J-S35044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GREGORY SAMUELS,

                            Appellant                 No. 2619 EDA 2014


                  Appeal from the PCRA Order August 25, 2014
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0609081-2000


BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                FILED JUNE 23, 2015

        Appellant, Gregory Samuels, appeals pro se from the order dismissing

his second petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        This Court previously summarized the factual and procedural history of

this case as follows:

                      On September 6, 1999, Appellant attended a
              Philadelphia neighborhood block party with his
              girlfriend, Bathsheba Woodall (Woodall). After the
              party, the couple began arguing about each person’s
              relationships with former girlfriends and boyfriends.
              The argument culminated in Appellant shooting
              Woodall five times while she was seated in her car.
              Appellant then pushed Woodall’s body from the
              driver’s seat, made several telephone calls, and
              drove Woodall’s car away.         Appellant ultimately
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*
    Retired Senior Judge assigned to the Superior Court.
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              drove to the Philadelphia airport where he moved
              Woodall’s body to the trunk of her car and boarded a
              flight to Jamaica.       U.S. Marshalls apprehended
              Appellant several months later. Following the denial
              of Appellant’s suppression motion, Appellant was
              tried before a jury in Philadelphia County . . . .

        (Commonwealth v. Samuels, No. 1230 EDA 2001,
        unpublished memorandum at *1-2 (Pa. Super. filed Nov. 14,
        2002)). Following the jury [convictions of first-degree murder
        and possession of an instrument of crime1] on March 23, 2001,
        the trial court immediately sentenced Appellant to life
        imprisonment on the first-degree murder conviction and a
        consecutive term of [not less than] two and one half (2½) [nor
        more than] five (5) years’ incarceration for possessing an
        instrument of crime. On April 30, 2001, the trial court granted
        Appellant leave to file a notice of appeal nunc pro tunc, which
        Appellant filed on May 1, 2001. On November 14, 2002[,] this
        Court affirmed the judgment of sentence[.] (See id.) [O]n
        November 12, 2004, [our] Supreme Court denied allowance of
        appeal. (See Commonwealth v. Samuels, 863 A.2d 1145 (Pa.
        2004)).

               While his petition for allowance of appeal was still pending
        before [our] Supreme Court, Appellant filed a pro se PCRA
        petition on November 7, 2003. On December 18, 2003, the
        court appointed PCRA counsel. On September 23, 2004, PCRA
        counsel petitioned the court for leave to withdraw and filed 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). Following its independent
        review, the PCRA court notified Appellant of its intent to dismiss
        his PCRA petition without a hearing pursuant to Pa.R.Crim.P.
        907. Appellant did not file a response. On November 23, 2004,
        the PCRA court dismissed Appellant’s PCRA petition and granted
        PCRA counsel leave to withdraw. . . .




____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a) and 907, respectively.



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(Commonwealth           v.    Samuels,         No.   95   EDA   2005,   unpublished

memorandum at *1-3 (Pa. Super. filed May. 3, 2006)) (footnotes omitted

and some citation formatting provided).

       Appellant timely filed a pro se appeal on December 15, 2004. On May

3, 2006, this Court affirmed the PCRA court’s denial of relief. (See id. at

*15).2    Appellant did not file a petition for allowance of appeal with our

Supreme Court.

       On April 23, 2012, Appellant filed a second pro se PCRA petition, an

amended petition on August 28, 2013, and a supplement on September 30,

2013. The PCRA court notified Appellant of its intention to dismiss his PCRA

petition without a hearing pursuant to Pennsylvania Rule of Criminal

Procedure 907 on March 28, 2014. See Pa.R.Crim.P. 907. Appellant filed a

pro se response on April 4, 2014. The PCRA court dismissed the petition as

untimely on August 25, 2014. Appellant timely appealed on September 9,

2014.3
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2
  This Court acknowledged that Appellant’s PCRA petition was premature
because “it was filed while his petition for allowance of appeal was still
pending before [our] Supreme Court.” (Samuels, No. 95 EDA 2005, at *3,
n.3) (citation omitted). However, because “the PCRA court did not finally
rule on Appellant’s PCRA petition until after [our] Supreme Court denied his
petition for allowance of appeal . . . [his] PCRA petition [was deemed] as . . .
[being] filed . . . the day after [our] Supreme Court denied allowance of
appeal.” (Id.).
3
 The PCRA court did not order Appellant to file a Rule 1925(b) statement. It
entered its Rule 1925(a) opinion on December 19, 2014. See Pa.R.A.P.
1925.



