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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
RICHARD PATRICK,                         :         No. 2428 EDA 2015
                                         :
                         Appellant       :


                   Appeal from the PCRA Order, June 30, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0500781-2003


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED SEPTEMBER 20, 2016

        Richard Patrick appeals, pro se, from the order of June 30, 2015,

dismissing his second PCRA1 petition as untimely. We affirm.

        On December 13, 2001, appellant shot and killed the victim,

Demetrius Highsmith.2 A jury trial commenced on April 29, 2004, following

which appellant was found guilty of third degree murder, carrying a firearm




* Former Justice specially assigned to the Superior Court.
1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
  The facts of this case, which are not germane to the instant appeal, may
be found in this court’s prior memorandum of September 15, 2010, affirming
the dismissal of appellant’s first PCRA petition. Commonwealth v. Patrick,
No. 1562 EDA 2009, unpublished memorandum at 1-6 (Pa.Super. filed
Sept. 15, 2010).
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on public streets or public property, and possessing an instrument of crime. 3

On July 15, 2004, appellant was sentenced to an aggregate of 21 to

45 years’ incarceration. This court affirmed the judgment of sentence, and

our supreme court denied allowance of appeal.             Commonwealth v.

Patrick, 895 A.2d 649 (Pa.Super. 2006) (unpublished memorandum),

appeal denied, 906 A.2d 541 (Pa. 2006).

        Appellant did not file a petition for writ of certiorari with the United

States Supreme Court; however, on July 6, 2007, appellant filed a timely

pro se PCRA petition. Counsel was appointed and filed an amended petition

on appellant’s behalf.      On May 4, 2009, following Rule 9074 notice,

appellant’s petition was dismissed without a hearing.       On September 15,

2010, this court affirmed, and on March 29, 2011, our supreme court denied

appellant’s petition for allowance of appeal.    Commonwealth v. Patrick,

13 A.3d 984 (Pa.Super. 2010) (unpublished memorandum), appeal denied,

19 A.3d 1050 (Pa. 2011).




3
    18 Pa.C.S.A. §§ 2502, 6108, and 907, respectively.
4
    Pa.R.Crim.P. 907.


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      Appellant filed the instant, untimely petition on February 6, 2015.

Appellant’s petition was dismissed as untimely filed on June 30, 2015.5      A

timely notice of appeal was filed on July 13, 2015.           Appellant was not

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

pursuant to Pa.R.A.P. 1925(b); however, on March 22, 2016, the PCRA court

filed a Rule 1925(a) opinion.

      Appellant has raised the following issues for this court’s review:

            1.     Was trial counsel ineffective for failing to locate
                   and subpoena defense witnesses?

            2.     Was trial counsel ineffective for failing to move
                   for suppression of identification evidence prior
                   to trial, and/or seek a line-up?

            3.     Did the prosecutor commit reversible error
                   when he argued facts not in the evidence
                   during his closing argument to the jury?

Appellant’s brief at 7 (capitalization deleted).


5
   We note that appellant was not served with Rule 907 notice prior to
dismissal of his second petition; although he does not raise the issue in his
brief on appeal, appellant did object to the lack of Rule 907 notice in his
notice of appeal. (Docket #23.) Cf. Commonwealth v. Guthrie, 749 A.2d
502, 503 (Pa.Super. 2000) (defendant waived issue of trial court’s failure to
issue 20-day notice of intention to dismiss post-conviction petition, as
required by the Rules of Criminal Procedure, where defendant failed to raise
the issue on appeal). Rule 907 notice is mandatory, see Commonwealth
v. Feighery, 661 A.2d 437 (Pa.Super. 1995) (Feighery discussed
Pa.R.Crim.P. 1507, which was renumbered as Rule 907 as of April 1, 2001);
however, it is well established that this court will not remand for compliance
with the rule where the petition is manifestly untimely and no exception to
the jurisdictional one-year time bar applies, which is the case here. See
Commonwealth v. Lawson, 90 A.3d 1, 5-6 (Pa.Super. 2014) (where the
PCRA petition is untimely, the failure to provide Rule 907 notice is not
reversible error) (citations omitted).


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           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).


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           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. “To invoke an exception, the petitioner must plead it and

satisfy the burden of proof.”     Commonwealth v. Geer, 936 A.2d 1075,

1077 (Pa.Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008), citing

Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).



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             “The PCRA’s time restrictions are jurisdictional in
             nature.    Thus, [i]f a PCRA petition is untimely,
             neither this Court nor the trial court has jurisdiction
             over the petition. Without jurisdiction, we simply do
             not have the legal authority to address the
             substantive claims.” Commonwealth v. Albrecht,
             606 Pa. 64, 994 A.2d 1091, 1093 (2010) (quoting
             Commonwealth v. Chester, 586 Pa. 468, 895 A.2d
             520, 522 (2006)). Statutory time limitations “are
             mandatory and interpreted literally; thus, a court has
             no authority to extend filing periods except as the
             statute permits.” [Commonwealth v.] Fahy, 737
             A.2d [214] at 222 [Pa. 1999].

Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa.Super. 2014).

       Instantly, the Supreme Court of Pennsylvania denied appellant’s

petition for allowance of appeal on August 29, 2006.             Commonwealth v.

Patrick, 906 A.2d 541 (Pa. 2006).              Therefore, appellant’s judgment of

sentence became final for PCRA purposes on Monday, November 27, 2006,

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);

U.S.Sup.Ct.R. 13.1 (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 February 6, 2015, over 9 years later.              Therefore,

appellant’s current PCRA petition is manifestly untimely on its face.

       Appellant   raises   several   claims    of   trial   counsel   ineffectiveness,

including failure to call Deanna Myers as a witness, failure to request a

line-up identification prior to trial, failure to request a Kloiber6 instruction


6
    Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).


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regarding the testimony of Russell Sims, and failure to object to alleged

prosecutorial misconduct during closing argument.      It is well settled that

claims of trial counsel ineffectiveness do not operate as an independent

exception to the one-year jurisdictional time bar of the PCRA.           See

Gamboa-Taylor, 753 A.2d at 783 (holding a claim of ineffective assistance

of counsel does not save an otherwise untimely petition for review on the

merits); see also 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). Cf. Commonwealth v. Bennett, 930

A.2d 1264 (Pa. 2007) (where appointed counsel had abandoned the

appellant by failing to file an appellate brief, resulting in dismissal of the

appeal, this allegation brought the appellant’s claim within the ambit of

Subsection 9545(b)(1)(ii)).

      Appellant has failed to plead any exception to the one-year filing

requirement.   As appellant’s petition is untimely, the PCRA court correctly

concluded that it lacked jurisdiction to consider it, as does this court.

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa.Super. 2002) (PCRA

court lacks jurisdiction to hear an untimely petition); Bennett, supra (PCRA

time limitations implicate our jurisdiction and may not be altered or

disregarded to address the merits of the petition); Commonwealth v.

Johnson, 803 A.2d 1291, 1294 (Pa.Super. 2002) (Superior Court lacks




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jurisdiction to reach the merits of an appeal from an untimely PCRA

petition).

      As appellant’s petition, his second, is patently untimely and appellant

has failed to plead and prove the applicability of any exception to the PCRA’s

time-of-filing requirements, the PCRA court lacked jurisdiction to consider

the merits of appellant’s issues and did not err in dismissing appellant’s

petition without an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/20/2016




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