J-S60020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

GABRIEL ISHAM PITTMAN

                            Appellant                   No. 3393 EDA 2015


                 Appeal from the PCRA Order October 28, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0000304-1998


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                               FILED JANUARY 06, 2017

        Gabriel Isham Pittman appeals, pro se, from the order entered October

28, 2015, in the Lehigh County Court of Common Pleas dismissing, as

untimely filed, his serial petition for collateral relief filed pursuant to the Post

Conviction Relief Act (“PCRA”).1 Pittman seeks relief from the judgment of

sentence of an aggregate term of 26 to 59 years’ imprisonment, imposed

August 19, 1998, following his guilty plea to charges of third-degree murder,

recklessly endangering another person, and carrying a firearm without a

license, and his plea of nolo contendere to one count of aggravated assault.2
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    See 18 Pa.C.S. §§ 2502(c), 2705, 6106, and 2702(a)(6), respectively.
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On appeal, Pittman contends the jurisdictional timing provisions of the PCRA

are unconstitutional. For the reasons below, we affirm.

     The facts underlying Pittman’s guilty plea are well-known to the

parties, and we need not recite them herein. In July of 1999, a panel of this

Court affirmed Pittman’s sentence on direct appeal, and the Pennsylvania

Supreme Court subsequently denied his request for allowance of appeal.

See Commonwealth v. Pittman, 737 A.2d 272 (Pa. Super. 1999), appeal

denied, 747 A.2d 899 (Pa. 1999).         Since that time, Pittman has filed

numerous appeals seeking review of the trial court’s repeated denials of both

PCRA and habeas corpus relief. None of them has provided him relief. See

Commonwealth       v.   Pittman,   797    A.2d   1024     (Pa.   Super.   2002)

(unpublished memorandum) (affirming denial of PCRA relief based upon

claims of ineffective assistance of counsel); Commonwealth v. Pittman,

907 A.2d 1136 (Pa. Super. 2006) (unpublished memorandum) (affirming

denial of untimely collateral petition; PCRA court properly construed habeas

corpus petition to be PCRA petition);     Commonwealth v. Pittman, 927

A.2d 656 (Pa. Super. 2007) (unpublished memorandum) (affirming denial of

third PCRA petition as untimely filed); Commonwelath v. Pittman, 82 A.3d

1085 (Pa. Super. 2013) (unpublished memorandum) (affirming denial of

fourth PCRA petition as untimely filed), appeal denied, 85 A.3d 483 (Pa.

2014); Pittman v. Pa. DOC, 118 A.3d 442 (Pa. Super. 2015) (unpublished

judgment order) (affirming dismissal of habeas corpus petition while petition




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seeking allocatur review of prior appeal was pending in the Supreme Court;

trial court properly construed filing as serial PCRA petition).

       On September 21, 2015, Pittman filed the instant pro se PCRA

petition, his sixth. On September 30, 2015, the PCRA court issued notice of

its intent to dismiss the petition as untimely filed without first conducting an

evidentiary hearing. See Pa.R.Crim.P. 907. Pittman filed a response to the

court’s   notice,     claiming    the    timing   provisions   of   the   PCRA   are

unconstitutional.      On October 28, 2015, the court dismissed Pittman’s

petition as untimely filed. This appeal followed.3

       Pittman frames his sole issue on appeal as follows:

       Does 42 Pa.C.S.A. § 9545(b)(1) in itself violate the Suspension
       Clause, and as interpreted as a jurisdictional bar, and as
       enforced as the same, violate the due process and equal
       protection clauses of the U.S. Constitution?

Pittman’s Brief at 2.

       When considering an appeal from an order denying PCRA relief,

       [o]ur standard of review … is whether the record supports the
       PCRA court’s determination and whether the PCRA court’s
       decision is free of legal error. The PCRA court’s findings will not
       be disturbed unless there is no support for the findings in the
       certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal

citations omitted).


____________________________________________


3
   Contemporaneous with his notice of appeal, Pittman filed a concise
statement of error complained of on appeal pursuant to Pa.R.A.P. 1925(b).



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       Here, the PCRA court determined Pittman’s petition was untimely filed,

and Pittman failed to plead and prove any of the time-for-filing exceptions.

