J-S39012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    JOSHUA D. HERDER                           :
                                               :
                       Appellant               :      No. 3522 EDA 2018

           Appeal from the PCRA Order Entered September 18, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0007152-2008


BEFORE:      GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.:                           Filed: August 20, 2019

       Appellant, Joshua D. Herder, appeals pro se from the order entered in

the Philadelphia County Court of Common Pleas, which dismissed as untimely

his second petition filed under the Post Conviction Relief Act (“PCRA”) at 42

Pa.C.S.A. §§ 9541-9546. We affirm.

       The PCRA court opinion accurately set forth the relevant facts and

procedural history of this case.         Therefore, we have no reason to restate

them.1 We add that on September 18, 2018, the court dismissed Appellant’s


____________________________________________


1 Additionally, the PCRA court refers to two underlying criminal docket
numbers in this case. Although Appellant filed the current PCRA petition at
both docket numbers, this appeal relates only to docket No. CP-51-CR-
0007152-2008. Thus, we see no jurisdictional impediments to our review
under Commonwealth v. Walker, ___ Pa. ___, 185 A.3d 969 (2018)
(requiring separate notices of appeal from single orders which resolve issues
arising on separate trial court docket numbers).
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S39012-19


PCRA petition as untimely. The original order sent to Appellant was returned

to the court as “undeliverable” due to a prison mailing issue. The court sent

Appellant notice of the order dismissing his PCRA petition for a second time

on November 19, 2018. Appellant timely filed a pro se notice of appeal on

November 30, 2018.

       On appeal, Appellant claims the court erred by dismissing his PCRA

petition as untimely where Appellant satisfied the “newly-discovered facts”

exception to the PCRA time-bar, relying on Commonwealth v. Cruz, 578 Pa.

325, 852 A.2d 287 (2004) (holding claims of mental incompetence may

satisfy “newly-discovered fact” exception where alleged mental incompetence

prevented defendant from raising claims earlier, in timely manner; remanding

to afford appellant opportunity to prove that his past incompetence rendered

him unable to discover factual bases for collateral claims, and appellant filed

PCRA petition within 60 days of becoming competent).2

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Jeffrey P.

Minehart, we conclude Appellant’s issue merits no relief.     The PCRA court



____________________________________________


2 Appellant did not present a statement of questions involved, in contravention
of Pa.R.A.P. 2116. See Pa.R.A.P. 2116 (explaining statement of questions
involved must state concisely issues to be resolved, expressed in terms and
circumstances of case but without unnecessary detail); Commonwealth v.
Maris, 629 A.2d 1014 (Pa.Super. 1993) (stating noncompliance with Rule
2116 is particularly grievous because statement of questions involved defines
specific issues for review).

                                           -2-
J-S39012-19


opinion comprehensively discusses and properly disposes of the question

presented.     (See PCRA Court Opinion, filed December 5, 2018, at 3-8)

(finding: current PCRA petition is facially untimely; in general, mental illness

or incompetence does not meet exception to PCRA time-bar; Appellant failed

to offer any proof that he could not litigate issues raised in his second PCRA

petition due to mental incompetence and just recently regained sufficient

mental acuity to do so; Appellant did not attach expert report or other proof

to establish he was incompetent; Appellant failed to plead and prove at what

point he allegedly regained competency to show that he filed his petition

within relevant statutory window;3 Appellant’s reliance on Cruz is misplaced;

moreover, Appellant previously litigated in his first PCRA petition his

underlying claim of trial counsel’s ineffectiveness, for failing to obtain and

present psychiatric evidence to support insanity or guilty but mentally ill

defense). Accordingly, we affirm on the basis of the PCRA court’s opinion.

       Order affirmed.


____________________________________________


3The PCRA court states Appellant was required to file his current PCRA petition
within 60 days of discovering his alleged “new fact.” As of December 24,
2018, Section 9545(b)(2) now allows any PCRA petition invoking a timeliness
exception to be filed within one year of the date the claim first could have
been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2, effective in
60 days [Dec. 24, 2018]. This amendment applies to claims arising on or
after December 24, 2017. Appellant filed the current PCRA petition on July 3,
2018, so the amendment applies to him. As the trial court observed, however,
Appellant did not substantiate his bald assertion that he had “recently”
become competent. Therefore, in any event, Appellant failed to show he had
met the time allowed under Section 9545(b)(2) to invoke an exception under
Section 9545(b)(1).

