J-S21031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CLIFTON PARKER,

                            Appellant                No. 2432 EDA 2014


                   Appeal from the PCRA Order August 4, 2014
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0608821-2001


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 21, 2015

        Appellant, Clifton Parker, 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, as untimely. We affirm.

        We summarize the procedural history of this case as follows.        On

March 11, 2004, a jury convicted Appellant of one count each of second-

degree murder, attempted murder, aggravated assault, robbery, and theft

by unlawful taking, and three counts of criminal conspiracy for his

participation in a crime spree in Philadelphia, Pennsylvania on April 8, 2001.1

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 2502(b), 901, 2702, 3701, 3921, and 903, respectively.
Appellant was charged under three separate criminal actions that were
consolidated for trial.
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On May 3, 2004, the court sentenced Appellant to the mandatory term of life

imprisonment without parole followed by an aggregate term of not less than

twenty nor more than forty years’ incarceration.

       Appellant timely filed a pro se direct appeal on May 6, 2004.

Appellant’s counsel filed a post-sentence motion on May 11, 2004, which the

sentencing court dismissed as moot on July 28, 2004 because of the pending

pro se appeal. The trial court appointed new counsel on May 21, 2004. On

May 5, 2005, this Court affirmed the judgment of sentence.              (See

Commonwealth v. Parker, 880 A.2d 10 (Pa. Super. 2005) (unpublished

memorandum)).         The Pennsylvania Supreme Court denied leave to appeal

on December 29, 2005.          (See Commonwealth v. Parker, 892 A.2d 822

(Pa. 2005)).

       On August 31, 2006, Appellant timely filed his first pro se PCRA

petition positing claims of ineffective assistance of counsel. The PCRA court

appointed counsel on November 21, 2006. Initially, on May 4, 2007, counsel

filed a Turner/Finley no merit letter.2 However, counsel filed an amended




____________________________________________


2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Counsel only
addressed the issue of the failure to call alleged alibi witnesses.




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PCRA petition on June 25, 2007.3               The PCRA court held a hearing and

ultimately denied relief on November 1, 2007.

       Appellant timely appealed on November 5, 2007. On April 14, 2010,

this Court affirmed the PCRA court’s denial of relief. (See Commonwealth

v. Parker, No. 2925 EDA 2007 (Pa. Super. filed April 14, 2010)

(unpublished memorandum)).              The Pennsylvania Supreme Court denied

Appellant’s pro se petition for allowance of appeal on October 5, 2010. (See

Commonwealth v. Parker, 8 A.3d 343 (Pa. 2010)).

       On July 19, 2012, Appellant filed a second pro se PCRA petition and a

supplement on August 15, 2012.4 The PCRA court notified Appellant of its

intention to dismiss his PCRA petition without a hearing pursuant to

Pennsylvania Rule of Criminal Procedure 907 on July 7, 2014.                See

Pa.R.Crim.P. 907. Appellant filed a pro se response on July 22, 2014. The



____________________________________________


3
 Appellant’s counseled PCRA petition incorporated by reference the claims
made in his pro se petition and raised the issue of whether a new trial was
warranted based on newly discovered exculpatory evidence.
4
 We note that Appellant titled these filings as a Writ of Habeas Corpus. The
PCRA court found that “[t]he [PCRA] is the exclusive vehicle for obtaining
post-conviction relief and this is true regardless of the manner in which the
petition is titled. Therefore, [the PCRA] court will treat the instant motion as
a PCRA [petition].” (PCRA Court Opinion, 8/04/14, at 1 n.1) (citation and
quotation marks omitted); see Commonwealth v. Taylor, 65 A.3d 462,
465 (Pa. Super. 2013). We agree and will treat the filings as Appellant’s
second pro se PCRA petition.




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PCRA court dismissed the petition as untimely on August 4, 2014 with an

accompanying opinion. Appellant timely appealed on August 20, 2014.5

       Appellant raises the following issue for our review: “Whether Appellant

is entitled to a remand to the PCRA court for an evidentiary hearing as the

findings of the PCRA court are frought [sic] with error and have deviated

from the legal standard?”          (Appellant’s Brief, at 3) (most capitalization

omitted).

       Our standard of review is well-settled:

              [A]n appellate court reviews the PCRA court’s findings of
       fact to determine whether they are supported by the record, and
       reviews its conclusions of law to determine whether they are free
       from legal error. The scope of review is limited to the findings of
       the PCRA court and the evidence of record, viewed in the light
       most favorable to the prevailing party at the trial level.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)

(citation omitted).

