J-S70032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
              v.                          :
                                          :
REMIC GUYAH,                              :
                                          :
                   Appellant              :            No. 641 EDA 2016

                 Appeal from the PCRA Order January 26, 2016
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, No(s): CP-51-CR-0200121-2006

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED SEPTEMBER 28, 2016

        Remic Guyah (“Guyah”) appeals, pro se, from the Order denying his

third Petition for relief pursuant to the Post Conviction Relief Act.   See 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        On July 8, 2009, Guyah was convicted, in absentia, of one count each

of robbery, possession of a firearm without a license, possession of a firearm

on the streets of Philadelphia, possession of an instrument of crime, and

criminal conspiracy.1 The trial court sentenced Guyah to an aggregate term

of 13 to 26 years in prison.        Guyah subsequently filed post-sentence

Motions, which the trial court denied on July 15, 2009. Guyah did not file a

direct appeal.

        On March 20, 2013, Guyah, pro se, filed his first PCRA Petition. The

PCRA court appointed Guyah counsel, who filed a Motion to Withdraw as



1
    18 Pa.C.S.A. §§ 3701(a)(1)(i), 6106(a)(1), 6108, 907(a), 903.
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Counsel pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

The PCRA court issued a Pa.R.Crim.P. 907 Notice of Intent to Dismiss in

September 2014.     Guyah filed a Response.     On December 12, 2014, the

PCRA court dismissed Guyah’s first Petition and granted counsel’s Motion to

Withdraw.

      On December 22, 2014, Guyah, pro se, filed his second PCRA Petition.2

The PCRA court issued a Rule 907 Notice of Intent to Dismiss Guyah’s

second Petition as untimely filed.    On August 11, 2015, the PCRA court

dismissed Guyah’s second Petition.

      On January 15, 2016, Guyah, pro se, filed the instant Petition.3 The

PCRA court denied the Petition as untimely filed.4 Guyah filed a Motion for

Reconsideration, which the PCRA court denied. Guyah filed a timely Notice

of Appeal.

      On appeal, Guyah raises the following questions for our review:



2
  Between February 2015 and July 2015, Guyah, pro se, filed two additional
Petitions under the PCRA, as well as two Motions asking the PCRA court to
vacate his judgment of sentence. The PCRA court collectively considered
these separate filings as Guyah’s second PCRA Petition.
3
  Guyah titled his Petition a “Motion for New Trial,” which the PCRA court
properly considered as his third PCRA Petition. See 42 Pa.C.S.A. § 9542.
4
  The PCRA court did not provide Guyah with a Rule 907 Notice. However,
“where the PCRA Petition is untimely, the failure to provide such notice is not
reversible error.” Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super.
2014) (citation omitted).


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      I. Where no adequate notice was given to [Guyah] to ensure
      that [Guyah] [participated] in voir dire [], did the trial court
      [violate] [Guyah’s] constitutional right to a jury of [his] peers, to
      obtain the conviction of [Guyah] by selection of 14 jurors in his
      absence, is the jury selection in this case invalid, void due to the
      violation of due process, equal protection clause, [and]
      guaranteed trial by jury rights secured by U.S. [C]onst. amend.
      4, 5, 6, [and] 14[,] as well as Pa. [C]onst. art. 1[,] subsections
      6, 9, 25, and 28?

      II. Was [Guyah’s] conviction[,] [obtained] by [p]rosecutorial
      misconduct and entrapment, [g]overnment interference with
      trial by jury rights, which in turn denied [Guyah’s] due process,
      equal protection, confrontation, compulsory rights [secured] to
      [Guyah] under the U.S. [C]onst. amend. 4, 5, 6, [and] 14[,] as
      well as Pa. [C]onst. art. 1[,] [s]ubsections 6, 9, and 28?

      III. Does the ineffective assistance of court[-]appointed
      [c]ounsel Francis [X.] [K]eaney, [Esquire,] by denying [Guyah]
      due process, equal protection of laws, confrontation clause
      rights[,] and for his prejudice and oversight, misrepresentation,
      mishandling of this case by not [giving] notice to [Guyah,]
      warrant this default judgment be [opened] and relief granted?

      IV. Did the trial court have jurisdiction to impose an illegal and
      unconstitutional conviction after jury selection in [Guyah’s]
      absence?

Brief for Appellant at 4.

            We review an order [denying] a petition under the PCRA in
      the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of the record. We will not disturb a PCRA
      court’s ruling if it is supported by evidence of record and is free
      of legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Initially, under the PCRA, any PCRA petition “shall be filed within one

year of the date the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1).


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A judgment of sentence 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.”   Id. § 9545(b)(3).    The PCRA’s timeliness requirements are

jurisdictional in nature and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed.       Commonwealth v.

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

     Because Guyah did not seek direct review of his judgment of sentence,

his sentence became final in August 2009, when the period of time to seek

review expired.    See 42 Pa.C.S.A. § 9545(b)(3).    Guyah did not file the

instant PCRA Petition until January 2016. Therefore, his Petition is facially

untimely.

     However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(1)(i-iii).   Any petition invoking one of these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.”     Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094 (Pa.

2010).

     Here, Guyah did not plead or prove any exception and, instead, raises




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four separate claims, each of which concerns his absence during voir dire.5

See Brief for Appellant at 8-20. Because Guyah did not successfully invoke

any of the three exceptions necessary to circumvent the PCRA’s timeliness

requirement, we lack jurisdiction to address the merits of his claim on

appeal.6

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/28/2016




5
  We note that, in his third claim, Guyah argues that his absence during voir
dire was the result of ineffective assistance of counsel. Brief for Appellant at
13-17. However, “a claim of ineffective assistance of counsel does not save
an otherwise untimely petition for review on the merits.” Commonwealth
v. Fahy, 737 A.2d 214, 223 (Pa. 1999).
6
  In his August 5, 2016 “Supplemental and Appellant Response to Appellee
Brief” (“Response Brief”), Guyah raises an additional claim, in an attempt to
invoke the timeliness exception at 42 Pa.C.S.A. § 9545(b)(1)(iii), based
upon the Pennsylvania Supreme Court’s recent decision in Commonwealth
v. Wolfe, 140 A.3d 651, 663 (Pa. 2016) (holding that Section 9718 of the
Sentencing Code, 42 Pa.C.S.A. § 9718, “is irremediably unconstitutional on
its face, non-severable, and void.”). See Response Brief at 5. However, we
cannot consider this claim, as it was raised only in Guyah’s Response Brief.
See Pa.R.A.P. 2113 (stating that “the appellant may file a brief in reply to
matters raised by appellee’s brief … and not previously addressed in
appellant’s brief.”); see also Commonwealth v. Philistin, 53 A.3d 1, 25
n.17 (Pa. 2012) (stating that “insofar as appellant raised this argument only
in his reply brief, it is waived.”).


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