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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                   v.                     :
                                          :
ZAID SHABAZZ,                             :         No. 3694 EDA 2017
                                          :
                        Appellant         :


               Appeal from the PCRA Order, October 18, 2017,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0006606-2011


BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED MAY 09, 2019

      Zaid Shabazz appeals from the October 18, 2017 order entered by the

Court of Common Pleas of Philadelphia County denying appellant’s first

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. After careful review, we affirm.

      The relevant procedural history of this case is as follows:

            On January 22, 2013, [appellant pled] guilty to
            attempted murder and possession of an instrument of
            crime (“PIC”) . . . . On March 7, 2013, [the trial court]
            imposed a sentence of eight to sixteen years of
            confinement for attempted murder, followed by two
            consecutive years of probation for PIC. On March 19,
            2013, [appellant] filed an untimely Post-Sentence
            Motion which the [trial] court denied on July 8, 2013.
            [Appellant] did not file a direct appeal on this matter.

            [Appellant] filed an untimely pro se petition pursuant
            to the [PCRA]. David Rudenstein, Esq. was appointed
            to represent [appellant]. Mr. Rudenstein filed an
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            amended PCRA petition. [The PCRA court] issued a
            [Pa.R.Crim.P.] 907 Notice to [appellant] advising him
            that his PCRA petition would be denied/dismissed
            within twenty days because the [PCRA court] found
            his pro se PCRA petition was without merit or had
            been waived, to which no response was received. On
            October 18, 2017, [the PCRA court] held an
            evidentiary hearing and dismissed [appellant’s] PCRA
            Petition. [Appellant] filed a timely appeal and [the
            PCRA court] entered an Order requiring [appellant] to
            file a Statement of Matters Complained of on Appeal
            [pursuant to Pa.R.A.P. 1925(b)].          [Appellant]
            complied.

PCRA court opinion, 5/17/18 at 1-2. The PCRA court filed an opinion pursuant

to Pa.R.A.P. 1925(a).

      Appellant raises the following issue for our review:

            Did the Honorable PCRA Court err when it dismissed
            the Pro Se Petition without granting a hearing and all
            where [appellant] pled, and would have been able to
            prove, that he was entitled to relief?

Appellant’s brief at 3.

      The PCRA requires that any petition for collateral relief be filed within

one year of the date that the judgment of sentence becomes final.

42 Pa.C.S.A. § 9545(b)(1). “[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.” Commonwealth v. Callahan, 101 A.3d 118,

122 (Pa.Super. 2014), quoting 42 Pa.C.S.A. § 9545(b)(3). A petitioner may

only timely file a PCRA petition beyond one year of the date the judgment of

sentence becomes final if:


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             (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)(i)-(iii).

             “[T]he time limitations pursuant to . . . the PCRA are
             jurisdictional.” Commonwealth v. Fahy, [] 737 A.2d
             214, 222 ([Pa.] 1999).          “[Jurisdictional time]
             limitations are mandatory and interpreted literally;
             thus, a court has no authority to extend filing periods
             except as the statute permits.” Id. “If the petition is
             determined to be untimely, and no exception has been
             pled and proven, the petition must be dismissed
             without a hearing because Pennsylvania courts are
             without jurisdiction to consider the merits of the
             petition.”   Commonwealth v. Perrin, 947 A.2d
             1284, 1285 (Pa.Super. 2008).

Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.Super. 2011), appeal

denied, 47 A.3d 845 (Pa. 2012).

        Here, appellant filed an untimely post-sentence motion on March 19,

2013.     We have previously held the following pertaining to untimely

post-sentence motions:




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            An untimely post-sentence motion does not toll the
            appeal period. Commonwealth v. Green, 862 A.2d
            613, 618 (Pa.Super .2004) (en banc ) (“[T]he time
            for filing an appeal can be extended beyond 30 days
            after the imposition of sentence only if the defendant
            files a timely post-sentence motion.”).

            ....

            Under Commonwealth v. Dreves, 839 A.2d 1122,
            1128 (Pa.Super. 2003) (en banc), a post-sentence
            motion nunc pro tunc may toll the appeal period, but
            only if two conditions are met. First, within 30 days
            of imposition of sentence, a defendant must request
            the trial court to consider a post-sentence motion
            nunc pro tunc. “The request for nunc pro tunc
            relief is separate and distinct from the merits of the
            underlying post-sentence motion.” Id. at 1128-29.
            Second, the trial court must expressly permit the filing
            of a post-sentence motion nunc pro tunc, also within
            30 days of imposition of sentence. Id. at 1128 & n.6.
            “If the trial court does not expressly grant nunc pro
            tunc relief, the time for filing an appeal is neither
            tolled nor extended.” Id. at 1128. Moreover, “[t]he
            trial court's resolution of the merits of the late post-
            sentence motion is no substitute for an order
            expressly granting nunc pro tunc relief.” Id. at
            1129.

Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa.Super. 2015).

      Based on our review of the record, appellant did not request nunc pro

tunc relief in his post-sentence motion, and the trial court disposed of the

motion on its merits. Our holding in Capaldi requires us to find that the time

for filing a direct appeal was not tolled by appellant’s untimely post-sentence

motion. Accordingly, pursuant to the PCRA, appellant’s judgment of sentence

became final on April 6, 2013. 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).




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Therefore, appellant’s final day to file a timely petition pursuant to the PCRA

was April 7, 2014.1 42 Pa.C.S.A. § 9545(b)(1).

      In this case, appellant filed his pro se PCRA petition on May 6, 2014.

An amended PCRA petition was filed on December 27, 2016.              Therein,

appellant does not plead any of the three exceptions to the PCRA time-bar.

Because appellant filed an untimely PCRA petition and did not plead nor prove

any of the three exceptions to the PCRA time bar, we do not have jurisdiction

to consider the merits of appellant’s appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/9/19




1 April 6, 2014 fell on a Sunday. Therefore, appellant’s deadline for filing a
timely petition was extended to the following business day. See 1 Pa.C.S.A.
§ 1908.


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