J-S20045-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ARTHUR FERGUSON                            :
                                               :
                       Appellant               :   No. 1177 EDA 2019

              Appeal from the PCRA Order Entered March 19, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                        No(s): CP-23-CR-0001856-2009


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                             Filed: July 30, 2020

       Arthur Ferguson appeals from the order entered on March 19, 2019,

which dismissed as untimely his third petition filed pursuant to the Post

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

       Ferguson was convicted by a jury of seven counts of aggravated

indecent assault, one count of criminal solicitation to commit involuntary

deviate sexual intercourse, and eight counts of indecent assault.1 The victim

of his crimes was his daughter’s girlfriend, who was 11 years old at the time

of trial. The court sentenced Ferguson to an aggregate term of 10 to 20 years’

incarceration and eight years of consecutive probation. The court also found

Ferguson to be a sexually violent predator and subject to the registration and

notification requirements of Megan’s Law. Ferguson appealed arguing that the
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1 18 Pa.C.S.A. §§ 3125(b), 902(a) (to commit 3123(b)), and 3126(a)(7),
respectively.
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trial court erred in admitting hearsay testimony under the tender years

exception. We affirmed on August 4, 2011. See Commonwealth v.

Ferguson, 3052 EDA 2010 (Pa.Super. filed August 4, 2011) (unpublished

memorandum). Ferguson did not seek further review in our Supreme Court.

      Ferguson then filed a timely pro se PCRA petition in December 2011,

raising three claims of ineffective assistance of counsel. The claims related to

trial counsel’s failure to admit the victim’s medical records, call an expert

regarding those records, and object to the admission of the report of the

Commonwealth’s medical expert. The PCRA court appointed counsel, who

petitioned to withdraw and submitted a “no-merit” letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The PCRA court

dismissed the petition in May 2012 and allowed counsel to withdraw. This

Court affirmed, finding that Ferguson had waived his claims by filing his

Pa.R.A.P. 1925(b) statement late without good cause. See Commonwealth

v. Ferguson, 1702 EDA 2012 (Pa.Super. filed October 24, 2013) (unpublished

memorandum).

      Ferguson filed a second PCRA petition in December 2013, alleging that

trial counsel was ineffective for, inter alia, not calling the doctor who

performed the initial exam on the victim and not obtaining a defense expert.

The PCRA court dismissed the petition as untimely, and we affirmed. See

Commonwealth v. Ferguson, 2504 EDA 2014 (Pa.Super. filed September

1, 2015) (unpublished memorandum).

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      On November 16, 2017, Ferguson filed his third PCRA petition, which is

the subject of this appeal. The PCRA court sent Ferguson a Pa.R.Crim.P. 907

notice of intent to dismiss his petition and Ferguson filed a response. The PCRA

court dismissed the petition without a hearing and this timely appeal followed.

Ferguson raises four issues for our review:


         I.     Did the [t]rial [c]ourt err and commit governmental
                interference by refusing to allow [d]efense [c]ounsel
                to present exculpatory evidence?

         II.    Was [t]rial [c]ounsel ineffective in his failure to
                present exculpatory evidence including the calling of
                expert witnesses?

         III.   Is [Ferguson’s] sentence illegal in regards to
                [Pennsylvania's Sex Offender Registration and
                Notification Act (“SORNA”)]?

         IV.    Did the PCRA [c]ourt err and commit governmental
                interference by ruling that [Ferguson] was untimely in
                his PCRA?

Ferguson’s Br. at 4.

      Before turning to the merits of Ferguson’s claims, we must address

whether we have jurisdiction to entertain this appeal. The PCRA court entered

its order denying Ferguson’s PCRA petition on March 19, 2019. Therefore,

Ferguson’s notice of appeal was due on or before April 18, 2019. See Pa.R.A.P.

903(a) (notice of appeal shall be filed within 30 days after the entry of the

order from which the appeal is taken). Ferguson submitted his notice of appeal

by mail while he was incarcerated and dated it April 11, 2019. Under the prison

mailbox rule, courts deem a pro se document “filed” on the date it is placed


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in the hands of prison authorities for mailing. Commonwealth v. Crawford,

17 A.3d 1279, 1281 (Pa.Super. 2011). Therefore, it would appear that

Ferguson timely filed his appeal.

       However, instead of sending his notice of appeal to the clerk of the lower

court, see Pa.R.A.P. 902,2 Ferguson mistakenly “filed” his notice of appeal

directly with the PCRA judge. Mailing a document to a judge’s chambers does

not constitute filing and to “file” a notice of appeal, the appellant at a minimum

must deliver the notice of appeal to the clerk of the lower court. Crawford,

17 A.3d at 1282. Indeed, “while the prisoner mailbox rule uses the term ‘filed,’

the document must at least be addressed to a proper filing office within the

Unified Judicial System in order to complete the filing.” Id.

