J-S15028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

NICHOLAS PETER PAPPAS, III

                         Appellant                  No. 800 MDA 2014


                Appeal from the PCRA Order of April 25, 2014
              In the Court of Common Pleas of Lebanon County
              Criminal Division at No.: CP-38-CR-0000858-2010


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                             FILED APRIL 01, 2015

      Nicholas Peter Pappas III appeals the April 25, 2014 order denying his

petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-46. We affirm.

      The PCRA court summarized the factual and procedural history of this

case as follows:

      On July 14, 2008, a structure fire engulfed a multi-family
      apartment building located at 35 South Ninth Street in the City
      of Lebanon, leaving several residents and firefighters injured.
      Multiple fire departments were dispatched to combat the fire.
      Ultimately, the fire was brought under control, but not before the
      structure at 35 South Ninth Street was completely destroyed.

      After investigation, Pennsylvania State Police Fire Marshall
      Michael Yeity determined that the fire was a product of arson. In
      addition, detectives discovered the charred remains of Kevin
      Robertson in close proximity to the point of origin of the fire.
      Detectives determined that the point of origin was located in an
      apartment rented to [Pappas], whose whereabouts were
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       unknown to police.        Consequently, [Pappas] was publicly
       identified as a “person of interest” with respect to the fire.

       Police obtained a security video from a store located near 39
       South Ninth Street. This security video showed a white male
       matching [Pappas’] description leaving 35 South Ninth Street
       minutes before the fire was discovered. The white male walked
       toward the rear of 35 South Ninth Street to a Nissan sports car
       owned by David Hummel. The white male then entered the
       vehicle and drove away from the property.

       On July 15, 2008, Officer Leonard Zacamy observed a Nissan
       sports car commit a traffic violation in Haddon Township, New
       Jersey. The Nissan was operated by [Pappas] at the time of the
       violation. Officer Zacamy had no knowledge of the fire in
       Lebanon and was not looking for [Pappas] as a suspect in any
       crime. When Officer Zacamy attempted to conduct a routine
       traffic stop, [Pappas] fled and initiated a high speed chase.
       Eventually, [Pappas] crashed his vehicle. He was hospitalized as
       a result of this crash. He was also charged with numerous
       crimes stemming from his attempt to flee from police in New
       Jersey. Once [Pappas] was identified, Haddon Township officials
       notified the Lebanon City Detective Bureau.

       On July 16, 2008, Lieutenant Todd Breiner and Detective Randall
       Fields of the Lebanon City Police Department traveled to Haddon
       Township to meet with [Pappas]. [Pappas] was advised of his
       Miranda[1] rights. [Pappas] indicated that he understood his
       rights and signed a waiver. He then proceeded to tell police that
       decedent Kevin Robertson had died of a drug overdose while in
       his apartment several days before the fire. [Pappas] indicated
       that Robertson’s body began to decompose and create a stench.
       [Pappas] stated that[,] in an effort to combat the smell, he
       poured gasoline on Robertson’s body and lit it on fire.

Opinion and Order Dismissing Defendant’s PCRA Petition (“PCRA Opinion”),

4/3/2014, at 2-6 (citations to notes of testimony omitted).



____________________________________________


1
       See Miranda v. Arizona, 384 U.S. 436 (1966).



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       Pappas was convicted by a jury of numerous offenses2 arising from the

arson, and was sentenced to an aggregate term of thirty-nine to one

hundred and four years’ incarceration.           On October 2, 2012, this Court

affirmed Pappas’ judgment of sentence.           Pappas did not file a petition for

allowance of appeal with the Pennsylvania Supreme Court. On October 31,

2013, Pappas sent a handwritten letter to the Lebanon County Court of

Common Pleas, which took the form of a motion entitled “Notice for time

extension to file: Motion for Post Conviction Collateral Relief.” The body of

the letter reads as follows:

       Your Honor,

       I am asking for a time extension for the filing of my P.C.R.A. I
       am currently incarcerated at S.C.I. Greene. I am asking for
       more time. I have no representation at the present time. I will
       file myself or will ask the court for legal aide [sic] to help
       represent me. I thank you for your time.

Motion for Extension of Time to File Post Conviction Relief, 11/4/2013.

       Pappas’ letter was entered on the docket on November 4, 2013. On

that same date, the clerk of courts sent Pappas a “case correspondence”

regarding his letter, which instructed Pappas to resubmit the document with

an accompanying proposed order, pursuant to Lebanon County Local Rule 6.