              We also note that a PCRA petitioner is not automatically
       entitled to an evidentiary hearing. We review the PCRA court’s
       decision dismissing a petition without a hearing for an abuse of
       discretion.

                    [T]he right to an evidentiary hearing on a post-
              conviction petition is not absolute. It is within the
              PCRA court’s discretion to decline to hold a hearing if
              the petitioner’s claim is patently frivolous and has no
              support either in the record or other evidence. It is
              the responsibility of the reviewing court on appeal to
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5
 The PCRA court did not order Appellant to file a Rule 1925(b) statement. It
entered its Rule 1925(a) opinion on September 8, 2014 incorporating its
August 4, 2014 opinion. See Pa.R.A.P. 1925.



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           examine each issue raised in the PCRA petition in
           light of the record certified before it in order to
           determine if the PCRA court erred in its
           determination that there were no genuine issues of
           material fact in controversy and in denying relief
           without conducting an evidentiary hearing.

                                 *    *    *

            Before we may address the merits of Appellant’s
     arguments, we must first consider the timeliness of Appellant’s
     PCRA petition because it implicates the jurisdiction of this Court
     and the PCRA court. Pennsylvania law makes clear that when a
     PCRA petition is untimely, neither this Court nor the trial court
     has jurisdiction over the petition. The period for filing a PCRA
     petition is not subject to the doctrine of equitable tolling;
     instead, the time for filing a PCRA petition can be extended only
     if the PCRA permits it to be extended[.] This is to accord finality
     to the collateral review process. However, an untimely petition
     may be received when the petition alleges, and the petitioner
     proves, that any of the three limited exceptions to the time for
     filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii),
     and (iii), are met.

Commonwealth v. Miller, 102 A.3d 988, 992-93 (Pa. Super. 2014)

(citations and quotation marks omitted).

     Section 9545 of the PCRA states in relevant part:

     (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 petition
           alleges 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;



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                  (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.

            (2) Any petition invoking an exception provided in
            paragraph (1) shall be filed within 60 days of the date the
            claim could have been presented.

42 Pa.C.S.A. § 9545(b)(1) and (2).

      Here, Appellant’s judgment of sentence became final on March 29,

2006 when the time to seek discretionary review in the United States

Supreme Court expired.     See 42 Pa.C.S.A. § 9545(b)(3).        Therefore, in

order to comply with the filing requirements of the PCRA, Appellant’s petition

had to be filed by March 29, 2007. Because the underlying petition was filed

on July 19, 2012, it is facially untimely and the PCRA court lacked

jurisdiction to review it unless Appellant pleaded and proved one of the

statutory exceptions to the time bar under 42 Pa.C.S.A. § 9545(b)(1).

      Appellant asserts that the PCRA court erred in dismissing his petition

as untimely because his claim fell within the newly discovered facts

exception to the time bar. Specifically, he argues that “[i]t was only after

this [s]cience [of brain development not being complete until a person is in

his or her mid-twenties] was revealed [in Miller v. Alabama, 132 S.Ct.

2455 (2012),] did Appellant learn its relavance [sic] to him.”    (Appellant’s

Brief, at 9).   He further argues that this new science “could have been


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utilized to support mitigation and/or . . . undermine [his] responsibility . . .

[and the counsel’s failure to advance the claim was] [in]effective assistance

of counsel . . . .” (Id. at 11). We disagree.

            Our Supreme Court has held that “subsequent decisional
      law does not amount to a new ‘fact’ under section 9545(b)(1)(ii)
      of the PCRA.” As the Court noted:

                  Law is a principle; fact is an event. Law is
            conceived; fact is actual. Law is a rule of duty; fact
            is that which has been according to or in
            contravention of the rule. Put another way, a “fact,”
            as distinguished from the “law,” is that which is to be
            presumed or proved to be or not to be for the
            purpose of applying or refusing to apply a rule of
            law. Consistent with these definitions, an in-court
            ruling or published judicial opinion is law, for it is
            simply the embodiment of abstract principles applied
            to actual events. The events that prompted the
            analysis, which must be established by presumption
            or evidence, are regarded as fact.

Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. 2012) (quoting

Commonwealth v. Watts, 23 A.3d 980, 986-87 (Pa. 2011)). Accordingly,

Miller v. Alabama does not provide Appellant relief because the science

mentioned in subsequent decisional law is not a new fact under the PCRA.

See id.

      Accordingly, Appellant has failed to plead and prove an exception to

the PCRA time bar; the PCRA court properly dismissed Appellant’s petition as

untimely and we lack jurisdiction to consider the merits of his petition. See

Miller, supra at 992-93.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2015




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