J-S17041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                   v.

TIMOTHY J. WRIGHT,

                         Appellant                   No. 910 EDA 2017


          Appeal from the PCRA Order entered February 10, 2017,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0822361-1984.


BEFORE: BENDER, P.J.E., LAZARUS, J. and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                         FILED APRIL 27, 2018

      Timothy J. Wright appeals pro se from the order denying as untimely

his third petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      The pertinent facts and extensive procedural history have been

summarized as follows:

             On May 24, 1985, Wright was convicted by a jury of two
         counts of kidnapping, two counts of robbery, and one
         count each of rape, recklessly endangering another
         person, possessing an instrument of crime, and
         aggravated assault, as a result of a four-day crime spree
         wherein Wright abducted two women in their vehicles. He
         was sentenced to an aggregate term of 59 ½ to 124 years
         of incarceration. Represented by trial counsel, Wright filed
         a direct appeal, and this Court affirmed his judgment of
         sentence on July 1, 1986. The Pennsylvania Supreme
         Court denied Wright’s petition for allowance of appeal on
         April 14, 1987.
J-S17041-18


           On December 11, 2003, Wright filed a pro se writ of
        habeas corpus arguing that his constitutional rights were
        violated by the receipt of consecutive sentences – that
        because his convictions arose from a single criminal
        episode, is convictions must merge for sentencing
        purposes. The PCRA court treated this as his first PCRA
        petition, and appointed counsel to represent Wright. On
        September 28, 2004, counsel filed a no-merit letter
        pursuant to Commonwealth v. Turner, 518 Pa. 491, 544
        A.2d 927 (1988) and Commonwealth v. Finley, 550
        A.2d 213 (Pa. Super. 1988), and sought to withdraw as
        counsel. Thereafter, the trial court issued notice to Wright
        of its intention to dismiss his PCRA petition without a
        hearing pursuant to Pa.R.Crim.P. 907, and ultimately did
        so on November 19, 2004. Wright did not appeal that
        decision.

            On October 7, 2008, Wright filed a second pro se PCRA
        petition raising claims of PCRA counsel’s ineffectiveness, a
        violation of Pa.R.Crim.P. 905(B) regarding his first PCRA
        petition, ineffective assistance of trial counsel, ineffective
        assistance of PCRA counsel, and discretionary aspects of
        sentencing. Wright filed a “supplemental addition” to his
        PCRA petition on February 1, 2009, when he added:
        “Government Interference occurred when trial counsel was
        allowed to perfect petitioner’s first direct appeal without
        any assistance or input from petitioner. On March 12,
        2010, Wright filed an “Amendment to Subsequent PCRA
        Petition,”   wherein    he    raised    various   claims    of
        “governmental interference” based upon the trial court’s
        rulings and prior counsel’s actions in representing Wright
        at trial and on direct appeal, and reiterated his claims of
        ineffectiveness of counsel.

           The PCRA court sent notice of its intention to dismiss
        this second PCRA petition without a hearing on July 22,
        2010. Wright filed a response to the notice on August 13,
        2010. The trial court dismissed the petition as untimely on
        September 27, 2010.

Commonwealth v. Wright, 2758 EDA 2010, unpublished memorandum at

1-3 (citation and footnotes omitted).



                                    -2-
J-S17041-18



       Wright filed a timely appeal to this Court, in which he raised thirteen

issues. We found his claims to be either waived, undeveloped, or otherwise

without merit.       This Court therefore affirmed the order denying post-

conviction relief on July 12, 2011. See Wright, supra. Our Supreme Court

denied Wright’s petition for allowance of appeal on April 5, 2012.

       On October 27, 2014, Wright filed the instant pro se PCRA petition, his

third. On October 14, 2016, the Supervising Judge of the Criminal Section

of the Court of Common Pleas of Philadelphia issued Pa.R.Crim.P. 907 notice

of intent to dismiss the petition without a hearing. 1 Wright filed a response

on October 20, 2016.          Thereafter, the supervising judge reassigned the

matter to the PCRA court, which denied the petition as untimely on February

10, 2017.     This appeal follows.      The PCRA court did not require Pa.R.A.P.

1925 compliance.

       On appeal, Wright claims that the PCRA court erred in dismissing his

latest PCRA petition.       Thus, we must determine whether the PCRA court

correctly determined that Wright’s serial petition for post-conviction relief

was untimely filed.       This Court’s standard of review regarding an order

dismissing a petition under the PCRA is “to determine whether the
____________________________________________


1 The reason for the nearly two-year delay in issuing Rule 907 notice is
unexplained by our review of the record. The certified record does contain a
pro se motion for mandamus that Wright filed in September 2016, in which
he asked the Pennsylvania Supreme Court to direct the PCRA court to rule
on his 2014 PCRA petition.




                                           -3-
J-S17041-18



determination of the PCRA court is supported by the evidence of record and

is free of legal error. The PCRA court’s findings will not be disturbed unless

there is no support for the findings in the certified record. Commonwealth

v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted).

        Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.2 42 Pa.C.S.A. § 9545. A PCRA petition

invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.” See Hernandez, 79 A.3d
____________________________________________


2   The exceptions to the timeliness requirement 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 provided in
        this section and has been held by that court to apply
        retroactively.

42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).




                                           -4-
J-S17041-18


651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2). Asserted

exceptions to the time restrictions for a PCRA petition must be included in

the petition, and may not be raised for the first time on appeal.

Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016).

     “Wright’s judgment of sentence became final ninety days after April

14, 1987, at the expiration of the period for seeking certiorari before the

United States Supreme Court.” Wright, unpublished memorandum at 8-9.

Wright’s third petition, filed over a quarter of a century later, is patently

untimely, unless he has satisfied his burden of pleading and proving that one

of the enumerated exceptions applies. See Hernandez, supra.

     Wright has failed to prove any exception to the PCRA’s time bar.

Rather, he argues that, because he cannot seek redress of his “legal

innocence” claim via the PCRA, his latest post-conviction filing should be

considered a petition for writ of habeas corpus. We disagree. Initially, we

note that this claim was not raised with the requisite specificity before the

PCRA court; the PCRA court addressed only Wright’s attempt to establish the

newly-discovered evidence exception to the PCRA’s time bar.       See PCRA

Court Opinion, 2/10/17, at 3-4. Thus, his claim is waived. Furgess, supra.

     Absent waiver, Wright would still not be entitled to relief. Pursuant to

the plain language of Section 9542, the PCRA “subsumes the remedies of

habeas corpus and coram nobis.” Commonwealth v. Turner, 622 Pa. 318,

80 A.3d 754, 770 (2013) (citation omitted). “The writ of habeas corpus


                                    -5-
J-S17041-18


exists only in cases in which there is no remedy under the PCRA.” Id.      The

“rare instances” in which review outside the PCRA is possible are those in

which the petitioner “never was eligible for review under the PCRA.” Id.

      Wright cites no relevant case law to support his claim that his

assertion of “legal innocence” due to mental illness—rather than “actual

innocence”—is one of those “rare instances” for which a remedy is

unavailable under the PCRA. Indeed, in Commonwealth v. Cruz, 852 A.2d

287 (Pa. 2004), the Pennsylvania Supreme Court held that mental

incompetence may qualify under the after-discovered evidence exception to

the PCRA’s time bar, and, therefore, remanded so that the petitioner could

attempt to prove his claim. Thus, because Wright’s claim, that he is “legally

innocent” of the crimes for which he was convicted, could have been raised

under the PCRA, the PCRA court correctly determined that it lacked

jurisdiction to consider the merits of the petition.   We therefore affirm its

order denying post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/18



                                        -6-
