J-S01024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DAVID ALLEN CAFFAS                         :
                                               :
                      Appellant                :   No. 276 MDA 2017

                  Appeal from the PCRA Order January 11, 2017
    In the Court of Common Pleas of Perry County Criminal Division at No(s):
                            CP-50-CR-0000445-2009,
                            CP-50-CR-0000515-2009

BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                            FILED FEBRUARY 05, 2018

        David Allen Caffas (“Appellant”) appeals pro se from the order

dismissing his second petition filed pursuant to the Post Conviction Relief Act

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

        We summarize the relevant facts and procedural history of this case as

follows. On August 24, 2010, a jury found Appellant guilty of manufacturing

a controlled substance, simple assault, aggravated assault, recklessly

endangering another person, and involuntary manslaughter.1 On October 8,

2010, the trial court sentenced Appellant to 18 to 60 months of incarceration

for aggravated assault, 24 to 60 months of incarceration for involuntary


____________________________________________


1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 2701(a)(2), 2702(a)(4), 2705,
2504(b).
J-S01024-18


manslaughter, and five to ten years of incarceration for manufacturing a

controlled substance (an aggregate sentence of 8.5 to 20 years of

incarceration).

       This Court affirmed Appellant’s direct appeal except as to his sentence

for manufacturing a controlled substance.                 This Court held that his

manufacturing of a controlled substance sentence was subject to a five-year,

not a ten-year, maximum, and that the trial court should have sentenced

him to a flat five years for that offense. See Commonwealth v. Caffas,

1214    MDA   2011    at    7-8   (Pa.   Super.   Apr.      3,   2012)    (unpublished

memorandum). On August 8, 2012, the trial court resentenced Appellant on

the manufacturing of a controlled substance charge to a flat five-year

sentence. Appellant did not pursue any further direct appeal.

       On   January   29,   2013,    Appellant    filed    his   first   PCRA   petition

(counseled), which the PCRA court denied on September 10, 2013.

Appellant appealed the denial of his first PCRA petition, which this Court

quashed on November 5, 2014. On July 21, 2015, Appellant filed the instant

PCRA petition, his second, pro se.       On October 29, 2015, the PCRA court

filed a Rule 907 notice of its intent to dismiss Appellant’s second PCRA

petition on the basis that his claims were either meritless, previously

litigated, or could have been raised at trial, on direct appeal or in a prior

PCRA proceeding. On January 11, 2017, after Appellant failed to respond to




                                         -2-
J-S01024-18


its Rule 907 notice, the PCRA court formally dismissed his second PCRA

petition.

      On January 27, 2017, Appellant filed a timely pro se notice of appeal.

On February 7, 2017, the PCRA court ordered Appellant to file a concise

statement of the errors complained of on appeal pursuant to Rule 1925(b) of

the Pennsylvania Rules of Appellate Procedure.        On February 24, 2017,

Appellant filed his timely Rule 1925(b) statement.

      On appeal, he raises the following issues for our review:

            1. Layered Claim, whether trial counsel was
            ineffective for denying [Appellant] his Sixth
            Amendment right to confrontation, whether appellate
            counsel was ineffective for failing to raise and argue
            a meritorious issue.

            2. Layered Claim, whether trial counsel was
            ineffective for failing to challenge/investigate missing
            [d]iscovery evidence in violation of Brady v.
            Maryland, whether appellate counsel was ineffective
            for failing to raise and argue a meritorious issue.

            3. Layered Claim, whether trial counsel was
            ineffective for failing to introduce victim’s toxicology
            report    at    trial,   whether    appellate    counsel
            inadequately argued issue, as stated by the Superior
            Court.

            4.    Whether     [Appellant]  is   serving    multiple
            illegal/unconstitutional sentences facially invalidated
            pursuant to Alleyne, Fennel, and Chatelain,
            whether appellate counsel was ineffective for failing
            to raise by amended petition to include issue on
            [Appellant’s] first PCRA.

            5. Layered Claim, whether trial counsel was
            ineffective for failing to discover/argue/preserve
            multiple instances of prosecutorial misconduct and

                                     -3-
J-S01024-18


          the court’s manifest abuse of discretion, whether
          appellate counsel was ineffective for filing to raise
          and argue a meritorious issue.

          6. Layered Claim, whether trial counsel was
          ineffective fo[r] failing to discover/raise/preserve the
          court’s manifest abuse of discretion by the trial
          judge.

          7. Layered Claim, whether trial counsel was
          ineffective for failing to quash information’s [m]otion
          to [d]ismiss pre-trial, and for failing to challenge as
          to the weight/sufficiency of evidence each charge at
          multiple states of the judicial proceedings, whether
          appellate counsel was ineffective for failing to raise
          and argue a meritorious issue.

