J. S71001/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
TERENCE BAXTER,                           :          No. 465 WDA 2014
                                          :
                         Appellant        :


                 Appeal from the PCRA Order, January 21, 2014,
               in the Court of Common Pleas of Allegheny County
                Criminal Division at No. CP-02-CR-0006336-1989


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 03, 2016

        Terence Baxter appeals, pro se, from the order of January 21, 2014,

dismissing his second PCRA1 petition on the basis of untimeliness.      We

affirm.

        We summarized the history of this matter in a previous decision,

affirming dismissal of appellant’s first PCRA petition:

                    On January 26, 1990, a jury convicted
              [appellant] of burglary, 18 Pa.C.S. § 3502. The
              charges arose from an incident that occurred in the
              early morning hours of May 11, 1989. At that time
              [appellant] broke into the house of an off-duty
              Pittsburgh police officer. The victim awakened and
              attacked [appellant], causing him to flee the scene.
              The victim later testified that he discovered that
              money was missing from his wallet. [Appellant] was
              apprehended after the victim identified him from a


1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
J. S71001/15


            photo array. The victim also identified [appellant] at
            trial.

                   On June 29, 1990, the trial court denied
            post-trial motions and entered the judgment of
            sentence, imposing a term of 5 to 20 years’
            imprisonment. [Appellant] filed a direct appeal, and
            this Court affirmed the judgment of sentence on
            August 28, 1991.         The Supreme Court denied
            allocatur on April 9, 1992. [Appellant] filed the
            instant PCRA petition, his first, on December 18,
            1996. Counsel was appointed and filed an amended
            petition on August 20, 1997. As stated, this petition
            was denied on the merits October 27, 1997, and
            [appellant] now appeals. Since this is [appellant]’s
            first PCRA petition and it was filed by January 16,
            1997, it is subject to the grace period of § 9545 and
            is timely. Therefore, we address the merits of his
            petition.

Commonwealth          v.   Baxter,     No.    2296      PGH       1997,     unpublished

memorandum at 1-2 (Pa.Super. filed August 25, 1998).                    On August 25,

1998, this court affirmed the dismissal of appellant’s first PCRA petition. Id.

Appellant did not file a petition for allowance of appeal with the Pennsylvania

Supreme Court.

      On May 9, 2013, appellant filed a petition for writ of habeas corpus,

which was properly treated as a serial PCRA petition.2             Therein, appellant

alleged,   inter   alia,   that   he   was   entitled   to    a   new     trial   due   to

after-discovered evidence in the form of a May 3, 2013 affidavit by


2
  Appellant’s petition for writ of habeas corpus is properly treated as a
serial PCRA petition, since the PCRA is the sole means by which a defendant
may obtain collateral relief and subsumes the remedy of habeas corpus
with respect to remedies offered under the Post-Conviction Relief Act.
42 Pa.C.S.A. § 9542.


                                        -2-
J. S71001/15


Twanda Thomas (“Thomas”).3 Thomas averred that she was with appellant

on the night of the burglary, in their home at 614 Village Road.       (Docket

#47.)     Thomas stated that she was appellant’s fiancée and was pregnant

with their child.    (Id.)   According to Thomas, she contacted appellant’s

attorney and informed him of her availability to testify as an alibi witness at

appellant’s trial, but she was never called as a witness. (Id.)

        On October 3, 2013, the Commonwealth filed a motion to dismiss

appellant’s PCRA petition as untimely. (Docket #48.) On October 30, 2013,

the PCRA court issued Rule 9074 notice of its intention to dismiss the petition

as time-barred within 30 days.      (Docket #49.)    Appellant filed a pro se

response on November 15, 2013, asserting that Thomas’ affidavit falls under

the “after-discovered facts” exception to the PCRA’s one-year jurisdictional

time bar. (Docket #50.) By order dated January 17, 2014, but not entered

until January 21, 2014, the petition was dismissed. (Docket #51.)

        Appellant filed a timely pro se notice of appeal on February 19, 2014.

