J-S52039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JAMES W. CRISE

                         Appellant                   No. 335 WDA 2015


              Appeal from the PCRA Order of February 6, 2015
          In the Court of Common Pleas of Westmoreland County
          Criminal Division at No.:   CP-65-CR-0001899-2008
                                      CP-65-CR-0004502-2008


BEFORE: SHOGAN, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                        FILED NOVEMBER 12, 2015

      James Crise appeals pro se the February 6, 2015 order that denied his

petition under Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.

As explained in its detailed opinion, the PCRA court determined that Crise’s

petition was untimely and not subject to any exception to the one-year time

limit that applies to PCRA petitions.    Accordingly, the court dismissed his

petition for want of jurisdiction. We affirm.

      Because we find, like the PCRA court, that we have no jurisdiction to

review the merits of Crise’s petition, it is necessary only to relate the bare

procedural history of this case.     At the above-captioned docket numbers,

Crise was convicted by a jury of interference with custody of children,

criminal conspiracy, corruption of minors, possession of child pornography,

sexual exploitation of children, and criminal use of a communication facility.
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On December 22, 2009, at those two dockets, the trial court sentenced Crise

to an aggregate term of imprisonment of twenty to fifty-five years’

imprisonment.        Crise appealed, and this Court affirmed his judgment of

sentence on February 15, 2011.           See Commonwealth v. Crise, 24 A.3d

455 (Pa. Super. 2011) (unpublished memorandum).                 Our Supreme Court

denied     Crise’s   petition   for   allowance   of   appeal   on   July   19,   2011.

Commonwealth v. Crise, 24 A.3d 863 (Pa. 2011) (per curiam). Crise did

not seek review by the United States Supreme Court. Thus, his judgment of

sentence became final ninety days after our Supreme Court denied his

petition, on October 17, 2011.

        Crise filed a timely first PCRA petition on January 26, 2012. The PCRA

court dismissed his petition without a hearing on January 16, 2013. Crise

filed a timely appeal of that ruling, and this Court affirmed on January 31,

2014.     See Commonwealth v. Crise, 96 A.3d 1098 (Pa. Super. 2014)

(unpublished memorandum).             Crise then filed a petition for allowance to

appeal our decision before our Supreme Court, which that Court denied on

July 16, 2014.       Commonwealth v. Crise, 96 A.3d 1025 (Pa. 2014) (per

curiam).

        Crise filed the instant PCRA petition on August 18, 2014, nearly three

years after his judgment of sentence became final, but only one month after

our Supreme Court denied his petition for allowance of appeal of the denial




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of his first PCRA petition.       In tandem with that PCRA petition, he filed a

“Motion for Recusal on Grounds of Personal Bias.” 1       In this PCRA petition,

Crise asserted that he was entitled to relief because the prosecutor and the

trial judge threatened and intimidated his victim, E.K. Allegedly, authorities

told E.K. that she would serve jail time or lose custody of her then-unborn

child if she failed to testify against Crise.    He further alleged that he was

denied pre-trial discovery of the criminal history of a “jailhouse snitch” who

testified against Crise at trial, and that the Commonwealth allowed that

witness to lie about that history on the stand. As well, Crise claimed that his

trial counsel was ineffective. See PCRA Court Opinion (“P.C.O.”), 2/6/2015,

at 5.

        The PCRA court next dealt with a “flurry of pleadings” by Crise, and

the Commonwealth’s responses thereto, as well as certain motions and

actions reviewed by this Court, none of which directly implicate our review of

this case.     See id. at 5-6.         The PCRA court reviewed extensively its

jurisdiction to review Crise’s petition. See id. at 7-14. The court concluded

that Crise’s petition was untimely and not subject to any exception to the

PCRA’s time limit.      Accordingly, it found that the court lacked jurisdiction,




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1
        The PCRA court denied this motion on February 4, 2015.




