J-S79019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ROBERT J. DUNSTON

                        Appellant                   No. 3293 EDA 2013


              Appeal from the PCRA Order November 8, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-1200471-2005


BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED JANUARY 08, 2015

     Appellant, Robert J. Dunston, appeals from the order entered on

November 8, 2013, dismissing his first petition filed under the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     The PCRA court has ably summarized the underlying facts and

procedural posture of this case. As the PCRA court explained:

        [M.A. was born in 1985. In 1991, M.A.] was a foster child
        and was placed in the home of Appellant’s mother, Vendetta
        Stephens. Eventually the family [moved to a home in
        Philadelphia, where M.A.] lived with Stephens, her sons
        [(Appellant and Sherrod)], and two other foster children.
        [M.A.] testified that when she was ten [] years old,
        Stephens took Sherrod to a show, leaving Appellant to
        watch over [M.A.] and the other two foster children. On
        that occasion, Appellant took [M.A.] into his room and told
        her that they were going to play a game and that [M.A.]
        could not tell anyone about it. He then instructed her to lie
        on the floor and not move, whereupon he pulled [M.A.’s]
        pants down, put his penis between her thighs, and
        ejaculated. [M.A.] testified that Appellant repeated this act

*Retired Senior Judge assigned to the Superior Court.
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       approximately [ten] times between the time she was ten []
       and [11] years old. She [testified] that while the family was
       asleep, Appellant came into her room she shared with the
       other foster child, picked her up, and carried her to his
       bedroom where he repeated his assault. . . .

       [M.A.] testified that at age [12,] Appellant began inserting
       his penis into her vagina. She [testified] that Appellant
       repeated a similar pattern of awakening her at night,
       carrying her downstairs, either to his bedroom or to the
       basement, placing her onto the bed or on the floor, and
       putting his penis into her vagina. She further [testified]
       that there were occasions when Appellant inserted his penis
       into her vagina [that Appellant] would ask that she grab his
       scrotum. [Appellant] also asked that she suck his nipples. .
       ..

       [M.A.] described another occasion after a fire occurred at
       the family home necessitating [that the family] relocate[] to
       the Adams Mark Hotel for three months. There, Appellant
       took [M.A.] to his room, pulled her onto the bed, and
       inserted his penis into her vagina. . . .

       [M.A. testified] that Appellant penetrated her vagina with
       his penis from [the time she was 12 years old] until the
       time she left foster care [at 13 years of age]. [M.A.
       testified] that she did not report the incidents to Appellant’s
       mother because she was afraid that she would not be
       believed and [that] Appellant’s mother would believe
       Appellant. She testified that she did not report [the abuse]
       to her teacher because she felt shame.

       [M.A.] left the [Stephens’] home in December [] 1998 and
       went to live with her mother. Shortly thereafter, when
       [M.A.] was approximately 15 years old, she reported the
       incidents to her mother. [M.A.] later told her boyfriend . . .
       of the incidents, and . . . , in 2005, [M.A.], then 19 years
       old, reported [the abuse] to the police.

                                    ...

       [In September 2005,] Appellant was arrested and charged
       with rape and related offenses. On February 29, 2008,
       following a jury trial [where Appellant was represented by

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         Gerald Ingram, Esquire (hereinafter “Attorney Ingram”)], . .
         . Appellant was found guilty of [rape by forcible compulsion,
         indecent assault, endangering the welfare of a child, and
         corruption of minors][1] and[,] on January 16, 2009[,
         Appellant] was sentenced to [serve] a term of [six-and-one-
         half to 13 years in prison].

                                           ...

         On February 13, 2009[,] the [trial c]ourt granted [Attorney
         Ingram’s] motion to withdraw and[, on February 20, 2009,]
         new counsel was [] appointed. [New counsel was Salvator
         Adamo, Esquire (hereinafter “Attorney Adamo”). In the trial
         court’s appointment order, the trial court declared that
         Appellant’s appeal rights had been reinstated and that
         Attorney Adamo had 30 days from the date he was
         appointed to file a notice of appeal]. No notice of appeal
         was filed.

         On April 27, 2011[, Attorney Adamo] filed the instant
         [PCRA] petition . . . alleging [that he was ineffective] for
         failing to file a direct appeal [on Appellant’s behalf]. [New]
         PCRA counsel was [] appointed and[,] on May 1, 2012[,
         PCRA counsel filed an amended] PCRA petition. [Within
         Appellant’s PCRA petition, Appellant claimed that Attorney
         Adamo was ineffective for failing to file a direct appeal on
         his behalf.       Further, with respect to the issue of the
         timeliness of Appellant’s PCRA petition, Appellant claimed
         that he first learned that Attorney Adamo failed to file a
         direct appeal on April 27, 2011 – when Attorney Adamo
         filed a PCRA petition and “asserted his own ineffectiveness
         for failing to file a timely notice of appeal.”]