The court took no further action on Pappas’ letter. On December 23, 2013,
____________________________________________


2
      The jury convicted Pappas of two counts of arson, two counts of
aggravated assault, two counts of simple assault, one count of causing
catastrophe, one count of criminal mischief, one count of abuse of a corpse,
and ten counts of recklessly endangering another person.



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Pappas filed a pro se PCRA petition.    Pursuant to his request, Pappas was

appointed counsel on December 30, 2013.        Because Pappas’ petition was

facially untimely, the PCRA court issued Pappas a notice of its intent to

dismiss his petition without a hearing pursuant to Pa.R.Crim.P. 907.     The

PCRA court issued this notice and an opinion in support of its order on April

3, 2014. Pappas filed a response on April 22, 2014, wherein he alleged that

his petition “should be deemed timely as he tried to file a PCRA [petition]

previously and it was returned by the Clerk of Courts.”           Defendant’s

Response to April 3, 2014 Court Order, 4/22/2014, ¶ 6.       The PCRA court

disagreed, and it dismissed Pappas’ petition on April 25, 2014.

      On May 8, 2014, Pappas timely filed a notice of appeal. On May 13,

2014, the PCRA court directed Pappas to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Pappas timely filed

a concise statement on May 27, 2014.        On May 29, 2014, pursuant to

Pa.R.A.P. 1925(a), the PCRA court issued a statement directing this Court to

its April 3, 2014 opinion, wherein the court addressed the issue that Pappas

presently pursues.

      Pappas raises the following issue for our review:

      Whether the [PCRA] court erred when it denied [Pappas’]
      petition for untimeliness where [Pappas] mailed said petition
      within the statutory time period?

Brief for Pappas at 4.




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      In reviewing the denial of a PCRA petition, we examine whether the

PCRA court’s determination is “supported by the record and free of legal

error.”     Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014)

(citation omitted). “As the timeliness of a PCRA petition is a question of law,

our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014)

(citation omitted). The PCRA provides that, unless the petitioner proves the

existence of an exception to the timeliness requirement, any petition “shall

be filed within one year of the date the judgment becomes final.” 42 Pa.C.S.

§ 9545(b)(1). For the 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.

§ 9545(b)(3).

          “The PCRA’s time restrictions are jurisdictional in nature. Thus, [i]f a

PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition.    Without jurisdiction, we simply do not have

the legal authority to address the substantive claims.” Commonwealth v.

Williams, 105 A.3d 1234, 1239 (Pa. 2014) (citation omitted; bracketed

material original).       Jurisdictional 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,

222 (Pa. 1999).

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       In the case sub judice, this Court affirmed Pappas’ judgment of

sentence on October 2, 2012. Pappas did not file a petition for allowance of

appeal with the Pennsylvania Supreme Court.         As such, his judgment of

sentence became final on November 1, 2012.3         Thus, the deadline for the

filing of Pappas’ PCRA petition was November 1, 2013.          See 42 Pa.C.S.

§ 9545(b)(1).      Pappas’ earliest filing regarding PCRA relief was the letter

that he sent to the Clerk of Courts, dated October 29, 2013, wherein Pappas

requests more time to file a PCRA petition.         While this letter was not

docketed until November 4, 2013—three days beyond the statutory

deadline—we deem Pappas’ letter to have been filed on the October 31,

20134 pursuant to the “prisoner mailbox rule.” See Houston v. Lack, 487

U.S. 266 (1988); Smith v. Pennsylvania Bd. of Prob. & Parole, 683 A.2d

278 (Pa. 1996). Thus, Pappas filed the letter before the expiration of the

deadline imposed by the PCRA.
____________________________________________


3
        In his brief, Pappas incorrectly determined the date on which his
judgment became final as November 9, 2012. Brief for Pappas at 9.
November 9, 2012 was the date that this Court’s opinion was listed on the
docket, not the date on which Pappas’ judgment of sentence was affirmed.
Furthermore, Pappas’ calculation does not take into consideration the thirty
days allotted for a petitioner to seek allowance of appeal with our Supreme
Court. See Pa.R.A.P. 1113(a).
4
        Pappas has provided the envelope in which his letter was mailed,
which is stamped with the date October 31, 2013. This is sufficient proof of
the date of mailing, because “we are inclined to accept any reasonably
verifiable evidence of the date that the prisoner deposits the [filing] with the
prison authorities.” Commonwealth v. Jones, 700 A.2d 423, 426 (Pa.
1997). Therefore, Pappas’ letter was filed before the expiration of the time
for filing a PCRA petition.



