J-S46027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 ANTHONY H. PAGE                           :
                                           :
                    Appellant              :    No. 4052 EDA 2017

              Appeal from the PCRA Order November 20, 2017
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0021037-1986


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY SHOGAN, J.:                          FILED OCTOBER 05, 2018

      Anthony H. Page (“Appellant”) appeals pro se from the order dismissing

his petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541–9546, as untimely. We affirm.

      A prior panel of this Court set forth the following relevant facts:

             Shortly before midnight on Feburary 11, 1986, the victim,
      Earnest Clements, picked up [Appellant], who he had never met
      before, and drove him home. Upon arriving at [Appellant’s]
      house, Clements waited in the car while [Appellant] sought
      Michael Bullock, a male prostitute. Appellant told Bullock he had
      a “trick” for him so Bullock accompanied [Appellant] and Clements
      to Clements’ apartment. Clements told Bullock he had no money
      to pay him, whereupon Bullock wanted to leave but [Appellant]
      assured him Clements had money. While Bullock and Clements
      were in the bedroom, [Appellant] searched through Clements’
      closets in the living room area. Bullock, coming out of the
      bedroom to summon [Appellant] to join them, saw [Appellant]
      searching through the living room.         Appellant entered the
      bedroom and Bullock watched [Appellant] search Clements’ pants
      which were lying on the bed while Clements performed oral sex
      on [Appellant]. Soon thereafter, [Appellant] left the bedroom and
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        returned with scissors and stabbed Clements who then reached
        under the bed, grabbed a butcher knife and slashed [Appellant] in
        the arm.       Bullock and [Appellant] left the room although
        [Appellant] tried to get back in to “finish the job” but could not
        since Clements was holding the door shut. Before fleeing the
        apartment, [Appellant] grabbed Clements’ briefcase and car keys.
        They found Clements’ car and [Appellant] drove part way home
        until he had to stop and let Bullock drive since [Appellant] was
        feeling faint from loss of blood. Appellant’s father took him to the
        hospital where he was treated.

Commonwealth v. Page, 381 A.2d 624, 3146 PHL 87 (Pa. Super. filed July

29, 1988) (unpublished memorandum at 1–2). Clements died as a result of

his injuries.

        Following a jury trial, Appellant was convicted of second degree (felony)

murder, robbery, conspiracy to commit robbery, and unauthorized use of an

automobile.1       On August 26, 1987, Appellant was sentenced to life

imprisonment on the murder conviction and concurrent lesser terms for the

other convictions. Appellant has filed numerous PCRA petitions in the interim;

the instant petition is the fifth PCRA petition filed by Appellant. In this PCRA

petition, filed on October 18, 2017, Appellant alleges, inter alia, that he is

innocent of the crimes of which he was convicted, he takes issue with allegedly

contradictory jury instructions, and he asserts a claim pursuant to Brady v.

Maryland, 373 U.S. 83 (1963). PCRA Petition, 10/18/17, at 2–4. The PCRA

court dismissed Appellant’s petition because it was untimely and the court

lacked jurisdiction to reach the merits of the petition. PCRA Court Opinion,


____________________________________________


1   18 Pa.C.S. §§ 2502, 3701, 903, 3928, respectively.

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1/8/18, at 1.     Both Appellant and the PCRA court complied with Pa.R.A.P.

1925.

        Appellant presents the following question for our review:

        Whether the trial court was wrong in its assessment that it lacked
        jurisdiction to consider Appellant’s claim, and that Appellant failed
        to provide support for his claim?

Appellant’s Brief at 2.

        When reviewing the propriety of an order denying PCRA relief, this Court

is limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal

error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The

PCRA court’s findings will not be disturbed unless there is no support for them

in the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.

Super. 2014).

        Initially, however, we must address whether this appeal is properly

before us.

        It is well settled that the timeliness of a PCRA petition is a
        jurisdictional requisite. Commonwealth v. Burton, 936 A.2d
        521, 527 (Pa. Super. 2007). Where a petitioner fails to satisfy the
        timeliness requirements of the PCRA, the PCRA court and this
        Court have no jurisdiction to review the petition by fashioning an
        equitable exception to timeliness.           Commonwealth v.
        Robinson, 575 Pa. 500, 837 A.2d 1157, 1163 (2003). The PCRA
        requires that any PCRA petition, including second or subsequent
        petitions, must be filed within one year of the date the judgment
        becomes final. Commonwealth v. Fairiror, 809 A.2d 396, 398
        (Pa. Super. 2002); 42 Pa.C.S.A. § 9545(b)(1).

Commonwealth v. Turner, 73 A.3d 1283, 1285 (Pa. Super. 2013).


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       Effective January 16, 1996, the PCRA was amended to require a

petitioner to file any PCRA petition within one year of the date the judgment

of sentence becomes final.          42 Pa.C.S. § 9545(b)(1).2    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.” 42 Pa.C.S. § 9545(b)(3).

