J-S11024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PHILLIP A.THOMPSON                         :
                                               :
                       Appellant               :   No. 1937 EDA 2018

            Appeal from the PCRA Order Entered February 14, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0003788-2000


BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                                FILED APRIL 15, 2019

       Phillip A. Thompson (Appellant) appeals from the order dismissing as

untimely his third petition filed under the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. Following careful review, we affirm.

       The procedural history underlying this appeal has been summarized by

this Court in prior appeals:

       On December 11, 2001, Appellant was sentenced to life
       imprisonment after he was convicted of second-degree murder
       and related offenses [following a jury trial that took place after a
       previous declaration of a mistrial]. The convictions stemmed from
       an incident that took place on October 30, 2000, that claimed the
       life of Patrick Dougherty. Following sentencing, Appellant filed a
       timely direct appeal to this Court, and we affirmed Appellant’s
       judgment of sentence on February 5, 2003.[1] Appellant filed a
       petition for allowance of appeal with our Supreme Court, which
       the Court denied on June 4, 2003.
____________________________________________


1 See Commonwealth v. Thompson, 821 A.2d 137 (Pa. Super. 2003)
(unpublished memorandum), appeal denied, 825 A.2d 638 (Pa. 2003).
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      Appellant filed a timely PCRA petition [his first] on June 10, 2014.
      The PCRA court appointed counsel on Appellant’s behalf, and, after
      the granting of several extensions of time, appointed counsel filed
      an amended PCRA petition on September 21, 2005. The PCRA
      court conducted a hearing on Appellant’s amended petition on
      February 14, 2006, and, at the conclusion of the hearing,
      Appellant requested additional time to contact Appellant’s former
      appellate counsel. Thereafter, on June 15, 2006, Appellant
      advised the PCRA court that there was no need for additional
      testimony regarding Appellant’s petition. The PCRA court denied
      Appellant’s PCRA petition on June 20, 2006.                     See
      Commonwealth v. Thompson, 953 A.2d 607 (Pa. Super. 2008)
      (unpublished memorandum, 2107 EDA 2006, pp. 1-2) (footnote
      omitted), appeal denied, 598 Pa. 758, 955 A.2d 358 (2008). This
      Court affirmed the decision of the trial court to deny Appellant’s
      first PCRA petition, and the Pennsylvania Supreme Court denied
      Appellant’s petition for allowance of appeal. Id.

      Appellant, on November 5, 2008, filed a second PCRA petition pro
      se. The trial court, on November 18, 2008, summarily dismissed
      Appellant’s pro se petition.

See Commonwealth v. Thompson, 981 A.2d 324 (Pa. Super. 2009)

(unpublished memorandum), appeal denied, 983 A.2d 1249 (Pa. 2009)

(blockquote removed).     Appellant appealed the denial of his second PCRA

petition to this Court. Id. This Court affirmed, and the Pennsylvania Supreme

Court denied his petition for allowance of appeal. Id.

      Appellant filed the instant pro se PCRA petition, his third, on May 11,

2015. Counsel was appointed and in May 2016, filed a motion seeking to

withdraw because he had been appointed to represent a material witness who

had testified against Appellant at trial. The court granted counsel’s motion to

withdraw, and in July 2016, appointed new counsel.




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       In January 2018, PCRA counsel filed a Turner/Finley2 letter and

accompanying motion to withdraw as counsel. On January 16, 2018, the PCRA

court granted counsel’s motion to withdraw and sent Appellant notice pursuant

to Pa.R.Crim.P. 907 that his petition would be dismissed without a hearing.

Appellant filed a pro se response to the PCRA court’s notice. On February 14,

2018, the court formally dismissed Appellant’s petition as untimely filed.

       Appellant timely appealed3 and filed a court-ordered statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).        The PCRA court

issued a responsive opinion.