          8. Layered Claim, whether trial counsel was
          ineffective for failing to (a) challenge the inclusion of
          deadly force in the jury instructions, (B) counsel
          failed to clarify jury instructions on deadly/non-
          deadly force, and (c) counsel failed to assert
          deadly/non-deadly force within the verdict slip,
          and/or procure from jury foreman re: jury’s decision
          re: deadly/non-deadly force, whether appellate
          counsel was ineffective for failing to raise and argue
          a meritorious issue.

          9. Layered Claim whether public defender and trial
          counsel were ineffective for failing to argue/preserve
          pre-trial, and at trial a recorded phone message, and
          whether trial counsel was ineffective for failing to (a)
          conduct a pre-trial investigation of said discovery
          evidence/missing evidence (b) failed to interview any
          witness[es] at all “pre-trial” (c) failed to compel to
          testify at trial, by sub[poena], relevant witnesses,
          whether appellate counsel was ineffective for failing
          to raise, and argue a merit[or]ious issue.

          10. Layered Claim, whether trial counsel was
          ineffective for failing to (a) effectively [cross-
          examine] Commonwealth witnesses or to rebut any
          such witness on perjured/incons[istent] testimony at
          trial, and false/incons[istent] statements to law

                                    -4-
J-S01024-18


            enforcement, (b) counsel failed to effectively
            examine [Appellant] at trial, on direct and redirect,
            (c) counsel failed to introduce at trial “in his
            posses[s]ion” evidence relevant to [Appellant’s] self-
            defense claim, whether appellate counsel was
            ineffective in part for failing to raise and argue a
            merit[or]ious issue, and in part for failing to
            adequately argue and advance a merit[or]ious issue.

            11. Withdrawn.

            12. Layered Claim, [whether] trial counsel was
            ineffective for failing to oppose a motion to
            consolidate charges against [Appellant], whether
            appellate counsel was ineffective for failing to
            adequately argue a meritious issue.

Appellant’s Brief at XI-XIV.

      Prior to determining the merits of Appellant’s claims, we must

determine whether we have jurisdiction to decide his appeal. “Pennsylvania

law makes clear no court has jurisdiction to hear an untimely PCRA petition.”

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010)

(quoting Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).

A petitioner must file a PCRA petition within one year of the date on which

the petitioner’s judgment became final, unless one of the three statutory

exceptions apply:

            (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

                                    -5-
J-S01024-18



            (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.

42 Pa.C.S.A. § 9545(b)(1). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).     If a petition is untimely, and the

petitioner has not pled and proven any exception, “‘neither this Court nor

the trial court has jurisdiction over the petition.   Without jurisdiction, we

simply do not have the legal authority to address the substantive claims.’”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      In this case, the Commonwealth filed a motion to dismiss this appeal

on the basis that Appellant’s instant PCRA petition is, inter alia, untimely.

Given that Appellant pursued no further direct appeal following his August 8,

2012 resentencing, his second PCRA petition is facially untimely and he does

not contest this determination.   Accordingly, we are without jurisdiction to

decide Appellant’s appeal unless he pled and proved one of the three

timeliness exceptions of section 9545(b)(1). See id.

      Here, Appellant did not attempt to plead or prove any of the timeliness

exceptions of section 9545(b)(1) in his PCRA petition.     See PCRA Petition,

7/21/15. While Appellant does baldly state that his petition satisfies each of

the “exceptional circumstances” of Section 9545(b)(1) on the cover page of

                                     -6-
J-S01024-18


his PCRA petition, the remainder of his petition offers no further reference to

or discussion of the timeliness exceptions to the PCRA’s time restriction.

See id. at I.      Appellant also cryptically attempts to raise the timeliness

exceptions of Section 9545(b)(1)(i) and (ii) in the “Order or Other

Determination in Question” portion of his appellate brief. Appellant’s Brief at

X.   He raises these arguments, however, for the first time on appeal and

therefore, has waived them. See Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”).

As Appellant has failed to plead and prove an exception under section

9545(b)(1), we are without jurisdiction to address the merits of his appeal. 2

See Derrickson, 923 A.2d at 468.

       Order affirmed.3




____________________________________________


2   Although the PCRA court addressed the merits of Appellant’s PCRA
petition, we affirm that decision on jurisdictional grounds. “To the extent
our legal reasoning differs from the [PCRA] court’s, we note that as an
appellate court, we may affirm on any legal basis supported by the certified
record.” Commonwealth v. Sauers, 159 A.3d 1, 7 n.4 (Pa. Super. 2017),
appeal denied, 170 A.3d 1057 (Pa. 2017) (quoting Commonwealth v.
Williams, 125 A.3d 425, 433 n.8 (Pa. Super. 2015)).

3 Because we affirm the PCRA court’s dismissal of Appellant’s second PCRA
petition, the Commonwealth’s motion to dismiss is denied as moot.



                                           -7-
J-S01024-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/05/2018




                          -8-
