J-S31024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

DERRICK R. CRAMER,

                         Appellant                   No. 1921 MDA 2014


          Appeal from the PCRA Order entered October 16, 2014,
              in the Court of Common Pleas of York County,
           Criminal Division, at No(s): CP-67-CR-0001906-2002


BEFORE: BENDER, P.J.E., ALLEN, and WECHT, JJ.

MEMORANDUM BY ALLEN, J.:                               FILED MAY 27, 2015

      Derrick R. Cramer (“Appellant”) appeals pro se from the order denying

his fifth petition for post-conviction relief filed pursuant to the Post

Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The pertinent facts and protracted procedural history are as follows:

In the early morning hours of February 9, 2002, Appellant killed Randolph

(Jamal) Echols (“the victim”), who had frequently supplied him with drugs,

by stabbing and/or slashing the victim with a knife. On May 9, 2003, a jury

convicted Appellant of first-degree murder.       On May 13, 2003, at the

conclusion of a penalty hearing, the trial court sentenced Appellant to life in

prison.

      On June 9, 2003, Appellant filed a timely appeal to this Court, and on

March 16, 2004, we affirmed his judgment of sentence. Commonwealth v.
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Cramer, 850 A.2d 6 (Pa. Super. 2004) (unpublished memorandum).                 On

August 12, 2004, our Supreme Court denied Appellant’s petition for

allowance of appeal.      Commonwealth v. Cramer, 856 A.2d 832 (Pa.

2004).

        Appellant filed a timely pro se PCRA petition on February 5, 2005. The

PCRA court appointed counsel, and on May 20, 2005, PCRA counsel filed an

amended petition. The PCRA court held an evidentiary hearing on June 13,

2005.     At the conclusion of the hearing, the PCRA court denied relief.

Appellant filed a timely appeal to this Court, in which he raised eight claims

of trial counsel’s ineffectiveness, including trial counsel’s failure “to obtain an

expert to testify as to the effect of drugs and/or alcohol as it relates to the

specific intent to kill” which “may have provided additional evidence relative

to [Appellant’s] claim of voluntary intoxication which would otherwise reduce

murder of the first degree to murder of the third degree.” Commonwealth

v. Cramer, 898 A.2d 1126 (Pa. Super. 2006), unpublished memorandum at

4. Rejecting all of Appellant’s claims, we affirmed the PCRA court’s denial of

post-conviction relief.   Id. at 15.    On December 15, 2006, our Supreme

Court denied Appellant’s petition for allowance of appeal. Commonwealth

v. Cramer, 912 A.2d 1290 (Pa. 2006).

        Appellant filed a second pro se PCRA petition on February 20, 2007.

The PCRA court once again appointed counsel, and on April 30, 2007, the

PCRA court dismissed the petition as untimely and otherwise without merit.

Although Appellant filed a timely, counseled appeal to this Court, on July 18,

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2007, we dismissed it for failure to file a docketing statement pursuant to

Pa.R.A.P. 3517.

      On August 14, 2007, Appellant filed a “[PCRA] PETITION FOR LEAVE

TO RESTORE APPEAL RIGHTS NUNC PRO TUNC.” The PCRA court denied the

petition on September 17, 2007.       Appellant filed a timely appeal to this

Court. On June 20, 2008, we affirmed the PCRA court’s denial of relief, and

on October 16, 2008, our Supreme Court denied Appellant’s petition for

allowance of appeal. See Commonwealth v. Cramer, 959 A.2d 927 (Pa.

2008).

      Appellant filed a fourth pro se PCRA petition on August 25, 2011. On

August 30, 2011, the PCRA court issued Pa.R.Crim.P. 907 notice of intent to

dismiss Appellant’s serial petition without a hearing.      Appellant filed a

response on September 20, 2011. By order entered September 26, 2011,

the PCRA court denied relief. Appellant filed a timely appeal to this Court.

In an unpublished memorandum filed on July 10, 2012, we affirmed the

denial of relief on the basis that the serial PCRA petition was untimely.

Commonwealth v. Cramer, 55 A.3d 130 (Pa. Super. 2012).

      On October 2, 2014, Appellant filed the pro se PCRA petition at issue,

his fifth.   Within this petition, Appellant asserts that his “family made me

aware of the fact that new information concerning [] cocaine use had

surfaced and had it been available at the time of my trial, [it] would have

changed the outcome of the verdict.        I was also given new information

concerning alcoholism[.]” PCRA Petition, 10/2/14, at 3. As an exhibit to the

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petition, Appellant attached an online article describing “cocaine psychosis.”