                                           -3-
J-S39012-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/19




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     COMMONWEALTH OF PENNSYLVANIA                            COURT: OF COMMON PLEAS
                                                             PHILADELPHIA COUNTY

                               vs.                           NOS.: CP-51-CR:-0007152-2008
                                                                   CP-51-CR-0007157-2008

     JOSHUA HERDER,                                             CP-51-CR-0007152-2008-Comm v Herder. Joshua
                              Appellant                                           Opinion




                                            OPINION
                                                                       I
                                                                     II I IIII II 111111111111111
                                                                             81�80838�1


                  This is an appeal from an order issued on September 18, 2018, dismissing the

     above-named appellant's second Post-Conviction Relief Act, 42 Pa.C.S. 9541 et seq.,

     petition (hereinafter PCRA) because the petition was untimely filed and none of the

     exceptions to the PCRA's one-year deadline applied to excuse the late filing of the

     petition. By way of background, appellant was charged in both of the above Bills of

     Information with murder, generally, and possessing instruments of crime, generally. In

     one of the cases appellant fatally stabbed Mr. Robert Kitchen inside the boarding home in

     which appellant and the victim resided. On December 7, 2007, while incarcerated at the

     Philadelphia Industrial Correctional Facility awaiting trial on the first murder, appellant

     strangled Mr. Charles Kirkland inside the Philadelphia Industrial Correctional Facility ..

     In both instances, appellant maintained that he had been attacked by the victims and acted.

     in self-defense.




                                                    1
                                                                                                              1
         Appellant was tried before this Court; sitting without a jury, in March of 2009.

On March 23, 2009, this Court found appellant guilty of two counts of first-degree

murder and possessing instruments of crime, generally. Following the recording of the

verdicts, the mandatory sentence of life imprisonment was imposed on both of the first-

degree murder charges. These sentences were ordered to run consecutively to one

another. Verdicts without further penalty were entered on the two weapons offenses.

Appellant filed neither post-sentence motions nor an appeal after he was sentenced

         On December 24, 2009, appelJant fi]ed a pro se petition pursuant to the PCRA.2

Counsel was appointed to represent him and thereafter filed an amended petition

asserting that trial counsel had been ineffective for failing to obtain mental health reports

on appellant for the purpose of presenting an insanity and/or guilty but mentally il1

defense. This Court conducted an evidentiary hearing on appellant's claim on January 26,

201 S, and at the conclusion of the hearing this Court dismissed-the petition.

         AppelJant thereafter filed a notice of appeal and on September 15, 2015, the

Superior Court affirmed the order denying appellant PCRA relief. Commonwealth v.

Herder, 133 A.3d 70 (Pa. Super. 2015) (Table). Appellant thereafter filed a petition for

aJlowance of appeal in the Pennsylvania Supreme Court, which the. Court denied on

February 17, 2016. Commonwealth v. Herder, 131 A.3d 490 {Pa. 2016) (Tab]e).

         On July 3, 2018, appellant filed a facially untimely pro ie PCRA petition. Upon

carefully reviewing appellant's filings, the entire record, and the applicable Jaw, this

Court, on August 22, 2018, sent appelJant a Pa.R.Crim.P 907 Notice oflntent to Dismiss.


 I The instant matter was originally a death penalty case. In exchange for defendant's waiver of his right to a

jury trial, the Commonwealth agreed not to seek the death penalty in the event defendant was convicted of
first-degree murder. (N;T, 3/5/09, 11-12).
2 The delay in
                  litigating .this matter stems from a change in PCRA counsel and difficulty in having
defendant examined by a mental health expert.
    Appellant filed a response thereto on September 13, 2018. On. September 18, 2018, after

    again reviewing the entire record, this Court entered. an order denying appellant PCRA

. relief because it determined that appellant did not 'timely file his second PCRA petition

    and that none of the three exceptions          to    the one-year time bar excused appellant's

untimely filing of his second pro se petition. Appellant thereafter filed a pro se notice of

    appeal.3

    DISCUSSION

           In his second pro se PCRA petition appellant argued that although filed outside

the PCRA's one-year time limit, his petition should be considered timely filed pursuant to

Commonwealth v. Cruz, 852 A.2d 287 (Pa. 2004), because he was incompetent during

. the time period in which he was legally required to seek PCRA relief and he filed the

instant petition within sixty days of the date he became sufficiently competent to proceed.

