J-S10021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  :    IN THE SUPERIOR COURT OF
                                              :         PENNSYLVANIA
                                              :
               v.                             :
                                              :
                                              :
JAMAL L. SMITH                                :
                                              :
                        Appellant             :    No. 2142 EDA 2017

                    Appeal from the PCRA Order June 22, 2017
    In the Court of Common Pleas of Bucks County Criminal Division at No(s):
                             CP-09-CR-0007676-2009


BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                                    FILED MAY 14, 2018

        Appellant, Jamal L. Smith, appeals from the order entered on June 22,

2017, dismissing as untimely his second petition filed pursuant to the Post

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). We affirm.

        We briefly summarize the facts and procedural history of this case as

follows.    In 2009, police responded to a report of a stabbing death and

robbery in a parking lot at an apartment complex in a high-crime area of

Bucks County, Pennsylvania. On August 20, 2010, following a four-day trial,

a    jury   convicted     Appellant   of   second-degree   murder,     robbery,   and

possessing an instrument of crime.           On October 14, 2010, the trial court

sentenced Appellant to life imprisonment without the possibility of parole.

On March 29, 2012, this Court affirmed Appellant’s judgment of sentence.

See     Commonwealth v. Smith,               47   A.3d   1258   (Pa.   Super.   2012)

(unpublished memorandum). On September 13, 2012, our Supreme Court
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denied further review.        See Commonwealth v. Smith, 53 A.3d 50 (Pa.

2012).

       On October 18, 2012, Appellant filed a pro se letter that the court

treated as a timely PCRA petition. The PCRA court appointed counsel who

filed two amended PCRA petitions. After conducting an evidentiary hearing

wherein trial counsel testified, the PCRA court denied Appellant relief on April

1, 2016.       We affirmed the PCRA court’s decision in an unpublished

memorandum on March 15, 2017.                  See Commonwealth v. Smith, 2017

WL 1019743 (Pa. Super. 2017) (unpublished memorandum).                     In our

decision, we also permitted PCRA 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).             Appellant did not

appeal that determination.

       On March 27, 2017, Appellant filed a second pro se PCRA petition. On

June 6, 2017, pursuant to Pa.R.Crim.P. 907, the PCRA court filed its notice

to dismiss the PCRA petition without an evidentiary hearing. Appellant filed

a pro se response on June 19, 2017.              On June 22, 2017, the PCRA court

denied Appellant’s second PCRA petition as untimely. This appeal resulted.1
____________________________________________


1  Appellant filed a timely pro se notice of appeal on July 6, 2017. The PCRA
court ordered Appellant to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b) on August 3, 2017. On August 17,
2017, Appellant complied, raising seven issues pertaining exclusively to
jurisdiction under the PCRA. The PCRA court filed an opinion pursuant to
Pa.R.A.P. 1925(a) on September 19, 2017.



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         On appeal, Appellant presents the following issues, pro se, for our

review:

   I.      Did the [PCRA] court err[] in dismissing [Appellant’s] second
           PCRA petition as being time-barred[?]

   II.     Did the [PCRA] court have jurisdiction to hear a second PCRA
           petition while entertaining the first PCRA petition[?]

   III.    Does the [PCRA] court have jurisdiction to hear a second
           PCRA petition while [the] first PCRA petition is pending [on]
           appeal in the Superior Court[?]

   IV.     Should the time bar be tolled [for Appellant], when the
           Commonwealth delayed [] filing a response to [Appellant’s]
           first PCRA [petition], and the court did not schedule a hearing
           on [Appellant’s] first PCRA [petition] until four (4) years
           later[?]

   V.      Does the delay by the Commonwealth in filing an untimely
           response to [Appellant’s] first PCRA [petition], and the court’s
           failure to schedule a hearing for four (4) years violate
           [Appellant’s] rights to due process and fundamental fairness
           pursuant to the 6th and 14th Amendments to the United States
           Constitution and Article 1 § 9 of the Constitution of the
           Commonwealth of Pennsylvania[?]

   VI.     Does the totality of the circumstances surrounding this instant
           case amount to an exception to the time bar[?]

Appellant’s Brief at 1-2 (complete capitalization omitted).