(Docket #52.)5      On July 3, 2014, the PCRA court filed an order directing


3
  Most of appellant’s petition was devoted to the reliability of the victim’s
identification. That issue, even if properly layered in terms of counsel
ineffectiveness, would not be cognizable in an otherwise untimely PCRA
petition. Commonwealth v. Breakiron, 781 A.2d 94, 97 (Pa. 2001)
(allegations of ineffective assistance of counsel will not avoid the timeliness
requirement of the PCRA).
4
    Pa.R.Crim.P. 907.
5
  We note that because the trial court’s order was not docketed until
January 21, 2014, the appeal is timely. In addition, as appellant is currently


                                     -3-
J. S71001/15


appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b) within 21 days; appellant timely complied on

July 22, 2014.    (Docket #57.)    In his Rule 1925(b) statement, appellant

again raises the issue that Thomas’ affidavit constitutes after-discovered

evidence necessitating a new trial. (Id.) On February 4, 2015, the PCRA

court issued a Rule 1925(a) opinion. (Docket #58.)6




incarcerated, the notice of appeal could be considered filed on February 10,
2014, the date he certified he deposited it with prison authorities for mailing.
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (discussing the
“prisoner mailbox rule”).       We also note that appellant requested
appointment of counsel to represent him on appeal; however, he is not
entitled to appointment of counsel on a second or subsequent PCRA petition.
Commonwealth v. Kubis, 808 A.2d 196, 200 (Pa.Super. 2002), appeal
denied, 813 A.2d 839 (Pa. 2002). “[T]he Pennsylvania Rules of Criminal
Procedure provide that the PCRA court shall appoint an attorney to represent
a petitioner during his first PCRA petition when he demonstrates that he is
‘unable to afford or otherwise procure counsel.’”                Id., quoting
Pa.R.Crim.P. 904(A) (emphasis in original).
6
  The PCRA court also dismissed the petition on the basis that appellant’s
sentence has expired. Our supreme court has held that, to be eligible for
relief under the PCRA, the petitioner must be “currently serving a sentence
of imprisonment, probation or parole for the crime.”           42 Pa.C.S.A.
§ 9543(a)(1)(i). As soon as his sentence is completed, the petitioner
becomes ineligible for relief, regardless of whether he was serving his
sentence when he filed the petition. Commonwealth v. Ahlborn, 699 A.2d
718, 720 (Pa. 1997); Commonwealth v. Matin, 832 A.2d 1141, 1143
(Pa.Super. 2003), appeal denied, 843 A.2d 1237 (Pa. 2004). Instantly,
appellant was sentenced on June 29, 1990 to 5 to 20 years’ incarceration.
Therefore, his sentence should have expired in 2010. However, in his
pro se response to Rule 907 notice, appellant alleged that the Pennsylvania
Board of Probation and Parole issued a detainer due to his conviction of new
federal drug charges. (Docket #50 at 3.) We need not address this issue
because we determine that appellant’s petition is patently untimely and that
no exception to the PCRA’s one-year jurisdictional time bar applies.


                                     -4-
J. S71001/15


           The standard of review for an order denying
           post-conviction relief is limited to whether the record
           supports the PCRA court’s determination, and
           whether that decision is free of legal error. The
           PCRA court’s findings will not be disturbed unless
           there is no support for the findings in the certified
           record. Furthermore, a petitioner is not entitled to a
           PCRA hearing as a matter of right; the PCRA court
           can decline to hold a hearing if there is no genuine
           issue concerning any material fact and the petitioner
           is not entitled to post-conviction collateral relief, and
           no purpose would be served by any further
           proceedings.

Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008),

appeal denied, 956 A.2d 433 (Pa. 2008), quoting Commonwealth v.

Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007) (citations omitted).

           Pennsylvania law makes clear no court has
           jurisdiction to hear an untimely PCRA petition.
           Commonwealth v. Robinson, 575 Pa. 500, 508,
           837 A.2d 1157, 1161 (2003). The most recent
           amendments to the PCRA, effective January 16,
           1996, provide 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)(1); Commonwealth v.
           Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003);
           Commonwealth v. Vega, 754 A.2d 714, 717
           (Pa.Super.2000). 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).

