J-A15029-19

                                   2019 PA Super 245


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    PIEATTRO SHAW                              :
                                               :
                       Appellant               :       No. 605 EDA 2018

                  Appeal from the PCRA Order January 22, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CR-51-CR-0807931-2005


BEFORE:      BENDER, P.J.E., GANTMAN, P.J.E., and COLINS*, J.

OPINION BY GANTMAN, P.J.E.:                            FILED AUGUST 16, 2019

        Appellant, Pieattro Shaw, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed as untimely his

first petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.

        This Court has previously set forth the relevant facts of this case as

follows:

           On July 13, 2004, [Appellant] entered the home of Darlene
           Peck [“Ms. Peck”] at 5121 Locust Street in Philadelphia
           without permission. The record in the trial court established
           that [Appellant] held Ms. Peck down and tried to kiss her
           and then fled the scene. [Appellant] and Ms. Peck were
           involved romantically two years prior to this altercation.
           Several weeks leading up to this incident, [Appellant] saw
           Ms. Peck in public. She was eight months pregnant at the
           time, which upset him.

           The next day, on July 14, 2004, [Appellant] again entered
           Ms. Peck’s residence without permission. [Victim], Ms.
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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         Peck’s live-in boyfriend and father of her then two-week old
         child, told [Appellant] to leave.      As [Victim] escorted
         [Appellant] out of the house, [Appellant] withdrew a .380
         caliber handgun and fired once striking [Victim] in the head.
         [Victim] lost consciousness.

         Police were summoned to the scene and Ms. Peck gave them
         a description of [Appellant’s] car. A car matching Ms. Peck’s
         description was located heading back toward the residence.
         Police ordered [Appellant] to pull over and he was
         apprehended. They recovered a .380 caliber handgun from
         [Appellant’s] waistband. One spent cartridge casing and
         two live rounds of .380 caliber ammunition were recovered
         at the scene.

         [Victim] never regained consciousness and died several
         days later on July 17, 2004. The coroner determined the
         cause of death was the gunshot wound to the right parietal
         lobe from a .380 caliber bullet recovered during the autopsy.

Commonwealth v. Shaw, 2470 EDA 2006, at 2-3 (Pa.Super. filed April 7,

2008) (unpublished memorandum).

      The Commonwealth charged Appellant with murder generally, burglary,

firearms not to be carried without a license, and related offenses. Appellant

proceeded to a bench trial on June 13, 2006.          Appellant underwent a

psychiatric evaluation prior to trial and was deemed competent to stand trial.

At trial, Appellant presented expert testimony to support his claim that he

lacked the requisite intent to commit first-degree murder due to his history of

mental illness.   The Commonwealth presented its own expert to rebut

Appellant’s claim. On June 15, 2006, the court convicted Appellant of third-

degree murder, burglary, firearms not to be carried without a license, and

possessing instruments of crime. The court sentenced Appellant that day to


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an aggregate term of 36 to 72 years’ imprisonment. This Court affirmed the

judgment of sentence on April 7, 2008, and our Supreme Court denied

allowance of appeal on July 30, 2008. Commonwealth v. Shaw, 953 A.2d

839 (Pa.Super. 2008), appeal denied, 598 Pa. 766, 956 A.2d 434 (2008).

       On May 16, 2015, Appellant filed pro se a first PCRA petition. Appellant

subsequently filed pro se two supplemental PCRA petitions.              The court

appointed counsel, who filed a petition to withdraw and a Turner/Finley2 “no-

merit” letter on December 22, 2016.            On April 27, 2017, the court issued

notice of its intent to dismiss the petition without a hearing per Pa.R.Crim.P.

907. At a hearing before the court on June 1, 2017, when the court was

prepared to dismiss the petition formally, Appellant’s brother appeared on

Appellant’s behalf and asked the court for an extension of time for Appellant

to file a response to counsel’s Turner/Finley “no-merit letter.” Appellant’s

brother also asked the court to appoint new PCRA counsel for Appellant,

alleging that Appellant cannot read or write. Appellant’s brother suggested

that others had helped Appellant draft his earlier pro se filings. The court

granted the request, let original PCRA counsel withdraw, and appointed new

PCRA counsel to review all filings including original PCRA counsel’s

Turner/Finley letter.

