J-S62024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILLIE MAURICE HARRIS

                            Appellant                 No. 525 WDA 2015


                Appeal from the PCRA Order February 25, 2015
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0003121-1997


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                      FILED NOVEMBER 16, 2015

        Appellant Willie Maurice Harris appeals from the order entered in the

Allegheny County Court of Common Pleas, which dismissed his petition for

relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        This Court previously set forth the underlying facts and procedural

history of this appeal as follows:

           On August 9, 1996, the victim, Roderick McMahon,
           (hereinafter referred to as “McMahon”), who was also
           known by his street name of Rebel, was drinking beer with
           his friend, Shawn Featherstone, (hereinafter referred to as
           “Featherstone”), in an area near 7320 Fleury Way.
           McMahon, Featherstone, and several other individuals,
           continued to drink beer into the early morning hours of
           August 10, 1996. Shortly after midnight on August 10,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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       1996, Susie Venson, (hereinafter referred to as “Venson”),
       who lived at 7320 Fleury Way, came out of her house and
       engaged McMahon in a discussion. Initially, the discussion
       appeared to be friendly; however, it ultimately led to an
       argument, which caused Venson to go back into her house
       where she had a conversation with Appellant. As a result of
       that conversation, Appellant then left Venson’s residence
       and went out into the street calling for McMahon to identify
       himself.    When McMahon approached Appellant, an
       argument ensued between them and Appellant produced a
       gun and pointed it at McMahon. During their discussion, a
       second gun was produced thereby preventing Appellant
       from carrying out the threats that he was making.
       Appellant then turned and left and returned to Venson’s
       apartment. It is at this point that the testimony presented
       by the Commonwealth and the defense differs.

       The Commonwealth maintained at trial that once Appellant
       returned to Venson’s residence, he went out the back door
       of her residence and went into an alleyway, hiding himself
       from view of McMahon and his friends and then fired
       several shots at McMahon, one of which struck McMahon in
       the abdomen and ultimately led to his death. Appellant
       offered testimony that he expressed fear for his safety
       when he returned to Venson’s apartment, that he called a
       jitney, and that he was going to leave the area. Appellant
       further testified that he went out the back door and he was
       going to run across the backyard when he was fired upon
       and he returned that fire in self-defense when he was
       standing at the back of the alley, which abutted Venson’s
       building. The physical facts found at the scene of the
       accident including the casings from Appellant’s gun
       contradicted Appellant’s testimony since all of the casings
       were found in the front of the alley near Fleury Way and
       not at the rear of Venson’s building where Appellant said
       he was fired upon.

       Appellant was charged generally with the crime of criminal
       homicide and a jury trial was held on August 4, 1997
       through August 7, 1997, when the jury convicted Appellant
       for the crime of first-degree murder. On September 4,
       1997, Appellant was sentenced to the mandatory sentence
       of life without the possibility of parole. Appellant filed
       timely post-sentence motions in which he alleged that his

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       trial counsel was ineffective for failing to call two
       witnesses. A hearing was held on those motions and after
       that hearing, Appellant’s post-sentence motions were
       denied. Appellant filed a timely notice of appeal to the
       Superior Court and after the trial court filed its opinion,
       Appellant’s appeal was dismissed for failure of his appellate
       counsel to file a brief. In dismissing Appellant’s appeal,
       the Superior Court acknowledged that it was without
       prejudice with respect to Appellant’s rights to raise the
       claims asserted in that appeal in any subsequent post-
       conviction relief petition.

       On October 1, 2001, Appellant filed a petition for post-
       conviction relief seeking the reinstatement of his appellate
       rights.      Following the answer submitted by the
       Commonwealth and an argument on that motion,
       Appellant’s direct appeal rights were reinstated on March
       26, 2002. Appellant filed a timely appeal and was directed
       to file his concise statement of matters complained of on
       appeal. Appellant requested several continuances to file
       that statement and on March 18, 2003, he filed a concise
       statement of matters complained of on appeal to which he
       attached an alleged affidavit from Featherstone, the
       Commonwealth’s [eyewitness] at the time of Appellant’s
       trial, in which Featherstone allegedly recanted his
       testimony.

       On August 6, 2004, the Superior Court affirmed Appellant’s
       judgment of sentence and after determining that while
       post-conviction proceedings were timely filed and
       dismissed without prejudice, the          claims of the
       ineffectiveness of Appellant’s counsel could be raised in a
       subsequent petition for post-conviction relief. Appellant
       filed a petition for allowance of appeal to the Supreme
       Court, which petition was granted on February 11, 2005,
       however on February 20, 2007, that appeal was dismissed
       as being improvidently granted.

       On October 1, 2007, Appellant filed a pro se petition for
       post-conviction relief, claiming that he was entitled to have
       his judgment of sentence vacated and be granted a new
       trial. Thereafter, counsel was appointed by order dated
       October 17, 2007 and an amended petition was filed on


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          February 1, 2010. Following a hearing on the petition for
          post-conviction relief, Appellant’s petition was denied….

Commonwealth           v.    Harris,     No.     1404   WDA    2011,   unpublished

memorandum at 1-3 (Pa.Super. filed June 20, 2012) (quoting the PCRA

court opinion, filed December 12, 2011, at 2-5).

       This Court affirmed the order denying Appellant’s petition for PCRA

relief on June 20, 2012. Our Supreme Court denied Appellant’s petition for

allowance of appeal on March 21, 2013.

       On May 28, 2013, Appellant filed the present PCRA petition, which he

subsequently amended on September 26, 2013.2 On July 2, 2014, the PCRA

court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s

petition without a hearing. On August 5, 2014, Appellant filed an answer to

the PCRA court’s Pa.R.Crim.P. 907 notice. On February 25, 2015, the PCRA

court dismissed Appellant’s petition.            Appellant filed a timely notice of

appeal3 and both Appellant and the trial court complied with Pa.R.A.P.

