J-S67039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LISA LEE SHILOH,

                            Appellant                 No. 357 MDA 2015


                 Appeal from the PCRA Order February 4, 2015
                in the Court of Common Pleas of Adams County
               Criminal Division at No.: CP-01-CR-0000635-2010


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 18, 2015

        Appellant, Lisa Lee Shiloh, appeals pro se from the order dismissing

her second petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        A previous panel of this Court summarized the factual and procedural

background of this case as follows:

              On February 1, 2011, a jury convicted [Appellant] on five
        counts of delivery of cocaine, one count of delivery of heroin,
        criminal conspiracy to deliver cocaine, three counts of criminal
        use of a communication facility, and one count of endangering
        the welfare of a child.     The charges arose from disparate
        incidents, but all were predicated upon allegations that
        [Appellant] operated as a dealer of controlled substances to the
        local community. On April 21, 2011, the trial court sentenced


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*
    Retired Senior Judge assigned to the Superior Court.
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       [Appellant] to an aggregate sentence of imprisonment of 14 to
       30 years.[1] [Appellant did not file a direct appeal].

              On November 17, 2011, [Appellant] filed a pro se petition
       pursuant to the PCRA, and counsel was appointed to represent
       her. On May 11, 2012, counsel filed an amended PCRA petition.
       Pursuant to the amended petition, the PCRA court held a hearing
       on August 21, 2012. The PCRA court dismissed [Appellant’s]
       petition and denied relief via order dated February 12, 2013.

(Commonwealth v. Shiloh, No. 357 MDA 2013 at *1-2, unpublished

memorandum (Pa. Super. filed Nov. 20, 2013)).

       This Court affirmed the PCRA court’s order on November 20, 2013. On

January 17, 2014, Appellant, acting pro se, filed the instant second PCRA

petition.2   On May 5, 2014, the PCRA court issued notice of its intent to

dismiss the petition without a hearing.          See Pa.R.Crim.P. 907(1).   After

Appellant made a number of supplemental filings, the PCRA court entered its

order and opinion dismissing the petition and all additional filings on

February 4, 2015. This timely appeal followed.3


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1
 The court imposed the mandatory minimum penalties for drug trafficking
pursuant to 18 Pa.C.S.A. § 7508.    (See Sentencing Order, 4/21/11;
Commonwealth’s Brief, at 5-6).
2
 Appellant’s PCRA filing is extremely prolix, consisting of the petition itself,
an attached eighty-four page argument, and several exhibits. (See PCRA
Petition, Attachment, and Exhibits, 1/17/14).
3
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on March 20, 2015. The PCRA
court filed an opinion on March 24, 2015, in which it incorporated by
reference its opinion entered February 4, 2015. See Pa.R.A.P. 1925.



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      In her statement of the questions involved, Appellant raises twenty-two

questions for our review. (See Appellant’s Brief, at 5-10). We paraphrase

her overarching question, and the issue dispositive of this appeal, as follows:

Did the PCRA court err in dismissing Appellant’s second PCRA petition as

untimely? (See id. at 5).4

             We begin by noting our well-settled standard of review. In
       reviewing the denial of PCRA relief, we examine whether the
       PCRA court’s determination is supported by the record and free
       of legal error. The scope of review is limited to the findings of
       the PCRA court and the evidence of record, viewed in the light
       most favorable to the prevailing party at the trial level. It is
       well-settled that a PCRA court’s credibility determinations are
       binding upon an appellate court so long as they are supported by
       the record. However, this Court reviews the PCRA court’s legal
       conclusions de novo.

              We also note that a PCRA petitioner is not automatically
       entitled to an evidentiary hearing. We review the PCRA court’s

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4
  Appellant’s pro se brief fails to conform to our Rules of Appellate Procedure
in several material respects. For example, the brief is excessive in length—
ninety-four pages—and does not contain a certification that it is not in
excess of 14,000 words, as required by Rule 2135.                See Pa.R.A.P.
2135(a)(1). Her six-page statement of the questions involved fails to “state
concisely the issues to be resolved[.]”          Pa.R.A.P. 2116(a) (emphasis
added). Significantly, the argument section is meandering, unfocused, and
nearly unintelligible; it lacks pertinent legal discussion, in violation of Rule
2119. See Pa.R.A.P. 2119(a), (b). Although this Court is willing to construe
pro se materials liberally, pro se litigants must comply with procedural rules.
See Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003),
appeal denied, 879 A.2d 782 (Pa. 2005). This Court could quash or dismiss
this appeal in light of these substantial defects. See Pa.R.A.P. 2101. In the
interest of judicial economy, we decline to do so, and will discuss the
arguments raised by Appellant relevant to our disposition to the extent we
are able to discern them.



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       decision dismissing a petition without a hearing for an abuse of
       discretion.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

and quotation marks omitted).

       “Before we may address the merits of Appellant’s arguments we must

first consider the timeliness of Appellant’s PCRA petition because it

implicates the jurisdiction of this Court and the PCRA court.”      Id. (citation

omitted).

       A PCRA petition, including a second or subsequent one, must be
       filed within one year of the date the petitioner’s judgment of
       sentence became final, unless he pleads and proves one of the
       three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
       judgment becomes final at the conclusion of direct review by
       [the Pennsylvania Supreme] Court or the United States Supreme
       Court, or at the expiration of the time for seeking such review.
       42    Pa.C.S.[A.]   §    9545(b)(3).    The    PCRA’s     timeliness
       requirements are jurisdictional; therefore, a court may not
       address the merits of the issues raised if the petition was not
       timely filed. The timeliness requirements apply to all PCRA
       petitions, regardless of the nature of the individual claims raised
       therein. The PCRA squarely places upon the petitioner the
       burden of proving an untimely petition fits within one of the
       three exceptions. . . .

