J-S51011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ROSCOE PARRISH, JR.

                            Appellant                    No. 144 EDA 2016


                Appeal from the PCRA Order December 15, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0513401-1983


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

MEMORANDUM BY GANTMAN, P.J.:                              FILED JUNE 10, 2016

       Appellant, Roscoe Parrish, Jr., appeals pro se from the order entered in

the Philadelphia County Court of Common Pleas, which denied his second

petition filed under the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.

9541-9546. We affirm.

       In its opinion, the PCRA court fully set forth the relevant facts and

procedural history of this case.         Therefore, we have no reason to restate

them.1

       Appellant raises one issue for our review:
____________________________________________


1
 The certified record in this case is a “reconstructed record” and omits all of
Appellant’s filings from the time of sentencing until Appellant filed the
current PCRA petition. Thus, we rely on the PCRA court’s recitation of the
procedural history during that timeframe.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S51011-16


          THE [PCRA] COURT…ABUSED THE DISCRETION OF THE
          COURT, WHEN [IT] DISMISSED APPELLANT’S PCRA
          PETITION HOLDING THAT IT WAS TIME-BARRED AND
          THEREFORE UNTIMELY. [THE COURT] DID NOT ADDRESS
          IN [ITS] DECEMBER 15, 2015 ORDER THE SPECIFIC,
          REASON—FOR DENYING THE PCRA [PETITION] EXCEPT TO
          SAY IT WAS UNTIMELY.

(Appellant’s Brief at 5).

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Jeffrey P.

Minehart, we conclude Appellant’s issue merits no relief.   The PCRA court

opinion comprehensively discusses and properly disposes of the question

presented.     (See PCRA Court Opinion, filed January 28, 2016, at 2-4)

(finding: Appellant’s judgment of sentence became final on January 1, 1989,

thirty days after Superior Court affirmed his judgment of sentence and

window to file petition for allowance of appeal with Supreme Court expired;

Appellant filed his current PCRA petition on July 15, 2011, which is patently

untimely; Appellant relies on Melendez-Diaz v. Massachusetts2 to satisfy

“new constitutional right” exception to PCRA time-bar, but he has failed to

meet 60-day rule; further, Melendez-Diaz does not apply retroactively to


____________________________________________


2
  See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527,
174 L.Ed.2d 314 (2009) (holding lab reports admitted to prove element of
crime are considered testimonial statements subject to Confrontation
Clause). Appellant has abandoned on appeal additional claims he raised in a
“supplemental” PCRA petition filed on May 31, 2013, so we will give those
claims no further attention.



                                           -2-
J-S51011-16


cases on collateral review; thus, his petition remains untimely). Accordingly,

we affirm on the basis of the PCRA court’s opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/10/2016




                                    -3-
                                                                                                  Circulated 06/01/2016 02:52 PM
                                   .-J THE COURT OF COMMON PLEA
                             FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                        CRIMINAL COURT DIVISION
                                                                                                                     F~LE·D
                                                                                                                         JAN 28 ~016
    COMMONWEALTH OF                                                                                           Crhn1na1~pealsUnit
    PENNSYLVANIA                                           CP-51-CR-0513401-1983                            ~lratJUdlc1al Districtof PA

             VS.
                                                                   CP-51.CR-0513401· 1963 Comm.   v.
                                                                                                   Parrishjr .. Roscoe
                                                                                  Memorandum Opinion


    ROSCOE PARRISH,
                  Petitioner
                                                  OPINION
                                                                         I I I II 1111111111111111111
                                                                                  7399.518701

    MINEHART,J

           The lower court dismissed the Post-Conviction Relief Act ("PCRA") petition filed on July 15,

    2011, for the reasons set forth below.1

                                          PROCEDURAL HISTORY

           On October 9, 1985, following a non-jury trial, Petitioner was convicted of first-degree murder

and criminal conspiracy. On May 28, 1986, Petitioner was sentenced to life imprisonment on the

murder charge and a concurrent term of incarceration on the remaining charge. On December 2, 1988,

the Superior Court affirmed Petitioner's judgments of sentence. Commonwealth v. Parrish, 555 A.2d

248 (Pa. Super. l 988)(table). Petitioner did not seek allowance of appeal in the Pennsylvania Supreme

Court.

           On May 11, 1989, Petitioner filed a pro se petition under Pennsylvania's Post-Conviction

Relief Act, 42 Pa.C.S. § 9541 et seq. Appointed counsel subsequently filed a letter pursuant to

Pennsylvania v. Finley, 481 U.S. 551 (1987), certifying that she had reviewed the entire record and

concluded that there were no issues of arguable merit to advance in an amended petition. On March

11, 1992, the PCRA court dismissed the petition and permitted counsel to withdraw. The Superior

Court affirmed, Commonwealth v. Parrish, 625 A.2d 92 (Pa. Super. 1992), and the Pennsylvania

I
  The Order was issued more than twenty days after Petitioner was served with notice of the forthcoming
dismissal of his Post Conviction Relief Act petition. Pa.R.Crim.P. 907.
                                                       1
Supreme Court denied allow.        .:e of appeal on April 20, 1993. Com..        twealth v. Parrish, 627 A.2d

178 (Pa. 1993).

