J-S27019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ARTHUR M. FERGUSON

                            Appellant                 No. 2504 EDA 2014


               Appeal from the PCRA Order entered June 11, 2014
               In the Court of Common Pleas of Delaware County
                Criminal Division at No: CP-23-CR-0001856-2009


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                      FILED SEPTEMBER 01, 2015

        Appellant, Arthur M. Ferguson, appeals pro se from the June 11, 2014

order entered in the Court of Common Pleas of Delaware County, dismissing

as untimely Appellant’s second petition for collateral relief filed pursuant to

the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.            Following

review, we affirm.

        On appeal from the dismissal of Appellant’s first PCRA petition, a panel

of this Court provided the following factual and procedural background:

        Appellant was arrested and subsequently convicted of seven
        counts of aggravated indecent assault, one count of criminal
        solicitation to commit involuntary deviate sexual intercourse, and
        eight counts of indecent assault of his daughter’s girlfriend (the
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     victim), who was eleven years old at the time of trial. On August
     9, 2010, Appellant was sentenced to an aggregate term of ten to
     twenty years’ incarceration and eight years of consecutive
     probation. Appellant’s post-sentence motions were denied by
     the trial court and Appellant filed a timely direct appeal arguing
     that the trial court erred in admitting hearsay testimony under
     the tender years exception. On August 4, 2011, a panel of this
     Court affirmed Appellant’s judgment of sentence. See
     Commonwealth v. Ferguson, 3052 EDA 2010 (Pa. Super. filed
     August 4, 2011) (unpublished memorandum). Appellant did not
     petition our Supreme Court for review.

     On December 14, 2011, Appellant filed a timely pro se PCRA
     petition raising three claims of ineffective assistance of counsel
     related to the trial counsel’s [refusal to present medical records
     evidence, refusal to call an expert relating to those records, and
     failure to object to admission of the Commonwealth expert’s
     report]. The PCRA court appointed counsel, who after review of
     the record determined that Appellant’s issues lacked merit and
     submitted a “no-merit” letter pursuant to Commonwealth v.
     Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v.
     Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

     On March 16, 2012, the PCRA court filed a notice of intent to
     dismiss his PCRA petition without a hearing pursuant to
     Pa.R.Crim.P. 907. Counsel’s Turner/Finley letter was attached
     to the notice. [Appellant requested additional time to respond to
     the 907 notice by motion that was not docketed but was
     incorporated into the record by the trial court in its opinion dated
     September 20, 2012.]

     On April 18, 2012, Appellant mailed to the PCRA court a pro se
     response to the 907 notice. Once more, Appellant did not file his
     response with the clerk of courts; however, pursuant to
     Pa.R.A.P. 1926, the PCRA court incorporated it into the record.
     Appellant’s response raised seven new claims of trial counsel’s
     and direct appeal counsel’s ineffectiveness.[fn.4]
        [fn.4]
            These new claims included: (1) trial counsel’s failure
        to challenge the victim’s failure to lodge a prompt
        complaint or to request a prompt complaint instruction;
        (2) trial counsel’s failure to present evidence of
        [Appellant’s] good character for truthfulness; (3) direct
        appeal counsel’s failure to file a petition for allowance of

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         appeal with the Supreme Court; (4) direct appeal
         counsel’s failure to raise speedy trial issues; (5) trial
         counsel’s   failure   to   demonstrate    bias   of   the
         Commonwealth’s expert witness; (6) direct appeal
         counsel’s failure to raise a hearsay/confrontation issue;
         and (7) direct appeal counsel’s failure to challenge trial
         counsel’s ineffectiveness.       PCRA Court Opinion,
         9/20/2012, at 3-4.

     On May 22, 2012, the PCRA court entered an order dismissing
     Appellant’s PCRA petition and granting counsel’s request to
     withdraw. On June 8, 2012, the PCRA court ordered Appellant to
     file his Pa.R.A.P. 1925(b) concise statement of errors complained
     of on appeal within 21 days, or by July 3, 2012. On June 19,
     2012, Appellant mailed the PCRA court a pro se motion for
     enlargement of time within which to file his concise statement,
     claiming he “needed additional time to obtain the transcripts and
     record in order to prepare his concise statement.” The PCRA
     court “found this claim unacceptable but did not enter any order
     in response.” On July 12, 2012, Appellant mailed a pro se
     1925(b) statement to the PCRA court, wherein he complained
     the PCRA court erred in dismissing his petition. Appellant raised
     [four issues: the PCRA court failed to conduct an independent
     review of the issues; PCRA counsel failed to address each issue
     raised in Appellant’s PCRA petition; PCRA counsel failed to raise
     issues he knew Appellant wanted to raise; and the PCRA court
     failed to address issues Appellant asked PCRA counsel to raise in
     an amended PCRA petition].

Commonwealth v. Ferguson, 1702 EDA 2012 at 1-4 (Pa. Super. filed

October 24, 2013) (unpublished memorandum) (some footnotes and

citations to PCRA court opinion omitted).

