J-S32023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TODD WHITE

                            Appellant                 No. 2394 EDA 2016


                   Appeal from the PCRA Order June 24, 2016
              In the Court of Common Pleas of Philadelphia County
    Criminal Division at Nos: CP-51-CR-1009401-2001; CP-51-CR-1009411-
                                     2001


BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                              FILED JULY 18, 2017

        Appellant, Todd White, appeals from the June 24, 2016 order entered

in the Court of Common Pleas of Philadelphia County (“PCRA court”),

dismissing his petition for collateral relief pursuant to the Post conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

        The PCRA court summarized the procedural history of the matter as

follows.

               On September 24, 2002, following a jury trial before [the
        trial court], [Appellant] was convicted of rape (F-1), involuntary
        deviate sexual intercourse (IDSI) (F-1), 13 counts of robbery (F-
        1), criminal conspiracy (F-1), and possessing instruments of
        crime (PIC) (M-1). Sentencing was deferred until November 13,
        2002, on which date [the trial court] imposed an aggregate
        sentence of not less than 48-and-a-half years nor more than 123
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     years in prison. On December 1, 2004, Superior Court [(sic)]
     affirmed [Appellant’s] judgment of sentence; [Appellant] did not
     seek allocatur.

            On September 2, 2005, [Appellant] filed his first PCRA
     petition.   Counsel had been appointed; however, following
     [Appellant’s] request to proceed pro se, a Grazier hearing was
     held on May 31, 2006.           Following the Grazier hearing,
     [Appellant] was permitted to proceed pro se.               The
     Commonwealth filed a motion to dismiss on September 28,
     2006. [Appellant] replied to the Commonwealth’s motion to
     dismiss on October 12, 2006. After conducting an evidentiary
     hearing pursuant to Pa.R.Crim.P. 908 (908 Hearing), on July 9,
     2007, [the PCRA court] dismissed [Appellant’s] PCRA petition.
     On May 21, 2009, Superior Court [(sic)] affirmed [the PCRA
     court’s] dismissal and, on December 9, 2009, our Supreme Court
     denied [Appellant’s] petition for allowance of appeal.

            On February 5, 2010, [Appellant] filed a second, untimely,
     PCRA petition. The Commonwealth filed a motion to dismiss on
     December 30, 2010. On January 4, 2011, [the PCRA court] sent
     [Appellant] notice of its intent to deny and dismiss his PCRA
     petition without a hearing pursuant to PA.R.Crim.P. 907 (907
     Notice). On March 4, 2011, [Appellant’s] PCRA petition was
     dismissed consistent with [the PCRA court’s] 907 Notice.
     [Appellant] did not appeal the dismissal of this untimely PCRA
     Petition.

           [Appellant] filed a third PCRA petition on May 21, 2012.
     On August 15, 2014, [the PCRA court] sent [Appellant] a 907
     Notice of its intent to dismiss his petition as untimely, as it failed
     to satisfy any of the timeliness exceptions. Thereafter, on
     October 16, 2014, [Appellant’s] PCRA petition was dismissed
     consistent with the 907 Notice. [Appellant] did not appeal the
     dismissal of this PCRA petition.

           On November 13, 2015, [Appellant] filed a fourth untimely
     pro se PCRA petition. Having determined that [Appellant’s]
     claim did not satisfy any of the timeliness exceptions
     enumerated in 42 Pa.C.S.[A.] § 9545(b)(1), [the PCRA court]
     sent a 907 Notice on May 20, 2016. [Appellant] did not respond.
     On June 24, 2016, [the PCRA court] dismissed [Appellant’s]
     PCRA petition as untimely, consistent with its 907 Notice.



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PCRA Court Opinion, 9/26/16, at 1-3 (footnotes omitted). Appellant filed a

timely notice of appeal.        On August 8, 2016, the PCRA court directed

Appellant to file a concise statement of matters complained of on appeal.

Appellant complied on August 25, 2016, and the PCRA court issued a

Pa.R.A.P. 1925(a) Opinion on September 26, 2016.

      Appellant raises four issues on appeal which we repeat verbatim.

      I.     Did not the PCRA court dismiss Appellant’s PCRA without a
             hearing to determine whether or not Appellant’s (60) sixty
             day exception rule was within the (60) day rule/law of the
             hybrid-representation.

      II.    Did not the lower judge commit and error/government
             interference under 9445(b)(i)(i) when she allow PCRA
             counsel to remove herself from the Appellant’s PCRA
             without first confirming counsel did all of the proper
             procedure”s[.]

      III.   Did not the PCRA counsel Jacquelyn A. Barnes commit
             abandonmen of loyalty when she fail to file and
             amendment brief on the Appellant’s behalf and or file a
             Turner/Finley letter to suppo her reasons for not doing so.

      IV.    Did not the Commonwealth commit the same interference
             when it fail to oject to the allowance of counsel being allow
             to withdraw without complying with the Turner/Finely law,
             rules, and procedures.

Appellant’s Brief at V (sic).

      Preliminarily, “an appellate court reviews the PCRA court’s findings of

fact to determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quoting

Commonwealth         v.   Colavita,    993   A.2d   874,   887   (Pa.   2010)).


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Furthermore, all PCRA petitions, “including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final” unless

an exception to timeliness applies.     42 Pa.C.S.A. § 9545(b)(1).         These

“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. Chester, 895 A.2d

520, 522 (Pa. 2006) (first alteration in original) (internal citations and

quotation marks omitted).

      There are only three exceptions to the timeliness requirement of the

PCRA. These exceptions are

            (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;

42 Pa.C.S.A. § 9545(b)(1)(i-iii).

      While Appellant briefly addresses the timeliness requirement in his

brief, he fails to establish any of the exceptions apply.   Appellant asserts

that his discovery of Commonwealth v. Ellis, 626 A.2d 1137 (Pa. 1993),

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provides newly discovered evidence that satisfies the exception to the

timeliness requirement. See Appellant’s Brief at 6. Appellant’s argument is

fatally flawed as “[our Courts have expressly rejected the notion that judicial

decisions can be considered newly-discovered facts which would invoke the

protections afforded by section 9545(b)(1)(ii).”          Commonwealth v.

Cintora, 69 A.2d 759, 763 (Pa. Super. 2013) (citations omitted).         Thus,

Appellant failed to prove the newly discovered fact exception to the PCRA’s

timeliness requirement.

       Next, Appellant asserts the government interference exception applies

because the PCRA court permitted his first PCRA counsel to withdraw after a

Grazier1 hearing on May 30, 2006.                Appellant further asserts the

government interference exception applies because the Commonwealth

failed to object to Appellant appearing pro se after the Grazier hearing.

Even if these claims were properly plead and meritorious, Appellant failed to

bring this claim within 60 days of the date the claim could have been

presented. See 42 Pa.C.S.A. § 9545(b)(2). Thus, Appellant’s governmental

interference claims fail. As Appellant has failed to properly plead and prove

a timeliness exception to the PCRA applies, we conclude the PCRA court

properly dismissed Appellant’s petition as untimely.

       Order affirmed.


____________________________________________


1
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2017




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