J-S27023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANTONIO PEARSON

                            Appellant                  No. 589 EDA 2010


                 Appeal from the PCRA Order of August 18, 2008
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0722581-1989


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                       FILED NOVEMBER 16, 2015

        Appellant, Antonio Pearson, appeals from the August 18, 2008 order of

the Court of Common Pleas of Philadelphia County denying relief under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review,

we quash this appeal.

        The trial court summarized the factual background as follows:

        [O]n the evening of March 24, 1989, Edwin Rivera, Francisco
        Olmeda and Anderson Alvarez were standing in the middle of the
        2500 block of North Franklin Street, Philadelphia, Pennsylvania.
        All three were there to sell drugs. At approximately 9:15 p.m.,
        [Appellant] and [codefendant] Michael McFadden walked down
        Huntington Street towards the trio of drug dealers. As they
        approached, [Appellant] asked if any of the three had a light for
        a cigarette. They replied that they did not. [Appellant] and
        [codefendant] then each pulled out a pistol. [Appellant] told the
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*
    Former Justice specially assigned to the Superior Court.
J-S27023-15


      trio to raise their hands and give him their money. Olmeda and
      Alvarez gave [Appellant] their wallets.

      [Appellant] then demanded that the three give them the drugs
      which they had been selling, and Alvarez replied that they had
      no drugs.    [Appellant] then put the barrel of his pistol in
      Alvarez’s mouth, and Alvarez told Olmeda to give [Appellant] the
      drugs. Olmeda relented and gave [Appellant] nine bags of
      drugs.

      After he received the drugs[,] [Appellant] told Olmeda to pull his
      pants down, and Olmeda complied. [Appellant] grabbed Alvarez
      by the back of neck, and [codefendant] did the same to Rivera.
      [Appellant and codefendant] walked both men toward the corner
      of Franklin and Huntingdon Streets with guns pressed against
      the latter[’s] bodies.    When they arrived at the corner,
      [Appellant and codefendant] placed Rivera and Alvarez against
      the wall, and [Appellant] hit each man with his pistol several
      times[,] causing each to fall to the ground. As Rivera started to
      get up, [Appellant] fatally shot him in the face.         Alvarez
      attempted to crawl away; however, as he was crawling,
      [Appellant] and [codefendant] shot him in his legs.

Trial Court Opinion, 6/10/94, at 3-4.

      On February 13, 1991, a jury convicted Appellant of second degree

murder, aggravated assault, two counts of robbery, criminal conspiracy,

possessing an instrument of crime, and recklessly endangering another

person.    On December 20, 1993, Appellant was sentenced to life

imprisonment.    On May 17, 1995, this Court affirmed the judgments of

sentence and, on December 1, 1995, our Supreme Court denied Appellant’s

petition for allowance of appeal.   Commonwealth v. Pearson, 664 A.2d

1058 (Pa. Super. 1995) (unpublished memorandum), appeal denied, 668

A.2d 1128 (Pa. 1995).




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       This   Court    summarized       the    subsequent   procedural   history    in

Appellant’s prior collateral appeal as follows:

       [Appellant filed his first PCRA petition on February 28, 1997].
       Counsel was appointed, but eventually filed a Turner/Finley “no
       merit” letter brief, suggesting that the PCRA petition was wholly
       frivolous and without merit and was untimely as well. On
       January 4, 1999, the trial judge dismissed the petition. An
       appeal was taken to this Court, but was dismissed on June 28,
       2000 for counsel’s failure to file a brief. Appellant did not file a
       petition for allowance of appeal to our Supreme Court.

       On July 31, 2000, appellant filed a second PCRA petition, seeking
       nunc pro tunc reinstatement of his appellate rights from his first
       PCRA petition, due to counsel’s failure to file a brief. . . . [O]n
       January 17, 2002, following proper notice, [the PCRA court
       dismissed appellant’s petition as untimely filed].

Commonwealth           v.    Pearson,      No.    1049   EDA   2002,     unpublished

memorandum at 2-3 (Pa. Super. filed September 15, 2004) (footnote

omitted).1 On appeal, this Court affirmed the PCRA court’s dismissal of the

second petition as untimely filed.               Id.   Our Supreme Court denied

Appellant’s petition for allowance of appeal on March 28, 2005.                    See

Commonwealth v. Pearson, 871 A.2d 190 (Pa. 2005).

       On October 12, 2007, Appellant filed his third PCRA petition, arguing

for the application of the time-bar exception for newly discovered evidence

under Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (identifying

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1
   As noted in our memorandum, PCRA counsel erred in suggesting that the
first petition was untimely. The petition was in fact timely because it was
filed within one year of the last day on which he could have filed a petition
for writ of certiorari to the United States Supreme Court. Id. at 2 n.3.