       Our Supreme Court denied Appellant’s petition for allowance of appeal

on April 14, 1989. Commonwealth v. Page, 559 A.2d 36 (Pa. 1989) (table).

In order to be timely filed, Appellant had to file his PCRA petition by June 13,

1990. Appellant filed the instant petition October 18, 2017, nearly thirty years

after his judgment of sentence became final.         Thus, his PCRA petition is

patently untimely.

               The PCRA’s time limitations “are mandatory and interpreted
       literally; thus, a court has no authority to extend filing periods
       except as the statute permits.” Commonwealth v. Fahy, 558 Pa.
       313, 737 A.2d 214, 222 (1999). The period for filing a PCRA
       petition “is not subject to the doctrine of equitable tolling.” Id.

              Instead, the time for filing a PCRA petition can be extended
       only if the PCRA permits it to be extended, i.e., by operation of one
       of the statutorily enumerated exceptions to the PCRA time-bar. Id.
       There are three exceptions:
____________________________________________


2  Where a petitioner’s judgment of sentence became final on or before the
effective date of the amendment, a special grace proviso allowed first PCRA
petitions to be filed by January 16, 1997. See Commonwealth v. Alcorn,
703 A.2d 1054, 1056–1057 (Pa. Super. 1997) (explaining application of PCRA
timeliness proviso). The instant PCRA petition is the fifth petition filed by
Appellant; therefore, the special grace proviso does not apply.

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      (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

      (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. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke
      these exceptions “shall be filed within 60 days of the date the claim
      could have been presented.” 42 Pa.C.S. § 9545(b)(2); see
      Commonwealth v. Gamboa–Taylor, 562 Pa. 70, 753 A.2d 780,
      783 (2000).

Commonwealth v. Rizvi, 166 A.3d 344, 347–348 (Pa. Super. 2017).               In

order to be entitled to the exceptions to the PCRA’s one-year filing deadline,

“the petitioner must plead and prove specific facts that demonstrate his claim

was raised within the sixty-day time frame” under Section 9545(b)(2).

Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2001).

      In his brief, Appellant alleges that his petition falls within the

governmental-interference exception because the prosecution withheld

evidence in violation of Brady v. Maryland, 373 U.S. 83.       Appellant’s Brief

at 6. He makes the convoluted argument that one of the witnesses for the

Commonwealth lied when he claimed that Appellant, who was bleeding

profusely, carried the victim’s briefcase out of the victim’s apartment.



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Appellant’s Brief at 7. He avers that the governmental interference occurred

when the Commonwealth had the victim’s briefcase and other items tested

and failed to inform him of the results, which revealed that Appellant’s blood

or DNA was not found on the items tested. Id. Appellant also avers, however,

that he first learned about the forensic testing/alleged governmental

interference during the Commonwealth’s closing arguments, which occurred

on October 14, 1986.     Id. at 8.   Indeed, during closing arguments, the

attorney for the Commonwealth stated as follows:

             Now Michael Bullock, a pretty tough decision on my part
      whether to put him on the stand or not. But he did testify, he
      testified as to his recollection of the events and I didn’t believe
      everything he said and I’m sure you didn’t believe everything he
      said either. There are things that he said that were clearly not
      true.

             For example, he said that [Appellant] carried the briefcase
      out of the room – or out of the apartment. [Appellant’s attorney]
      is going to say that I’m doing something that he forgot, and I may
      be. Well, no blood on this briefcase. [Appellant] didn’t
      carry this out, Michael Bullock did.

Notes of Testimony (Trial), 10/14/86, at 114–115 (emphasis added).

Moreoverwhat, in his response to the PCRA court’s Notice Pursuant to

Pa.Crim.P. 907 of Intention to Dismiss, Appellant admitted that he learned of

the alleged interference during the Commonwealth’s closing argument, over

thirty years ago.   See Appellant’s Response to 907 Notice, 11/16/17, at 2

(“Petitioner alleges in his attached affidavit that he learned during summation

that Commonwealth (sic) failed to disclose its testing of certain pieces of

evidence. The summation occurred on 10/14/86.”).


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      It is well established that “the exceptions to the PCRA’s one-year time

limit require the petitioner to file his PCRA petition within sixty days the claim

could have first been brought.” Carr, 768 A.2d at 1167. In the instant case,

although Appellant was aware of the alleged governmental interference since

1986, he waited nearly thirty years after he learned of it to present it in a

PCRA petition. Appellant has failed to show that he raised the interference

issue within sixty days from the date it could have first been presented. Thus,

the PCRA court lacked jurisdiction to adjudicate the merits of Appellant’s

petition.

      Order affirmed.

      Judge Bowes joins the Memorandum.

      Judge Kunselman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/18




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