J-S89008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTHONY WRIGHT,

                            Appellant                 No. 1014 EDA 2016


                  Appeal from the PCRA Order February 4, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0806301-2004


BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                            Filed January 20, 2017

       Appellant, Anthony Wright, appeals from the order denying his petition

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

9546. We affirm.

       The PCRA court summarized the factual and procedural history of this

case as follows:

              [Appellant] was convicted of third-degree murder, violating
       the Uniform Firearms Act, possessing an instrument of crime,
       and aggravated assault following a waiver trial before this Court
       that took place during the summer of 2007. These convictions
       arose out of an incident that occurred on June 27, 2004. On
       that day [Appellant] and [Thomas Reid] walked past four
       individuals who were on the porch of a row home: Michael
       Robertson, Cortez Pryor, and Andre and Anthony Bowie. At the
       time [Appellant] was armed with a .38 caliber revolver. As
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*
    Former Justice specially assigned to the Superior Court.
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     [Appellant] and Reid walked in front of the house, Anthony
     Bowie said to them, “what the fuck are you looking at?” The two
     sets of men exchanged words as they approached one another.
     [Appellant] then pulled out his revolver, causing someone to say
     “yo, chill, we don’t have to go there, we don’t have to do this,
     chill.” Anthony Bowie then began pushing Andre away from
     [Appellant] and then asked [Appellant] to put the weapon away.
     [Appellant] ignored the request and began firing at the Bowie
     group, all of whom began running away. During the incident
     Andre Bowie was shot in the chest and died that day. Anthony
     Bowie and Robertson were also shot.

            [Appellant] testified that he had closed his eyes and fired
     the shots in self-defense. He contended that one of the Bowies
     had a gun, but no gun was ever found. The other witnesses
     testified that they did not see any gun other than [Appellant’s]
     during the incident.

            On October 23, 2007, this Court imposed an aggregate
     sentence on [Appellant] of twenty-five to fifty years’
     incarceration. [Appellant] thereafter filed post-sentence motions
     and after they were denied, he filed a notice of appeal to the
     Superior Court. On March 23, 2009, the Superior Court issued a
     memorandum and order affirming the judgment of sentence.
     Commonwealth v. Wright, 972 A.2d 565 (Pa. Super. 2009)
     (Table). [Appellant] thereafter filed a petition for allowance of
     appeal in the Pennsylvania Supreme Court, which denied the
     petition on December 9, 2009. Commonwealth v. Wright, 985
     A.2d 690 (Pa. 2009) (Table).

            On September 30, 2010, [Appellant] filed a petition
     pursuant to the Post–Conviction Relief Act. 42 Pa.C.S. 9541 et
     seq. Counsel was appointed and on February 25, 2014, counsel
     filed a no-merit letter pursuant to Commonwealth v. Finley, 550
     A.2d 213 (Pa. Super. 1988); Commonwealth v. Turner, 544 A.2d
     927 (Pa. 1988), and a Motion to Withdraw. This Court, after
     carefully reviewing the record, [Appellant’s] various filings, and
     counsel’s no-merit letter, accepted counsel’s letter and sent
     [Appellant] a Pa.R.Crim.P. 907 notice of dismissal on March 28,
     2014, that advised [Appellant] that his PCRA petition was going
     to be dismissed in 20 days. [Appellant] filed a response to the
     907 notice and after reviewing it this Court granted counsel’s
     motion to withdraw and dismissed [Appellant’s] petition on April


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       29, 2014. Apparently, [Appellant] never received a copy of the
       order dismissing his PCRA petition.

              On February 4, 2015, [Appellant] filed a second PCRA
       petition alleging, inter alia, that he never received a copy of the
       order dismissing his PCRA petition.[1]        Upon reviewing that
       petition, this Court concluded that it had been untimely filed and
       sent [Appellant] 907 notices indicating the same in October and
       November of 2015. [Appellant] filed a response on January 15,
       2016.

PCRA Court Opinion, 2/4/16, at 1-3.

       On February 4, 2016, the PCRA court dismissed Appellant’s second

PCRA petition as untimely. This timely appeal followed.

       Appellant presents the following issues for our review:

       I. Whether Appellant’s Instant PCRA Petition Is Timely Filed,
       Where Appellant Has Invoked A Statutorily Enumerated
       Exception To Excuse The Untimeliness Of The Instant PCRA
       Petition?

       II. Whether Appellant Is Entitled To The Reinstatement Of His
       PCRA Appellate Rights Nunc Pro Tunc, Following The Dismissal Of
       His Initial PCRA Petition As A Result Of The PCRA Court’s Failure
       To Provide Appellant With A Final Order As Required by
       Pa.R.Crim.P. 907(4)?

Appellant’s Brief at 4 (emphasis in original).

       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.
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1
  In his second PCRA petition, Appellant sought reinstatement of his
appellate rights nunc pro tunc. PCRA Petition, 2/4/15, at 5.



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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. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      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). This time

requirement is mandatory and jurisdictional in nature and may not be

ignored in order to reach the merits of the petition.     Commonwealth v.

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).         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).     In addition, we are mindful that all requests for

reinstatement of appellate rights, including PCRA appellate rights, must

meet the timeliness requirements of the PCRA.             Commonwealth v.

Fairiror, 809 A.2d 396, 397 (Pa. Super. 2002).

      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),


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and (iii), is met.2 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).

       Our review of the record reflects that the trial court imposed the

instant judgment of sentence on October 23, 2007.          This Court affirmed

Appellant’s judgment of sentence on March 23, 2009, and the Pennsylvania

Supreme Court denied Appellant’s petition for allowance of appeal on

December 9, 2009.          Appellant did not seek review in the United States
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2
    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).