PCRA Court Opinion, 4/29/14, at 1-3 (internal citations omitted) (some

internal capitalization omitted).




____________________________________________


1
   18 Pa.C.S.A.        §§ 3121(a)(1),          3126(a)(7),   4304(a),   and   6301(a),
respectively.



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       On April 15, 2013, the PCRA court held a hearing on Appellant’s PCRA

petition. The hearing was limited in scope and was focused upon the issue

of whether Appellant’s PCRA petition was timely.

       During the PCRA hearing, Attorney Adamo testified that – although he

did not file a direct appeal on Appellant’s behalf – Appellant knew, in April

2009, that a notice of appeal had not been filed in his case.2         Attorney

Adamo testified:

         Q: Now, [Attorney] Adamo, at some point in time did you
         become aware that while you were working on this appeal
         there had, in fact, never been a notice of appeal filed within
         the required 30 days?

         A: Yes. I became aware April 19th 2011[,] when I received
         a letter from the disciplinary board. And at that point in
         time I learned that a notice of appeal wasn’t filed. I also
         learned in the disciplinary complaint that [Appellant] was
         aware that [the] notice of appeal wasn’t filed in April, 2009,
         approximately two months after my appointment.

                                           ...

         Q: Once you received this letter that [Appellant] had
         contacted the disciplinary board, and as a result they
         contacted you, laid out a history of the case which included
         the fact that [Appellant] ha[d] been notified by a letter as
         early as April 22nd of 2009, that is, approximately four
         months after he was sentenced, that no direct appeal ha[d]
         been filed, what, if any, action did you take?

         A: I filed a PCRA [petition] trying to get his appellate rights
         reinstated and a motion to withdraw.
____________________________________________


2
  Again, Attorney Adamo was appointed on February 20, 2009 – 34 days
after Appellant was sentenced in the matter.



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                                     ...

        Q: [Are] there any other circumstances surrounding your
        representation of [Appellant] in filing his PCRA [petition]
        that you think needs to be brought to the [PCRA c]ourt’s
        attention?

        A: Had [Appellant] advised me when he became aware in
        April 2009 that a notice of appeal wasn’t filed, I would have
        filed a PCRA [petition] to have the appellate rights
        reinstated. There’s no question about that. Within a year.
        He sat back on his hands and then filed this grievance, and
        it’s dumbfounding.     Because it’s common knowledge in
        prison that you have to file a notice of appeal to have your
        appeal go forward.

N.T. PCRA Hearing, 4/15/13, at 13-15.

      On November 8, 2013, the PCRA court dismissed Appellant’s PCRA

petition, because the petition was untimely and did not satisfy any of the

statutory exceptions to the one-year time-bar. Trial Court Order, 11/8/13,

at 1; see also Trial Court Order, 10/1/13, at 1. Appellant filed a notice of

appeal and now raises the following claim to this Court:

        The PCRA court erred by denying [Appellant] PCRA relief
        and he is entitled to file an appeal nunc pro tunc because
        [Appellant’s] amended PCRA petition is not untimely, the
        PCRA court had jurisdiction to decide this amended PCRA
        petition and [Appellant] is entitled to an exception to the
        one year filing requirement pursuant to 42 Pa.C.S.A.
        § 9545(b)(1)(ii).

Appellant’s Brief at 3.

      We conclude that the PCRA court properly dismissed Appellant’s

untimely PCRA petition.




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     As our Supreme Court has held, we “review an order granting or

denying PCRA relief to determine whether the PCRA court’s decision is

supported by evidence of record and whether its decision is free from legal

error.” Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003).

     The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.   This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b).           Further,

since the time-bar implicates the subject matter jurisdiction of our courts,

we are required to first determine the timeliness of a petition before we

consider the underlying claims. Commonwealth v. Yarris, 731 A.2d 581,

586 (Pa. 1999). Our Supreme Court has explained:

        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions.            See, e.g.,
        Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
        (stating that “given the fact that the PCRA's timeliness
        requirements are mandatory and jurisdictional in nature, no
        court may properly disregard or alter them in order to reach
        the merits of the claims raised in a PCRA petition that is
        filed in an untimely manner”); Commonwealth v. Fahy,
        737 A.2d 214, 220 (Pa. 1999) (holding that where a
        petitioner fails to satisfy the PCRA time requirements, this
        Court has no jurisdiction to entertain the petition). [The
        Pennsylvania Supreme Court has] also held that even where
        the PCRA court does not address the applicability of the

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        PCRA timing mandate, th[e court would] consider the issue
        sua sponte, as it is a threshold question implicating our
        subject matter jurisdiction and ability to grant the requested
        relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).

