIVE!
        DID THE PROSECUTOR COMMIT A BRADY VIOLATION FOR
(Footnote Continued Next Page)


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jurisdictional timeliness provision requires that a petitioner must file a

petition within one year of the date on which his judgment of sentence

becomes final, or plead and prove the applicability of one of the three

statutory exceptions to the one-year time bar. 42 Pa.C.S.A. § 9545(b)(1);

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

do so deprives the PCRA court of jurisdiction to entertain the petition. Id.

      Appellant’s PCRA petition is facially untimely. Appellant’s judgment of

sentence became final 90 days following our Supreme Court’s denial of his

allocatur petition on March 12, 2008. Appellant’s second PCRA petition was

filed on June 25, 2015. Neither in Appellant’s PCRA petition nor in the litany

of documents he filed in this Court does Appellant discuss the timeliness of

his PCRA petition. Therefore, Appellant failed to plead and prove one of the

timeliness exceptions to the PCRA, and the PCRA court properly dismissed

the petition for want of jurisdiction.

      Order affirmed.




                       _______________________
(Footnote Continued)

      FAILURE TO DISCLOSE FAVORABLE EXCULPATORY EVIDENCE?
      Upon request in all Court cases, the Commonwealth shall
      disclose to the Defense all evidence. Police reports favorable to
      the defendant were suppressed by the assistant district attorney.
      A prosecutor is unquestionably required to disclose information
      which may be favorable to the defense.

Appellant’s Brief at 1 (sic).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/2017




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