J-S64036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MELDRICK TAYLOR

                            Appellant                 No. 182 EDA 2016


                  Appeal from the PCRA Order January 5, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012527-2010
                            CP-51-CR-0012528-2010


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                  FILED SEPTEMBER 07, 2016

        Appellant Meldrick Taylor appeals from the order entered in the Court

of Common Pleas of Philadelphia County on January 5, 2016, dismissing as

untimely his first petition filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 Following a careful review, we affirm.

        Because a detailed recitation of the facts is not necessary to our

disposition, we briefly note that the instant matter arises from Appellant’s

convictions of first-degree murder, attempted murder, aggravated assault,

possession of an instrument of crime and violations of the Uniform Firearms

Act on December 21, 2012, following a three-day jury trial. 2 On December
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1
    42 Pa.C.S.A. §§ 9541-46.
2
    Appellant was seventeen years old at the time and tried as an adult.


*Former Justice specially assigned to the Superior Court.
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31, 2012, Appellant filed what he titled a “Motion for Judgment of Acquittal

and/or for New Trial- Pa.R.Crim.P. 606-608, 644, 646” raising various claims

that the verdict was “erroneous & unsupported by the evidence.”               Id. at

¶¶ 2-5. On March 8, 2013, the trial court sentenced Appellant to thirty-five

(35) years to life in prison on the murder conviction and a consecutive term

of five (5) years to ten (10) years in prison for the attempted murder

conviction.    Appellant   received   no   further   penalty   on   the   remaining

convictions.

      Appellant timely filed his “Motion for Reconsideration” on March 12,

2013, along with a brief in support thereof wherein he again challenged the

weight and sufficiency of the evidence to support the verdict.            Appellant’s

post-sentence motion was denied by operation of law in an order entered on

July 10, 2013.      The order advised Appellant, inter alia, that he had a right

to file an appeal within thirty (30) days of the date of that order and

provided him with the address where the notice of appeal must be filed. A

proof of service attached thereto indicates the order was served upon both

Appellant and defense counsel.

      On November 14, 2014, Appellant, pro se, filed the instant PCRA

petition.     Counsel was appointed and filed an amended petition on July 15,

2015, alleging trial counsel had been ineffective for failing to file a direct

appeal and requesting that Appellant’s appeal rights be reinstated nunc pro

tunc. On October 23, 2015, the Commonwealth filed a motion to dismiss the

PCRA petition.

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      The PCRA court provided Appellant with its Notice of Intent to Dismiss

pursuant to Pa.R.Crim.P. 907.     On November 12, 2015, appellate counsel

filed a response to the PCRA dismissal notice and attached thereto

correspondence which purported to be between Appellant and trial counsel.

The PCRA court dismissed Appellant’s petition as untimely on January 5,

2016, and this appeal followed.

      On February 17, 2016, Appellant filed a concise statement of errors

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

issued an opinion pursuant to Pa.R.A.P. 1925(a) on March 17, 2016. In its

opinion, the PCRA court noted that none of the exceptions to the PCRA time-

bar applied. See PCRA court Opinion, filed 3/17/16, at 3-4; 42 Pa.C.S. §

9545(b) (setting forth time-bar exceptions).

      In his brief, Appellant presents the following Statement of Question

Involved:

      I.    Did [the] trial court err in denying [ ] [A]ppellant an
      evidentiary hearing when [ ] [A]ppellant raised material issues of
      fact that showed that he was entitled to reinstatement of his
      appeal rights because [A]ppellant was abandoned by trial
      defense counsel who failed to file an appeal to the Superior
      Court after counsel informed appellant that he would do so?

Brief for Appellant at 2.

      Our standard of review of a PCRA court's dismissal of a PCRA petition

is limited to examining whether the PCRA court's determination is supported

by the record evidence and free of legal error. Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa.Super. 2003) (en banc). It is well-settled that the

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PCRA is the exclusive remedy for postconviction claims seeking restoration

of appellate rights due to counsel's failure to perfect a direct appeal.

Commonwealth v. Haun, 613 Pa. 97, 100-01, 32 A.3d 697, 699 (2011).

Thus, before addressing the merits of Appellant's claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

petition. See Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978, 983

(2008) (explaining that the timeliness of a PCRA petition is a jurisdictional

requisite).