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

           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)(1).


                                     -5-
J. S71001/15


           To invoke an exception, a petition must allege and
           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

           (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). “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 trial
           court has no power to address the substantive merits
           of a petitioner’s PCRA claims.” Commonwealth v.
           Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
           (2000); 42 Pa.C.S.A. § 9545(b)(2).

Id. at 1079-1080.

           The     timeliness    exception    set    forth    in
           Section 9545(b)(1)(ii) requires a petitioner to
           demonstrate he did not know the facts upon which
           he based his petition and could not have learned
           those facts earlier by the exercise of due diligence.
           Commonwealth v. Bennett, 593 Pa. 382, 395, 930


                                      -6-
J. S71001/15


              A.2d 1264, 1271 (2007). Due diligence demands
              that the petitioner take reasonable steps to protect
              his own interests. Commonwealth v. Carr, 768
              A.2d 1164, 1168 (Pa.Super.2001). A petitioner must
              explain why he could not have obtained the new
              fact(s) earlier with the exercise of due diligence.
              Commonwealth v. Breakiron, 566 Pa. 323,
              330-31, 781 A.2d 94, 98 (2001); Commonwealth
              v. Yarris, 557 Pa. 12, 29, 731 A.2d 581, 590
              (1999). This rule is strictly enforced. See Vega,
              supra at 718.

Id. at 1080.

         Instantly, the Supreme Court of Pennsylvania denied appellant’s

allocatur petition on April 9, 1992.       Therefore, appellant’s judgment of

sentence became final for PCRA purposes on or about July 8, 1992, upon

expiration of the time to file a petition for writ of certiorari with the United

States     Supreme   Court.    See   42    Pa.C.S.A.   §   9545(b)(3);   former

U.S. Supreme Court Rule 22.1 (petition for writ of certiorari is deemed

timely when it is filed within 90 days after denial of allocatur). Appellant

filed the current petition, his second, on May 9, 2013, 21 years later.

Therefore, appellant’s current PCRA petition is manifestly untimely on its

face.7




7
  “There exists a proviso to the 1995 amendments to the PCRA which
provides a grace period for petitioners whose judgments have become final
on or before the effective date of the amendments. However, the proviso is
not applicable to second or subsequent PCRA petitions.” Johnson, 945 A.2d
at 188 n.2, citing Commonwealth v. Thomas, 718 A.2d 326 (Pa.Super.
1998) (en banc).


                                     -7-
J. S71001/15


      However, as previously stated, there are three exceptions under which

a facially untimely PCRA petition may still be considered. Appellant attempts

to invoke the after-discovered evidence exception8 to the time restrictions of

the PCRA, enumerated in Subsection 9545(b)(1)(ii).        Appellant relies on

Thomas’ May 3, 2013 affidavit, in which she claims she and appellant were

together at their house at the time of the burglary. Clearly, appellant was

aware of the existence of this possible alibi witness prior to trial. According

to Thomas’ affidavit, she and appellant were engaged to be married and she

was carrying his child. In fact, Thomas avers that she contacted appellant’s

attorney prior to trial and advised him of her willingness to testify on

appellant’s behalf.   Thomas’ affidavit does not constitute after-discovered

evidence under Subsection 9545(b)(1)(ii).        As appellant’s petition was

untimely and no exception applied, the PCRA court was without jurisdiction

to consider the merits of it and did not err in dismissing the petition without

a hearing.

      Order affirmed.




8
  We recognize that Subsection 9545(b)(1)(ii) refers to previously unknown
“facts,” which, under certain circumstances, can include counsel
ineffectiveness. Bennett, supra (allegation that appointed counsel had
abandoned       the   appellant   by   failing   to   file   an    appellate
brief, resulting in dismissal of the appeal, brought the appellant’s claim
within the ambit of Subsection 9545(b)(1)(ii)). However, for purposes of the


                                     -8-
J. S71001/15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/3/2016




matter sub judice, use of the phrase “after-discovered evidence” to
describe the nature of appellant’s claim is apt.


                               -9-
