J-S19009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ALAN RICHARD WEIST                         :
                                               :
                      Appellant                :   No. 1725 EDA 2017
                                               :

                      Appeal from the Order May 22, 2017
    In the Court of Common Pleas of Pike County Criminal Division at No(s):
                           CP-52-CR-0000240-2009


BEFORE:       SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY SHOGAN, J.:                                 FILED JUNE 08, 2018

        Appellant, Alan Richard Weist, appeals pro se from the order denying

his third petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. We affirm.

        We summarize the relevant procedural history of this case as follows.

On January 7, 2011, Appellant pled guilty to two counts of rape of a child.1 In

accordance with the plea agreement, on March 31, 2011, the trial court

sentenced Appellant to serve two consecutive terms of incarceration of seven

to twenty years. Thereafter, Appellant failed to perfect his direct appeal with

this Court.




____________________________________________


1   18 Pa.C.S. § 3121(c).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     On December 14, 2011, Appellant filed a pro se PCRA petition, and the

PCRA court appointed counsel.     The PCRA court subsequently permitted

counsel to withdraw 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 dismissed Appellant’s first PCRA petition on June

1, 2012. On May 15, 2013, this Court affirmed the PCRA court’s decision.

Commonwealth v. Weist, 81 A.3d 996, 1993 EDA 2012 (Pa. Super. filed

May 15, 2013) (unpublished memorandum). Appellant did not file a petition

for allowance of appeal with the Pennsylvania Supreme Court.

     On June 1, 2015, Appellant filed a pro se document entitled “Petition for

Discovery.” The PCRA court treated the item as a second PCRA petition and

denied relief in an order entered September 1, 2015. Appellant filed a timely

notice of appeal to this Court, and we ultimately affirmed the PCRA court’s

decision on November 7, 2016. Commonwealth v. Weist, 159 A.3d 578,

2954 EDA 2015 (Pa. Super. filed November 7, 2016) (unpublished

memorandum).     Appellant did not seek further review with our Supreme

Court.

     On May 18, 2017, Appellant filed a pro se “Petition for a New Trial and

or Hearing Under After Discovered Evidence.”     The PCRA court denied the

petition in an order entered May 22, 2017. This timely appeal followed. On

June 5, 2017, the PCRA court entered an order directing that Appellant file a

concise statement pursuant to Pa.R.A.P. 1925(b). The record further indicates


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that a copy of the order was forwarded to Appellant the same day. On July

11, 2017, the PCRA court filed its opinion pursuant to Pa.R.A.P. 1925(a).

     Appellant presents the following issues for our review:

     1) WAS THE PIKE COUNTY COURT OF COMMON PLEAS IN ERROR
     FOR ITS DENIAL OF THE APPELLANT’S PETITION FOR NEWLY
     DISCOVERED EVIDENCE WITHOUT REQUESTING A HEARING TO
     REVIEW ALL OF THE SUPPORTED FACTS AND PARTIES INVOLVED
     USING DUE DILIGENCE AND NOT BASING THEIR OPINION ON
     MEMORY OF A CASE TO WHICH THE JUDGE ISSUING THE DENIAL
     WAS NOT THE JUDGE IN THE CASE?

     2) WAS THE PIKE COUNTY COURT OF COMMON PLEAS IN
     VIOLATION OF THE APPELLANT’S RIGHTS BY ITS DENIAL OF HIS
     PETITION FOR NEWLY DISCOVERED EVIDENCE WHEN HE
     PRESENTED EVIDENCE OF WITNESS TAMPERING THAT WAS NOT
     IN HIS POSSESSION PRIOR TO THE GUILTY PLEA, OR BROUGHT
     TO THE APPELLANT’S ATTENTION BY HIS ATTORNEY?

     3) IS [sic] THE APPELLANT’S RIGHTS BEING VIOLATED BY
     INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO OBTAIN
     THE WAYNE COUNTY CHILDREN AND YOUTH REPORTS OF SAID
     VICTIM TO ESTABLISH THIS IS NOT THE FIRST TIME SHE HAS
     MADE THESE CLAIMS AGAINST A PERSON, TO WHICH WOULD BE
     NEWLY DISCOVERED EVIDENCE?

