J-S29017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EARL THOMAS

                            Appellant                No. 1229 WDA 2014


                   Appeal from the PCRA Order July 15, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013321-1995


BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                               FILED JULY 24, 2015

        Appellant, Earl Thomas, appeals, pro se, from the July 15, 2014 order

dismissing as untimely his serial petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.         After careful

consideration, we affirm.

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

On April 1, 1996, a jury found Appellant guilty of burglary, attempted rape,

unlawful restraint, and simple assault.1 The trial court sentenced Appellant

to an aggregate term of incarceration of 15 to 30 years. Appellant filed a

timely post-sentence motion, which the trial court denied. Appellant timely

____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3502(a), 901, 2902(a)(1), and 2701(a), respectively.
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appealed and challenged the effectiveness of trial counsel based on a conflict

between counsel and Appellant, challenged the trial court’s refusal to appoint

different counsel, and challenged the discretionary aspects of his sentence.

We affirmed the judgment of sentence on April 15, 1998, and our Supreme

Court denied Appellant’s petition for allowance of appeal on October 5, 1998.

Commonwealth v. Thomas, 718 A.2d 349 (Pa. Super. 1998) (unpublished

memorandum), appeal denied, 729 A.2d 428 (Pa. 1998).

       Appellant timely filed a pro se PCRA petition on February 16, 1999.

Counsel was appointed by the PCRA court, and he filed an amended petition

on September 12, 2000. Therein Appellant alleged ineffective assistance of

trial counsel for failure to object to the trial court’s summary to the jury of

certain expert testimony received during the trial. The PCRA court denied

the petition without a hearing on December 14, 2000. Upon timely appeal,

this Court affirmed on January 28, 2002. Commonwealth v. Thomas, 797

A.2d 337 (Pa. Super. 2002) (unpublished memorandum), appeal denied,

812 A.2d 229 (Pa. 2002).2

____________________________________________
2
  Appellant also filed two petitions for relief under 61 P.S. § 81 (providing for
transfer or modification of sentence based on proof of unmet special medical
needs), which were the subject of three appeals to this Court.              See
Commonwealth v. Thomas, 790 A.2d 344 (Pa. Super. 2001) (unpublished
memorandum); Commonwealth v. Thomas, 876 A.2d 471 (Pa. Super.
2005) (unpublished memorandum); and Commonwealth v. Thomas, 965
A.2d 304 (Pa. Super. 2009) (unpublished memorandum), appeal denied,
973 A.2d 1006 (Pa. 2009). Additionally Appellant filed a petition for relief
under 42 Pa.C.S.A § 9543.1 on January 28, 2011, seeking DNA testing of
certain evidence. The PCRA court denied relief and this Court affirmed on
(Footnote Continued Next Page)

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      Appellant filed the instant pro se PCRA petition on November 15, 2013.

On March 4, 2014, pursuant to Pennsylvania Rule of Criminal Procedure 907,

the PCRA court issued a notice of its intent to dismiss Appellant’s PCRA

petition without a hearing because of untimeliness.          Appellant filed a

response to the PCRA court’s notice on April 7, 2014.             The PCRA court

dismissed Appellant’s PCRA petition on July 16, 2014.         Appellant filed a

timely notice of appeal on July 30, 2014.3

      On appeal, Appellant raises the following issues for our review.

             1.        Was there a Sixth Amendment Violation[?]

             2.     Was there Government Interference on the
             Trial Judge who was also under an investigation from
             1989 to 2006[?]

             3.    Was there an Error by the Trial Court by
             allowing the Public Defender to continue his
             representation for the Appellant[?]

Appellant’s Brief at 3.

      When presented with a challenge to a PCRA court’s denial of relief on a

PCRA petition, we observe the following principles.       “On appeal from the

denial of PCRA relief, our standard and scope of review is limited to

determining whether the PCRA court’s findings are supported by the record

                       _______________________
(Footnote Continued)
the basis the materials had already been subjected to DNA testing.
Commonwealth v. Thomas, 87 A.3d 391 (Pa. Super. 2013) (unpublished
memorandum).
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.


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and without legal error.” Commonwealth v. Edmiston, 65 A.3d 339, 345

(Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania, 134

S. Ct. 639 (2013). “[Our] 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 PCRA court level.” Commonwealth v. Koehler,

36 A.3d 121, 131 (Pa. 2012) (citation omitted).             “The PCRA court’s

credibility determinations, when supported by the record, are binding on this

Court.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation

omitted). “However, this Court applies a de novo standard of review to the

PCRA court’s legal conclusions.” Id. In order to be eligible for PCRA relief, a

petitioner must plead and prove by a preponderance of the evidence that his

conviction or sentence arose from one or more of the errors listed at 42

Pa.C.S.A. § 9543(a)(2).    These issues must be neither previously litigated

nor waived. 42 Pa.C.S.A. § 9543(a)(3).

      Instantly, the PCRA court dismissed Appellant’s petition as untimely.

“[I]t is well-settled that … a question of timeliness implicates the jurisdiction

of our Court.”   Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa. Super.

2012) (internal quotation marks and citation omitted), appeal denied, 49

A.3d 442 (Pa. 2012).         “Because these timeliness requirements are

mandatory and jurisdictional in nature, no court may properly disregard or

alter them in order to reach the merits of the claims raised in a PCRA

petition that is filed in an untimely manner.” Commonwealth v. Lopez, 51


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A.3d 195, 196 (Pa. 2012) (internal quotation marks and citation omitted).