      A PCRA petition shall be filed within one year of the date the

underlying judgment becomes final.         42 Pa.C.S.A. § 9545(b)(1).       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 the time for seeking

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)(1).     To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law of the United States;




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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 Pennsylvania after
                 the time period provide in this section and has been
                 held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).        “We emphasize that it is the petitioner

who bears the burden to allege and prove that one of the timeliness

exceptions applies.” Commonwealth v. Marshall, 596 Pa. 587, 596, 947

A.2d 714, 719 (2008) (citations omitted). Moreover, our Supreme Court has

repeatedly stated, “a claim of ineffective assistance of counsel does not save

an otherwise untimely petition for review on the merits.” Commonwealth

v. Morris, 573 Pa. 157, 175, 822 A.2d 684, 694 (2003).

        Instantly, Appellant was sentenced on March 8, 2013, and his “Motion

for Reconsideration” was denied by operation of law on July 10, 2013.

Appellant did not file a timely appeal with this Court. Therefore, Appellant’s

judgment of sentence became final thirty days thereafter on August 12,

2013.3 See 42 Pa.C.S.A. § 9545(b)(3). As such, Appellant had until August

12, 2014, to file a timely first petition for post-conviction relief. Appellant

filed the instant PCRA petition, pro se, on November 14, 2014; therefore, it



____________________________________________


3
    August 10, 2013, fell on a Saturday.



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is patently untimely, and the PCRA court could not address the merits of

Appellant’s petition unless a timeliness exception applies.

      Rather than concede that his petition was untimely under the PCRA,

Appellant maintains that:

            [i]n early November 2014 [Appellant] requested that his
      family look [at] what was going on and he found out that no
      appeal was filed by trial defense counsel. As soon as he possibly
      could, because he was incarcerated, and within 60 days after
      finding out that counsel contrary to what counsel told
      [Appellant], did not file the appeal, [Appellant] filed a pro se
      PCRA Petition alleging what had happened to him and requesting
      the reinstatement of his appeal rights from the judgment of
      sentence nunc pro tunc.

Brief for    Appellant at 4.      Citing   our   Supreme   Court’s decision in

Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007),

Appellant argues that while he had asked trial counsel to file a direct appeal

and that counsel did, in fact, take the initial step in pursuing an appeal by

filing post-sentence motions on his behalf, counsel clearly abandoned him by

not filing an appeal with this Court after his post-sentence motions were

denied.     Appellant next avers that this failure resulted in the loss of his

constitutional right to appeal his judgment of sentence. Appellant posits he

has not waived this issue of “ineffectiveness/abandonment” because the

PCRA presented his first opportunity in which to raise it, and he did so within

sixty days of his discovery of counsel’s alleged abandonment; therefore, he

reasons he was entitled to an evidentiary hearing on his petition and that




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the PCRA court erred in holding it had been untimely filed.             Brief for

Appellant at 6-8.

      Appellant relies upon Bennett in an attempt to invoke the exception

set forth at 42 Pa.C.S.A. § 9545(b)(1)(ii).          As that Court stressed,

Subsection (b)(1)(ii) has two components which require a petitioner to

allege and prove that the facts upon which the claim was predicated were

unknown to him and that he could not uncover them with the exercise of

due diligence. Bennett, 593 Pa. at 395, 930 A.2d at 1272; 42 Pa.C.S.A. §

9545(b)(1)(ii). Appellant needed to establish these two components for the

PCRA court to have jurisdiction over his claim under this subsection.

      Herein, the PCRA court determined:

             [Appellant] simply alleges that trial counsel was ineffective
      for failing to [file] a direct appeal on his behalf. This claim does
      not involve governmental interference or implicate the
      retroactive application of a constitutional right. Nor does it
      involve after-discovered evidence.
             Moreover, to the extent that petitioner claims that his
      discovery, in November of 2014, of trial counsel’s failure to file
      an appeal constitutes after-discovered evidence or a fact not
      previously known, it is quite clear he did not exercise due
      diligence in this regard. Had petitioner either contacted his
      attorney or the court, he would have realized that his case was
      not on appeal. See Commonwealth v. Monaco, 996 A.2d
      1076, 1082 (Pa.Super. 2010) (holding that new facts exception
      did not apply where petitioner failed to exercise due diligence in
      ascertaining new information.).

PCRA court Opinion, 3/17/15, at 4.

