J-S48043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF                         :    IN THE SUPERIOR COURT
  PENNSYLVANIA,                           :       OF PENNSYLVANIA
                                          :
                         Appellee         :
                                          :
                    v.                    :
                                          :
  ROBERT MCCLARY,                         :
                                          :
                         Appellant        :     No. 3249 EDA 2018


           Appeal from the PCRA Order Entered October 24, 2018
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0324561-1983

BEFORE:    BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                   FILED OCTOBER 16, 2019

      Robert McClary (Appellant) appeals pro se from the order entered

October 24, 2018, dismissing his petition filed under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.

      Appellant “was arrested and subsequently charged in connection with

the 1980 fatal shooting of Reginald Short outside a restaurant in South

Philadelphia.” PCRA Court Opinion, 12/19/2018, at 1. On August 4, 1983,

Appellant was convicted of first-degree murder, conspiracy, and possession of

an instrument of crime.     He was sentenced to a mandatory term of life

imprisonment. On March 13, 1987, this Court affirmed Appellant’s judgment

of sentence. Commonwealth v. McClary, 526 A.2d 814 (Pa. Super. 1987)




* Retired Senior Judge assigned to the Superior Court.
J-S48043-19


(unpublished memorandum). Appellant did not file a petition for allowance of

appeal to our Supreme Court.

        Appellant filed pro se his first PCRA petition on August 20, 1997.

Counsel was appointed, and on February 27, 1998, the PCRA court dismissed

Appellant’s petition. Appellant did not file a notice of appeal to this Court.

        Appellant filed pro se the instant PCRA petition on September 23, 2016.

In   that   petition,   Appellant     claimed    he   became   aware   of   a   case,

Commonwealth v. Barnett, 121 A.3d 534 (Pa. Super. 2015),1 by way of a

“legal newsletter” on August 7, 2016. PCRA Petition, 9/23/2016, at 8.

Appellant goes on to claim that trial counsel was ineffective in his

representation of Appellant, and that the trial court erred in its jury instruction.

In addition, Appellant argues that the PCRA’s timeliness requirements are

unconstitutional when their basis is the ineffective assistance of counsel. Id.

at 4.

        On August 13, 2018, the PCRA court issued notice of its intent to dismiss

Appellant’s PCRA petition without a hearing.            In his response, Appellant

requested his case be stayed pending the outcome of a then-pending Superior

Court case, Commonwealth v. Lee, 206 A.3d 1 (Pa. Super. 2019) (en



____________________________________________
1 In Barnett, this Court addressed Barnett’s ineffective-assistance-of-counsel
claims on direct appeal because Barnett waived his right to collateral relief. It
is not clear to us how the disposition in Barnett is related to Appellant’s case.




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banc).2 Subsequently, on August 27, 2018, Appellant filed an amended PCRA

petition, setting forth the Lee claim.3        On October 24, 2018, the PCRA court

dismissed Appellant’s petition. Appellant timely filed a notice of appeal. The

PCRA court did not order Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925, but did file an opinion

on December 19, 2018.

        On appeal, Appellant claims that the PCRA court erred in dismissing his

petition because the trial court erred in instructing the jury, trial counsel was

ineffective in his representation, and then argues that the PCRA’s timeliness


____________________________________________
2 At the time Appellant filed his response to the Rule 907 notice, Lee had not
yet been decided. On March 1, 2019, this Court held in Lee that a criminal
defendant who was over the age of 18 when he committed his crime “cannot
invoke [Miller v. Alabama, 567 U.S. 460 (2012) (holding that a mandatory
sentence of life imprisonment without the possibility of parole is
unconstitutionally cruel and unusual punishment when imposed upon a
defendant who was convicted of murder and was under the age of 18 at the
time he committed his crimes),] to overcome the PCRA time-bar.” Lee, 206
A.3d at 2. In the instant matter, Appellant was 20 years old when he
committed these crimes.

3   We point out that

        [t]he Rules of Criminal Procedure contemplate that amendments
        to pending PCRA petitions are to be freely allowed to achieve
        substantial justice, Pa.R.Crim.P. 905(A), but Rule 905
        amendments are not self-authorizing such that a petitioner may
        simply amend a pending petition with a supplemental pleading.
        Rather, the Rule explicitly states that amendment is permitted
        only by direction or leave of the PCRA court.

Commonwealth v. Mason, 130 A.3d 601, 621 n. 19 (Pa. 2015) (internal
citations and quotation marks omitted).



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requirements should not be applied to claims of ineffective assistance of

counsel. Appellant’s Brief at 5.

       “The question of whether a [PCRA] petition is timely [filed] raises a

question of law. Where the petitioner raises questions of law, our standard of

review is de novo and our scope of review [is] plenary.” Commonwealth v.

Brown, 141 A.3d 491, 499 (Pa. Super. 2016).

       Any PCRA petition, including second and subsequent petitions, must

either (1) be filed within one year of the judgment of sentence becoming final,

or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b). Because

Appellant’s judgment of sentence became final in 1987, his 2016 petition is

facially untimely.4 Thus, he was required to plead and prove one of the

exceptions set forth in 42 Pa.C.S. § 9545(b)(1).

       Appellant’s attempts to comply with these timeliness requirements are

woefully deficient. See PCRA Court Opinion, 12/19/2018, at 3 (“Despite

referencing the statutory time-bar, [Appellant] failed to meaningfully plead

and prove any of its exceptions.”). His appellate argument, where he claims



____________________________________________
4 Appellant’s judgment of sentence became final after the expiration of time
for filing a petition for allowance of appeal to our Supreme Court after this
Court affirmed his judgment of sentence on direct appeal. See Pa.R.A.P. 1113
(requiring petition for allowance of appeal to be filed within 30 days after entry
of the order from the Superior Court); 42 Pa.C.S. § 9545(b)(3) (“For purposes
of [the PCRA], a judgment [of sentence] 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
time for seeking the review.”).


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that “the denial of effective assistance of counsel can be raised at anytime

after the one year statute of limitations,” is unavailing. Appellant’s Brief at 11.

“It is well settled that allegations of ineffective assistance of counsel will not

overcome    the   jurisdictional   timeliness   requirements     of   the   PCRA.”

Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).

      Because Appellant has neither pleaded nor proven an exception to the

timeliness requirements of the PCRA, the PCRA court was without jurisdiction

to consider his substantive claims. Thus, the PCRA court properly dismissed

Appellant’s petition, and we affirm the order of the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/19




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