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      In his letter, Pappas did not address the merits of his case, but rather

requested additional time for the preparation of a PCRA petition. The PCRA

court, however, was without authority to grant Pappas more time to file his

petition.    “[T]he period for filing a PCRA petition is not subject to the

doctrine of equitable tolling; instead, the time for filing a PCRA petition can

be extended only if the PCRA permits it to be extended, i.e., by operation of

one of the statutorily enumerated exceptions to the PCRA time-bar.”

Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014) (citation and internal

quotation marks omitted). The timeliness of a PCRA petition implicates the

court’s jurisdiction and, thus, its competence to review the merits of a

petitioner’s claims.   See Williams, 105 A.3d at 1239.           Furthermore, the

PCRA provides that “[n]o court shall have authority to entertain a request for

any form of relief in anticipation of the filing of a petition under this

subchapter.” 42 Pa.C.S. § 9545(a).

      Because we conclude that Pappas’ letter requested a form of relief that

could not be granted, the remaining consideration is whether Pappas’ letter,

itself, should be construed as a timely filed PCRA petition.          While Pappas

does not expressly argue that his letter should be deemed to be a PCRA

petition, the thrust of his argument is that he mailed the petition “within the

statutory time period.” Brief for Pappas at 8. Because the December 23,

2013 petition unquestionably was filed outside the statutory time period, this

assertion can refer only to Pappas’ October 31, 2013 letter. Regarding the

judicial    determination   of   whether   a   post-conviction   filing   should   be

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considered a PCRA petition, this Court has stated that “any petition filed

after the judgment of sentence becomes final will be treated as a PCRA

petition.”   Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super.

2011) (citation omitted). However, this language suggests a greater degree

of breadth than our jurisprudence in this area permits.             A more precise

formulation is that any petition filed after the judgment of sentence becomes

final will be treated as a PCRA petition if it raises any sort of claim that is

cognizable under the PCRA. See 42 Pa.C.S. § 9543(a)(2). This Court has

explained:

       It is well settled that any collateral petition raising issues with
       respect to remedies offered under the PCRA will be considered a
       PCRA petition. However, a petition raising a claim for which the
       PCRA does not offer a remedy will not be considered a PCRA
       petition. Thus, the question then becomes whether petitioner
       had an available remedy under the PCRA.

Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super. 2001)

(citations omitted; emphasis added).

       The cases in which this Court has construed a post-conviction petition

or motion to be a PCRA petition generally involve claims for which the PCRA

could provide redress. See Commonwealth v. Taylor, 65 A.3d 462, 465-

66 (Pa. Super. 2013) (concluding that writ of habeas corpus should be

treated as PCRA petition); Commonwealth v. Evans, 866 A.2d 442, 444

(Pa.   Super.   2005)   (concluding    that    motion     for    reconsideration   or

modification    of   sentence   should    be    treated     as     PCRA    petition);

Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (concluding

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that collateral challenge to legality of sentence for failure to give credit for

time served must be brought under the PCRA, despite being labeled as a

petition for habeas corpus); Commonwealth v. Johnson, 803 A.2d 1291,

1293 (Pa. Super. 2002) (concluding that motion to vacate sentence qualified

as a PCRA petition); Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa.

Super. 2000) (concluding that motion to correct illegal sentence would be

treated as PCRA petition).           However, where a petition filed after the

judgment of sentence becomes final requests a form of relief for which the

PCRA provides no remedy, the petition will not be considered a PCRA

petition. See, e.g., Deaner, 779 A.2d at 580 (concluding that petition to

transfer or modify sentence due to illness is not cognizable under the PCRA).

       In the instant case, Pappas’s letter did not raise any sort of claim for

which the PCRA provides a remedy. See 42 Pa.C.S. § 9543(a)(2). In fact,

Pappas’ letter contains no substantive issues or arguments.          The letter

merely requests additional time to file a PCRA petition, which is a request

that no court could grant. Because the PCRA does not offer a remedy for

Pappas’ request, we may not construe Pappas’ letter as a PCRA petition.

       Pappas did not file a substantive PCRA petition until December 23,

2013.5    As the deadline for filing Pappas’ PCRA petition was November 1,
____________________________________________


5
      We recognize that Pappas’ PCRA petition was mailed from a state
penitentiary, and thus we would deem the filing date to be the date that it
was deposited with prison authorities for mailing pursuant to the “prisoner
mailbox rule.” See Houston v. Lack, 487 U.S. 266 (1988); Smith v.
(Footnote Continued Next Page)


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2013, the December 23, 2013 petition is facially untimely.        A court may

consider an untimely PCRA petition if the petitioner pleads and proves one of

the statutorily enumerated exceptions to the PCRA’s time bar.             See 42

Pa.C.S. § 9545(b)(1). The PCRA lists these three exceptions as follows:

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:

          (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.