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Supreme Court. Accordingly, Appellant’s judgment of sentence became final

on March 9, 2010, ninety days after the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal and the time for filing a petition

for review with the United States Supreme Court expired.         42 Pa.C.S. §

9545(b)(3); U.S.Sup.Ct.R. 13.      Appellant did not file the instant PCRA

petition until February 4, 2015. Thus, the instant PCRA petition is patently

untimely.

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

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

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

9545(b)(1).   That burden necessarily entails an acknowledgment by the

petitioner that the PCRA petition under review is untimely but that one or

more of the exceptions apply.      Commonwealth v. Beasley, 741 A.2d

1258, 1261 (Pa. 1999). 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).

      Appellant contended that his untimeliness of his second PCRA petition

should be excused due to the ineffective assistance of his first PCRA counsel,

who allegedly failed to inform Appellant that his first PCRA petition had been

dismissed by the PCRA court, thereby denying Appellant his constitutional

right to an appeal.   PCRA Petition, 2/4/15, at Appendix 3.      However, an

assertion that prior counsel’s ineffectiveness resulted in the denial of his


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second PCRA petition does not satisfy one of the time-for-filing exceptions in

the PCRA. As our Supreme Court has explained:

      It is well settled that allegations of ineffective assistance of
      counsel will not overcome the jurisdictional timeliness
      requirements of the PCRA. See Commonwealth v. Pursell,
      561 Pa. 214, 749 A.2d 911, 915-16 (2000) (holding a
      petitioner’s claim in a second PCRA petition, that all prior counsel
      rendered ineffective assistance, did not invoke timeliness
      exception, as “government officials” did not include defense
      counsel); see also Commonwealth v. Gamboa-Taylor, 562
      Pa. 70, 753 A.2d 780, 785-86 (2000) (finding that the “fact” that
      current counsel discovered prior PCRA counsel failed to develop
      issue of trial counsel’s ineffectiveness was not after-discovered
      evidence exception to time-bar); Commonwealth v. Lark, 560
      Pa. 487, 746 A.2d 585, 589 (2000) (holding that allegation of
      ineffectiveness is not sufficient justification to overcome
      otherwise untimely PCRA claims).

Commonwealth        v.   Wharton,     886   A.2d   1120,   1127    (Pa.   2005).

Accordingly, Appellant’s claim of prior counsel’s ineffective assistance does

not provide him relief of his untimely filing of the instant PCRA petition.

      In addition, we observe that Appellant also asserted that the PCRA

court did not notify Appellant of the April 29, 2014 dismissal of his first PCRA

petition. PCRA Petition, 2/4/15, at 4. Assuming for the sake of argument

that this claim properly raises the timeliness exception of government

interference, as we previously stated, section 9545 of the PCRA requires that

“[a]ny petition invoking an exception provided in paragraph [b](1) shall be

filed within 60 days of the date the claim could have been presented.” 42

Pa.C.S. § 9545(b)(2).    In Commonwealth v. Stokes, 959 A.2d 306 (Pa.

2008), our Supreme Court reiterated that compliance with the sixty-day rule


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is mandatory in order to invoke an exception to the PCRA timeliness

requirements, 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.” Id. at 310 (citation omitted).

       In addressing Appellant’s failure to exercise due diligence and to file

the instant PCRA petition sooner, the PCRA court offered the following

analysis, which we adopt:

              Here, [Appellant] failed to establish that he filed his most
       recent PCRA petition within sixty days of the date he could have
       learned through the exercise of due diligence that the order
       dismissing his previous PCRA petition had been entered on the
       court docket as required by 42 Pa.C.S. §9545(b)(2).[3]
       [Appellant’s] most recent PCRA petition is devoid of any
       explanation as to why he did not contact the clerk’s office sooner
       than he did. Clearly, having been sent a Rule 907 notice in
       March of 2014 advising [Appellant] of [the PCRA court’s]
       intention to dismiss his petition in twenty days, [Appellant] was
       effectively put on notice that his petition was going to be
       dismissed. [Appellant], therefore, had an obligation to ascertain
       whether his petition had been dismissed sooner than December
       of 2014.[4] Moreover, given that [Appellant] was able to obtain
       the information pertaining to the dismissal of his previous PCRA
       petition with no difficulty, it is clear that he could have learned of
       the dismissal well prior to the date he filed his most recent PCRA

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3
  As previously indicated, the PCRA court dismissed Appellant’s first PCRA
petition on April 29, 2014.
4
  Specifically, in the instant PCRA petition, Appellant averred that “[i]t wasn’t
until December 13, 2014, after [Appellant] wrote to the Clerk of Courts of
the Common Pleas Court of the Philadelphia County requesting a copy of the
Criminal Docket sheet, that [Appellant] was made aware of the fact that
[Appellant’s first PCRA petition] had been formally dismissed on April 29,
2014.” PCRA Petition, 2/4/15, at Appendix 1-2.



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      petition.   This is not a case where it was impossible for
      [Appellant] to learn of the dismissal of his petition.

PCRA Court Opinion, 2/4/16, at 5.          Appellant failed to show that the

information he relied upon in filing the instant PCRA petition could not have

been obtained earlier by the exercise of due diligence.         42 Pa.C.S. §

9545(b)(2).     Hence, Appellant failed to meet any of the timeliness

exceptions, and the PCRA court correctly determined that the instant PCRA

petition was untimely filed.

      In conclusion, because Appellant’s PCRA petition was untimely and no

exceptions apply, the PCRA court correctly determined that it lacked

jurisdiction to address the claims presented and grant relief. See Fairiror,

809 A.2d at 398 (holding that PCRA court lacks jurisdiction to hear 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.”).

      Order affirmed.

      Judge Moulton joins the Memorandum.

      Justice Fitzgerald notes dissent.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2017




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