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exception to the rule barring claims of ineffective assistance of counsel as

newly discovered facts exception, where counsel abandoned petitioner on

appeal, abandonment was unknown to petitioner, and petitioner filed for

PCRA relief within sixty days of learning of counsel's abandonment), and

seeking reinstatement of his appellate rights nunc pro tunc due to counsel’s

failure to file an appellate brief for his first PCRA petition. The PCRA court

dismissed Appellant’s third petition on August 18, 2008.

      On April 3, 2009, Appellant filed his fourth PCRA petition, seeking

restoration of his appellate rights from the dismissal of his third petition. On

February 8, 2010, the PCRA court reinstated Appellant’s right to appeal from

the denial of his third petition which the Appellant then filed on March 1,

2010. In response to the court’s order of January 24, 2011, Appellant filed

his Pa.R.A.P. 1925(b) statement. On July 21, 2011, the PCRA court issued

an opinion concluding that the appeal was meritless.

      On appeal now to this Court, Appellant challenges the denial of the

claims presented in his third PCRA petition; claims Appellant only was able

to present as a result of the PCRA court granting relief under Appellant’s

fourth PCRA petition to reinstate his appeal rights from denial of this third

petition. Specifically, Appellant first argues the PCRA court erred in not

issuing a notice under Rule 907, not allowing him to be present at the

hearing, and not allowing him to file a proper 1925(b) statement. Second,

Appellant again raises some of the ineffective assistance of counsel claims


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(IAC) from his first PCRA petition.            Essentially, Appellant argues the PCRA

court erred in not finding his trial counsel ineffective for not objecting to the

following jury instructions: (i) self-defense, (ii) flight, (iii) accomplice

liability, and (iv) reasonable doubt.

        “Our standard of review regarding a PCRA court’s order is whether the

determination of the PCRA court is supported by the evidence of record and

is free of legal error. The PCRA court’s findings will not be disturbed unless

there    is   no    support     for   the      findings   in   the     certified   record.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)

(quotation marks and citations omitted).

        Before we can entertain the merits of the claims, we first must

determine whether this matter is properly before us.                 The fourth petition, 2

which Appellant filed approximately fourteen years after his judgment of

sentence became final, ordinarily would be deemed untimely. Indeed,

        [i]t is well settled that [a]ny and all PCRA petitions must be filed
        within one year of the date on which the petitioner’s judgment
        became final, unless one of three statutory exceptions applies.
        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
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2
   While it appears this appeal involves only Appellant’s challenge to the
denial of his third petition, we cannot overlook, as the PCRA court did,
whether the PCRA court had the authority to entertain and ultimately grant
the relief sought in his fourth petition, namely Appellant’s request to appeal
nunc pro tunc from the denial of his third PCRA petition. The preliminary
issue, therefore, is whether the fourth petition was properly entertained by
the PCRA court.



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      expiration of time for seeking the review.          42 Pa.C.S.A.
      § 9545(b)(3).

Id. at 1061–62 (internal footnote and quotation marks omitted).

      The exceptions to the PCRA’s timeliness requirements are set forth in

42 Pa.C.S.A. § 9545, which, in relevant part, provides as follows:

      (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 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).

      Upon review, we must conclude the PCRA court did not have

jurisdiction to entertain Appellant’s fourth PCRA petition (which reinstated

Appellant’s appeal rights from the denial of his third petition) because it was


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facially untimely and Appellant failed to allege and prove the timeliness of

his fourth petition. See Commonwealth v. Perrin, 947 A.2d 1284, 1286

(Pa. Super. 2008) (PCRA requires petitioner to plead and prove all required

elements of the relied-upon exception).                Because the fourth petition was

untimely, the PCRA court could not grant Appellant relief, let alone the right

to appeal nunc pro tunc from the denial of his third PCRA petition. As such,

the PCRA court’s order granting Appellant’s fourth petition was null and void

because     it   was   entered     by    a     court    with   no   jurisdiction.     See

Commonwealth v. Schmotzer, 831 A.2d 689, 695 n. 2.3                     Since the fourth

petition was untimely, it follows Appellant could not timely appeal from the

denial of relief from his third petition, which was only made possible by the

granting of relief from an untimely fourth petition.            Similarly, because the

PCRA’s time-restrictions are jurisdictional in nature, we, like the PCRA court,

have no jurisdiction to review the merits of an untimely PCRA petition.

Commonwealth           v.   Albrecht,        994   A.2d    1091,    1093    (Pa.    2010).

Accordingly, we must quash the instant appeal.

       Appeal quashed.




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3
  Even if the Commonwealth consented, as it appears, to the relief requested
in Appellant’s fourth petition, the consent did not confer jurisdiction upon the
PCRA court. See In re Pozzuolo’s Estate, 249 A.2d 540, 545 (Pa. 1969).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2015




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