Appellant also argued that trial counsel was ineffective for failing to acquire evidence of

his mental impairments for the purpose of raising either an insanity or guilty but mentally

ill defense because there was sufficient evidence available to support those legal theories.

It is submitted that appellant failed to meet his burden of establishing an exception to the

one-year filing requirement and thus, it is respectfully suggested that this Court's order

denying PCRA relief be affirmed.

           In reviewing the propriety of the PCRA court's dismissal of a petition without a

hearing, the reviewing court        is limited to determining whether the court's findings are

supported by the record and whether the order in question is free of legal error.

Commonwealth v. Holmes, 905 A.2d Sot, 509 (Pa. Super. 2006) citing Commonwealth

3It is noted that this Court sent a copy of the order dismissing appellant's PCRA petition on the date the
order was issued. However, due to a new prison mail procedure, the Order was returned as undeliverable.
The Court thereafter re-sent appellant the order and he filed his appeal upon receipt of the order.

                                                     3
v. -��lley, 870 A.2d 795,            79?    �Pa. 2005). The PCRA court's findings will not be

disturbed unless there is. no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). A PCRA court may

decline to hold a hearing on the petition if the petitioner's claim is patently frivolous and
                                     .           .
is without a trace of support either in the record             or
                                                      from other evidence. Commonwealth

v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001). The reviewing court on appeal must

examine each of the issues raised in the PCRA petition in light of the record in order to

determine whether the PCRA court erred in concluding that there were no genuine issues

of material fact and denying relief without an evidentiary hearing.                          Id.   See also

Commonwealth v. Hardcastle, 701 A.2d 541, 542 (Pa. 1997).

           The one-year time limit set forth in the P.C.R.A.is jurisdictional, Commonwealth

v. Yarris, 731 A.2d 581 (Pa. 1999). Commonwealth v. Peterkin, 722 A.2d 638, 641 (Pa.

1998); Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). Generally, a

PCRA petition, including a second or subsequent petition, must be filed within one year

of the date the judgment is final and a petitioner has the burden of proving that an

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

and (iii), applies to excuse the filing of a petition after the one-year deadline has expired.4


4   The exceptions to the PCRA's one-year time limit are:

                    (i) the failure to raise the claim previously was the result
                    of interference of 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

                                                         4
See 42 Pa.C.S § 9545(a), (b); Commonwealth v. Bennett, 930 A.2d 1264, 1272 n.11 (Pa.

2007); Commonwealth v. Crews, 863 A.2d 498, 501 (Pa. 2004).

         A petition invoking one of these s_ta�t<?.ry exceptions must "be filed within 60

days of the date the claims could have been presented." See ·Hernandez, 79 A.3d at 651-

52 (citation omitted); see also 42 Pa.C.S. § 9545(b)(2). Moreover, any exception to the

PCRA's time bar must be pleaded in the petition, "and may not be raised for the first time

on appeal." Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007) (citations

omitted).     Finally, an untimely petition may not be addressed simply because it is

couched in terms ofineffectiveness. Peterkin, 722 A.2d at 643.
                                                                                '
         Appellant's judgment of sentence became final well prior to his recent attempt to

obtain post-conviction collateral relief from his conviction and thus, his current PCRA

petition is patently untimely.5 Appellant recognized that hispetition was not timely filed

and in an effort to overcome the PCRA time bar he, as noted above, claimed that he was

incompetent during the time period set by law to file a timely PCRA petition and, thus,

his second PCRA petition was timely filed. Appellant was mistaken because the Cruz

exception did not excuse the late filing of his second PCRA petition and even if it did

somehow apply, appellant failed to meet its stringent standards

         In Pennsylvania, mental illness or incompetence, without more, is generally not

an exception to the PCRA's time bar. See, e.g., Commonwealth v. Monaco, 996 A.2d

                  provided in this section and has been held by that court to
                  apply retroactively.

42 Pa.C.S. § 9545(b)(l)(i)-(iii).

s Appellant did not file either post-sentence motions or a direct appeal following the imposition of sentence
upon him so his conviction became final thirty days after May 23, 2009, the date this Court sentenced him.
"For purposes of [the PCRA], 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).
                                                      5
1076, 1081 (Pa. Super. 2010) ("meq.tal illness or psychological condition, absent more,

will not serve as an exception" to the. time bar); Commonwealth v. Hoffman, 780 A.id

700, 703 (Pa. Super. 2001) ("claim of mental illness does not fit any exception to the

[PCRA]'s time limits"). In order to establish jurisdiction, a defendant claiming

incompetence may       satisfy the newly-discovered
                                      .       .     fact exception,          set .forth in

§9545(b)(l)(ii), by proving: "(1) that he was and remained incompetent throughout the

period during which his right to file a PCRA petition lapsed; and (2) that his current

petition was timely filed within 60 days of his becoming sufficiently competent to

ascertain the facts upon which his underlying claims are predicated." See Cruz, 852 A.2d

at 288 (a defendant must "prove that he was incompetent at the relevant times and that

that incompetence qualifies under the after-discovered evidence exception").