      (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.
                       _______________________
(Footnote Continued)

Pennsylvania Bd. of Prob. & Parole, 683 A.2d 278 (Pa. 1996). However,
Pappas’ petition is not dated, and he has not provided any record of the date
on which the petition was mailed. As Pappas’ petition was not docketed until
December 23, 2013, it is inconceivable that the petition could have been
mailed prior to the filing deadline of November 1, 2013, almost two months
prior to the docketing date. As such, Pappas December 23, 2013 PCRA
petition was untimely, even by a generous application of the “prisoner
mailbox rule.”




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42 Pa.C.S. § 9545(b).

      Pappas’ December 23, 2013 petition does mention a fact which Pappas

claimed was unknown to him during his trial—that the fire escape doors to

the apartment building allegedly were nailed shut.             PCRA Petition,

12/23/2013, at 3, ¶ (B). Pappas claims to have learned this fact through

discovery in the civil suit filed against him, which arose from the arson. This

is the closest that Pappas comes to pleading a “newly discovered fact”

exception under 42 Pa.C.S. § 9545(b)(1)(ii). Pappas does not address the

other timeliness exceptions in any form or fashion.

      In discussing the requirements of the “newly discovered fact”

exception, the PCRA court applied an erroneous standard. The PCRA court

focused its analysis upon the possibility that the newly discovered fact would

have affected the outcome of Pappas’ trial. The PCRA court concluded that

“[because] this evidence would not have made a difference at trial, [Pappas]

cannot establish an [e]xception to the PCRA’s timeliness requirement.”

PCRA Opinion, 4/3/2014, at 8.      The PCRA court’s standard conflates the

requirements of the timeliness exception with a substantive claim for relief

based upon “after-discovered evidence.” See 42 Pa.C.S. § 9543(a)(2)(vi).

“However, an after-discovered evidence claim and the timeliness exception

based on previously unknown facts are distinct, and the issues are analyzed

differently.” Commonwealth v. Davis, 86 A.3d 883, 891 n.7 (Pa. Super.

2014) (citation omitted).     A petitioner seeking to meet the timeliness

exception of 42 Pa.C.S. § 9545(b)(1)(ii) need not prove that the previously

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unknown fact would have changed the outcome of the trial; rather, as the

plain text of the statute indicates, the petitioner need only establish that: 1)

“the facts upon which the claim was predicated were unknown” and 2)

“could not have been ascertained by the exercise of due diligence.”          42

Pa.C.S. § 9545(b)(1)(ii); see also Commonwealth v. Bennett, 930 A.2d

1264, 1272 (Pa. 2007).      Although the PCRA court applied the incorrect

standard, “we may affirm the PCRA court’s decision on any basis.”

Commonwealth v. Charleston, 94 A.3d 1012, 1028 (Pa. Super. 2014)

(citation omitted).   For the reasons that follow, we agree with the PCRA

court’s resolution.

      While Pappas was not required to prove that the newly discovered fact

would have made a difference in his trial, he nevertheless failed to plead,

prove, or argue the exception sufficiently.    Pappas does not describe the

manner by which he discovered the fact about the fire escape door, so we

are uncertain as to whether it came from a police or fire report, from a

deposition, or otherwise. Pappas does not offer any explanation as to why

he could not have ascertained this fact earlier through the exercise of due

diligence.   Furthermore, Pappas did not attempt to prove that he filed his

petition within sixty days of discovering the new fact.     See 42 Pa.C.S. §

9545(b)(2).

      Perhaps most significantly, Pappas has failed to argue the applicability

of the newly discovered fact exception in his brief.     As such, we will not

discuss the merits of the newly discovered fact issue.      “The court will not

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become the counsel for an appellant, and will not, therefore, consider issues

. . . which are not fully developed in his brief.” Commonwealth v. Gould,

912 A.2d 869, 873 (Pa. Super. 2006) (citation and internal quotation marks

omitted); see also Pa.R.A.P. 2119(a). As such, we may conclude only that

Pappas has failed to meet the requirements of 42 Pa.C.S. § 9545(b)(1)(ii).

        Because Pappas’ October 29, 2013 letter was not a PCRA petition, and

because Pappas’ untimely December 23, 2013 petition fails to meet any

timeliness exception to the PCRA’s time bar, we conclude that the PCRA

court did not err in denying Pappas’ petition without a hearing. As Pappas’

PCRA petition was untimely, neither the PCRA court nor this Court possess

jurisdiction to provide relief on Pappas’ claims. See Williams, 105 A.3d at

1239.

        Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2015




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