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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
JOSEPH RHONE,                            :          No. 3352 EDA 2017
                                         :
                         Appellant       :


               Appeal from the PCRA Order, September 19, 2017,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-1127472-1975


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED APRIL 22, 2019

      Joseph Rhone appeals pro se from the order filed in the Court of

Common Pleas of Philadelphia County that dismissed his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-

9546. After careful review, we affirm.

      The factual and procedural history, as recounted by the PCRA court, is

as follows:

              [Appellant] was arrested and subsequently charged
              in connection with the 1975 fatal shooting of
              Herschel Williams. After absconding for more than
              thirteen years, Petitioner was apprehended by the
              F.B.I. on October 25, 1989. On May 1, 1991,
              following a jury trial presided over by the Honorable
              Albert F. Sabo, [appellant] was convicted of
              first-degree murder, conspiracy, and possession of
              an instrument of crime. On January 31, 1992, the
              trial court denied post-verdict motions and
              sentenced Petitioner to life imprisonment for the
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          murder conviction and lesser consecutive terms of
          imprisonment    for  the    remaining  convictions.
          Following a direct appeal, the Superior Court
          affirmed the judgment of sentence on January 27,
          1993.[Footnote 2] The Pennsylvania Supreme Court
          denied allocatur on June 7, 1993.[Footnote 3]

                [Footnote 2] Commonwealth    v.
                Rhone, 619 A.2d 1080 (Pa.Super.
                1993).

                [Footnote  3]   Commonwealth               v.
                Rhone, 627 A.2d 731 (Pa. 1993).

          On June 19, 1995, [appellant] filed his first pro se
          PCRA petition.       Counsel was appointed who
          subsequently filed an amended petition claiming
          ineffective assistance of counsel. The PCRA court
          denied relief on October 1, 1996. On August 7,
          1997, the Superior Court affirmed the PCRA court’s
          denial of post-conviction relief.[Footnote 4]    The
          Pennsylvania Supreme Court thereafter denied
          allocatur.[Footnote 5]

                [Footnote   4]  Commonwealth      v.
                Rhone, 704 A.2d 695 (Pa.Super. 1997)
                (unpublished memorandum).

                [Footnote  5]   Commonwealth               v.
                Rhone, 716 A.2d 1248 (Pa. 1998).

          [Appellant] was subsequently unsuccessful in
          obtaining collateral relief through serial petitions filed
          in 1998, 2005, and 2007.

          On July 18, 2016, [appellant] filed the instant pro se
          PCRA petition, his fifth. [Appellant] also submitted
          numerous supplemental filings which were reviewed
          jointly with his petition. Pursuant to Pennsylvania
          Rule of Criminal Procedure 907, [appellant] was
          served notice of the PCRA court’s intention to dismiss
          his petition on June 8, 2017. [Appellant] submitted
          responses to the Rule 907 notice on June 21 and
          July 24, 2017.[Footnote 6] On September 19, 2017,


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               the PCRA court dismissed his PCRA petition as
               untimely. On October 6, 2017, the instant notice of
               appeal was timely filed to the Superior Court.

                          [Footnote 6] [Appellant] also submitted a
                          motion for DNA testing on August 9,
                          2017.    [Appellant]’s motion is being
                          reviewed separately from the instant
                          petition which seeks relief on unrelated
                          grounds.

PCRA court opinion, 1/2/18 at 1-2.            Appellant filed a concise statement of

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

court filed its Rule 1925(a) opinion on January 2, 2018.

      Appellant raises the following issues for this court’s review:

               I.         Did the PCRA Court abused [sic] its discretion
                          when it combined [a]ppellant’s two PCRA
                          petitions that were filed a year apart and
                          dismissed both as being time-barred.

               II.        Is [a]ppellant entitled to an evidentary [sic]
                          hearing to properly address the issues raised in
                          both PCRA petitions where he did meet the
                          time requirements of the PCRA.

Appellant’s brief at 4.

      In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing,

viewed    in        the     light   most   favorable   to   the   prevailing   party.”

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation

omitted). Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review.              Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa. 2009).            We defer to the PCRA court’s factual findings and


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credibility determinations supported by the record.               Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).                    In contrast, we

review the PCRA court’s legal conclusions de novo. Id.

       Initially, appellant contends that the PCRA court abused its discretion

when it combined his two PCRA petitions that were filed one year apart and

dismissed both as untimely.           Appellant argues that in order for the PCRA

court to consider the two petitions together, appellant would have to request

the PCRA court to do so pursuant to Rule 905(A) of the Pennsylvania Rules

of Criminal Procedure, which provides, “The judge may grant leave to amend

or withdraw a petition for post-conviction collateral relief at any time.

Amendment      shall    be   freely    allowed     to   achieve   substantial   justice.”

Pa.R.Crim.P. 905(A).

       Recently,   in   Commonwealth          v.    Montgomery,       181   A.3d    359

(Pa.Super. 2018) (en banc), appeal denied, 190 A.3d 1134 (Pa. 2018),

this court held that “PCRA courts are not jurisdictionally barred from

considering multiple PCRA petitions relating to the same judgment of

sentence at the same time unless the PCRA court’s order regarding a

previously filed petition is on appeal and, therefore, not yet final.”            Id. at

365.