       Here, according to the criminal docket, although the PCRA judge

received Ferguson’s notice of appeal on April 17, 2019, the clerk of court did

not receive it until April 22, 2019, making the appeal untimely by four days.

Ordinarily, such a failure to file a timely notice of appeal would result in

immediate quashal of the appeal. See Pa.R.A.P. 903(a). However, the record

before us reveals that the PCRA court did not adequately comply with the

service requirements of Pa.R.Crim.P. 907(4), when it dismissed the subject

PCRA petition. Rule 907(4) provides that when the court dismisses a PCRA
____________________________________________


2 Pennsylvania Rule of Appellate Procedure 902 states, in relevant part: “An
appeal permitted by law as of right from a lower court to an appellate court
shall be taken by filing a notice of appeal with the clerk of the lower court
within the time allowed by Rule 903 (time for appeal).” Pa.R.A.P. 902
(emphasis added).


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petition without a hearing, it must advise the defendant of the right to appeal

and the time for initiating an appeal “by certified mail, return receipt

requested.” Pa.R.Crim.P. 907(4) (emphasis added).

       The March 19, 2019 order dismissing Ferguson’s PCRA petition contains

a notation that the order was served on the parties via first-class mail, not by

“certified mail, return receipt requested,” as Rule 907 requires. The criminal

docket likewise indicates that the court served the order by first-class mail.

Therefore, there is no indication in the record of when Ferguson actually

received notice of his right to file an appeal or the time within which to do so.

In these circumstances, we decline to quash Ferguson’s appeal as untimely

due to the PCRA court’s failure to follow the directives of Rule 907. See

Commonwealth v. Khalil, 806 A.2d 415, 421 (Pa.Super. 2002) (concluding

that “[w]e are unable to ignore the failure of the trial court to inform

[a]ppellant of his appeal rights, and we are constrained to find that it was the

breakdown of the processes of the trial court that caused [a]ppellant’s

untimely appeal”).3 Accordingly, we will proceed to consider Ferguson’s

appeal.

       “Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error.” Commonwealth v. Beatty,
____________________________________________


3 See also Commonwealth v. Meehan, 628 A.2d 1151, 1155 (Pa.Super.
1993) (stating “we cannot say with certainty that the PCRA court’s failure to
follow the directives of Rule [907] had no effect on appellant’s ability to perfect
his appeal since he was incarcerated”).

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207 A.3d 957, 960-61 (Pa.Super. 2019). “We afford the court’s factual

findings deference unless there is no support for them in the certified record.”

Commonwealth v. Greco, 203 A.3d 1120, 1123 (Pa.Super. 2019).

      All petitions for relief under the PCRA, “including second and subsequent

petitions, must be filed within one year of the date on which the judgment of

sentence becomes final.” Id. For purposes of the PCRA, “a judgment becomes

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).

The PCRA’s time-bar is mandatory and jurisdictional in nature, and the court

may not ignore it in order to reach the merits of the petition. Commonwealth

v. Murray, 753 A.2d 201, 203 (Pa. 2000). Courts may consider a PCRA

petition filed more than one year after a judgment of sentence becomes final

only if the petitioner pleads and proves one of the following three statutory

exceptions:

         (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.

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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Under the rules in effect at the time

Ferguson’s claims arose, a petitioner had to raise the claim within 60 days of

the date the petitioner could have first raised it. Id. at § 9545(b)(2).4

       Instantly, Ferguson’s judgment of sentence became final on September

4, 2011, which was 30 days after this Court affirmed his judgment of sentence

and the time for him to file a petition for allowance of appeal expired. See 42

Pa.C.S.A. § 9545(b)(3). Ferguson therefore had until September 4, 2012 to

file a timely PCRA petition, and his instant petition filed on November 16, 2017

is patently untimely. As such, Ferguson was required to plead and prove at

least one of the time-bar exceptions. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

       Ferguson attempts to assert the governmental interference exception to

the PCRA time-bar under section 9545(b)(1)(i). Ferguson claims that the trial

judge’s evidentiary ruling precluded him from introducing a hospital report at

trial, which allegedly would have exonerated him. He states this his “plea of

governmental interference stems from the [t]rial [c]ourt’s abuse of discretion

when denying him the opportunity to present exculpatory evidence in the form

of [an] original emergency room report which proved the victim’s injuries did

not occur until [Ferguson] had already been in custody for a substantial

amount of time.” Ferguson’s Br. 11. Ferguson concludes that the “[t]rial

court’s refusal to allow the exculpatory evidence knowing it was proof of
____________________________________________


4 Section 9545(b)(2) was amended to afford a petitioner one year to raise the
claim, rather than 60 days. This amendment became effective on December
24, 2018 but only applies to claims arising on or after December 24, 2017.
Ferguson’s claims arose before that date.

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[Ferguson’s] innocence, then for it to deny PCRA issue of the same nature,

again, with knowledge of its proof of [his] innocence resulted in governmental

interference and by controlling law is sufficient to establish exception for

timeliness exception.” Id. at 12.