See Order, 10/28/2015, at 3-4. We agree. The PCRA mandates that “[a]ny

petition under this subchapter, including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final[.]” 42

Pa.C.S. § 9545(b)(1). Here, Pittman’s judgment of sentence became final

on March 19, 2000, 90 days after the Pennsylvania Supreme Court denied

allocatur review in his direct appeal and he failed to petition for a writ of

certiorari in the United States Supreme Court.           See Pittman, supra, 907

A.2d 1136 (unpublished memorandum at 4-5).                  Therefore, the present

petition, filed more than 15 years later, is patently untimely.

       Nevertheless, the PCRA provides three exceptions to the one-year

timing provision.      See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).        If a petitioner

pleads and proves the applicability of one of the exceptions, his otherwise

untimely petition is not time-barred.          See id.   While Pittman invoked the

governmental interference exception4 in his pro se petition, he does not

repeat that argument in his brief. Rather, on appeal, Pittman contends the

one-year time limitation of the PCRA is unconstitutional. See Pittman’s Brief
____________________________________________


4
  See 42 Pa.C.S. § 9545(b)(i) (providing exception to one-year filing
requirement if the petitioner pleads and proves “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”).




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at 5. Specifically, he claims the time-bar provision violates the Suspension

Clause, the Due Process Clause, and the Equal Protection Clause of the

United States Constitution.5

       First, Pittman argues the time restriction violates the Suspension

Clause found in Article I, Section 9, Clause 2 of the Constitution:           “The

Privilege of the Writ of Habeas Corpus shall not be suspended, unless when

in Cases of Rebellion or Invasion the public Safety may require it.”          U.S.

Const. art. I, § 9, cl. 2. Pittman asserts that because the PCRA provides an

“equivalent” state right to habeas corpus review, the state is not permitted

to impair that right by imposing jurisdictional time limits. Pittman’s Brief at

7.   However, the Pennsylvania Supreme Court rejected a similar claim in

Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998).

       In Peterkin, the petitioner argued the time limitations “upon [his]

access to the PCRA [were] invalid because they [were] unconstitutional.”

Id. at 642. However, the Peterkin Court emphasized: “It is axiomatic that

no constitutional rights are absolute.         All rights are subject to reasonable

restrictions.” Id. The Court held the PCRA’s one-year timing requirement

was a reasonable restriction on a defendant’s right to collateral relief:
____________________________________________


5
  We note that Pittman’s argument in his pro se brief is confusing, and at
times, incomprehensible. It is well-established that “although this Court is
willing to construe liberally materials filed by a pro se litigant, pro se status
generally confers no special benefit upon an appellant.” Commonwealth v.
Lyons, 833 A.2d 245, 251–252 (Pa. Super. 2003), appeal denied, 879 A.2d
782 (Pa. 2005).



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      With the 1995 amendments to the PCRA, the General Assembly
      has established a scheme in which PCRA petitions are to be
      accorded finality.    With certain exceptions, challenges to a
      conviction must be raised either within one year of final
      judgment or within one year of the effective date of the act.
      Because the one-year period within which petitions normally
      must be filed is sufficiently generous to prepare even the most
      difficult case, and because the exceptions to this filing period
      encompass government misconduct, after-discovered evidence,
      and constitutional changes, we have no difficulty in concluding
      that the PCRA’s time limitation upon the filing of PCRA petitions
      does not unreasonably or unconstitutionally limit Peterkin’s
      constitutional right to habeas corpus relief.     At some point
      litigation must come to an end. The purpose of law is not to
      provide convicted criminals with the means to escape well-
      deserved sanctions, but to provide a reasonable opportunity for
      those who have been wrongly convicted to demonstrate the
      injustice of their conviction. The current PCRA places time
      limitations on such claims of error, and in so doing, strikes a
      reasonable balance between society’s need for finality in criminal
      cases and the convicted person’s need to demonstrate that there
      has been an error in the proceedings that resulted in his
      conviction.

Id. at 642–643.      Accordingly, Pittman’s claim that the PCRA’s time

restrictions violate the Suspension Clause is meritless. His right to habeas

corpus relief has not been “suspended” by the implementation of the time

limitations.

      Pittman also contends Section 9545 violates his due process and equal

protection rights. He states:

      [T]he one-year time limit, implemented without state
      constitutional authority and in violation of Article 5, Section
      10(c) which grants the state supreme court with exclusive rule
      making authority over procedural court matters … violates the
      substantive right to unimpaired and unsuspended access to
      habeas corpus process pursuant to Article I, Section 9, Clause 2
      of the U.S. Constitution and Article I, Section 14 of the state
      constitution, as well as procedural due process under the
      Fourteenth Amendment and state constitution.

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Pittman’s Brief at 8-9 (internal citations omitted).