       On appeal, Appellant raises a single issue for our review:

       I. [Whether] Appellant was denied his constitutional Fourteenth
       Amendment right to effective counsel when each failed to raise
       the issue of a defective affidavit of probable cause?4
____________________________________________



2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

3 On November 21, 2018, this Court issued a rule to show cause why
Appellant’s appeal should not be quashed as untimely filed. See Rule to Show
Cause, 11/21/18, at 1. Appellant filed a response, averring that his appeal
should be considered timely due to the prisoner mailbox rule. See Response
to Order, 12/6/18, at 1-2. The rule to show cause was discharged on
December 26, 2018, and the issue referred to the merits panel. Here,
Appellant’s notice of appeal and certificate of service are hand-dated March
15, 2018. See, e.g., Commonwealth v. Wilson, 911 A.2d 942, 944 n.2
(Pa. Super. 2006) (noting that pursuant to the prisoner mailbox rule, a
document is deemed filed when placed in the hands of prison authorities for
mailing). Accordingly, we accept Appellant’s notice of appeal as timely filed.

4We note that Appellant did not properly preserve this issue in his Pa.R.A.P.
1925(b) statement of errors complained of on appeal. See Commonwealth



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Appellant’s Brief at 2 (unnecessary capitalization and suggested answer

omitted).

       This Court’s standard of review of an order denying a PCRA petition is

whether the determination of the PCRA court is supported by the evidence of

record and is free of legal error. See Commonwealth v. Ragan, 923 A.2d

1169, 1170 (Pa. 2007). On appeal, we examine the issues raised in light of

the record “to determine whether the PCRA court erred in concluding that

there were no genuine issues of material fact and denying relief without an

evidentiary hearing.”      See Commonwealth v. Springer, 961 A.2d 1262,

1264 (Pa. Super. 2008).

       We begin by addressing the timeliness of Appellant’s petition, as the

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded in order to address the merits of Appellant’s claims.            See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for relief, including second and subsequent petitions, must

be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three exceptions:

       (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;


____________________________________________


v. Wanner, 158 A.3d 714, 717 (Pa. Super. 2017). However, as our
jurisdiction is implicated by the PCRA’s timeliness requirements, we need not
reach the merits of Appellant’s issue or its preservation.

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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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Previously – and for Appellant’s purposes

– a petition attempting to invoke the exceptions had to be “filed within 60

days of the date the claim could have been presented.” 42 Pa.C.S.A §

9545(b)(2); see Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783

(Pa. 2000).5

       Our review confirms that Appellant’s petition is untimely. Appellant’s

judgment of sentence became final on September 2, 2003, at the expiration

of the 90-day time period for seeking review with the United States Supreme

Court. See 42 Pa.C.S. § 9545(b)(3) (a judgment of sentence becomes final

at the conclusion of direct review or the expiration of the time for seeking the

review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998)

(noting that U.S. S. Ct. R. 13 grants an appellant 90 days to seek review with

the United States Supreme Court).                Accordingly, Appellant had until

____________________________________________


5 Act 146 of 2018 amended 42 Pa.C.S.A. §9545(b)(2), effective December
2017, and now provides that a PCRA petition invoking a timeliness exception
must be filed within one year of the date the claim could have been
presented. As noted, a petitioner previously had 60 days from when the claim
could have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, §2 and
§3. As Appellant filed his petition in May 2015, this change does not affect
Appellant or our analysis.


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September 2004 to file a timely PCRA petition. Appellant filed the underlying

petition in May 2015, almost eleven years too late. Therefore, we are without

jurisdiction to consider Appellant’s appeal unless he has pled and proved one

of the three timeliness exceptions. See Bennett, 930 A.2d at 1267.

      In his petition, Appellant argues that he was the victim of judicial and

prosecutorial misconduct during trial, ineffective assistance of counsel for

failing to raise those issues at trial and on appeal, double jeopardy, and that

his conviction was based upon defective bills of criminal information.      See

PCRA Petition, 5/11/15, at 2-3. Likewise, in his appellate brief, Appellant fails

to mention or argue that his petition qualifies for an exception to the PCRA’s

timeliness requirement.     Appellant does not reference the PCRA’s time

restrictions or address the PCRA court’s finding that his petition is untimely.

See Appellant’s Brief at 5-8.     Accordingly, because Appellant’s petition is

untimely and he has not pled an exception to the time bar, the PCRA court did

not err in dismissing his petition. See 42 Pa.C.S. § 9545(b); Bennett, 930

A.2d at 1267; Ragan, 923 A.2d at 1170.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/15/19


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