       On June 25, 2017, second PCRA counsel filed a petition to withdraw and


____________________________________________


2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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a Turner/Finley “no-merit” letter. Appellant responded pro se on August 15,

2017. The court issued Rule 907 notice for a second time on December 4,

2017, and formally dismissed the petition as untimely on January 22, 2018,

and let second PCRA counsel withdraw. Appellant timely filed a pro se notice

of appeal on February 20, 2018.                On March 8, 2018, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Appellant’s brother subsequently filed a Rule

1925(b) statement on Appellant’s behalf, which the court rejected. On June

8, 2018, the court appointed appellate counsel3 and issued a new Rule 1925(b)

order. Following the grant of an extension of time, Appellant timely filed a

counseled Rule 1925(b) statement on July 30, 2018.

       Appellant raises the following issue for our review:

          DID THE PCRA COURT ERR AND/OR ABUSE ITS
          DISCRETION WHEN IT DENIED [APPELLANT’S] PETITION
          UNDER THE PCRA WITHOUT A HEARING WITH RESPECT TO
          WHETHER      [APPELLANT’S]   ALLEGED     MENTAL
          INCOMPETENCE DURING WHICH THE STATUTORY PERIOD
____________________________________________


3 Generally, once the court permits PCRA counsel to withdraw after filing a
Turner/Finely “no-merit” letter, an appellant is no longer entitled to the
appointment of counsel on appeal. See Commonwealth v. Rykard, 55 A.3d
1177 (Pa.Super. 2012), appeal denied, 619 Pa. 714, 64 A.3d 631 (2013)
(explaining that when counsel has been appointed to represent PCRA
petitioner and that right has been fully vindicated following grant of counsel’s
petition to withdraw under Turner/Finley, court shall not appoint new counsel
and appellant must look to his own resources for future proceedings). Here,
the PCRA court appointed appellate counsel based on Appellant’s allegations
of mental illness and illiteracy. We see no error with the court’s appointment
of appellate counsel under these circumstances. See Pa.R.Crim.P. 904(E)
(stating court shall appoint counsel to represent defendant whenever interests
of justice require it).

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         FOR FILING A PCRA PETITION EXPIRED MAY TRIGGER THE
         “NEWLY DISCOVERED FACT” EXCEPTION TO THE PCRA
         TIME-BAR WHERE THE TURNER/FINLEY LETTERS FILED
         IN THE PCRA COURT BY PRIOR COUNSEL DID NOT PRESENT
         SUFFICIENT ANALYSIS WITH RESPECT TO THIS CLAIM OF
         AN EXCEPTION TO THE PCRA’S TIME BAR?

(Appellant’s Brief at 5) (internal footnotes omitted).

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

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d

319 (2008). This Court grants great deference to the findings of the PCRA

court if the record contains any support for those findings. Commonwealth

v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932

A.2d 74 (2007). Further, a petitioner is not entitled to a PCRA hearing as a

matter of right; the PCRA court can decline to hold a hearing if there is no

genuine issue concerning any material fact, the petitioner is not entitled to

PCRA relief, and no purpose would be served by any further proceedings.

Commonwealth v. Wah, 42 A.3d 335 (Pa.Super. 2012).

      Appellant argues he was mentally incapacitated throughout the period

when he could have filed a timely PCRA petition.         Appellant asserts he

presented expert testimony at trial demonstrating his well-documented

mental defect. Appellant highlights his expert’s trial testimony that Appellant

could not have formed specific intent to kill due to Appellant’s various mental

deficiencies.   Appellant claims he has an I.Q. of 64 and operates at an

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elementary school level. Appellant maintains his mental disorders affected

his capacity to initiate and participate in collateral proceedings.   Appellant

contends he suffers from a diagnosed psychotic disorder and paranoia.

Appellant emphasizes he was involuntarily committed to Norristown State

Hospital prior to trial in this case. Appellant submits his documented mental

disorders, coupled with his inability to read, write, or preform basic math,

show he was incompetent during the mandatory time limits for filing a PCRA

petition. Appellant concludes his substantial mental health issues constitute

more than mere mental illness or a psychological condition, and this Court

must vacate and remand for an evidentiary hearing so Appellant can establish

that he remained incompetent throughout the time when he should have filed

a timely PCRA petition and filed his petition as soon as he became sufficiently

competent to proceed. We disagree.

