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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
DARRYL PITTS,                               :
                                            :
                          Appellant         :     No. 1895 EDA 2014


                    Appeal from the PCRA Order June 2, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-1206131-1997
                                         CP-51-CR-1206141-1997

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 25, 2015

        Appellant, Darryl Pitts, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, dismissing his “Motion to

Vacate Illegal Sentences” as an untimely second Post Conviction Relief Act 1

(“PCRA”) petition.       Appellant contends the PCRA court erred: (1) in

dismissing his motion to vacate his illegal sentences; (2) in denying him due




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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process; and (3) in converting his motion to vacate illegal sentences to a

PCRA petition.2 We affirm and deny Appellant’s motion for sanctions.

        The PCRA court summarized the facts and procedural history of this

case:

             On June 16, 1999, following a three-day trial, a jury
          found [Appellant] guilty of two counts of burglary, two
          counts of theft by unlawful taking, and one count of
          robbery.    Sentencing having been deferred, this court
          sentenced [Appellant] to an aggregate term of
          incarceration of forty to eighty years on October 22, 1999.
          Shortly thereafter, on October 27, 1999, the original
          sentences were vacated and [he] was sentenced to an
          aggregate term of thirty to sixty years. This sentencing
          was affirmed on direct appeal by the Superior Court on
          November 6, 2000. [Commonwealth v. Pitts, 71 EDA
          2000 (unpublished memorandum) (Pa. Super. Nov. 6,
          2000).] [Appellant’s] petition for allowance of appeal was
          denied by our Supreme Court on April 16, 2001.
          [Commonwealth v. Pitts, 746 EAL 2000] (Pa. 2001).

             On May 30, 2001, [Appellant] filed a timely pro se
          [PCRA petition].    As it was [his] first PCRA petition,
          counsel was appointed.      After reviewing the petition,
          counsel concluded the petition was wholly frivolous.
          Accordingly, counsel filed a “no merit” letter pursuant to
          Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. [ ]
          1988) asking to be permitted to withdraw his
          representation of [Appellant]. Following an independent
          review, this court agreed with counsel and on December
          17, 2002, notified [Appellant] of its intent to dismiss his
          petition. On January 28, 2002, counsel was permitted to
          withdraw and [Appellant’s] PCRA petition was dismissed as
          meritless.

            Subsequent to the dismissal, [Appellant] filed an
          appeal. Thereafter, the Superior Court remanded the

2
  The Commonwealth did not file a brief. Appellant filed a “Motion for
Sanction on Appellee’s” for failure to file a brief.



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        matter finding counsel’s Finley letter did not sufficiently
        address all of the issues [Appellant] wished to raise.
        Those issues where whether trial counsel had picked a
        biased jury and whether [Appellant’s] subsequent
        attorneys had been ineffective for not raising that claim.
        Shortly after remand, new counsel was appointed and filed
        an amended PCRA petition addressing [Appellant’s] issues
        concerning jury bias.
           On April 7, 2004, after an independent review of the
        record, this court notified [Appellant] of its intent to
        dismiss the amended petition and on May 7, 2004,
        dismissed the petition.     On June 4, 2004, [Appellant]
        appealed the dismissal of his amended PCRA petition. On
        August 25, 2005, the dismissal was affirmed by the
        Superior Court in a published opinion. [Commonwealth]
        v. Pitts, 884 A.2d 251 (Pa. Super. [ ] 2005). On May 31,
        2006, [Appellant’s] petition for allowance of appeal to our
        Supreme Court was denied. [Commonwealth] v. Pitts,
        [681 EAL 2005] (Pa. 2006).

          On June 11, 2013, [Appellant] filed the instant pro se
        PCRA petition styled as a “Motion to Vacate Illegal
        Sentences.” . . .

                                 *    *    *

           By order dated June 2, 2014, this court dismissed the
        instant PCRA petition as untimely. . . .

PCRA Ct. Op., 7/28/14, at 1-3, 4 (footnote omitted).3


3
  We note that Appellant has attached a “Motion to Set Aside Unlawful
Sentence” as an exhibit to his brief. This motion is not part of the certified
record on appeal. This Court in Parr v. Ford Motor Co., ___ A.3d ___,
2014 WL 7243152 (Pa. Super. 2014) stated:

        The fundamental tool for appellate review is the official
        record of the events that occurred in the trial court. To
        ensure that an appellate court has the necessary records,
        the Pennsylvania Rules of Appellate Procedure provide for
        the transmission of a certified record from the trial court to
        the appellate court. The law of Pennsylvania is well settled



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      This timely appeal followed.     Appellant was not ordered to filed a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The PCRA

court filed a Pa.R.A.P. 1925(a) opinion.

      Appellant raises the following issues for our review:

         I: Did the lower court err in dismissing the motion to
         correct illegal sentence, under the standards pursuant to
         42 Pa.C.S.A. § 9545[?]

         II. Did the lower court deny the Appellant due process
         under Pennsylvania Constitution at Article 1 Section 9 as
         well as the United States Constitution at the Fourteenth
         Amendment[?]

