J-S29028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 CHARLES COLEY,                          :
                                         :
                   Appellant             :   No. 726 EDA 2017

              Appeal from the PCRA Order February 10, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-1217311-1973


BEFORE:   PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.:                               FILED MAY 30, 2018

     Charles Coley (Appellant) appeals pro se from the order denying as

untimely his ninth petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     The PCRA court summarized the pertinent facts as follows:

     On August 19, 1974, [Appellant] was tried and convicted by a
     jur[y] of murder in the first degree, attempted robbery, and
     criminal conspiracy, before the Honorable Theodore B. Smith. The
     trial court granted [Appellant] a [new trial] following post-verdict
     motions. However, on appeal, the Pennsylvania Supreme Court
     reversed and remanded for sentencing.              [Appellant] was
     sentenced to life imprisonment on April 21, 1976. No direct
     appeal was filed.

PCRA Court Opinion, 4/19/17, at 1 (footnote omitted).

     Over the course of the next 35 years, Appellant filed nine petitions for

PCRA relief and two federal petitions for habeas corpus, all of which were




____________________________________
* Former Justice specially assigned to the Superior Court.
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denied. See Commonwealth v. Coley, 1029 EDA 2010 at * 1-3 (Pa. Super.

Nov. 8, 2010) (unpublished memorandum) (detailing the procedural history).

      On February 23, 2015, Appellant filed the instant pro se PCRA petition

seeking a new trial on the basis of newly discovered exculpatory evidence and

governmental interference. On August 24, 2016, the PCRA court issued notice

of its intent to dismiss the petition pursuant to Rule 907 of the Pennsylvania

Rules of Criminal Procedure and Appellant filed a pro se response.               On

February 10, 2017, the PCRA court dismissed Appellant’s petition as untimely.

      Appellant filed a timely pro se notice of appeal. Although it did not order

Appellant to file a concise statement of errors complained of on appeal

pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure,

the PCRA court filed a Rule 1925(a) opinion in which it set forth and discussed

the governmental interference and newly discovered fact claims that Appellant

raised in his PCRA petition.

      This Court’s standard of review regarding an order dismissing a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.        Commonwealth v.

Roney, 79 A.3d 595, 603 (Pa. 2013) (citation omitted). The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record. Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super.

2016) (citation omitted).

      It is well-settled that the timeliness of a post-conviction relief petition is

jurisdictional. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010)

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(citation omitted). Thus, if a PCRA petition is untimely, neither an appellate

court nor the PCRA court has jurisdiction over the petition.    Id. “Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims” raised in an untimely petition. Id.

      Generally, a petition for relief under the PCRA must be filed within one

year of the date the judgment of sentence becomes final unless the petitioner

pleads and proves an exception to the timeliness requirements. 42 Pa.C.S.A.

§ 9545(b)(1). Under these exceptions, the petitioner must plead and prove:

(1) interference by government officials in the presentation of the claim; (2)

newly discovered facts; and (3) an after-recognized constitutional right.

Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012) (citing

42 Pa.C.S.A. § 9545(b)(1)). A PCRA petition invoking one of these statutory

exceptions must be filed within 60 days of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).

      Appellant was sentenced to life imprisonment in 1976 and did not pursue

a direct appeal from his judgment of sentence.       Accordingly, the instant

petition, which Appellant filed nearly 40 years after his judgment of sentence

became final, is untimely on its face. See 42 Pa.C.S.A. § 9545(b)(1).

      Appellant has failed to prove the applicability of any of the exceptions

to the PCRA’s time restrictions. Appellant argues that his claims satisfy both

the governmental interference and newly discovered facts exceptions to the

PCRA’s time-bar.   42 Pa.C.S.A. § 9545(b)(1)(i)-(ii).     In its Rule 1925(a)

opinion, the PCRA court aptly summarized and resolved Appellant’s claims

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relating to the timeliness exception to the PCRA’s time limitation. The PCRA

court explained:

            [Appellant] unsuccessfully attempted to invoke the
     interference by government official exception as codified in
     Section 9545(b)(1)(i).       [Appellant’s] claim concerned the
     immunity agreement that Commonwealth witness, Andre
     Anderson, entered with the Commonwealth and Pennsylvania
     Attorney General’s Office. [Appellant] alleged that the trial court
     interfered with his right to impeach Anderson by concealing the
     immunity petition from the jury. PCRA Petition, 2/23/15, at 6.
     [Appellant] also claimed that the Commonwealth refused to
     provide him with a copy of the immunity petition which allowed
     the Commonwealth to withhold critical evidence about the firearm
     that Anderson testified about. [Id.] at 13.

            To plead and prove the governmental interference
     exception, [Appellant] must show that his failure to raise the claim
     previously was a result of government interference.                 [42
     Pa.C.S.A.] § 9545(b)(1)(i). Here, [Appellant] did not allege that
     the trial court interfered with his right to raise this issue either on
     direct appeal or collaterally. In fact, the record revealed that both
     [Appellant] and trial counsel were aware of the immunity petition
     and had previously raised it in a [federal] petition for writ of
     habeas corpus . . . and in a previous [state petition for post-
     conviction relief]. Additionally, even if raised in a timely fashion,
     as this claim has been previously raised, [Appellant] was not
     eligible for relief. 42 Pa.[C.S.A.] § 9543(a).

           [Appellant also] attempted to invoke the “newly discovered
     facts” exception enumerated in 42 Pa.[C.S.A.] § (b)(1)(ii) by
     claiming the Commonwealth withheld information about the
     firearm used in the homicide. Although it was unclear what
     argument [Appellant] was attempting to advance, it appeared that
     he was alleging [the] Commonwealth falsely categorized the
     changed appearance of the firearm used in the homicide as rusted
     and corroded. In support of [Appellant’s] assertions, he submitted
     an affidavit by Dr. Joseph Betz, dated January 13, 2015,
     purporting to disprove Commonwealth’s theory that the firearm
     was corroded.

            Upon review, [Appellant] has failed to state what due
     diligence, if any, he took to secure the alleged newly discovered


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      evidence. Furthermore, he does not explain why he could not
      have discovered this information at an earlier time, specifically
      since [Appellant] fully admitted he knew of the prosecution’s
      theory at trial. To raise this claim in a timely manner, [Appellant]
      needed to plead and prove that he raised it within 60 days of when
      it was discoverable. Here, [Appellant] does not demonstrate when
      the testimony disput[ing] the appearance of the gun was
      available, that he raised it within 60 days, and/or a reason
      demonstrated why it was timely under and exception. Therefore,
      [Appellant] has utterly failed to raise this claim in a timely
      manner, and this court is without jurisdiction to review the merits
      of his claim.

PCRA Court Opinion, 4/19/17, at 3-5 (footnotes omitted).

      Our review supports the PCRA court’s conclusion that Appellant failed to

meet his burden in proving an exception to the timeliness requirements of the

PCRA. Having determined that it lacked jurisdiction to address Appellant’s

claims, the PCRA court properly dismissed Appellant’s petition for post-

conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/30/18




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