      The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Robinson, 12 A.3d 477 (Pa.Super. 2011).                A PCRA

petition, including a second or subsequent petition, must be filed within one

year of the date the underlying judgment becomes final.        42 Pa.C.S.A. §

9545(b)(1). A judgment is deemed 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 three statutory exceptions to the timeliness provisions in the PCRA


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allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition

must allege and the petitioner must prove:

          (i) the failure to raise a 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).            In addition, a petitioner asserting a

timeliness exception must file a petition within 60 days of when the claim

could first have been presented.4 42 Pa.C.S.A. § 9545(b)(1-2). The PCRA’s

“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, 558 Pa. 313, 329, 737 A.2d 214, 222 (1999)



____________________________________________


4  As of December 24, 2018, Section 9545(b)(2) now allows that any PCRA
petition invoking a timeliness exception must be filed within one year of the
date the claim first could have been presented. See Act 2018, Oct. 24, P.L.
894, No. 146, § 2, effective in 60 days [Dec. 24, 2018]. This amendment
applies to claims arising on or after December 24, 2017. Because Appellant
filed the current PCRA petition on May 16, 2015, the amendment does not
apply here.

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(holding period for filing PCRA is not subject to doctrine of equitable tolling,

except to extent doctrine is embraced by statutory exceptions to time-bar).

      The timeliness exception set forth in Section 9545(b)(1)(ii), also known

as the “newly-discovered fact” exception, requires a petitioner to plead and

prove: (1) he did not know the fact(s) upon which he based his petition; and

(2) he could not have learned those fact(s) earlier by the exercise of due

diligence. Commonwealth v. Bennett, 593 Pa. 382, 393, 930 A.2d 1264,

1270 (2007). Due diligence demands the petitioner to take reasonable steps

to protect his own interests.     Commonwealth v. Carr, 768 A.2d 1164

(Pa.Super. 2001). A petitioner must explain why he could not have learned

the new fact earlier with the exercise of due diligence. Commonwealth v.

Breakiron, 566 Pa. 323, 781 A.2d 94 (2001). This rule is strictly enforced.

Commonwealth v. Monaco, 996 A.2d 1076 (Pa.Super. 2010), appeal

denied, 610 Pa. 607, 20 A.3d 1210 (2011).

      Broad claims of mental illness do not satisfy a statutory exception to the

PCRA time-bar. Commonwealth v. Hoffman, 780 A.2d 700, 701 (Pa.Super.

2001). In Commonwealth v. Cruz, 578 Pa. 325, 852 A.2d 287 (2004), our

Supreme Court carved out a narrow exception to the general rule where a

PCRA petitioner’s mental incompetence prevented him from filing a timely

PCRA petition.   The appellant in Cruz shot and killed a number of victims

before turning his handgun on himself and attempting to commit suicide. The

appellant survived, but he sustained a severe brain injury that left him


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essentially lobotomized. The appellant entered a plea of nolo contendere to

three counts of second-degree murder, and the court sentenced him to

consecutive terms of life imprisonment for each offense. At the time of the

plea, the parties informed the court that the appellant was pleading nolo

contendere because he was unable to express emotions or discuss the facts

of the case in any sensible way due to his brain injury. Almost six years later,

the appellant filed a PCRA petition alleging his brain injury had rendered him

incompetent and prevented him from participating in his own defense. The

appellant further alleged that his brain injury had been slowly resolving in the

months just before he filed his PCRA petition. The Cruz Court recognized that

the PCRA does not include an exception for mental incapacity but held “in

some circumstances, claims that were defaulted due to the PCRA petitioner’s

mental incompetence may qualify under the statutory [newly-discovered fact]

exception.” Id. at 336, 852 A.2d at 293 (emphasis added).

      “Thus, the general rule remains that mental illness or psychological

condition, absent more, will not serve as an exception to the PCRA’s

jurisdictional time requirements.” Monaco, supra at 1081. Consequently,

Pennsylvania courts have continued to construe narrowly the limited holding

in Cruz. See, e.g., Commonwealth v. Ali, 624 Pa. 309, 86 A.3d 173 (2014),

cert. denied, ___ U.S. ___, 135 S.Ct. 707, 190 L.Ed.2d 439 (2014) (holding

petitioner did not meet newly-discovered fact exception concerning second

PCRA petition because he failed to prove he was mentally incompetent during


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statutory period allowed; appellant showed temporal awareness in filing timely

first PCRA petition and subsequent amendments after his judgment of

sentence became final; that appellant was plainly able to ascertain factual

predicates to claims raised in first PCRA petition but unable to ascertain facts

necessary for issues raised in second PCRA petition is simply incongruous);