         Essentially, Appellant argues that his first PCRA petition took almost

five years to resolve, he was not able to file a second PCRA petition while the

first was pending, and, thus, he “should be allowed to file his second PCRA

[petition] once he receive[d] an order from the PCRA court or an order from

this Honorable Court” denying his first petition.      Id. at 11.   Accordingly,

Appellant claims that the PCRA court should not “be allowed to take as long

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as they wish to hold a PCRA hearing, and then be allowed to claim Appellant

is time-barred and cannot proceed with a second PCRA petition[.]”             Id.

However, Appellant has not advanced a statutory exception to the PCRA’s

time-bar and does not raise any substantive arguments that were foreclosed

during the pendency of his first PCRA petition.         Hence, Appellant is not

entitled to relief.

      Our standard of review is as follows:

      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.

                           *           *            *

      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. Pennsylvania law makes clear that when
      a PCRA petition is untimely, neither this Court nor the trial court
      has jurisdiction over the petition.         The period for filing
      a PCRA petition is not subject to the doctrine of equitable tolling;
      instead, the time for filing a PCRA petition can be extended only
      if the PCRA permits it to be extended. This is to accord finality
      to the collateral review process. 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.A. § 9545(b)(1)(i), (ii),
      and (iii), are met.

      The PCRA provides, in relevant part, as follows:



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      § 9545. Jurisdiction and proceedings

                           *            *           *

      (b) Time for filing petition.—

      (1)   Any petition under this subchapter, including a second or
            subsequent petition, shall be filed within one year of the date the
            judgment becomes final, unless the petition alleges and the
            petitioner proves that:

            (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.

      (2) Any petition invoking an exception provided in paragraph (1) shall
      be filed within 60 days of the date the claim could have been
      presented.

      42 Pa.C.S.A. § 9545(b).

Commonwealth v. Miller, 102 A.3d 988, 992–993 (Pa. Super. 2014)

(internal quotations and case citations omitted).

      Here, Appellant was sentenced on October 14, 2010. We affirmed his

judgment of sentence on March 29, 2012, and our Supreme Court denied

Appellant’s petition for allowance of appeal on September 13, 2012.

Therefore, Appellant’s judgment of sentence became final on December 12,



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2012, when the period for Appellant to file a petition for writ of certiorari

with   the   United   States   Supreme   Court expired.     See 42   Pa.C.S.A.

§ 9545(b)(3) (stating, “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[.]”); U.S. Sup.Ct. R. 13(1) (stating “a petition

for a writ of certiorari to review a judgment in any case ... is timely when it

is filed with the Clerk of this Court within 90 days after entry of

the judgment[.]”).    Thereafter, Appellant had one year, or until December

12, 2013, to file a timely second PCRA petition.   Appellant’s March 27, 2017

PCRA petition was manifestly untimely.      Thus, Appellant had to plead and

prove an exception to the PCRA’s jurisdictional time-bar.

       In this case, the PCRA court initially noted that Appellant “effectively

raised the government interference exception [to the PCRA] within sixty

days of [this Court’s] March 15, 2017 opinion affirming the denial of his first

PCRA [p]etition, [but] he [] failed to prove specific facts or evidence that

would establish a statutory exception to the time-bar.” PCRA Court Opinion,

9/19/2017, at 18. The PCRA court further determined that Appellant “failed

to prove what claims, if any, he was unable to discover or develop as a

result of either the Commonwealth’s delay in filing a response or the court’s

delay in scheduling a PCRA hearing” on his first PCRA petition.            Id.

Accordingly, the PCRA court concluded that “because Appellant [] failed to




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adequately prove an exception to the PCRA’s statutory time-bar the instant

petition is untimely and jurisdictionally barred.” Id.

      Upon review, we agree.         In order to establish the government

obstruction exception to the PCRA, a petitioner is required to plead and

prove “the failure to raise a claim previously was the result of interference

by government officials with the presentation of the claim[.]” 42 Pa.C.S.A.

§ 9545(b)(2)(i) (emphasis added). Appellant has failed to identify any claim

subject to government interference that existed during the pendency of his

first PCRA petition. Moreover, he did not identify any substantive arguments

in his Rule 1925(b) statement, instead arguing only that jurisdiction was

proper.     Finally, on appeal to this Court, Appellant does not plead or prove

one of the noted exceptions. Instead, he contends “that the totality of the

circumstances surrounding this particular case creates an exception to the

time bar[.]”   Appellant’s Brief at 13.    Unfortunately, “the 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.” Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)

(citations and brackets omitted).        Accordingly, we discern no abuse of

discretion or error of law in denying Appellant’s PCRA petition as untimely

and not subject to exception.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/18




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