J-S59033-14


NON-PRECEDENTIAL DECISION             SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                  Appellee               :
          v.                             :
                                         :
DELBERT MAURICE FRANKLIN,                :
                                         :
                  Appellant              :   No. 879 EDA 2014

           Appeal from the PCRA Order entered February 27, 2014,
              in the Court of Common Pleas of Chester County,
              Criminal Division, at No: CP-15-CR-003189-1997

BEFORE:        SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:              FILED SEPTEMBER 23, 2014

      Delbert Maurice Franklin (Appellant) appeals from the February 27,

2014 order which denied his petition for relief filed pursuant to the Post

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

      On December 10, 1997, Appellant was convicted by a jury of 44

offenses arising from a series of assaults and robberies committed while

Appellant was a member of a gang. He was sentenced to an aggregate term



did not file a direct appeal.

      On December 10, 1998, Appellant filed a PCRA petition.       The PCRA

court granted Appellant a new trial. The Commonwealth appealed, and on

review, a panel of this Court reversed the order granting a new trial and

remanded the case to permit Appellant to appeal his judgment of sentence

nunc pro tunc. Commonwealth v. Franklin, 759 A.2d 19 (Pa. Super.

*Retired Senior Judge assigned to the Superior Court.
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judgment of sentence. Commonwealth v. Franklin, 777 A.2d 501 (Pa.

Super. 2001), appeal denied, 788 A.2d 373 (Pa. 2001).

      In April of 2002, Appellant filed another PCRA petition. Counsel was

appointed, and was subsequently permitted 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). The

PCRA court denied relief; Appellant appealed pro se; and, a panel of this

Court affirmed the order of the PCRA court. Commonwealth v. Franklin,

788 A.2d 373 (Pa. Super. 2006).

      On July 29, 2013, Appellant, represented by counsel, filed the PCRA

petition at issue in this appeal. An amended petition was filed on September

11, 2013. The Commonwealth filed a response and motion to dismiss. On

February 27, 2014, the PCRA court issued an order and opinion denying

Appellant relief.   Appellant timely filed a notice of appeal.   Both Appellant

and the PCRA court complied with Pa.R.A.P. 1925.

      We set forth our well-settled standard of review.

      On appeal from the denial of PCRA relief, our standard of review
      calls for us to determine whether the ruling of the PCRA court is
      supported by the record and 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. The PCRA court's factual
      determinations are entitled to deference, but its legal
      determinations are subject to our plenary review.




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J-S59033-14


Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (quotations

and citations omitted).

      The   timeliness    of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super. 2011).

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

of sentence became final unless the petition alleges, and the petitioner

proves, that an exception to the time for filing the petition is met. 42 Pa.C.S.

§ 9545.



                                                 of sentence became final in

January 2002, when the 90 day period expired in which Appellant had to file

a writ of certiorari to the United States Supreme Court after our Supreme

Court denied his petition for allowance of appeal. Thus, Appellant had one

year from that date, until January 2003, to file timely a PCRA petition. This

petition was filed in July 2013, over 11 years late.

      Appellant argues that his claim of actual innocence is ripe for review in

                                                                n McQuiggin v.

Perkins

7/29/2013, at ¶ 6. Appellant contends that this case meets the requirements

under the timeliness exception set forth in 42 Pa.C.S. § 9545(b)(1)(iii)




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J-S59033-14


                      ed 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
                           1



        In McQuiggin, the Supreme Court of the United States held that a

claim of actual innocence, if proved, can serve as a gateway through which a

petitioner may pass the one-year time-bar for filing an otherwise untimely

first federal habeas corpus petition when the claim of actual innocence is

supported by newly-discovered evidence. See McQuiggin, supra. This

ruling concerns time limitations of federal habeas corpus petitions and is



Court of the United States did not expressly pronounce that McQuiggin

applies retroactively.2        Finally, McQuiggin involved a claim of actual



1

in paragraph (1) shall be filed within 60 days of the date the claim could
                                      9545(b)(2). McQuiggin was filed on
May 28, 2013, and the instant PCRA petition was filed on the final day of the
60-day period, on July 29, 2013.
2
    Our Supreme Court has set forth the requirements for subsection (iii).

        Subsection (iii) of Section 9545 [(b)(1)] has two requirements.
        First, it provides that the right asserted is a constitutional right
        that was recognized by the Supreme Court of the United States
        or this court after the time provided in this section. Second, it




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innocence based on newly-discovered evidence.      Here, Appellant does not

predicate his innocence claim on new evidence; rather, he argues that his

conviction under the Pennsylvania Corrupt Organizations Act (PACOA), 18

Pa.C.S. § 911 et seq., was unconstitutional pursuant to Commonwealth v.

Besch, 674 A.2d 655 (Pa. 1996).3

      For the foregoing reasons, Appellant has failed to satisfy the exception

set forth is subsection 9545(b)(1)(iii), and we affirm the order of the PCRA

court denying relief.

      Order affirmed.




      court to apply retroactively.
      the past tense. These words mean that the action has already

      constitutional right to be retroactive to cases on collateral
      review. By employing the past tense in writing this provision,
      the legislature clearly intended that the right was already
      recognized at the time the petition was filed.

Commonwealth v. Copenhefer, 941 A.2d 646, 649-50 (Pa. 2007)(citing
Commonwealth v. Abdul Salaam, 812 A.2d 497, 501 (Pa. 2002)).
3
   The PACOA has a tortured history with respect to whether it applied to
wholly illegitimate enterprises, such as gang activity. See Commonwealth
v. Shaffer, 734 A.2d 840 (Pa. 1999). However, we need not address this
issue further, because it clearly does not fall under a claim of new evidence
of actual innocence as required by McQuiggin.


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J-S59033-14




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/23/2014




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