Monaco, supra (holding appellant did not satisfy newly-discovered fact

exception where he failed to exercise due diligence in ascertaining diagnosis

of post-traumatic stress disorder (“PTSD”); additionally, appellant did not

allege his PTSD impaired his ability to raise claim in timely manner; thus,

appellant’s PTSD diagnosis did not fall within narrow Cruz holding);

Commonwealth v. Liebensperger, 904 A.2d 40 (Pa.Super. 2006) (holding

appellant’s assertion of chronic mental illness did not satisfy newly-discovered

fact exception; appellant’s inability to offer evidence pointing to moment when

he passed from incompetence to competence distinguished his case from

Cruz; further, appellant made no assertions, and nothing in record indicates,

that appellant’s condition was one that improved or changed and restored him

to degree of competence required to file PCRA petition); Commonwealth v.

Pagan, 864 A.2d 1231 (Pa.Super. 2004), cert. denied, 546 U.S. 909, 126

S.Ct. 264, 163 L.Ed.2d 237 (2005) (holding appellant was ineligible for PCRA

relief where he was no longer serving sentence; in any event, appellant could

not meet newly-discovered fact exception, where expert decided appellant

was competent four years before appellant filed current PCRA petition).


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      Instantly, Appellant’s judgment of sentence became final on October 28,

2008, upon expiration of the time for filing a petition for writ of certiorari with

the United States Supreme Court.        See U.S.Sup.Ct.R.13 (providing ninety

days to timely file petition for writ of certiorari). Appellant filed the current

PCRA petition on May 16, 2015, which was patently untimely.                See 42

Pa.C.S.A. § 9545(b)(1). Appellant attempted to invoke the “newly-discovered

fact” exception at Section 9545(b)(1)(ii), alleging his history of mental illness

paired with his learning difficulties rendered him incompetent to participate in

collateral proceedings during the statutory period prescribed in the PCRA.

      The PCRA court addressed Appellant’s claim as follows:

         The instant claim is clearly distinguishable from Cruz. In
         Cruz, the appellant presented evidence that he was
         “lobotomized.” Here, [Appellant] claims that because he
         had a history of mental illness and a learning disability, he
         was unable to file a timely PCRA petition. Having a history
         of mental illness or a learning disability does not rise to the
         same level of unique circumstances found in Cruz.

         Further, [Appellant] fails to demonstrate that he exercised
         due diligence in learning the purported “newly-discovered
         fact” and could not have discovered the information
         regarding his alleged mental incompetence sooner.
         [Appellant] also fails to plead or prove when he allegedly
         became competent and how his alleged mental
         incompetence prevented him from filing a timely PCRA
         petition.

         Finally, [Appellant’s] mental health issue is not newly-
         discovered, but was well known.         At trial, there was
         extensive expert testimony on [Appellant’s] mental health,
         medications, diagnosis, and rehabilitative needs. There was
         additional testimony about his mental health at
         [Appellant’s] sentencing, where the trial court found he had
         “some type of substantive mental defect” which was “well-

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         documented.”

         Because [Appellant’s] alleged mental health issue does not
         rise to a level of unique circumstances—as in
         Commonwealth v. Cruz—and because [Appellant] cannot
         demonstrate that he could not have learned of this issue
         sooner, [Appellant] does not meet the “newly-discovered
         facts” exception to the PCRA time bar. As such, his PCRA
         petition was properly dismissed as untimely without a
         hearing.

(PCRA Court Opinion, filed September 5, 2018, at 6-7) (internal citations

omitted). The record supports the court’s analysis. See Wah, supra; Ford,

supra; Boyd, supra. The record in this case confirms Appellant’s mental

issues and difficulties were fully explored and considered at trial and at

sentencing; and Appellant was deemed competent for trial in 2006, as well as

sentencing and direct review. Thus, the very existence of Appellant’s mental

challenges did not qualify as a “new fact” for purposes of satisfying that time-

bar exception. See Bennett, supra; Pagan, supra. Appellant knew then

what he now claims is a “new fact.” See id.; Monaco, supra; Carr, supra.

      Further, Appellant did not explain how his mental limitations later

increased or if he regressed or when he recovered. In other words, Appellant

simply failed to assert, and nothing in this record indicates, how his mental

condition changed over the years, for worse or for better since his trial,

sentencing, and direct appeal, in a manner that would excuse the delay in

filing his current petition for collateral relief. See Liebensperger, supra.

Compare Cruz, supra. Therefore, Appellant could not satisfy the “newly-

discovered fact” exception described in Cruz, and the PCRA court properly

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dismissed Appellant’s petition as time-barred. Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/19




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