J-S54016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RAYMOND CALIMAN

                            Appellant                 No. 2992 EDA 2014


                  Appeal from the PCRA Order October 10, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0925261-1985


BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                       FILED SEPTEMBER 16, 2015

        Appellant, Raymond Caliman, appeals from the order entered October

10, 2014, by the Honorable Gwendolyn N. Bright, Court of Common Pleas of

Philadelphia County, which denied as untimely Caliman’s serial Post

Conviction Relief Act (“PCRA”)1 petition. No relief is due.

        On June 18, 1986, Caliman was convicted of first-degree murder and

possession of an instrument of crime and sentenced to life imprisonment.

Although Caliman filed a timely direct appeal to this Court, the appeal was

dismissed for failure to file a brief. On September 30, 1987, Caliman filed a



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*
    Former Justice specially assigned to the Superior Court.
1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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PCHA2 petition requesting reinstatement of his direct appeal rights nunc pro

tunc and raising various claims of ineffective assistance of counsel.

Caliman’s direct appeal rights were subsequently reinstated, and this Court

thereafter affirmed Caliman’s judgment of sentence on October 18, 1988.

See Commonwealth v. Caliman, 551 A.2d 592 (Pa. Super. 1988)

(unpublished memorandum). The Pennsylvania Supreme Court denied

allocatur on March 30, 1989. See Commonwealth v. Caliman, 558 A.2d

530 (Pa. 1989) (Table).

       On August 25, 1999, Caliman filed a pro se PCRA petition. The PCRA

court appointed counsel, who later filed a Petition to Withdraw and a

Turner/Finley3 no-merit letter. The PCRA court granted counsel’s petition

to withdraw and dismissed Caliman’s petition as untimely. Caliman did not

file an appeal.     Caliman subsequently filed PCRA petitions on October 22,

2002, and May 28, 2010, respectively, both of which were denied as

untimely and affirmed as such on appeal.           See Commonwealth v.

Caliman, 864 A.2d 575 (Pa. Super. 2004) (unpublished memorandum);




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2
 The Post Conviction Hearing Act (“PCHA”), the statutory predecessor of the
PCRA, was repealed in part, modified in part, and renamed the Post
Conviction Relief Act, effective April 13, 1988.
3
  Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).




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Commonwealth v. Caliman, 60 A.3d 567 (Pa. Super. 2012) (unpublished

memorandum).

     On July 29, 2013, Caliman filed the instant PCRA petition – his fourth.

The PCRA court again dismissed Caliman’s petition as untimely. This appeal

followed.

     Caliman raises the following issues for our review.

     I.     Whether the PCRA petition can be dismissed as “untimely”
            when the claims presented in the PCHA petition were
            presented in a timely PCHA petition back in 1987?

     II.    Whether the PCRA is unconstitutional as applied
            because the application violates the Statutory
            Construction Act and the U.S. Constitution?
Appellant’s Brief at 2.

     Before we may address the merits of a PCRA petition, we must first

consider the petition’s timeliness because it implicates the jurisdiction of

both this Court and the PCRA court. See Commonwealth v. Williams, 35

A.3d 44, 52 (Pa. Super. 2011) (citation omitted), appeal denied, 50 A.3d

121 (Pa. 2012). “Pennsylvania law makes clear no court has jurisdiction to

hear an untimely PCRA petition.” Id. (citation omitted). The PCRA “confers

no authority upon this Court to fashion ad hoc equitable exceptions to the

PCRA time-bar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011)

(citation omitted).   This is to “accord finality to the collateral review

process.”   Id. (citation omitted). “A petition for relief under the PCRA,

including a second or subsequent petition, must be filed within one year of

the date the judgment becomes final unless the petition alleges, and the

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petitioner proves, that an exception to the time for filing the petition, set

forth    at   42    Pa.C.S.A.     §   9545(b)(1)(i),    (ii),   and   (iii),   is    met.”

Commonwealth v. Harris, 972 A.2d 1196, 1199-1200 (Pa. Super. 2009)

(footnote omitted). A petitioner asserting a timeliness exception must file a

petition within 60 days of the date the claim could have been presented. See

42 Pa.C.S.A. § 9545(b)(2).

        The 1995 amendments to the PCRA provide a grace period for

petitioners whose judgments have become final on or before the passage of

the jurisdictional time-bar. This Court has stated that the timeliness

provision     for   convictions   that,   as   here,   occurred   before       the   1995

amendments required a first time PCRA petition to be filed by January 16,

1997.    See Commonwealth v. Thomas, 718 A.2d 326, 328 (Pa. Super.

1998) (en banc). Instantly, Caliman did not file the current PCRA petition

until July 29, 2013.      Thus, Caliman’s petition is patently untimely and he

must plead and prove in his petition one of the three enumerated statutory

exceptions to the time-bar.

        Relying on the Supreme Court’s decision in Commonwealth v.