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      Appellant raises the following issues for our review:

      1).    Did the (PCRA) court err, and commit reversible error
      when it dismissed [Appellant’s] petition without the benefit of
      [an] evidentiary hearing to develop the credibility of the
      presented statement(s) that led to the filing of the immediate
      petition, and therefore, being able to render a fully informed
      opinion?

      2).    Was Appellant[] denied effective assistance of counsel at a
      critical stage, that was pertinent to the fifth and sixth
      amendment[s] with regard to the due process, fair trial,
      therefore, being able to comply with the state’s procedures?

      3).    Does due diligence require Appellant[] to assumed [sic]
      that a juror commit perjury/fraud, that the judge and [lawyers]
      knew or should have known but failed to take remedy measures,
      when it was presented at a criminal trial, therefore, impeding
      justice and perpetrating a knowing fraud upon the judiciary to
      procure a conviction?

      4).    Did the Commonwealth’s prosecuting attorney err, and
      commit reversible error when he failed to expose perjury, when
      it was presented at a criminal trial, resulted in a miscarriage of
      justice, and unreliable verdict?

(Appellant’s Brief, at unnumbered page 9) (most capitalization omitted).

      Our standard of review is well-settled:

             [A]n 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. The scope of review is limited to the findings of
      the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the trial level.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)

(citation omitted).

             We also note that a PCRA petitioner is not automatically
      entitled to an evidentiary hearing. We review the PCRA court’s


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     decision dismissing a petition without a hearing for an abuse of
     discretion.

                 [T]he right to an evidentiary hearing on a post-
           conviction petition is not absolute. It is within the
           PCRA court’s discretion to decline to hold a hearing if
           the petitioner’s claim is patently frivolous and has no
           support either in the record or other evidence. It is
           the responsibility of the reviewing court on appeal to
           examine each issue raised in the PCRA petition in
           light of the record certified before it in order to
           determine if the PCRA court erred in its
           determination that there were no genuine issues of
           material fact in controversy and in denying relief
           without conducting an evidentiary hearing.

                                 *    *    *

            Before we may address the merits of Appellant’s
     arguments, we must first consider the timeliness of Appellant’s
     PCRA petition because it implicates the jurisdiction of this Court
     and the PCRA court. Pennsylvania law makes clear that when a
     PCRA petition is untimely, neither this Court nor the trial court
     has jurisdiction over the petition. The 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[.] This is to accord finality
     to the collateral review process. However, an untimely petition
     may be received when the petition alleges, and the petitioner
     proves, that any of the three limited exceptions to the time for
     filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii),
     and (iii), are met.

Commonwealth v. Miller, 102 A.3d 988, 992-93 (Pa. Super. 2014)

(citations and quotation marks omitted).

     Section 9545 of the PCRA states in relevant part:

     (b) Time for filing petition.—

           (1) Any petition under this subchapter, including a second
           or subsequent petition, shall be filed within one year of the


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            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.

42 Pa.C.S.A. § 9545(b)(1) and (2).

      Here, Appellant’s judgment of sentence became final on February 9,

2005 when the time to seek discretionary review in the United States

Supreme Court expired.     See 42 Pa.C.S.A. § 9545(b)(3).        Therefore, in

order to comply with the filing requirements of the PCRA, Appellant’s petition

had to be filed by February 9, 2006. Because the underlying petition was

filed on April 23, 2012, it is facially untimely and the PCRA court lacked

jurisdiction to review it unless Appellant pleaded and proved one of the

statutory exceptions to the time bar under 42 Pa.C.S.A. § 9545(b)(1).

      Appellant acknowledges that his second PCRA petition is untimely.

(See Appellant’s Brief, at 1-2, 19). However, he asserts that the PCRA court


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erred in dismissing his petition as untimely because his claims fell within the

governmental interference and newly discovered facts exceptions to the time

bar.   (See id. at 1).       Appellant baldly states that the “trial [j]udge . . .

prosecutor . . . and . . . defense attorney . . . either failed to uncover [the

jury foreperson’s] fraud/perjury when it had occur or turn a blind eye [sic].”

(Id. at 3). However, Appellant has failed to identify the alleged fraud or any

governmental interference with his ability to raise his claim in prior

proceedings; thus, this bald statement does not excuse his untimely second

PCRA petition. See Miller, supra at 992-93.

       Accordingly, Appellant has failed to plead and prove an exception to

the PCRA time bar; the PCRA court properly dismissed Appellant’s petition as

untimely and we lack jurisdiction to consider the merits of his petition. See

id.

       Order affirmed.4

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2015

____________________________________________


4
  Because we lack jurisdiction, Appellant’s Motion for Sanction and Failure to
File a Timely Response Brief filed 5/05/15 is dismissed.



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