       Here, appellant filed a PCRA petition on July 18, 2016.              He filed a

subsequent PCRA petition on July 24, 2017. In its opinion, the PCRA court

considered the subsequent petition as a response to the dismissal notice



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under Rule 907 of the Pennsylvania Rules of Criminal Procedure and later

called it a supplemental petition.    The PCRA court further stated in the

opinion that it reviewed the supplemental filings jointly with the July 18,

2016 petition. (Trial court opinion, 1/2/18 at 2.) Additionally, in its opinion,

the PCRA court addressed the claims raised in the July 24, 2017 petition.

      It is apparent from the PCRA court opinion that the PCRA court

effectively considered both PCRA opinions and disposed of them together.

Based on Montgomery, the PCRA court was permitted to consider the

July 24, 2017 petition while the July 18, 2016 petition was still pending.

Appellant’s reliance on Rule 905(A) is misplaced as that rule permits a court

to grant leave to amend a petition but does not prohibit the consideration of

more than one petition. The PCRA court did not err when it considered both

petitions.

      Before addressing the merits of appellant’s appeal, we must determine

if the PCRA court correctly determined that the petitions were untimely. All

PCRA petitions must be filed within one year of when a defendant’s

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 the time for seeking

the review.”     42 Pa.C.S.A. § 9545(b)(3).          The Supreme Court of

Pennsylvania has held that the PCRA’s time restriction is constitutionally



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sound.    Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa. 2004).               In

addition, our supreme court has instructed that the timeliness of a PCRA

petition is jurisdictional.   If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

      Here, the trial court sentenced appellant on January 31, 1992. After

this court affirmed, our supreme court denied appellant’s petition for

allowance of appeal on June 7, 1993. Commonwealth v. Rhone, 627 A.2d

731 (Pa. 1993).    Appellant did not seek further review with the Supreme

Court of the United States. Consequently, appellant’s sentence became final

on September 7, 1993, after the 90-day period in which he was allowed to

seek review with the Supreme Court of the United States expired. 1        See

42 Pa.C.S.A. § 9543(b)(3); U.S. Sup.Ct. R. 13(1). Appellant needed to file

his PCRA petition by September 7, 1994.        This petition, filed on July 18,

2016, is facially untimely. As a result, the PCRA lacked jurisdiction to review

appellant’s petition, unless appellant pleads and proves one of the following

exceptions to the time requirement:

            (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


1The 90th day was on September 5, 1993. However, that day was a Sunday
and the next day was Labor Day, a court holiday. See 1 Pa.C.S.A. § 1908.


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                    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).     Section 9545 also mandates that any

petition filed under these exceptions must be filed within 60 days of the date

the claim could have been presented. Id. at § 9545(b)(2).

      With respect to the issue of whether the PCRA petition was untimely,

appellant asserts that his petition qualifies under 42 Pa.C.S.A. 9545(b)(1)(ii)

and (iii) because Foster v. Chatman,            U.S.     , 136 S.Ct. 1737, 195

L.Ed. 2d 1 (2016), created a new constitutional right and was not decided

until May 23, 2016, less than 60 days before he filed his petition. This court

does not agree with his reasoning. A review of Foster reveals that it did not

create a new constitutional right.      In Foster, the Supreme Court of the

United States determined that it had jurisdiction to review a state court’s

application of the doctrine of res judicata to bar review of an appellant’s

challenge under Batson v. Kentucky, 476 U.S. 79 (1986), which forbids

peremptory jury strikes for a discriminatory purpose, because the application

depended on a federal constitutional ruling.        The Supreme Court of the


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United States did not create or recognize a new constitutional right in

Foster. It applied Batson to the facts of the case. Consequently, appellant

cannot prove an exception to the PCRA timeliness requirements through

Foster under either the newly discovered facts or constitutional rights

exception.

     Appellant also asserts that he meets the unknown facts exception of

42 Pa.C.S.A. § 9545(b)(1)(ii) based on Commonwealth v. Burton, 158

A.3d 618 (Pa. 2017). In what appellant calls his petition of July 23, 2017,

and what the trial court characterized as a supplemental filing, appellant

asserts that his former attorney submitted documents to him that were

unavailable to him at the time of trial and would have changed the trial

outcome had these documents been introduced to the jury.

     The trial court disposed of this claim:

             [Appellant’s] vague description of claims arising from
             his review of the file did not constitute an actual fact.
             Furthermore, even if [appellant] articulated a fact for
             purposes of subsection 9545(b)(1)(ii), he failed to
             establish that it was previously unascertainable with
             the exercise of due diligence.            According to
             [appellant], Ms. Sturm had represented him from
             2007 to 2017. In [an] attempt to demonstrate
             diligence,     [appellant]       concluded,      without
             explanation, that the contents of Sturm’s file were
             previously      unascertainable       in     light     of
             Commonwealth v. Burton, 158 A.3d 618 (Pa.
             2017). Contrary to [appellant’s] argument, merely
             citing Burton did not satisfactorily demonstrate that
             the facts gleaned from his attorney’s file, even if
             they can be construed as unknown, were
             undiscoverable for the last decade. Therefore, in
             addition to failing to articulate a fact, [appellant]


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            failed to satisfy the due-diligence prong of subsection
            9545(b)(1)(ii).

Trial court opinion, 1/2/18 at 5 (citations to record omitted).

      This court agrees with the trial court’s sound reasoning. Therefore, we

find that appellant failed to plead or prove that he met an exception to the

timeliness requirements of the PCRA. As a result, appellant fails to establish

that he is entitled to an evidentiary hearing to address the issues raised in

the PCRA petitions.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/22/19




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