The PCRA “confers no authority upon this Court to fashion ad hoc equitable

exceptions to the PCRA time-bar[.]”        Commonwealth v. Watts, 23 A.3d

980, 983 (Pa. 2011) (citation omitted).       This is to “accord finality to the

collateral review process.”   Id. “It is well settled that [a]ny and all PCRA

petitions must be filed [in a timely manner] unless one of three statutory

exceptions applies.” Commonwealth v. Garcia, 23 A.3d 1059, 1061-1062

(Pa. Super. 2011) (internal quotation marks, citation, appeal denied, 38

A.3d 823 (Pa. 2012).      “We have repeatedly stated it is the appellant’s

burden to allege and prove that one of the timeliness exceptions applies.

Whether Appellant has carried his burden is a threshold inquiry prior to

considering the merits of any claim.”        Edmiston, supra at 346 (citation

omitted).

     The Act provides for the following possible exceptions to the timeliness

requirement.

            § 9545. Jurisdiction and proceedings

                                       …

            (b) Time for filing petition.—

                   (1) Any petition under this subchapter,
            including a second or subsequent petition, shall be
            [timely] filed … 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

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                     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).

       In this case, Appellant’s judgment of sentence became final on January

4, 1999, 90 days after our Supreme Court denied Appellant’s petition for

allowance of appeal on October 5, 1998, being the time allowed to file a writ

of certiorari with the United States Supreme Court.4          See U.S. S. Ct. R.

13(1).     Thus, Appellant’s first and any subsequent PCRA petition was

required to be filed on or before January 4, 2000. Appellant’s petition under


____________________________________________
4
  We note that the 90th day was Sunday, January 3, 1999. Because the last
day to file fell on a weekend, Appellant had until Monday, January 4, 1999,
to timely file a petition for a writ of certiorari. See generally 1 Pa.C.S.A.
§ 1908.


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review was filed, as stated, on November 15, 2013, and is, therefore,

demonstrably untimely.

      Instantly, Appellant purports to invoke the first of the enumerated

timeliness exceptions, governmental interference. Appellant’s Brief at 14.

            [Appellant] has met the enumerated exception that
            would allow [Appellant] to file his PCRA petition late
            under the First [exception] and not the Second or
            Third, … as it was “a delay” caused by the [trial
            j]udge who is … a “Goverment [sic] Official.”
            [Appellant] is not time barred from raising this claim
            in his PCRA. [Appellant] has met the exception rule
            under 42 Pa.C.S.A. § 9545 (b)(1)(i).

Id. at 14, ¶ 25.

      Appellant contends the governmental interference consisted of the trial

judge’s alleged refusal to permit Appellant to hire a private attorney for trial.

Id. at 15. Specifically, Appellant asserts the following.

            [Appellant’s] PCRA petition is filed in a timely
            manner because of the interference by the [trial
            judge], when he refused to let [Appellant,] after
            [Appellant] stated on record that [Appellant] had
            money to hire a private attorney, and the [trial
            j]udge denied [Appellant’s request which was clearly
            a 6th Amendment Right Violation; and also a
            violation of the Canon which the Code of Judicial
            Conduct require Judges to be patient, dignified and
            courteous. And requesting to have a new lawyer is a
            Constitutional Right….

Id. at 15, ¶ 30.

      This claim, even if it could properly be construed as governmental

interference, fails to establish the claimed exception.     As Appellant notes,

this issue was known and raised at trial and on direct appeal. Id. at 14, ¶

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25.   “[Appellant] [] raised this claim back on 5/30/1996 when his prior

Attorney … raised it, but it was denied by [the Superior Court on direct

appeal].”   Id.   Thus, the PCRA court notes as follows.    “The question of

whether or not [Appellant] had been forbidden to have his trial counsel

withdraw and either have court-appointed counsel or private counsel

represent him has previously been litigated and the Superior Court rejected

that contention in its Memorandum Opinion filed on April 15, 1998.”      Trial

Court Opinion, 1/9/15, at 2. Consequently, the governmental interference

alleged by Appellant did not prevent him from raising his issues in a timely

fashion. Further, Appellant’s current PCRA petition was filed well outside the

60-day deadline for filing after discovering the alleged interference. See 42

Pa.C.S.A. § 9545(b)(2); Commonwealth v. Burton, 936 A.2d 521,

525 (Pa. Super. 2007) (noting, “the PCRA mandates that any petition

invoking an exception to the time bar requirement be filed within 60 days of

the date the claim could have been presented”).

      Based on his underlying right to counsel argument, Appellant also

baldly asserts, “that [a petitioner] can never be time barred when its [sic] a

Constitutional Rights Violation.” Appellant’s Brief at 15, ¶ 29. Our Supreme

Court has held that such an argument “is nothing more than a convoluted

way of attempting to carve out an exception to the jurisdictional timeliness

requirements of the PCRA.” Commonwealth v. Wharton, 886 A.2d 1120,

1126-1127 (Pa. 2005).


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      For these reasons, we conclude Appellant’s November 15, 2013 PCRA

petition is untimely, and both the PCRA court and this Court are without

jurisdiction to consider its merits. We therefore affirm the PCRA court’s July

15, 2014 order dismissing Appellant’s PCRA petition without a hearing.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2015




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