Beasley, 967 A.2d 376 (Pa. 2009), Caliman first argues that the instant

serial PCRA petition is timely because the original PCHA court reinstated his

direct appeal rights without addressing his remaining ineffective assistance

of counsel claims. Before we address the merits of this issue, we must first

determine whether this issue is previously litigated as law of the case. “The

‘law of the case doctrine’ refers to a family of rules which embody the

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concept that a court involved in the later phases of a litigated matter should

not reopen questions decided by another judge of that same court or by a

higher court in the earlier phases of the matter.”       Commonwealth v.

Fears, 86 A.3d 795, 816 n.23 (Pa. 2014) (citation omitted).

      Among the related but distinct rules which make up the law of
      the case doctrine are that: (1) upon remand for further
      proceedings, a trial court may not alter the resolution of a legal
      question previously decided by the appellate court in the matter;
      (2) upon a second appeal, an appellate court may not alter the
      resolution of a legal question previously decided by the same
      appellate court; and (3) upon transfer of a matter between trial
      judges of coordinate jurisdiction, the transferee trial court may
      not alter the resolution of a legal question previously decided by
      the transferor trial court.

Commonwealth v. Viglione, 842 A.2d 454, 461-461 (Pa. Super. 2004)

(citations omitted).

      The argument Caliman espouses in his first issue is identical to the one

previously raised on direct appeal from the denial of his May 2010 PCRA

petition. In our August 13, 2012, memorandum, this Court found Caliman’s

reliance upon Beasley to be inapposite. Rejecting Caliman’s argument that

“the failure of the original PCHA court to examine each of his ineffectiveness

issues resulted in governmental interference with his right to appeal

pursuant to 42 Pa.C.S. § 9545(b),” we concluded that “[i]t is long standing

law in this Commonwealth that it is improper to afford relief on additional

ineffectiveness claims on the merits when reinstating a defendant’s direct

appeal right.”   Caliman, 60 A.3d 576 at *8-9 (citations omitted).         We

continued our analysis as follows.


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       Appellant’s contention is even more untenable when one
       considers that when he filed his nunc pro tunc direct appeal, he
       could have, indeed was required, to raise the ineffectiveness
       claims he states were never addressed by the PCHA court.
       Appellant was clearly afforded the opportunity to raise the
       additional ineffectiveness issues and did forward several the
       claims during his nunc pro tunc direct appeal. Finally, Appellant
       does not suggest in any manner how this issue was presented
       within sixty days of the date the claim could have been set forth.
       Hence, Appellant’s first issue is wholly devoid of merit.

Id. at 9.

       Following    our   disposition    of    this   issue,   Caliman   did   not   seek

discretionary review with the Pennsylvania Supreme Court.                  He has not

alleged any changed circumstances that would alter our prior analysis

rejecting his claim. Thus, we are precluded by the law of the case doctrine

from granting relief on a claim which this Court has already decided. 4 See

Viglione, supra.

       Caliman alternatively contends that the jurisdictional time-bar is

unconstitutional as applied to him because it violates the Pennsylvania

Statutory Construction Act, 1 Pa.C.S.A. § 1501 et seq. Caliman argues that

“it was not the intent of the General Assembly to have the PCRA time bar

considered a jurisdiction bar to a colorable gateway claim of actual

innocence especially where, as here, proof of the required mens rea is thin,


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4
  In the future, we caution Caliman’s counsel, Cheryl J. Sturm, Esquire,
against merely regurgitating identical claims that this Court has previously
decided. It is a waste of this Court’s time and resources.



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and there is new reliable evidence suggesting Appellant was having an

epileptic seizure when he shot the victim.” Appellant’s Brief at 17.

       This argument again echoes one previously addressed by this Court in

our August 13, 2012, memorandum, although in that petition Caliman

alleged that the jurisdictional time-bar violated the privileges and immunities

clause of the Fourteenth Amendment. We correctly noted then that “[t]he

PCRA statute does not prohibit persons whom assert actual innocence from

achieving relief if they present a legitimate claim based on new evidence.”

Caliman, supra, 60 A.3d 576 at *13.                 Tellingly, Caliman does not now

assert his actual innocence, rather, he admits that “he shot the victim.”

Appellant’s Brief at 17.          It is therefore this admission, and not the

jurisdictional time-bar, that prevents him from proving his actual innocence.5

       Finally,   we   note    Caliman’s       additional   claim   that   the   PCRA   is

unconstitutional as applied to persons raising federal constitutional claims

rings hollow.      The PCRA explicitly states that claims “arising under the

Constitution or law of the United States” decidedly are cognizable under the

PCRA. 42 Pa.C.S.A. § 9543(a)(2)(ii).


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5
  We note that Caliman’s claim that the shooting was a result of an epileptic
seizure is not an assertion of innocence, but, at the most, constitutes
mitigating evidence. Regardless, Caliman does not assert that he filed his
PCRA petition within 60 days of discovering the fact of his alleged seizure.
See 42 Pa.C.S.A. § 9545(b)(2).




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      As Caliman has failed to assert a meritorious timeliness argument, we

agree with the PCRA court that the serial PCRA petition is patently untimely.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2015




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