J-S39032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :     IN THE SUPERIOR COURT OF
                                                 :           PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    EMMETT M. LOCKHART,                          :
                                                 :
                       Appellant                 :           No. 329 MDA 2018

                 Appeal from the PCRA Order January 11, 2018
             in the Court of Common Pleas of Cumberland County,
              Criminal Division at No(s): CP-21-CR-0001591-2000

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                                 FILED OCTOBER 25, 2018

       Emmett M. Lockhart (“Lockhart”) appeals, pro se, from the Order

dismissing his Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

       Following a jury trial, Lockhart was convicted of various crimes,

including murder of the first degree. The trial court sentenced Lockhart to an

aggregate term of life in prison.         On October 7, 2003, this Court affirmed

Lockhart’s judgment of sentence, and on August 1, 2005, the Pennsylvania

Supreme Court denied Lockhart’s Petition for allowance of appeal.                   See

Commonwealth           v.   Lockhart,      839       A.2d   1157   (Pa.   Super.   2003)

(unpublished memorandum), appeal denied, 880 A.2d 1237 (Pa. 2005).1

____________________________________________


1 After Lockhart filed his first pro se PCRA Petition, the PCRA court
subsequently granted Lockhart leave to file a petition for allowance of appeal
nunc pro tunc, from this Court’s October 7, 2003 Order.
J-S39032-18


       On May 18, 2014, Lockhart filed a pro se PCRA Petition arguing that he

had recently discovered exculpatory evidence, which was not available at the

time of trial, that would have changed the outcome of his case had it been

presented at trial. Following an evidentiary hearing, the PCRA court dismissed

Lockhart’s Petition on December 18, 2014. This Court affirmed the dismissal,

and the Pennsylvania Supreme Court denied Lockhart’s Petition for allowance

of appeal.    See Commonwealth v. Lockhart, 135 A.3d 651 (Pa. Super.

2015) (unpublished memorandum), appeal denied, 138 A.3d 3 (Pa. 2016).

       On May 15, 2017, Lockhart filed a Motion for Reconsideration of the

PCRA court’s December 18, 2014 Order. The PCRA court treated the Motion

as a new PCRA Petition, and subsequently filed a Pa.R.Crim.P. 907 Notice of

Intent to Dismiss. On November 8, 2017, Lockhart filed a “Motion to Amend

PCRA Petition,” which the PCRA court treated as an amended PCRA Petition.

On December 13, 2017, the PCRA court filed a second Pa.R.Crim.P. 907 Notice

of Intent to Dismiss, and subsequently dismissed Lockhart’s Petition on

January 11, 2018. On February 15, 2018, Lockhart filed a Notice of Appeal

and a Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.

       Before addressing the merits of Lockhart’s argument, we first must

determine whether Lockhart’s Notice of Appeal was timely filed.2         See



____________________________________________


2 On May 7, 2018, this Court issued a Rule to Show Cause why Lockhart’s
appeal should not be quashed as untimely filed. On May 24, 2018, following
a Response from Lockhart, the issue was referred to the merits panel.

                                           -2-
J-S39032-18


Commonwealth v. Crawford, 17 A.3d 1279, 1281 (2011) (stating that “the

timeliness of an appeal implicates our jurisdiction and may be considered sua

sponte.”); see also Commonwealth v. Williams, 29 A.3d 393, 395 (Pa.

Super. 2011) (recognizing that the timeliness of the notice of appeal

implicates the jurisdiction of this Court). The Pennsylvania Rules of Appellate

Procedure provide that “the notice of appeal … shall be filed within 30 days

after the entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a).

The date of entry of an order is the date that the clerk of courts mails or

delivers a copy of the order to the parties, or makes such copies public.

Pa.R.A.P. 108(a)(1). This Court may not extend the time for filing a notice of

appeal. Pa.R.A.P. 105(b).

      Pursuant to Rule 121(a),

      [a] pro se filing submitted by a prisoner incarcerated in a
      correctional facility is deemed filed as of the date it is delivered to
      the prison authorities for purposes of mailing or placed in the
      institutional mailbox, 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).