      Ferguson further claims that his trial counsel was ineffective for failing

to call the doctor who performed the original examination on the victim, failing

to obtain his own expert, and failing to introduce the emergency room report

as exculpatory evidence. Id. at 15, 21-23. Ferguson argues that “[h]ad

counsel even been remotely effective, he would have properly prepared for

[Ferguson’s trial] and defense by performing an adequate investigation and

his preparation would have allowed the ER report to be introduced as

exculpatory evidence, yet he did not and the direct effect was [Ferguson]

being found guilty of an offense he is actually innocent of.” Id. at 22.

      In order to establish the governmental interference exception, a

petitioner must plead and prove (1) the failure to previously raise the claim

was the result of interference by government officials and (2) the petitioner

could not have obtained the information earlier with the exercise of due

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

In other words, a petitioner is required to show that but for the interference

of a government actor “he could not have filed his claim earlier.”

Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).

      Here, Ferguson’s claims in his third PCRA petition were either previously

litigated or waived because they were raised on direct appeal or in Ferguson’s

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first and second PCRA petitions. Moreover, Ferguson fails to identify any

“interference by government officials” or explain how any such “interference”

prevented him from filing a timely PCRA petition. Furthermore, his claims in

his petition that counsel was ineffective do not amount to governmental

interference. Defense counsel is not considered a government official for

purposes of the governmental interference exception, and in fact, is expressly

excluded from the definition of “governmental officials.” See 42 Pa.C.S.A. §

9545(b)(4); see also Commonwealth v. Abu-Jamal, 833 A.2d 719, 725

(Pa. 2003). As such, Ferguson has failed to plead and prove the governmental

interference exception to the PCRA time-bar.

      Ferguson next contends that he is serving an illegal sentence pursuant

to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding that SORNA

registration is punitive in nature and retroactive application of SORNA violates

the Ex Post Facto Clause). A post-conviction claim that an original sentence is

illegal due to the retroactive application of a sexual offender registration

requirement is a cognizable claim under the PCRA. See Greco, 203 A.3d at

1123. However, “[a]lthough legality of sentence is always subject to review

within the PCRA, claims must still first satisfy the PCRA’s time limits or one of

the exceptions thereto.” Commonwealth v. Fowler, 930 A.2d 586, 592

(Pa.Super. 2007) (citation omitted).

      In support of his Muniz claim, it appears that Ferguson is attempting to

assert the newly recognized constitutional right exception to the time-bar

under section 9545(b)(1)(iii). The newly recognized constitutional right

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exception requires the petitioner to plead and prove that “the right

asserted...has been held by [the Supreme Court of the United States or the

Supreme Court of Pennsylvania] to apply retroactively.” 42 Pa.C.S.A. §

9545(b)(1)(iii). Ferguson claims that his lifetime registration requirements are

unconstitutional pursuant to our Supreme Court’s decision in Muniz. However,

neither the Supreme Court of the United States nor the Supreme Court of

Pennsylvania has held that Muniz applies retroactively. See Commonwealth

v. Murphy, 180 A.3d 402, 405-06 (Pa.Super. 2018). Accordingly, Ferguson

has not satisfied the newly recognized constitutional right exception to the

time-bar.

      Lastly, Ferguson contends that the PCRA court erred and committed

governmental interference by ruling that his PCRA petition was untimely. He

argues that a miscarriage of justice occurred by the PCRA court in dismissing

his petition without deciding it on the merits. Ferguson’s Br. at 30. According

to Ferguson, “[n]ot only does [he] maintain his innocense [sic]…but the

evidence [he] touches on proves beyond a reasonable doubt that he is

innocent of the crimes he is accused of” and “[c]oupled with the actions taken

violating [his] due process rights, a manifest injustice has occurred.” Id. at

36-37.

      “This court has determined that in reviewing claims for relief in a second

or subsequent collateral attack on a conviction and judgment of sentence, the

request will not be entertained unless a strong prima facie showing is

demonstrated that [] a miscarriage of justice occurred.” Commonwealth v.

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Fahy, 737 A.2d 214, 223 (Pa. 1999) (citing Commonwealth v. Lawson, 549

A.2d 107 (Pa. 1988)). “An appellant makes such a prima facie case only if he

demonstrates that either the proceedings which resulted in his conviction were

so unfair that a miscarriage of justice occurred which no civilized society could

tolerate, or that he was innocent of the crimes charged.” Id. (quoting

Commonwealth v. Morales, 701 A.2d 516, 520-21 (Pa. 1997)). However,

as stated previously, the time requirements under the PCRA are jurisdictional.

Therefore, while this Court may consider a timely petition under the

miscarriage of justice standard, we have no jurisdiction to address an untimely

petition. Id. Accordingly, Ferguson’s claims cannot be considered.

      For the foregoing reasons, we conclude that the PCRA court did not err

in concluding Ferguson filed an untimely PCRA petition and failed to establish

any exception to the time-bar.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/20




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