J-A29011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
JEHMAR GLADDEN                          :
                                        :
                  Appellant             :   No. 3747 EDA 2016

              Appeal from the PCRA Order November 3, 2016
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-1010312-1997


BEFORE:    LAZARUS, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                        FILED JANUARY 16, 2018

      Jehmar Gladden appeals from the order, entered in the Court of

Common Pleas of Philadelphia County, denying his petition for collateral relief

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546. After review, we affirm.

      The relevant procedural and factual history of this case was set forth by

the PCRA court as follows:

             On August 6, 1996, during an armed robbery, one of []
      Gladden’s [] co-conspirators fatally shot one of the victims in the
      back. On May 24, 1999, following a jury trial presided over by the
      Honorable James A. Lineberger, [Gladden] was convicted of
      second-degree murder, robbery, and criminal conspiracy. The
      trial court immediately imposed a sentence of life imprisonment
      for the murder conviction and concurrent terms of incarceration
      for the remaining offenses. Following a direct appeal, [Gladden’s]
      judgment of sentence was affirmed by the Superior Court on
      November 6, 2000. [Gladden] did not file a petition for allowance
      of appeal with the Pennsylvania Supreme Court.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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              On September 19, 2003, [Gladden] filed his first pro se
       PCRA petition. Counsel was appointed and subsequently filed a
       Turner/Finley1 no merit letter. The PCRA court dismissed the
       petition on April 15, 2004. [Gladden] did not file an appeal.

              [Gladden] filed a second PCRA petition on August 12, 2012.
       The PCRA court dismissed his petition as untimely on October 15,
       2014. The Superior Court affirmed the PCRA court’s dismissal
       order on September 28, 2015. [Gladden] did not file a petition
       for allowance of appeal with the Pennsylvania Supreme Court.

              On March 15, 2016, [Gladden] filed the instant pro se PCRA
       petition, his third. Pursuant to [Pa.R.Crim.P.] 907, [Gladden] was
       served notice of the PCRA court’s intention to dismiss his petition
       on August 25, 2016. [Gladden] submitted a response to the Rule
       907 notice on September 12, 2016. On November 3, 2016, the
       PCRA court dismissed his petition as untimely. On November 23,
       2016, the instant notice of appeal was timely filed to the Superior
       Court.

PCRA Court Opinion, 2/7/17, at 1-2.            Gladden did not receive a Pa.R.A.P

1925(b) order from the PCRA court; however, the PCRA court has complied

with Pa.R.A.P. 1925(a) to the extent that it explained its reasoning for

dismissing Gladden’s petition as untimely.         On appeal, Gladden raises the

following issues for our review:

       1. Did the [PCRA] court err in failing to appoint counsel in
       accordance with Pa.R.Crim.P.904(d) to aid appellant in pleading
       [an] exception to [section 9545(b)] [through] [section
       9545(b)(1)(ii)] before dismissing [Gladden’s] petition as untimely
       without [an] evidentiary hearing?

       2. Did the [PCRA] court err in dismissing [Gladden’s] petition as
       untimely where [he] pled and established [an] exception to 42
       Pa.C.S.A. § 9545(b) through 42 Pa.C.S.A. § 9545(b)(1)(ii)’s
____________________________________________



1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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       newly-discovered evidence exception and the [PCRA] court[’]s
       determination was in contradiction of established legal precedent?


Brief of Appellant, at 4.

       Gladden first avers that the PCRA court erred when it failed to appoint

counsel before dismissing his petition, without a hearing, as untimely.

Gladden’s claim is without avail.2

       Generally, indigent PCRA petitioners are entitled to appointment of

counsel for first post-conviction attack of their convictions. Commonwealth

v. Stout, 978 A.2d 984 (Pa. Super. 2009).         However, under Pa.R.Crim.P.

904(d) a petitioner, when filing a second or subsequent PCRA petition, must

satisfy the PCRA judge that he is unable to afford or otherwise procure

counsel, and that an evidentiary hearing is required as provided in

Pa.R.Crim.P. 908; only then will the judge appoint counsel to represent the

petitioner. Pa.R.Crim.P. 904. See Commonwealth v. Kubis, 808 A.2d 196,

200 (Pa. Super. 2002) (rule-based right to counsel for subsequent PCRA

petitions does not exist).         However, “there is no absolute right to an

evidentiary hearing on a PCRA petition, and if the PCRA court can determine

from the record that no genuine issues of material fact exist, then a hearing

____________________________________________


2 The PCRA court did not address this issue in its 1925(a) opinion. On
December 28, 2016, Gladden, in a pro se correspondence to the Honorable
Leon W. Tucker, claimed that he had not received a Pa.R.A.P. 1925(b) order
from the PCRA court. Gladden never received the order, and on February 7,
2017, the PCRA court issued its 1925(a) opinion in which it addressed only
Gladden’s timeliness issue. Due to this apparent breakdown in the system,
the PCRA court, which did not receive a 1925(b) statement, did not address
Gladden’s first issue. Therefore, we now address it on appeal.

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is not necessary.” Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.

Super. 2008), quoting Commonwealth v. Jones, 942 A.2d 903 (Pa. Super.

2008).

      Here, the PCRA court determined that Gladden failed to establish an

evidentiary hearing was necessary to discern the timeliness of his petition.