      Our review of the record discloses that the PCRA court mailed its Order

denying relief to Lockhart on January 12, 2018.         Therefore, Lockhart was




                                       -3-
J-S39032-18


required to file his Notice of Appeal on or before February 12, 2018.3 See

Pa.R.A.P. 903(a). Lockhart’s Certificate of Service, wherein he attests that he

deposited his Notice of Appeal with the prison mailing system, is dated January

28, 2018. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997)

(stating that an “affidavit attesting to the date of deposit with the prison

officials” is reasonably verifiable evidence of the date the prisoner deposited

his filing with prison authorities). Thus, Lockhart timely filed his Notice of

appeal.

                We review an order dismissing a petition under the PCRA in
       the light most favorable to the prevailing party at the PCRA level.
       This review is limited to the findings of the PCRA court and the
       evidence of the record. We will not disturb a PCRA court’s ruling
       if it is supported by evidence of record and is free of legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

       Under the PCRA, any PCRA petition, “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes final.”

42 Pa.C.S.A. § 9545(b)(1). 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.” Id. § 9545(b)(3). The PCRA’s



____________________________________________


3 Thirty days from January 12, 2018, is Sunday, February 11, 2018. See 1
Pa.C.S.A. § 1908 (stating that when the last day of any period of time falls on
a Saturday or a Sunday, “such day shall be omitted from the computation.”).

                                           -4-
J-S39032-18


timeliness requirements are jurisdictional in nature and a court may not

address the merits of the issues raised if the PCRA petition was not timely

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

       Lockhart’s judgment of sentence became final on October 31, 2005,

when the time to file a petition for allowance of appeal with the United States

Supreme Court expired. See SUP. CT. R. 13. Thus, Lockhart had until October

31, 2006, to file a timely PCRA Petition. See 42 Pa.C.S.A. § 9545(b). The

current Petition, which he filed on May 15, 2017, is thus facially untimely. Id.

       However, Pennsylvania courts may consider an untimely petition if the

petitioner can explicitly plead and prove one of three exceptions set forth at

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of these

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

presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.

       Here, Lockhart purports to invoke the newly-recognized constitutional

right exception on the basis of Commonwealth v. Burton, 158 A.3d 618 (Pa.

2017) (holding that pro se PCRA petitioners, who are in prison, cannot be

presumed to know information that is public record for the purpose of

determining whether a fact is unknown under the exception at section

9545(b)(1)(ii)). See Brief for Appellant at 16-17, 24-25.4 Lockhart attempts




____________________________________________


4 We note that Lockhart’s five questions presented for our review all essentially
invoke Burton.

                                           -5-
J-S39032-18


to revive his newly-discovered fact claim from his prior PCRA Petition in light

of Burton.

      Burton does not establish the newly-discovered constitutional right

exception, as Burton did not apply a newly-recognized constitutional right

retroactively.   Indeed, Burton merely interpreted the public record

presumption and how it applies to a pro se PCRA petitioner in prison. Thus,

Lockhart’s claim fails to establish the PCRA’s timeliness exception.

      To the extent Lockhart invokes the newly-discovered fact exception in

invoking Burton, we note that a court decision is not a “new fact.”

Commonwealth v. Kretchmar, 189 A.3d 459, 467 (Pa. Super. 2018).

Moreover, Burton’s holding regarding the public record presumption, i.e.,

that a pro se petitioner in prison would not be precluded from establishing

that the facts were unknown to him, does not impact Lockhart’s newly-

discovered fact claim. Indeed, this Court previously rejected Lockhart’s claim

for lack of due diligence, not for knowledge of a public record. See Lockhart,

135 A.3d 651 (unpublished memorandum at 11-15).

      Accordingly, the PCRA court properly denied Lockhart’s instant Petition

as untimely.

      Order affirmed.




                                     -6-
J-S39032-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/25/2018




                          -7-