     4) WAS THE COURT IN ERROR FOR ITS DENIAL OF THE
     APPELLANT’S PETITION FOR NEWLY DISCOVERED EVIDENCE
     WHEN THE APPELLANT’S MOTHER CAME ACROSS A [sic] OLD
     PHONE BILL THAT WAS DURING THE TIME OF THE APPELLANT’S
     ARREST SHOWING THAT THE SEARCH WARRANT WAS ISSUED
     UNDER THE WRONG NAME AND NUMBER?

     5) IS THE APPELLANT SERVING TIME ON CHARGES TO WHICH HE
     MAINTAINS HIS INNOCENCE, THAT A PRIOR COURT HEARING
     STATED THAT HE WAS A HONEST AND TRUSTING PERSON?

     6) WAS THE COURT IN ERROR BY NOT HOLDING AN HEARING IN
     THIS MATTER TO WHICH CAUSED A GRAVE MIS-JUSTICE [sic] ON
     THE APPELLANT AND ALLOWED ANOTHER FAMILY MEMBER OF
     THE HOUSEHOLD TO SELL THE APPELLANT’S DAUGHTER INTO
     PROSTITUTION TO WHICH WAS FOUND GUILTY AND IS NOW

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      SERVING TIME IN A PENNSYLVANIA STATE PRISON ALONG WITH
      ANOTHER PERSON OUTSIDE THE FAMILY?

Appellant’s Brief at 6 (capitalization in original).

      We begin by determining whether Appellant’s “Petition for a New Trial

and or Hearing Under After Discovered Evidence” is properly considered to be

a PCRA petition.

      The scope of the PCRA is explicitly defined as follows:

      This subchapter provides for an action by which persons convicted
      of crimes they did not commit and persons serving illegal
      sentences may obtain collateral relief. The action established
      in this subchapter shall be the sole means of obtaining
      collateral relief and encompasses all other common law
      and statutory remedies for the same purpose that exist
      when this subchapter takes effect, including habeas corpus
      and coram nobis. This subchapter is not intended to limit the
      availability of remedies in the trial court or on direct appeal from
      the judgment of sentence, to provide a means for raising issues
      waived in prior proceedings or to provide relief from collateral
      consequences of a criminal conviction.

42 Pa.C.S. § 9542 (emphasis added).

      The plain language of the statute above demonstrates that the General

Assembly intended that claims that could be brought under the PCRA must

be brought under that Act. Commonwealth v. Hall, 771 A.2d 1232, 1235

(Pa. 2001) (emphasis in original). Where a defendant’s claims “are cognizable

under the PCRA, the common law and statutory remedies now subsumed by

the PCRA are not separately available to the defendant.”         Id. (citations

omitted). By its own language, and by judicial decisions interpreting such

language, the PCRA provides the sole means for obtaining state collateral


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relief. Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999) (citations

omitted). Thus, it is well settled that any collateral petition raising issues with

respect to remedies offered under the PCRA will be considered a PCRA petition.

Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super. 2001).

      The question then is whether the particular claim at issue here, i.e.,

Appellant’s request for a new trial based upon evidence allegedly not available

to him at the time of trial, is a claim that was available to him under the PCRA.

The relevant portion of the PCRA provides as follows:

      (a) General rule.--To be eligible for relief under this
      subchapter, the petitioner must plead and prove by a
      preponderance of the evidence all of the following:

                                     *    *    *

            (2) That the conviction or sentence resulted from
            one or more of the following:

                                     *    *    *

                   (vi) The unavailability at the time of trial
                   of exculpatory    evidence that has
                   subsequently become available and would
                   have changed the outcome of the trial if it
                   had been introduced.

42 Pa.C.S. § 9543(a)(2)(vi). Thus, the statute in this matter clearly provides

that claims of after-discovered facts are cognizable under the PCRA.            42

Pa.C.S. § 9543(a)(2)(vi).     Hence, because Appellant’s claim is cognizable

under the PCRA regardless of the caption of the petition, the PCRA court had

no authority to entertain the claim except under the strictures of the PCRA.




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       When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).     This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016).    The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).

       We must next address the consequences of Appellant’s failure to file the

court-ordered Rule 1925(b) statement.2           Rule 1925(b)(4)(vii) directs that

“[i]ssues not included in the Statement and/or not raised in accordance with



____________________________________________


2 In its Pa.R.A.P. 1925(a) opinion filed on July 11, 2017, the PCRA court aptly
stated the following:

       On June 5, 2017, this [c]ourt ordered that [Appellant] file a
       Concise Statement of Matters Complained of on Appeal within
       twenty-one (21) days from the date of the Order.