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

       In this case, Appellant’s judgment of sentence became final on May

23, 2011 when her time to file a direct appeal with this Court expired. 5 See

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5
  The last day of the thirty-day period fell on a Saturday. Therefore,
Appellant had until that Monday to file a notice of appeal. See 1 Pa.C.S.A. §
1908.


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Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). Therefore, she had one year

from that date, until May 23, 2012, to file a petition for collateral relief. See

42 Pa.C.S.A. § 9545(b)(1). Because Appellant filed the instant petition on

January 17, 2014, it is untimely on its face, and the PCRA court lacked

jurisdiction to review it unless she pleaded and proved one of the statutory

exceptions to the time-bar. See id. at § 9545(b)(1)(i)-(iii).

      Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

            (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.

Id.

      Further, a PCRA petition invoking one of these statutory exceptions

must “be filed within 60 days of the date the claim could have been

presented.”    42 Pa.C.S.A. § 9545(b)(2).         “[Our Supreme Court] has

repeatedly stated it is the appellant’s burden to allege and prove that one of

the timeliness exceptions applies.” Commonwealth v. Hawkins, 953 A.2d

1248, 1253 (Pa. 2008) (citation omitted).


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      Here,    Appellant   argues   the    applicability   of   the   governmental

interference exception, which requires a petitioner to plead and prove that

the failure to raise the claim previously was the result of interference by

government officials, and that the interference violates the United States or

Pennsylvania Constitution or laws.        See Commonwealth v. Abu-Jamal,

941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916 (2008);

Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010). However,

Appellant fails to explain coherently how government officials interfered with

her ability to raise her substantive PCRA claims challenging her conviction or

sentence.     Instead, she lodges a series of bald accusations regarding the

alleged misconduct of the assistant district attorney during the hearing on

her first PCRA petition. (See Appellant’s Brief, at 17, 22, 29-31, 36, 59, 86)

(alleging governmental interference occurred at PCRA hearing because

Commonwealth elicited false testimony and misled court).               Thus, after

review, we conclude that Appellant has failed to meet her burden of pleading

and proving the applicability of the governmental interference exception to

the PCRA’s time-bar. See Hawkins, supra at 1253.

      Appellant also claims a right to relief predicated on Alleyne v. United

States, 133 S. Ct. 2151 (2013), in which the United States Supreme Court

held that facts that increase the mandatory minimum sentence are elements

of the offense and must be submitted to a jury and proven beyond a




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reasonable doubt.        See Alleyne, supra at 2155; (see also Appellant’s

Brief, at 46, 54-56, 86).6 Appellant asserts that a challenge to the legality of

a sentence cannot be waived, and that this Court may consider the issue sua

sponte. (See Appellant’s Brief, at 46, 56). We disagree.

       Instructive to the instant case is Miller, supra, in which this Court

explained, in the context of an untimely PCRA petition, that:

              We are aware that an issue pertaining to Alleyne goes to
       the legality of the sentence. It is generally true that this Court is
       endowed with the ability to consider an issue of illegality of
       sentence sua sponte. However, in order for this Court to review
       a legality of sentence claim, there must be a basis for our
       jurisdiction to engage in such review. As this Court recently
       noted, [t]hough not technically waivable, a legality [of sentence]
       claim may nevertheless be lost should it be raised . . . in an
       untimely PCRA petition for which no time-bar exception applies,
       thus depriving the court of jurisdiction over the claim. As a
       result, the PCRA court lacked jurisdiction to consider the merits
       of [a]ppellant’s second PCRA petition, as it was untimely filed
       and no exception was proven.

Miller, supra at 995-96 (quotation marks and citations omitted).

       In the instant case, although Appellant claims a right to relief based on

Alleyne, she raised it in an untimely PCRA petition for which no time-bar




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6
   Section 7508, the mandatory minimum sentencing statute pursuant to
which the trial court sentenced Appellant, has been held unconstitutional in
light of Alleyne. See Commonwealth v. Thompson, 93 A.3d 478, 494
(Pa. Super. 2014); see also Commonwealth v. Mosley, 114 A.3d 1072,
1091 (Pa. Super. 2015).



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exception applies, depriving the court of jurisdiction over the claim. 7

Therefore, Appellant’s Alleyne claim does not merit relief.

       After review of the record in this matter, we conclude that Appellant

has not met her burden of pleading and proving her untimely petition fits

within one of the three limited exceptions to the PCRA’s jurisdictional time-

bar. See Hawkins, supra at 1253. The PCRA court properly dismissed the

petition without a hearing based on its determination that it was untimely

with no exception to the time-bar pleaded or proven. See Miller, supra at

992. Because Appellant’s PCRA petition is untimely, we are not permitted to

address the merits of her remaining issues on appeal. See id. Accordingly,

we affirm the order of the PCRA court.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2015


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7
   Although not argued by Appellant, we observe for the sake of
completeness that an Alleyne claim does not satisfy the requirements of the
exception to the time-bar set forth at 42 Pa.C.S.A. § 9545(b)(1)(iii) (newly-
recognized, retroactively-applied constitutional right). See Miller, supra at
995.


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