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and dismissed Crise’s petition in an opinion and order entered on

February 6, 2015.2

       On February 23, 2015, Crise timely appealed the PCRA court’s

dismissal of his PCRA petition. On March 5, 2015, the PCRA court directed

Crise to file a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(b).        On March 23, 2015, Crise timely complied.              On

April 15,   2015,     the   PCRA     court     entered   a   statement   pursuant   to

Pa.R.A.P. 1925(a), wherein the PCRA court directed this Court to its

February 6, 2015 opinion and order for a full explanation of its reasoning for

denying Crise’s petition.

       Our standard of review for a PCRA court’s order denying relief permits

us only to determine whether the record supports the PCRA court’s

determination and whether the PCRA court’s ruling is free from legal error.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

However, before we may address the merits of any of Crise’s arguments, we

first must determine whether we have jurisdiction to do so.

       It is well-established that the PCRA time limits are jurisdictional, and

are meant to be both mandatory and applied literally by the courts to all

PCRA petitions, regardless of the potential merit of the claims asserted.
____________________________________________


2
      In addition to the PCRA court’s painstaking analysis of the timeliness
issue, and in spite of its determination that it lacked jurisdiction, the court
nonetheless briefly addressed and rejected the merits of Crise’s argument.
See P.C.O. at 14-16.



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Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011);

Commonwealth v. Murray, 753 A.2d 201, 202-03 (Pa. 2000). “[N]o court

may properly disregard or alter [these filing requirements] in order to reach

the merits of the claims raised in a PCRA petition that is filed in an untimely

manner.”      Murray, 753 A.2d at 203; see also Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

        Despite facial untimeliness, a tardy PCRA petition nonetheless will be

considered timely if (but only if) the petitioner pleads and proves one of the

three     exceptions    to   the    one-year    time    limit   enumerated    in

subsections 9545(b)(1)(i)-(iii) of the PCRA, which provide as follows:

        (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.



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42 Pa.C.S. § 9545(b).    When an appellant files a facially untimely petition

under the PCRA, and fails expressly to invoke any of the exceptions to the

PCRA’s one-year jurisdictional time limit, his petition is untimely and we

must deny the appellant relief.    See, e.g., Commonwealth v. Wilson,

824 A.2d 331, 336 (Pa. Super. 2003) (“Appellant’s failure to timely file his

PCRA petition, and his failure to invoke any of the exceptions to the

timeliness requirements of the PCRA, results in an untimely PCRA petition

under any analysis.”).

      As set forth, supra, Crise’s judgment of sentence undisputedly became

final on October 17, 2011. Crise filed the instant PCRA petition on August

18, 2014.   Thus, we have jurisdiction to review his appeal only if he has

pleaded and proved an exception to the PCRA’s time limit.

      The PCRA court dispensed quite briefly with Crise’s attempt to invoke

subsection 9545(b)(1)(i)’s government interference exception. In effect, the

PCRA court found that the allegations upon which Crise relied went to

government obstruction associated with trial, and did not directly affect

Crise’s ability to file his PCRA on a timely basis.   Thus, the PCRA court

rejected Crise’s timeliness argument in this regard. See P.C.O. at 8.

      The PCRA court considered in far greater detail Crise’s reliance in the

alternative upon subsection 9545(b)(1)(ii)’s newly-discovered fact exception

to the PCRA’s time limit. The PCRA court summarized Crise’s allegations as

follows:




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      [Crise] alleges that he did not learn of the alleged threats and
      intimidation and false testimony that he claims was presented by
      E.K. until at least January 2013, when [he] first learned of E.K.’s
      alleged recantation through his mother and his former girlfriend.
      Because the case was on appeal to the Superior Court (appealing
      the denial of [his first PCRA petition]), he could not have raised
      the issue until the Superior Court decided that matter (January
      31, 2014) and the Supreme court ruled on his subsequent
      Petition for Allowance of Appeal (July 16, 2014).

Id. at 8-9. The PCRA court correctly asserted that Crise was precluded from

filing his second petition while his prior petition was pending on appeal.

Thus, because he filed his second PCRA petition within sixty days of the final

disposition of that appeal, he could seek to establish that the timeliness

exception based for newly-discovered facts applied in this case. Id. at 9.

      Filing a petition invoking that exception within sixty-days of allegedly

learning of the basis for doing so, however, is only part of Crise’s burden.