             As of July 11, 2017, [Appellant] still has yet to file a Concise
       Statement of Matters Complained of on Appeal. Due to this failure
       on the part of [Appellant], this [c]ourt is of the opinion that no
       issue has been preserved for appellate review.              Therefore,
       [Appellant] has effectively waived any issues that he may wish to
       raise on appeal.

PCRA Court Opinion, 7/11/17, at 2-3 (unnumbered) (citations omitted).

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the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(vii).

In Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), our Supreme Court

established the bright-line rule that “in order to preserve their claims for

appellate review, [a]ppellants must comply whenever the trial court orders

them to file a Statement of Matters Complained of on Appeal pursuant to Rule

1925. Any issues not raised in a 1925(b) statement will be deemed waived.”

Id. at 309; see also Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011)

(Pa.R.A.P. 1925 “obligates an appellant to file and serve a Rule 1925(b)

statement, when so ordered.”).

      In 2007, our Supreme Court amended Rule 1925 and added subsection

(c)(3), which directs us to remand for the filing of a statement nunc pro tunc

if we are convinced that counsel has been per se ineffective. Pursuant to this

provision, this Court remands where a counseled appellant in a criminal case

fails to file a Rule 1925(b) statement or an untimely statement that amounts

to per se ineffectiveness. See Commonwealth v. Scott, 952 A.2d 1190 (Pa.

Super. 2008) (holding that counsel’s failure to file Rule 1925(b) statement

constitutes per se ineffectiveness requiring a remand).

      This rule providing for a remand pursuant to Pa.R.A.P. 1925(c)(3) is not

applicable in this matter. Because he is pro se, Appellant cannot assert his

own ineffectiveness. See Commonwealth v. Fletcher, 986 A.2d 759, 773

(Pa. 2009) (“The law prohibits a defendant who chooses to represent himself

from alleging his own ineffectiveness”) (citing Faretta v. California, 422 U.S.


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806, 834 n.46 (1975)). Indeed, our Supreme Court has stated that a pro se

defendant “may not rely upon his own lack of expertise as a ground for relief.”

Commonwealth v. Bryant, 855 A.2d 726, 737 (Pa. 2004).                 Accordingly,

Appellant’s failure to file a Rule 1925(b) statement waives all claims.

Pa.R.A.P. 1925(b)(4)(vii) (Issues not included in the Rule 1925(b) statement

or not raised in accordance with the provisions of this paragraph (b)(4) are

waived).

      Furthermore, even if Appellant had filed a timely Rule 1925(b)

statement, the PCRA court did not have jurisdiction to review the merits of

Appellant’s   issues   because    Appellant   did   not   satisfy   the   timeliness

requirements of the PCRA. A PCRA petition must be filed within one year of

the date that the judgment of sentence becomes final.                42 Pa.C.S. §

9545(b)(1). 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.” 42 Pa.C.S. § 9545(b)(3). This time requirement is

mandatory and jurisdictional in nature, and the court may not ignore it in

order to reach the merits of the petition. Commonwealth v. Cintora, 69

A.3d 759, 762 (Pa. Super. 2013).

      However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and


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(iii), is met.3 A petition invoking one of these exceptions must be filed within

sixty days of the date the claim could first have been presented. 42 Pa.C.S.

§ 9545(b)(2). In order to be entitled to the exceptions to the PCRA’s one-

year filing deadline, “the petitioner must plead and prove specific facts that

demonstrate his claim was raised within the sixty-day time frame” under

section 9545(b)(2).       Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa.

Super. 2001).

       As noted above, the trial court imposed Appellant’s judgment of

sentence on March 31, 2011. Appellant did not perfect a direct appeal. Thus,

his judgment of sentence became final on May 2, 2011.4 Therefore, Appellant

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3   The exceptions to the timeliness requirement are:

       (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.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
4 We note that a direct appeal needed to be filed on or before Monday, May 2,
2011, because April 30, 2011, was a Saturday. See 1 Pa.C.S. § 1908 (stating
that, for computations of time, whenever the last day of any such period shall
fall on Saturday or Sunday, or a legal holiday, such day shall be omitted from
the computation). See also Pa.R.A.P. 107; Pa.R.A.P. 903, note.

