J-S67041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ARTHUR JOHNSON

                            Appellant                 No. 1508 EDA 2015


                 Appeal from the PCRA Order April 29, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1203951-1996


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                     FILED OCTOBER 07, 2016

      Arthur Johnson (“Appellant”) files this pro se appeal from the order

entered by the Court of Common Pleas of Philadelphia County denying his

third petition for collateral relief under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. § 9541 et seq., as untimely.        As Appellant failed to

plead and prove that a statutory exception to the PCRA time-bar applies to

his case, we affirm.

      The court, sitting as finder of fact in a waiver trial, convicted Appellant

of Murder in the Third Degree and Possession of an Instrument of Crime, 18

Pa.C.S. §§ 2502(c) and 907(a), respectively, and sentenced him, on

September 24, 1997, to an aggregate sentence of 12 to forty-five years’

incarceration. This Court affirmed judgment of sentence in a memorandum



*Former Justice specially assigned to the Superior Court.
J-S67041-16



decision filed on June 8, 2001, and Appellant did not file a petition for

allowance of appeal with the Pennsylvania Supreme Court.

      On October 21, 2001, Appellant filed a timely PCRA petition.        The

PCRA court appointed counsel, who filed an amended petition claiming

ineffectiveness of appellate counsel on direct appeal. The PCRA court denied

relief on this claim, and we affirmed on February 17, 2005.               The

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal on August 2, 2005.

      On November 30, 2005, Appellant filed a second PCRA petition. The

PCRA court dismissed this petition as untimely, and Appellant filed no appeal

from that order.

      On October 27, 2014, Appellant filed this, his third, PCRA petition. On

April 29, 2015, the PCRA court dismissed the petition as untimely.        This

timely appeal followed.

      Appellant presents for our review ten questions pertaining to alleged

ineffective assistance of prior counsel and court error for failing to regard

both his second and third PCRA petitions as extensions of his first timely

PCRA petition.     He also baldly alleges that his failure to raise additional

claims previously was the result of interference by the PCRA court in

dismissing his first PCRA petition, where the court addressed only appointed

counsel’s amended petition to the exclusion of additional claims he had

raised in his pro se petition.




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      Initially, we must determine whether Appellant timely filed his third

PCRA petition. See Commonwealth v. Hutchins, 760 A.2d 50 (Pa.Super.

2000). “Our standard of review of the denial of PCRA relief is clear; we are

limited to determining whether the PCRA court's findings are supported by

the record and without legal error.”   Commonwealth v. Wojtaszek, 951

A.2d 1169, 1170 (Pa.Super. 2008) (quotation and quotation marks omitted).

We will not entertain a second or subsequent request for PCRA relief unless

the petitioner makes a strong prima facie showing that a miscarriage of

justice may have occurred.” Commonwealth v. Marshall, 947 A.2d 714,

719 (Pa. 2008).

      Pennsylvania law makes it clear that no court has jurisdiction to hear

an untimely PCRA petition. Commonwealth v. Robinson, 837 A .2d 1157

(Pa. 2003).   The most recent amendments to the PCRA, effective January

19, 1996, provide that a PCRA petition, including a second or subsequent

petition, shall be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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 review.”        42 Pa.C.S.A. §

9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition




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will be excused.   42 Pa.C.S.A. § 9545(b)(1).     To invoke an exception, a

petition must allege and the petitioner must prove:

      (i) the failure to raise a claim previously was the result of
      interference by government officials with the presentation of the
      claim in violation of the Constitution or the law of this
      Commonwealth or the Constitution or law 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 Pennsylvania after the time
      period provide in this section and has been held by that court to
      apply retroactively.

42 Pa.C.S.A. § 9545(b)(l)(i)-(iii).   “We emphasize that it is the petitioner

who bears the burden to allege and prove that one of the timeliness

exceptions applies.” Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa.

2008) (citations omitted).

      There is no dispute that Appellant failed to file the instant third PCRA

petition within the one-year PCRA time-bar. See 42 Pa.C.S. § 9545(b)(1).

To the extent Appellant attempts to overcome the time-bar by asserting the

ineffective assistance of prior counsel, he may not prevail, for it is settled

that ineffectiveness claims do not constitute the type of after-discovered

evidence or interference encompassed by the PCRA time-bar exception. See

Commonwealth v. Gamboa–Taylor, 753 A.2d 780, 785 (Pa. 2000)

(holding ineffectiveness of counsel claims generally do not qualify as

exception to PCRA time requirements).




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       Nor does Appellant’s extension theory merit relief, as the Pennsylvania

Supreme Court, in Commonwealth v. Robinson, 837 A.2d 1157 (Pa.

2003), expressly rejected such a theory as a means by which to circumvent

the timeliness requirements of the PCRA:

       [T]he PCRA confers no authority upon this Court to fashion ad
       hoc equitable exceptions to the PCRA time-bar in addition to
       those exceptions expressly delineated in the Act....
       ...

       the issue is simply whether the language of the PCRA
       contemplates or permits a court to innovate a non-textual
       exception to the PCRA's time-bar by indulging the fiction that a
       second or subsequent PCRA petition is an “extension” of a
       previous petition which was rejected on the merits in an order
       that has since become final. Since neither the language of the
       statute nor this Court's decisional law authorizes suspension of
       the time-bar in instances where the petitioner is seeking nunc
       pro tunc appellate relief or reiterating claims which were litigated
       on a previous petition, the statute obviously cannot bear [such
       an] interpretation.
       …

       Once a PCRA petition has been decided and the ruling on it has
       become final, there is nothing for a subsequent petition or
       pleading to “extend.”

Robinson, 837 A.2d at 1161–62 (citations and quotation marks omitted).

In light of such clear directive that we may not fashion equitable exceptions

to the PCRA time-bar, we discern no basis to conclude that Appellant's

petition was timely filed under an extension theory.1

____________________________________________


1
  Relatedly, Appellant’s bald claim that his present PCRA petition is timely
because, in his first PCRA proceedings, the PCRA court interfered with the
presentation of his claim by addressing only the issues raised in appointed
(Footnote Continued Next Page)


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     Order is Affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2016




                       _______________________
(Footnote Continued)

counsel’s amended petition—which excluded several claims raised in the pro
se petition—is frivolous.     Since Appellant was actively represented by
counsel, it was appropriate for the court to consider only Appellant’s
counseled amended petition. See Commonwealth v. Ellis, 626 A.2d 1137,
1139 (Pa. 1993) (“there is no constitutional right to hybrid representation
either at trial or on appeal”); Commonwealth v. Pursell, 724 A.2d 293,
302 (Pa. 1999) (“[w]e will not require courts considering PCRA petitions to
struggle through the pro se filings of [petitioners] when qualified counsel
represent[s] those [petitioners]”). We, therefore, discern no governmental
interference on this record. Moreover, even if there were arguable merit to
Appellant’s claim—and there is not—we would observe to his detriment that
he fails to support his claim with a pleading and proof that, with the exercise
of due diligence, he could not have filed the claim earlier. See Marshall,
947 A.2d at 720.




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