He also must plead and prove that “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.” 42 Pa.C.S. § 9545(b)(1)(ii).

      In order to sustain an untimely PCRA petition under the [newly-
      discovered fact] exception, a petitioner must show that the
      evidence: (1) has been discovered after the trial and could not
      have been obtained prior to the conclusion of the trial by the
      exercise of reasonable diligence; (2) is not merely corroborative
      or cumulative; (3) will not be used solely for impeachment
      purposes; and (4) is of such a nature and character that a
      different verdict will likely result if a new trial is granted.

Commonwealth v. Johnson, 841 A.2d 136, 140-41 (Pa. Super. 2003).

The PCRA court found that Crise failed to satisfy this burden.




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      As detailed by the PCRA court, Crise attached to his PCRA petition

and/or his motion seeking recusal letters purportedly written by E.K., the

victim in this case; an unsworn affidavit by Crise’s mother, detailing a

conversation that she allegedly had with E.K. in 2010; another unsworn

affidavit allegedly signed by a former girlfriend of Crise’s, also alluding to a

2010 conversation with E.K.; and, finally, a sworn affidavit signed by Crise,

himself, explaining how he received the information in question from E.K. in

January 2014.       See P.C.O. at 10.      Crise sought to introduce these

documents into evidence at the hearing, but presented no authenticating

witnesses.    Crise had not subpoenaed any witnesses to appear at the

hearing.   Although he asserted at the hearing that his mother was in the

courthouse for another matter, attempts to summon her through the public

address system and by in-person checks of several courtrooms were

unsuccessful. Id.

      At the same hearing, the Commonwealth called E.K. to testify.         She

categorically denied that she had written the letters ascribed to her.      She

also flatly contradicted Crise’s claim that the prosecutor or the trial judge

had coerced her to lie or threatened her in any way.            Id. at 11-13.

Consequently, the PCRA court found that the documents in question were

inadmissible hearsay or hearsay within hearsay. Id. at 13. Accordingly, the

PCRA court concluded that Crise had failed to establish a basis for the

application of the newly-discovered fact exception.




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       As noted supra, we are bound not to disturb a PCRA court’s fact-

finding that is supported by the record. Otherwise, we may intercede only

when the PCRA court commits an error of law. We find that the PCRA court’s

findings of fact are supported by the record and that its ruling is not

erroneous as a matter of law.

       As importantly, though, Crise cannot prevail on this appeal because he

has failed to plead and prove in his brief that any timeliness exception

applies. Aside from one brief mention of the governmental interference and

newly-discovered facts, see Brief for Crise at 5, in the context of which it is

not even clear that he intended to rely upon those to establish his petition’s

timeliness, Crise’s brief focuses solely upon the merits of his underlying

claims for PCRA relief.3         We cannot reach those arguments if we lack

jurisdiction to do so, and it is Crise’s burden to establish that jurisdiction.

Moreover, he plainly was on notice of his timeliness problem, because the

PCRA court provided a lengthy, careful review of the foundation for an

exception provided by Crise, concluding only after considerable analysis that

Crise had failed to establish that an exception applied.    It was incumbent
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3
      These included his claims of witness intimidation, Brief for Crise at 8-
9; the improper exclusion of a prosecution witness’ criminal history, id. at
10-12; the trial court’s alleged failure to rule on a challenge to the
discretionary aspects of Crise’s judgment of sentence, id. at 12-14; an
alleged due process violation in the trial court’s alleged ex parte
communications with the Commonwealth, id. at 14-15; and the trial court’s
alleged imposition of improper limitations upon the scope of Crise’s trial
examination of E.K., id. at 15-16.



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upon him to address that issue in his brief to this Court.    See Wirth v.

Commonwealth, 95 A.3d 822, 837 (Pa. 2014) (“It is not the obligation of

an appellate court to formulate appellant’s arguments for him.” (brackets

and ellipses omitted)). Crise’s failure to do so leaves us with no choice but

to conclude that Crise’s instant PCRA petition was untimely and not subject

to any exception.       Consequently, the PCRA court and this Court lack

jurisdiction to review its merits.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2015




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