       Here, appellant did not offer any such proof other than his own allegations that he

could not litigate the issues raised in his second PCRA petition because of mental

incompetence and just .recently regained sufficient mental acuity to do so. He did not

attach an expert report or other indicium of proof establishing that he was incompetent.

Thus, appellant's reliance on Cruz, 852 A.2d 287 (Pa. 2004), is misplaced.

       In that case, Cruz was lobotomized by a self-inflicted gunshot wound. When a

person is lobotomized, they "lose all sense of temporal awareness." Id. at 290. Cruz could

not "express emotions" or "discuss the facts of the case in a sensible way." Id. at 288·

289. Under those exceptional circumstances, the Pennsylvania Supreme Court held that

Cruz's mental incompetence, "if proven, may satisfy the requirements" of the newly-

discovered evidence exception. Id. at 288 (emphasis in original); see also Monaco, 996

A.2d at 1080-81 ("only under [Cruz's] very limited circumstance has the Supreme Court



                                            6
ever allowed a form of mental illness or incompetence to excuse an otherwise untimely

PCRA · petition") (emphasis added). Appellant failed to present any exceptional

circumstances in his most recent filing and thus, he failed to establish that he timely filed

his most recent petition,

        Appellant also failed to plead: and prove at what .point he supposedly returned to

competency, and therefore failed to show that he filed his petition within 60 days of that

date. His self-serving and unsubstantiated claim that he recently became competent and

filed his second petition within sixty days of becoming so is inadequate to satisfy that

requirement. Commonwealth v. Liebensperger, 904 A.2d 40, 48 (Pa. Super. 2006)

(dismissing PCRA petition as untimely where Liebensperger "offered nothing to indicate

when, if ever ... he passed from incompetence to competence"); see also Commonwealth

v. Pagan, 864 A.2d 1231, 1233 n.l (Pa. Super. 2004) (dismissing PCRA petition as

untimely where "appellant was found competent in 1999; [but] his PCRA petition was

not filed until four years later").

        This is especially the case because appellant previously litigated a PCRA petition.

At no time during that proceeding did appellant assert that he was incompetent and

incapable of meaningfully litigating his PCRA petition. In fact, he testified during that

proceeding without difficulty. Consequently, unlike in Cruz - which involved a first

PCRA petition - appellant here was plainly able to file and litigate a timely petition. The

Court determined that. this alone fatally undermined appellant's attempt to establish

jurisdiction.

        In any event, even if Appellant had been able to establish that the Cruz exception

to the time-bar applied, he still would not have been entitled to relief. This is so because
appellant raised essentially the same claim he sought PCRA relief O.Q. in his second PCRA

petition, namely, that trial .counsel provided him with ineffective assistance of counsel by

failing to obtain and present psychiatric evidence .to support either an insanity or guilty

but mentally ill defense, in his first PCRA petition, a claim this Court deemed unworthy

of relief. That
             .
                alone would have resulted
                                    .     in the denial. of PCRA
                                                              .       . See 42 Pa.C.S .. § §
                                                                 relief.
                                                                  .

9543(a)(3) and 9544(a)(2) (PCRA relief is not available for claims that were previously

litigated on direct appeal); Commonwealth v. Beasley, 678 A.2d 773, 778 (Pa. 1996)

(PCRA petitioner "cannot obtain post-conviction review of claims previously litigated on

appeal"); Commonwealth v. Marshall, 812 A.2d 539, 544-45 (Pa. 2002) (petitioner was

not entitled to relief under the PCRA where his claim was an attempt to relitigate the

same issue that he previously raised on direct appeal).        Therefore, it is respectfully

suggested that if the Honorable Court determines that appellant's second PCRA petition

was timely filed, that no relief is due him.

CONCLUSION

        Based on the foregoing, the order denying appellant relief on his second PCRA

petition should be affirmed.

                                               By the Court,



DATE:             Ir
        lcJ-/<;;, .i




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