Moreover, Gladden is not entitled to an evidentiary hearing on his petition as

a matter of right. Therefore, we discern no error by the PCRA court in failing

to appoint counsel and/or hold an evidentiary hearing on Gladden’s petition.

      Next, Gladden claims the PCRA court erred in determining his petition

was untimely.      It is well established that “any PCRA petition, including a

second or subsequent petition, [] be filed within one year of the date that the

petitioner’s judgment of sentence becomes final, unless [the] petitioner pleads

[and] proves that one of the [three] exceptions to the timeliness requirement

. . . is applicable.” Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa.

Super. 2008); 42 Pa.C.S.A. § 9545(b). Further, since the time-bar implicates

the subject matter jurisdiction of the courts, we are required to determine first

the timeliness of a petition before we consider the underlying claims.

Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999). Our Supreme

Court explained:

      The PCRA timeliness requirements are jurisdictional in nature and,
      accordingly, a PCRA court is precluded from considering untimely
      PCRA petitions. See, e.g., Commonwealth v. Murray, 753 A.2d
      201, 203 (Pa. 2000) (stating that “given the fact that the PCRA’s
      timeliness requirements are mandatory and jurisdictional in
      nature, no court may properly disregard or alter them in order to


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      reach the merits of the claims raised in a PCRA petition that is filed
      in an untimely manner”); Commonwealth v. Fahy, 737 A.2d
      214, 220 (Pa. 1999) (holding that where a petitioner fails to
      satisfy the PCRA time requirements, this Court has no jurisdiction
      to entertain the petition). [The Pennsylvania Supreme Court has]
      also held that even where the PCRA court does not address the
      applicability of the PCRA timing mandate, th[e Court would]
      consider the issue sua sponte, as it is a threshold question
      implicating our subject matter jurisdiction and ability to grant the
      requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-76 (Pa. 2003).

      Generally, if a PCRA petition is not filed within one year of the date the

judgment of sentence becomes final, the petitioner must plead and prove one

of the exceptions enumerated in subsections 9545(b)(1)(i)-(iii), which

provides as follows:

      (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 petitioner
            alleged 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.



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42 Pa.C.S.A. § 9543(b)(3). Any petition attempting to invoke one of these

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).

      This Court affirmed Gladden’s judgment of sentence on November 6,

2000; Gladden did not file a petition for allowance of appeal with our Supreme

Court.   Therefore, his judgment of sentence became final on December 6,

2000. Gladden filed the instant pro se PCRA petition approximately 16 years

after his judgment of sentence became final; thus, his pro se petition is facially

untimely.     Therefore, the PCRA court was without jurisdiction to consider

Gladden’s pro se petition unless he meets one of the section 9545(b)

exceptions.

      The trial court’s cogent analysis of Gladden’s timeliness argument

properly disposes of Gladden’s argument that his petition meets the newly-

discovered evidence exception:

             In [an] attempt to overcome the PCRA’s time-bar,
      [Gladden] argued that his petition fell within the [newly
      discovered evidence] exception, § 9545(b)(1)(ii). Specifically,
      [Gladden] submitted two letters from Marcia Whitlock, a
      purported witness who claimed she was present near the scene of
      the crime. According to Whitlock, [Gladden] neither arrived nor
      left the victim’s residence with two other “brown-skinned”
      individuals identified as his co-conspirators. [Gladden] argued
      that Whitlock’s observations contradict Commonwealth witness
      Lena Law’s trial testimony thereby establishing his innocence.

             The timeliness exception set forth in [section] 9545(b)(1)(ii)
      requires petitioner to demonstrate he did not know the facts upon
      which he based his petition and could not have learned those facts
      earlier by the exercise of due diligence. Commonwealth v.
      Bennett, 930 A.2d 1264, 1271 (Pa. 2007). Due diligence

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      demands that petitioner take reasonable steps to protect his own
      interest. Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa.
      Super. 2001). A petitioner must explain why he could not have
      learned the new fact(s) earlier with the exercise of due diligence.
      Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001).

            At the outset, [Gladden] failed to demonstrate that the facts
      contained in Whitlock’s letters were previously unknown.
      [Gladden] forthrightly admitted that Whitlock’s letters are
      consistent with [his] own testimony in a 2009 court proceeding.
      Furthermore, during the same 2009 evidentiary hearing, witness
      Kizzi Baker testified regarding all three males’ arrival to, and
      departure from, the victim’s residence shortly before and after the
      shooting respectively. Thus, [Gladden] who was admittedly one
      of the individual present during the murder, has been aware since
      2009 that an independent witness apparently observed his arrival
      and departure – the same observations detailed by Whitlock.

            Even if the “facts” detailed in Whitlock’s letters were
      unknown, [Gladden] failed to demonstrate that Whitlock’s
      observation of him and his co-conspirators arrive and leave
      [separately] could not have been diligently ascertained prior to
      her letters. [Carr, supra.]

PCRA Court Opinion, 2/7/14, at 4-6 (citations to record omitted).

      After review of Gladden’s pro se argument, the record and the PCRA

court’s opinion, we conclude that Gladden did not establish his right to relief

under section 9545(b)(1)(ii). Accordingly, as we discern no error of law in the

PCRA court’s dismissal of Gladden’s third PCRA petition on timeliness grounds,

we affirm.   Commonwealth v. Walls, 993 A.2d 289, 294-95 (Pa. Super.

2010).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/18




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