J-S85035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
             v.                           :
                                          :
ANTHONY DELOATCH,                         :
                                          :
                   Appellant              :            No. 119 EDA 2016

                 Appeal from the PCRA Order December 3, 2015
             in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0603841-1990

BEFORE: PANELLA, RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED FEBRUARY 13, 2017

      Anthony DeLoatch (“DeLoatch”), pro se, appeals 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.

      On August 15, 1990, following a non-jury trial, DeLoatch was found

guilty of first-degree murder and related charges.       On March 1, 1994,

DeLoatch was sentenced to an aggregate term of life in prison. This Court

affirmed DeLoatch’s judgment of sentence, and the Supreme Court denied

allowance of appeal on October 13, 1995.           See Commonwealth v.

DeLoatch, 665 A.2d 1298 (Pa. Super. 1995), appeal denied, 668 A.2d

1122 (Pa. 1995).

      DeLoatch subsequently filed five PCRA Petitions, all of which were

dismissed.
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     DeLoatch filed the instant PCRA Petition, his sixth, on August 3, 2012.

DeLoatch subsequently filed a “Motion to Vacate Judgment Procured Through

Fraud” on April 30, 2013.      The PCRA court treated the Motion as a

supplemental filing to the PCRA Petition. Thereafter the PCRA court issued a

Pennsylvania Rule of Criminal Procedure 907 Notice of Intent to Dismiss the

Petition. The PCRA court thereafter dismissed the Petition. DeLoatch filed a

timely 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).

     Initially, under the PCRA, any PCRA petition “shall be filed within one

year of the date the judgment becomes final[.]” 42 Pa.C.S.A. § 9454(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 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.   See Commonwealth v.

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




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        DeLoatch’s sentence became final on January 11, 1996, after the time

to seek review with the United States Supreme Court had expired. See Sup.

Ct. R. 13. Because DeLoatch filed the present PCRA Petition on August 3,

2012, his Petition is patently untimely.

        However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(1)(i-iii).    Any 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, DeLoatch did not plead or prove any exception to the PCRA’s

timeliness requirement.      Instead, DeLoatch attempts to reintroduce a

previously raised Brady1 claim, wherein he claims that the assistant district

attorney withheld exculpatory evidence and unlawfully permitted a witness

to lie under oath. Brief for Appellant at 2. However, this Court previously

addressed DeLoatch’s Brady claim in an appeal from the dismissal of his

third PCRA Petition. See Commonwealth v. DeLoatch, 931 A.2d 43 (Pa.

Super. 2007) (unpublished memorandum at 8-9); see also 42 Pa.C.S.A.

§ 9544(a)(3) (stating that an issue is previously litigated under the PCRA if it

has been in a proceeding collaterally attacking the conviction or sentence).




1
    See Brady v. Maryland, 373 U.S. 83 (1963).


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      Thus, because DeLoatch did not invoke any of the three exceptions

necessary to circumvent the PCRA’s timeliness requirement, we lack

jurisdiction to address the merits of his claims on appeal.2

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/13/2017




2
  In his PCRA Petition, DeLoatch argued that his sentence was illegal
pursuant to Miller v. Alabama, 132 S. Ct. 2455 (2012). However, Miller is
inapplicable, as DeLoatch was twenty-one years old at the time of the
offense. See Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super.
2013).


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