      We agree with the PCRA court’s decision. While Appellant repeatedly

indicates he was led to believe counsel would file a direct appeal on his


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behalf and that he did not discover until “early November of 2014” that

counsel failed to do so, Appellant provides no proof of steps he took to

ascertain the status of his case after he was notified his post-sentence

motion had been denied on July 10, 2013. Instead, attached to his response

to the PCRA court’s dismissal notice are what appear to be photocopies of

three, handwritten letters addressed to trial counsel and signed by

Appellant. At the bottom of each is a brief, typewritten response followed by

what appear to be the typed initials of trial counsel and a stamped date of

December 31, 2012, March 19, 2013, and March 26, 2013, respectively.

None of the correspondence bears trial counsel’s signature or letterhead,

although the March 19, 2013, letter ends with a scribble that resembles

“D.W.C. Es[q].”

      In the letter dated December 31, 2012, Appellant expresses, inter

alia, his desire to file an “immediate appeal.” The typed response states he

must wait until he is sentenced to file an appeal.            In the second

correspondence, Appellant explains he is writing “pertaining to the motion

for reconsideration and appeal” and specifically challenges the sufficiency of

the evidence to sustain his convictions and states why he believes he should

have testified in his own defense and that his father should have taken the

stand as well.    The typed response informs Appellant that counsel filed

Appellant’s “pro se Motion” which does not “provide appealable issues” and

expresses a belief that his testimony would have been harmful to his case


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and that his father’s testimony would have contradicted his alibi. Finally, the

letter stamped March 26, 2013, pertains to Appellant’s belief that “every

issue that wasn’t fair too [sic] my trial should be appealable.”    The typed

comment reveals Appellant’s family had contacted another attorney and

indicates some confusion regarding Appellant’s statements.           The final

sentence reads “Judge has 120 days to decide post-Sentence Motion 1st.”

      The suspect nature of the aforementioned correspondence aside, each

predates the trial court’s denial of Appellant’s post-sentence motion. The

final one specifically instructs Appellant that the trial court had one-hundred

twenty days in which to decide his post-sentence motion before a direct

appeal could be filed and suggests Appellant had family working to assist

him with his case. Contrary to Appellant’s assertion, See Brief for Appellant

at 7, at no time in any letter did trial counsel affirmatively indicate that he

would file a direct appeal.   In addition, Appellant does not argue that his

access to public records was somehow impeded such that he could not

ascertain the date upon which the trial court denied his post-sentence

motion nor does he explain why he took no steps to learn the status of his

case between July 10, 2013, and November of 2014, although he apparently

had family willing to aid him in doing so.    Compare Bennett, 593 Pa. at

399-400, 930 A.2d at 1274.

      Nor does Appellant declare that the procedure for filing a timely PCRA

petition was outside his purview.    Appellant’s bald claim that he filed his


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PCRA “as quickly as possible” after he discovered trial counsel had

“abandoned him” simply does not explain why he could not have timely

ascertained the fact of the abandonment to satisfy the timeliness exception

of the PCRA found at section 9545(b)(1)(ii). This is especially true in light of

the fact he does not challenge that he had been instructed his post-sentence

motion had been denied on July 10, 2013, and that a direct appeal could be

filed thereafter.   Hence, Appellant has failed to show the exercise of due

diligence in setting forth his current claim and makes no attempt to plead or

prove that his petition was filed within sixty days from the date he

discovered that no direct appeal had been filed. Because Bennett concerns

evidence discoverable only after the one-year jurisdictional time-bar of the

PCRA and Appellant has failed to prove he could not uncover the evidence

supporting his current claim with the exercise of due diligence during the

one-year time period, Bennett is not dispositive herein. (See Bennett, 593

Pa. at 398, 930 A.2d at 1273 (stating “subsection (b)(1)(ii) is a limited

extension of the one-year time requirement under circumstances when a

petitioner has not had the review to which he was entitled due to a

circumstance that was beyond his control”).

      In light of the foregoing, we conclude the factual predicate of

Appellant’s claim was his trial counsel's abandonment which he could have

discovered within the one-year PCRA deadline and was not the product of a

circumstance beyond his control.       Thus, Appellant’s PCRA petition was


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untimely and he raised no claim that he was subject to an exception under

the PCRA.     Accordingly, both the PCRA court and this Court lacked

jurisdiction to address the merits of Appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2016




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