         III. Did the lower court err when motion to set aside
         unlawful sentence/motion to vacate illegal sentence were
         converted to a PCRA petition[?]

Appellant’s Brief at v.

      As a prefatory matter, we consider whether the PCRA court erred in

considering Appellant’s Motion to Vacate Illegal Sentences as a PCRA




         that matters which are not of record cannot be considered
         on appeal.       Thus, an appellate court is limited to
         considering only the materials in the certified record when
         resolving an issue. In this regard, our law is the same in
         both the civil and criminal context because, under the
         Pennsylvania Rules of Appellate Procedure, any document
         which is not part of the officially certified record is deemed
         non-existent-a deficiency which cannot be remedied
         merely by including copies of the missing documents in a
         brief or in the reproduced record.

Id. at ___, 2014 WL 7243152 at *25 n.10 (citing Commonwealth v.
Preston, 904 A.2d 1, 6-8 (Pa. Super. 2006) (en banc) (citations omitted).




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petition. In Commonwealth v. Jackson, 30 A.3d 516 (Pa. Super. 2011),

this Court stated:

            [The appellant’s] “motion to correct illegal
         sentence” is a petition for relief under the PCRA. . . .
         “We have repeatedly held that . . . any petition filed
         after the judgment of sentence becomes final will be
         treated as a PCRA petition.”          Commonwealth v.
         Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002). That
         [the appellant] has attempted to frame his petition as a
         “motion to correct illegal sentence” does not change the
         applicability of the PCRA.      See Commonwealth v.
         Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000) (appellant’s
         “motion to correct illegal sentence” must be treated as
         PCRA petition).

            We base this conclusion on the plain language of the
         PCRA, which states that “[the PCRA] provides for an action
         by which . . . persons serving illegal sentences may obtain
         collateral  relief.”     42    Pa.C.S.A.    §  9542;   see
         Commonwealth v. Hockenberry, [ ] 689 A.2d 283, 288
         (1997) (legality of sentence is cognizable issue under
         PCRA). Further, the Act provides that “[t]he [PCRA] shall
         be the sole means of obtaining collateral relief and
         encompasses all other common law and statutory
         remedies for the same purpose. . . .” 42 Pa.C.S.A. §
         9542; see Commonwealth v. Ahlborn, 699 A.2d 718,
         721 ([Pa.] 1997) (petition filed under the PCRA cannot be
         treated as a request for relief under the common law);
         Commonwealth v. Peterkin, [ ] 722 A.2d 638, 640–41
         (Pa. 1998) (statutory remedy not available where claim is
         cognizable under PCRA). Therefore, [the appellant’s]
         “motion to correct illegal sentence” is a PCRA
         petition and cannot be considered under any other
         common law remedy.

           Because [the appellant’s] claim is cognizable
         under the PCRA, [he] must comply with the time
         requirements of section 9545. . . .




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Id. at 521-22 (emphases added). Therefore, the PCRA court did not err in

treating Appellant’s motion to vacate illegal sentences as a PCRA petition.

See id.

      Before examining the merits of Appellant’s claims, we also consider

whether the PCRA court had jurisdiction to entertain the underlying PCRA

petition.    See id.    On appellate review of a PCRA ruling, “we determine

whether the PCRA court’s ruling is supported by the record and free of legal

error.” Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008).

                   We . . . turn to the time limits imposed by the PCRA,
            as they implicate our jurisdiction to address any and all of
            [an a]ppellant’s claims. To be timely, a PCRA petition
            must be filed within one year of the date that the
            petitioner’s judgment of sentence became final, unless the
            petition alleges and the petitioner proves one or more of
            the following 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.

            42 Pa.C.S. § 9545(b)(1).




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            We emphasize that it is the petitioner who bears the
         burden to allege and prove that one of the timeliness
         exceptions applies. In addition, a petition invoking any
         of the timeliness exceptions must be filed within 60
         days of the date the claim first could have been
         presented. 42 Pa.C.S. § 9545(b)(2). A petitioner fails to
         satisfy the 60–day requirement of Section 9545(b) if he or
         she fails to explain why, with the exercise of due diligence,
         the claim could not have been filed earlier.

Id. at 719-20 (emphases added) (some citations omitted).

      Appellant’s judgment of sentence became final on July 16, 2001,

ninety days after the Pennsylvania Supreme Court denied his petition for

allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (providing “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[ ]”).

Appellant generally had until July 16, 2002, to file his PCRA petition. See 42

Pa.C.S. § 9545(b)(1) (providing PCRA petition must be filed within one year

of date judgment becomes final).      Therefore, because he filed his PCRA

petition on June 11, 2013, his petition is patently untimely.

      Appellant did not plead and prove any exception to the PCRA’s

timeliness requirement.    See Marshall, 947 A.2d at 719-20.        Thus, the

PCRA court did not err in dismissing his PCRA petition as untimely. See id.

      Order affirmed. Motion for Sanction on Appellee’s denied.




                                     -7-
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/25/2015




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