        On July 15, 2011, Petitioner filed the current prose PCRA petition.2 Pursuant to Pennsylvania

Rule of Criminal Procedure 907, Petitioner was served with notice of the court's intention to dismiss

his PCRA petition on November 9, 2015. Petitioner filed a response to the court's Rule 907 notice on

November 13, 2015. The lower court dismissed Petitioner's petition as untimely on December 15,

2015. Petitioner filed the instant, pro se notice of appeal to the Superior Court on December 23, 2015.

                                                DISCUSSION

        Petitioner's present PCRA petition was untimely filed and none of the exceptions to the time-

bar are applicable. As a prefatory matter, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Robinson, 12 A.3d 477 (Pa. Super. 2011). A PCRA petition, including a

second or subsequent petition, shall be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A. § 9545(b)(l). 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." 42 Pa.C.S.A. § 9545(b)(3).

        The three statutory exceptions to the timeliness provisions in the PCRA allow for very limited

circumstances under which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(l). To

invoke an exception, a petition must allege and the petitioner must prove:

        (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

2
   The current version of the PCRA contains a provision permitting a defendant whose conviction became final
prior to January 16, I 996, the date the current version of the PCRA took effect, to file a timely first PCRA
petition within one year of that date. See Commonwealth v. Alcorn, 703 A.2d I 054, 1056-57 (Pa. Super.
 1997)(holding that where a petitioner's judgment of sentence became final on or before the effective date of the
amendment to the PCRA, the amended PCRA contained a provision whereby a first PCRA petition could be
filed by January 16, 1997, even if the conviction in question became final more than a year prior to the date of
the filing). Petitioner's current petition is neither his first nor was it filed within the one-year grace period.

                                                        2
         (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).

         Subsection 9545(b )(I )(iii) is the newly-recognized, and retroactively-applied, constitutional

right exception.

         Subsection (iii) of Section 9545[ (b)(l)] has two requirements. First, it provides that 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 provided in this section. Second, it
         provides that the right "has been held" by "that court" to apply retroactively. Thus, a petitioner
         must prove that there is a "new" constitutional right and that the right "has been held" by that
         court to apply retroactively. The language "has been held" is in the past tense. These words
         mean that the action has already occurred, i.e., "that court" has already held the new
         constitutional right to be retroactive to cases on collateral review. By employing the past tense
         in writing this provision, the legislature clearly intended that the right was already recognized
         at the time the petition was filed.

Commonwealthv. Copenhefer, 941 A.2d 646, 649-50 (Pa. 2007) (quoting Commonwealth v.

Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002)).

         Additionally, a PCRA petitioner must present his claimed exception within sixty days of the

date the claim first could have been presented. 42 Pa.C.S.A. § 9545(b)(2). "As such, when a PCRA

petition is not filed within one year of the expiration of direct review, or not eligible for one of the

three limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date

that the claim could have been first brought, the PCRA court has no power to address the substantive

merits of a petitioner's PCRA claims." Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa.

2000).

         Petitioner's judgment of sentence became final on January 1, 1989, thirty days after the

Superior Court affirmed his judgment of sentence and the window to file a petition for allowance of

appeal expired. His current petition, filed on July 15, 2011, is therefore untimely by approximately

twenty-one years. See 42 Pa.C.S.A. § 9545(b)(l), (3).




                                                     3
          In attempt to establisl. ..meliness, Petitioner invoked subsectioi .. .545(b)( 1 )(iii) to claim that the

United States Supreme Court's holding in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) is

an after-recognized constitutional right that should be applied retroactively to his case. Not only has

the U.S. Supreme Court not specifically held that Melendez-Diaz should be applied retroactively to

cases on collateral review, but Petitioner failed to raise this claim within the PCRA's sixty-day

mandate. See Commonwealth v. Leggett, 16 A.3d I 144, 1148 (Pa. Super. 2011); see also 42 Pa.C.S. §

9545(b)(2).      Furthermore, in Bullcoming v. New Mexico, 131 S.Ct. 2705, (2011), the United States

Supreme Court merely            applied   its decision   in Melendez-Diaz        and is therefore      unavailing.

Additionally, Commonwealth v. Barton-Martin,             5 A.3d 363, 369 (Pa. Super. 2010) and Briscoe v.

Virginia, I 30 S.Ct. 1316 (2010) are inapposite as those cases were pending final review on direct

appeal.

          Petitioner's additional invocation of Miller v. Alabama, 132 S.Ct. 2455 (2012), and Martinez v.

Ryan, 132 S.Ct. 1309 (2012), similarly failed to satisfy subsection 9545(b)(l)(iii) as these claims were

not raised within sixty days of the date these decisions were handed down.3 Id. § 9545(b)(2).

Moreover, with respect to Petitioner's         Miller claim, he was over the age of eighteen when he

committed the crime herein and thus, Miller, which limited its holding to defendant's under the age of

eighteen when the underlying crime was committed does not apply. The lower court therefore lacked

jurisdiction to formally explore any substantive claims. Accordingly, for the reasons stated herein, it is

suggested that the decision of the court dismissing the PCRA petition be affirmed.


                                                              BY THE COURT:




                                                              HON. JEFFREY      . MrNEHART



3
    See Supplemental Petition, 5/31/13 at 2.
                                                          4