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had until May 2, 2012, to file a timely PCRA petition.       See 42 Pa.C.S. §

9545(b)(3) (stating that, for purposes of calculating the timeliness of a

petition, 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 time for seeking

the review”). Appellant filed the instant PCRA petition on May 18, 2017, over

six years after his judgment of sentence became final.       Consequently, the

PCRA petition is patently untimely.

      As previously stated, if a petitioner does not file a timely PCRA petition,

his petition nevertheless may be received under any of the three limited

exceptions to the timeliness requirements of the PCRA.              42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted. 42

Pa.C.S. § 9545(b)(2).

      Our review of the record reflects that Appellant did not specifically raise

any of the timeliness exceptions in his pro se PCRA petition.       However, it

appears that Appellant attempts to argue the timeliness exception under

section 9545(b)(1)(ii). Appellant asserts that he was somehow unaware that

defense counsel possessed information regarding the victim that was never

shared with Appellant and that a warrant was issued that allegedly contained

defective information.     PCRA Petition, 5/18/17, at 2-5 (unnumbered).

Appellant contends that this information consists of a portion of a fax


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document, information about proceedings involving Wayne County Children

and Youth Services, and additional materials such as telephone bills belonging

to his mother.

       We cannot ignore that Appellant was required to exercise due diligence

in obtaining the information that forms the basis for his PCRA petition. This

issue was addressed by our Supreme Court in Commonwealth v. Stokes,

959 A.2d 306 (Pa. 2008). In Stokes, the appellant was convicted of three

counts of first-degree murder and related charges in 1983. The appellant then

filed a timely direct appeal and a timely PCRA petition, which were

unsuccessful.

       In February of 2004, the appellant in Stokes initiated federal habeas

corpus proceedings and obtained files from the United States Postal Service

and the Philadelphia Police Department. He then filed a second PCRA petition

alleging a Brady violation,5 asserting the Commonwealth failed to disclose

documents in the files, which contained exculpatory evidence. The appellant

in Stokes claimed that he satisfied the “newly discovered fact” and

“government interference” exceptions to the PCRA’s timeliness requirements.

The PCRA court found the PCRA petition to be untimely and denied his petition

without a hearing, and our Supreme Court ultimately affirmed on appeal.




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5   Brady v. Maryland, 373 U.S. 83 (1963).

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      In reaching its decision, our Supreme Court held that both exceptions

mandate compliance with the sixty-day rule, which “requires a petitioner to

plead and prove that the information on which he relies could not have been

obtained earlier, despite the exercise of due diligence.” Stokes, 959 A.2d at

310. Thus, the proper questions with respect to timeliness in Stokes were

“whether the government interfered with Appellant’s access to the … files, and

whether [the a]ppellant was duly diligent in seeking those files.” Id. The

Court in Stokes concluded the record established that the appellant had been

aware of the existence of the files prior to seeking them, and he did not claim

that the Commonwealth prevented him from accessing the files earlier. The

Court in Stokes held the record indicated the appellant was aware of the

existence of the files prior to filing his PCRA petition, and he did not explain

why he did not seek them earlier; he thus failed to satisfy the due diligence

requirement of the sixty-day requirement under the PCRA. Id., at 311.

      Our review of the record reflects that, in his pro se PCRA petition,

Appellant ineptly attempted to argue the timeliness exception under section

9545(b)(1)(ii), claiming he had newly discovered evidence.       However, our

review further reveals that Appellant’s pro se PCRA petition is devoid of any

discussion regarding the sixty-day rule.      In addition, Appellant did not

establish that he exercised due diligence in securing the evidence.

Accordingly, we conclude that Appellant has failed to prove that he satisfied

the sixty-day rule, that the information he relied upon in filing his third PCRA


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petition could not have been obtained earlier by the exercise of due diligence.

42 Pa.C.S. § 9545(b)(2); Stokes, 959 A.2d at 310.

      The PCRA petition was untimely and no exceptions apply. Therefore,

the PCRA court lacked jurisdiction to address any claims presented.        See

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding

that PCRA court lacks jurisdiction to hear an untimely petition). Likewise, we

lack the authority to address the merits of any substantive claims raised in

the PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007) (“[J]urisdictional time limits go to a court’s right or competency to

adjudicate a controversy.”).    Thus, even if the issues were not waived by

Appellant’s failure to file a Pa.R.A.P. 1925(b) statement, the PCRA court lacked

jurisdiction to address the claims and grant relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/18




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