1925.4

____________________________________________


2
  On February 14, 2014, Appellant filed a notice of appeal, which the PCRA
court quashed as a nullity on February 13, 2015, because the PCRA court
had not yet issued a final order.
3
  Although Appellant’s notice of appeal was not filed with the court until
March 31, 2015, we deem Appellant’s notice of appeal timely because he
mailed it from prison on March 23, 2015.        See Commonwealth v.
Patterson, 931 A.2d 710, 714 (Pa.Super.2007) (“Pursuant to the prisoner
mailbox rule, we deem a document filed on the day it is placed in the hands
of prison authorities for mailing.”).
(Footnote Continued Next Page)


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      Appellant raises the following issue for our review.

          WHETHER THE TRIAL COURT GAVE A DEFECTIVE ORDER,
          BY FAILING TO SPECIFY HOW APPELLANT’S PETITION WAS
          UNTIMELY, THEREBY CONSTITUTING A VIOLATION OF
          APPELLANT’S    U.S.    CONSTITUTIONAL    AND    PA
          CONSTITUTIONAL      DUE   PROCESS    RIGHTS    AND
          COMMITTING FRAUD UPON THE COURT?

Appellant’s Brief at iii.

      Before we address the merits of Appellant’s claim, we must determine

whether his PRCA petition was timely.             The timeliness of a PCRA petition

implicates the jurisdiction of both this Court and the PCRA court.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal

denied, 50 A.3d 121 (Pa.2012).              “Pennsylvania law makes clear that no

court has jurisdiction to hear an untimely PCRA petition.”          Id. To “accord

finality to the collateral review process[,]” the PCRA “confers no authority

upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA

timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With

respect to jurisdiction under the PCRA, this Court has further explained:

          The most recent amendments to the PCRA...provide a
          PCRA petition, including a second or subsequent petition,
                       _______________________
(Footnote Continued)


4
  On April 13, 2015, the PCRA court ordered Appellant to file a statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) by May 7,
2015. Although Appellant’s Pa.R.A.P. 1925(b) statement was not filed with
the court until May 12, 2015, both the statement and the verification are
dated May 4, 2015. Thus, we decline to find Appellant’s issue waived for
failure to timely file a Pa.R.A.P. 1925(b) statement. The PCRA court issued a
Pa.R.A.P. 1925(a) opinion on June 11, 2015.



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        shall be filed within one year of the date the underlying
        judgment becomes final. A judgment is deemed 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.

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

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);

see also 42 Pa.C.S. § 9545. This Court may review a PCRA petition filed

more than one year after the judgment of sentence becomes final only if the

claim falls within one of the following three statutory exceptions, which the

petitioner must plead and prove:

            (i) the failure to raise the claim 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).       Further, if a petition pleads one of these

exceptions, the petition will not be considered unless it is “filed within 60

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

9545(b)(2).




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       Additionally, a heightened standard applies to a second or subsequent

PCRA    petition    to   avoid    “serial        requests   for    post-conviction    relief.”

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011).                          A second or

subsequent PCRA petition will not be entertained unless “the petitioner

makes a strong prima facie showing that a miscarriage of justice may have

occurred.”         Commonwealth             v.     Medina,        92   A.3d   1210,    1215

(Pa.Super.2014) (en banc), appeal granted, 105 A.3d 658 (Pa.2014).

“Appellant makes a prima facie showing of entitlement to relief only if he

demonstrates either that the proceedings which resulted in his conviction

were so unfair that a miscarriage of justice occurred which no civilized

society could tolerate, or that he was innocent of the crimes for which he

was charged.” Id. (citation omitted).

       Here, Appellant’s judgment of sentence became final on May 21, 2007,

when his time for seeking review with the United States Supreme Court

expired.    See Monaco, supra.           Therefore, he had until May 21, 2008 to

timely file a PCRA petition. Appellant filed the instant pro se PCRA petition,

his second,5 on May 28, 2013. Thus, his PCRA petition is facially untimely,

and we must determine whether Appellant has pled and proved any of the

exceptions to the PCRA time limitation. See 42 Pa.C.S. § 9545(b)(1).

____________________________________________


5
  The PCRA court states this is Appellant’s fourth petition for relief, however,
this is the second petition Appellant filed for relief after his judgment of
sentence became final.



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      Appellant raises seventeen (17) claims in his pro se PCRA petition. He

claims he is entitled to relief for prosecutorial misconduct, improper jury

instructions, and ineffective assistance of counsel.   He offers no reason why

he could not have raised these claims in his last PCRA petition or at his

evidentiary hearing on the petition, nor does he explain how he has raised

them within sixty (60) days of the date the claims could have been

presented.

      Appellant also claims he is entitled to relief pursuant to Miller v.

Alabama, 132 S.Ct. 2455 (U.S.2012), in which the Supreme Court held that

the mandatory imposition of life in prison without the possibility of parole for

juveniles was cruel and unusual punishment in violation of the Eighth

Amendment.       Even if the Supreme Court rules in Montgomery v.

Louisiana, 135 S.Ct. 1546, ___ U.S. ___ (2015) that this constitutional

right applies retroactively, Appellant would not be eligible for such relief.

Although Appellant claims he was seventeen at the time of the murder, the

record reflects that he was born on October 3, 1977, and he committed the

murder on August 10, 1996. Thus, Appellant was almost nineteen years old

when he murdered his victim, and this rule would not apply to him.

      Appellant’s petition is time-barred, and the PCRA court properly denied

it. Accordingly, we affirm.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2015




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