        Again, we find he is entitled to no relief.          Pittman insists the

Legislature had no authority to enact the timing provisions of the PCRA

because Article 5, Section 10(c) of the Pennsylvania Constitution provides

the Pennsylvania Supreme Court “with exclusive rule making authority over

procedural court matters[.]”6 Id. at 8. However, the Pennsylvania Supreme

Court has rejected this assertion, albeit in dicta, in In re Suspension of

Capital Unitary Review Act, 722 A.2d 676 (Pa. 1999). In that case, the

____________________________________________


6
    Article V, Section 10 provides, in relevant part:

        The Supreme Court shall have the power to prescribe general
        rules governing practice, procedure and the conduct of all courts,
        justices of the peace and all officers serving process or enforcing
        orders, judgments or decrees of any court or justice of the
        peace, including the power to provide for assignment and
        reassignment of classes of actions or classes of appeals among
        the several courts as the needs of justice shall require, and for
        admission to the bar and to practice law, and the administration
        of all courts and supervision of all officers of the Judicial Branch,
        if such rules are consistent with this Constitution and neither
        abridge, enlarge nor modify the substantive rights of any
        litigant, nor affect the right of the General Assembly to
        determine the jurisdiction of any court or justice of the peace,
        nor suspend nor alter any statute of limitation or repose. All
        laws shall be suspended to the extent that they are inconsistent
        with rules prescribed under these provisions. Notwithstanding
        the provisions of this section, the General Assembly may by
        statute provide for the manner of testimony of child victims or
        child material witnesses in criminal proceedings, including the
        use of videotaped depositions or testimony by closed-circuit
        television.

PA Const. Art. V, § 10(c).



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Court denied reconsideration of its decision to suspend the Capital Unitary

Review Act (“CURA”), 42 Pa.C.S. §§ 9570-9579.            Id. at 676.   The Court

concluded that CURA, which “purported to prescribe, with specificity, a

detailed procedure by which courts were to administer capital cases,” was

inconsistent with both the Pennsylvania Rules of Appellate Procedure and the

Pennsylvania Rules of Criminal Procedure promulgated by the Court. Id. at

677, 678. The Court also found the problem of undue delay in death penalty

cases, which CURA attempted to correct, was “effectively eliminate[d]” by

both Section 9545(b) and 42 Pa.C.S. § 9771(j).7          In a footnote, however,

the Court concisely stated:         “Neither section 9545(b) nor section 9711(j)

poses a problem under Article V, Section 10, since neither enactment

conflicts with a pre-existing procedural rule of this Court.” Id. at 679 n.1.

Accordingly, Pittman’s claim fails.

       Furthermore, to the extent Pittman asserts Section 9545 interferes

with his right to procedural due process, the Supreme Court rejected that

argument in Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999):

       With passage of the amendments to the PCRA, Appellant and his
       counsel were made aware of the PCRA’s jurisdictional time
       restrictions.  Thus, Appellant had adequate notice of the
       requirements of the PCRA. In his petition and on appeal to this
       court, Appellant had the opportunity to bring his petition within
       the parameters of the jurisdictional requirements of the PCRA,
____________________________________________


7
  42 Pa.C.S. § 9711(j) outlined the procedures for the issuance of a death
warrant by the Governor. It has since been repealed, and those procedures
are now codified at 61 Pa.C.S. § 4302.



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      yet was unable to advance his claims accordingly.            Thus,
      Appellant’s procedural due process rights were not violated.

Id. at 220. Moreover, with respect to Pittman’s claim that the jurisdictional

timing restrictions of the PCRA violate his right to equal protection under the

law, we find his argument convoluted and his citations to civil decisions of

the United States Supreme Court irrelevant. See Pittman’s Brief at 10-15.

As the Pennsylvania Supreme Court explained in Commonwealth v.

Albert, 758 A.2d 1149 (Pa. 2000):

      The essence of the constitutional principle of equal protection
      under the law is that like persons in like circumstances will be
      treated similarly. However, it does not require that all persons
      under all circumstances enjoy identical protection under the law.

Id. at 1151 (citations omitted). Pittman fails to explain how he is treated

differently than “like persons in like circumstances” as a result of the timing

restrictions. Id. Accordingly, his arguments are unavailing.

      Because we find Pittman’s serial PCRA petition is untimely filed, and he

has   failed   to   prove   that   the   timing   provisions   of   the   PCRA   are

unconstitutional, we affirm the order on appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2017



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