By order entered October 16, 2014, the PCRA court denied Appellant’s

petition as untimely.       In doing so, the PCRA court noted that Appellant’s

“discovery of the term ‘cocaine psychosis’ does not constitute newly

discovered evidence that could not have been ascertained by the exercise of

due diligence, nor does it constitute exculpatory evidence that would have

changed the outcome of the case.”

       Appellant filed a timely appeal to this Court, in which he challenges the

PCRA court’s determination that he failed to establish an exception to the

PCRA’s time bar.1        Both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925.

       This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported     by   the    evidence     of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

____________________________________________


1
  Appellant also asserts that the PCRA court erred in failing to comply with
Pa.R.Crim.P. 907 regarding its intent to dismiss his serial petition. We
disagree. “[O]ur Supreme Court has held that where the PCRA petition is
untimely, the failure to provide such notice is not reversible error.”
Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citations
omitted).




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1166 (Pa. Super. 2001).         Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

       The    timeliness   of    a   post-conviction    petition    is    jurisdictional.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation

omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor

the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction,

we simply do not have the legal authority to address the substantive claims”

raised in an untimely petition. Id.

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;    or    (3)   a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of


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the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.       Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

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

United States Supreme Court following our Supreme Court’s denial of

allocatur, for PCRA purposes, Appellant’s judgment of sentence became final

ninety days thereafter, on November 10, 2004. 42 Pa.C.S.A. § 9545(b)(3);

U.S.Sup.Ct.R. 13. Appellant filed the instant PCRA petition almost ten years

later.    As a result, his PCRA petition is patently untimely unless he has

satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261

(Pa. 1999).

         Appellant has failed to prove the applicability of any of the exceptions

to the PCRA’s time restrictions. When considering a PCRA petitioner’s claim

that he or she has established an exception to the PCRA’s time bar under

section 9545(b)(1)(ii), the petitioner must establish only that the facts upon

which the claim is predicated were unknown to him, and that he could not

have ascertained the facts earlier despite the exercise of due diligence.


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Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007).                    The

determination    of   timeliness   does   not   require   a   merits      analysis.

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).

      In rejecting Appellant’s claim, the PCRA court explained:

             Appellant’s reliance on the after-discovered exception is
         misplaced for at least two reasons.            First, although
         Appellant may not have discovered the term “cocaine
         psychosis” until 2014, he was certainly aware of his
         cocaine use and the symptoms flowing therefrom at the
         time of trial. Any amount of due diligence would have
         revealed that cocaine has the potential to trigger paranoid
         delusions in those who abuse the drug. In fact, Appellant’s
         [PCRA] petition concedes this point. Appellant’s PCRA
         Memorandum, p.7 (“Petitioner posits that had trial counsel
         exercised at a minimum a reasonable amount of
         investigative action on the part of petitioner, counsel could
         have discovered the scientific and psychiatric term of
         ‘Cocaine Psychosis’”).       Thus, the facts upon which
         Appellant’s claim is predicated were known to Appellant at
         the time of trial or could have been ascertained by the
         exercise of due diligence. Second, the law is clear that
         Appellant must show the new facts constitute “exculpatory
         evidence” that would have changed the outcome of the
         trial if it had been introduced.         Commonwealth v.
         Palmer, 814 A.2d 700, 706 (Pa. Super. 2002). The fact
         that the phrase “cocaine psychosis” exists in the medical
         community does not tend to establish Appellant is innocent
         of first degree murder for the killing of [the victim].

PCRA Court Opinion, 1/9/15, at 2-3.

      Our review of the record supports the PCRA court’s conclusions, and

Appellant’s claims to the contrary are unavailing. Initially, we note that prior

to trial, Appellant was subjected to psychological testing. See N.T., 4/29/03

(Deposition of Larry A. Rotenberg, M.D.).       Appellant proffers no evidence

that he was or could have been diagnosed with “cocaine psychosis.”

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Moreover, Appellant’s girlfriend testified at trial that Appellant became

“paranoid   when     using   cocaine”,   and   was   “geeking”   –   a   term   she

acknowledged as “irrational fear.” See N.T., 5/5/03, at 196-98. Thus, we

agree with the Commonwealth’s statement that Appellant “simply learned of

a new term to describe old facts that were already known and presented at

trial.” Commonwealth’s Brief at 7.

      In sum, for all of the above reasons, the PCRA court correctly

determined that it lacked jurisdiction to consider Appellant’s untimely PCRA

petition. We therefore affirm the PCRA court’s order denying Appellant post-

conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2015




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