      In the case at bar, Appellant’s judgment of sentence became final on

March 23, 2009, which was 31 days after Appellant’s direct appeal rights

were reinstated and the court-ordered time for filing a notice of appeal to

this Court expired.    See Trial Court Order, 2/13/09, at 1 (“[Appellant’s]

appeal rights . . . are reinstated . . . and [] appellate counsel [must] file

notice of appeal in this court within [30] days from the date of his/her

appointment”) (internal capitalization omitted); Docket Entry, 2/20/09, at 1

(entry of appearance by Attorney Adamo). Appellant then had until March

23, 2010 to file a timely PCRA petition.       42 Pa.C.S.A. § 9545(b).      As

Appellant did not file his current petition until April 27, 2011, the current

petition is facially untimely and the burden thus fell upon Appellant to plead

and prove that one of the enumerated exceptions to the one-year time-bar

applied to his case.   See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.

Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to properly invoke a

statutory exception to the one-year time-bar, the PCRA demands that the

petitioner properly plead all required elements of the relied-upon exception).

      Here, Appellant claims that he invoked the “after-discovered facts”

exception to the time-bar. This statutory exception provides:

        (1) Any petition under this subchapter, including a second
        or subsequent petition, shall be filed within one year of the


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        date the judgment becomes final, unless the petition alleges
        and the petitioner proves that:

                                    ...

           (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[.]

                                    ...

        (2) Any petition invoking an exception provided in
        paragraph (1) shall be filed within 60 days of the date the
        claim could have been presented.

42 Pa.C.S.A. § 9545(b).

     The PCRA’s after-discovered facts exception permits the filing of a

petition outside of the one-year time-bar if the petitioner pleads and proves

that 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.” 42 Pa.C.S.A. § 9545(b)(1)(ii). Our Supreme Court has explained

that the after-discovered facts exception “does not require any merits

analysis of the underlying claim. Rather, the exception merely requires that

the ‘facts’ upon which such a claim is predicated must not have been known

to appellant, nor could they have been ascertained by due diligence.”

Commonwealth v. Bennett, 930 A.2d 1264, 1271 (Pa. 2007) (internal

quotations and citation omitted), quoting Commonwealth v. Lambert, 884

A.2d 848, 852 (Pa. 2005).

     Within Appellant’s PCRA petition, Appellant claimed that Attorney

Adamo was ineffective for failing to file a direct appeal on his behalf.

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Further, according to Appellant, his PCRA petition satisfies the “after-

discovered facts” exception to the one-year time-bar because it was not until

April 27, 2011 that he first learned Attorney Adamo had failed to file the

notice of appeal.    See Appellant’s Brief at 24.     Therefore, according to

Appellant, since he filed his PCRA petition on April 27, 2011, his petition is

timely under 42 Pa.C.S.A. § 9545(b)(1)(ii). Id.

      Appellant’s claim fails, as it is belied by the record. Indeed, Attorney

Adamo specifically testified that Appellant “became aware in April 2009

that a notice of appeal wasn’t filed” – and that Appellant failed to take any

action on this knowledge until 2011. N.T. PCRA Hearing, 4/15/13, at 13-15

(emphasis added). The PCRA court dismissed Appellant’s PCRA petition as

untimely and, thus, credited Attorney Adamo’s PCRA hearing testimony.

Trial Court Order, 11/8/13, at 1; see also Trial Court Order, 10/1/13, at 1.

      Therefore, since Appellant knew, in April 2009, of the facts upon which

he bases his ineffective assistance of counsel claim – and since Appellant did

not file his PCRA petition until April 2011 – Appellant’s attempt to satisfy the

PCRA’s “after-discovered facts” exception fails.

      In conclusion, Appellant has failed to prove a valid exception to the

PCRA’s one-year time-bar. As such, Appellant’s petition is time-barred and

our “courts are without jurisdiction to offer [Appellant] any form of relief.”

Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).                We




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thus affirm the PCRA court’s order, dismissing Appellant’s PCRA petition as

untimely.

     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/2015




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