     Before   addressing   the   merits     of   Appellant’s   claims,   the   panel

considered whether the claims were properly preserved for review by this




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Court.1 The Court explained it “is willing to construe liberally materials filed

by a pro se litigant, [but] pro se status generally confers no special benefit

upon an appellant.” Id. at 6 (quoting Commonwealth v. Lyons, 833 A.2d

245, 252 (Pa. Super. 2003) (citations omitted)).               “Accordingly a pro se

litigant must comply with the procedural rules set forth in the Pennsylvania

Rules of Court.” Id. Because Appellant failed to file a 1925(b) statement in

accordance with the PCRA court’s order, this Court concluded that “while

Appellant    did    preserve     his   claims    of   trial   and   appellate   counsel

ineffectiveness by raising those issues in his response to the PCRA court’s

907 notice, he has effectively abandoned those claims on appellate review

by failing to raise them in a timely 1925(b) statement.” Id. at 7 (citations

omitted). Accordingly, the order of the PCRA court was affirmed.

       On December 19, 2013, Appellant filed a second PCRA petition, which

is the subject of this appeal.           On February 18, 2014, the PCRA court

appointed counsel2 who filed a motion to withdraw and a Turner/Finley no-

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1
  Prior to reaching a decision, this Court remanded the case to the PCRA
court “for a determination as to whether counsel had abandoned
appellant . . . .” Order, 12/19/12. In response, the PCRA judge, current
Superior Court Judge Patricia H. Jenkins, issued seven written findings,
“conclud[ing] that there has been no abandonment of [Appellant] by either
of the attorneys who represented him, and that he has elected to proceed on
a pro se basis.” Letter from Judge Jenkins to Superior Court Prothonotary,
1/3/13.
2
 It is not clear from the record why the PCRA court appointed counsel for
Appellant’s second PCRA petition. As this Court noted in Commonwealth v.
(Footnote Continued Next Page)


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merit letter on May 6, 2014.            On May 7, 2014, the PCRA court granted

counsel’s motion to withdraw and issued a Rule 907 notice of intent to

dismiss the petition without a hearing. On May 19, 2014, Appellant filed a

pro se response to the Rule 907 notice. By order entered June 11, 2014, the

PCRA court dismissed Appellant’s petition as time-barred.

      In this timely appeal, Appellant asks us to consider two issues:

      [1.] Did the court erred [sic] in failing to determine that the
      Appellant was abandoned for the purpose of appeal?

      [2.] And did the PCRA court err in failing to perform an
      independent review of the issue’s [sic] to determine if a
      constitutional or due-process violation had taken place prior to
      dismissing the P.C.R.A. petition? []

Appellant’s Brief at 3.

      As our Supreme Court has explained:

      Our standard of review of the PCRA court’s grant of relief is
      clear: we examine whether the court’s findings are supported by
      the record and whether its conclusions of law are free from legal
      error. Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874,
      886 (2010).      All PCRA petitions, “including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final” unless an exception to timeliness
                       _______________________
(Footnote Continued)

Kubis, 808 A.2d 196 (Pa. Super. 2002), the automatic right to counsel in
collateral appeals applies only to first PCRA petitions. Id. at 200 (citing
Pa.R.Crim.P. 904(A)). In Commonwealth v. Jackson, 965 A.2d 280, 283
(Pa. Super. 2009), we recognized that a PCRA petitioner who satisfies the
judge of the inability to afford or otherwise procure counsel is entitled to
appointment of PCRA counsel under Pa.R.Crim.P. 904(D) for a second or
subsequent petition if an evidentiary hearing is required under Pa.R.Crim.P.
908. No evidentiary hearing was deemed to be required in the case before
us.



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        applies. 42 Pa.C.S. § 9545(b)(1). “The PCRA’s time restrictions
        are jurisdictional in nature.     Thus, [i]f a PCRA petition is
        untimely, neither this Court nor the [PCRA] court has jurisdiction
        over the petition. Without jurisdiction, we simply do not have
        the legal authority to address the substantive claims.”
        Commonwealth v. Chester, 586 Pa. 468, 895 A.2d 520, 522
        (2006) (first alteration in original) (internal citations and
        quotation marks omitted). As timeliness is distinct from the
        merits of the underlying claims, we must first determine whether
        [appellant’s] PCRA petition was timely filed in order to decide
        whether this Court has legal authority to address its substantive
        claims. See Commonwealth v. Stokes, 598 Pa. 574, 959 A.2d
        306, 310 (2008) (consideration of Brady claim separate from
        consideration of its timeliness).

Commonwealth v. Williams, 105 A.3d 1234, 1239 (Pa. 2014).3

____________________________________________


3
    Section 9545(b)(1) provides:

     (b) Time for filing petition.--

        (1) Any petition under this subchapter, including a second or
        subsequent petition, shall be filed within one year of the date the
        judgment becomes final, 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
          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.
(Footnote Continued Next Page)


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      In Commonwealth v. Crews, 863 A.2d 498 (Pa. 2004), our Supreme

Court reiterated:

      The [PCRA] makes clear that where . . . the petition is untimely,
      it is the petitioner’s burden to plead in the petition and prove
      that one of the exceptions applies. 42 Pa.C.S. § 9545(b)(1).
      That burden necessarily entails an acknowledgement by the
      petitioner that the PCRA petition under review is untimely but
      that one or more of the exceptions apply.

Id. at 501 (quoting Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa.

1999) (emphasis in original)).

       In his Turner/Finley no-merit letter, appointed counsel concluded

that Appellant’s second PCRA petition was untimely filed and was not saved

from the PCRA’s time restrictions by any exception recognized under 42

Pa.C.S.A. § 9545(b)(1). Counsel explained, inter alia:

      [First PCRA] appointed counsel filed a “No Merit” letter on March
      15, 2012. [Appellant] raised timely objections to counsel’s “no
      merit” letter following the [c]ourt’s 907 Notice. The [c]ourt
      issued its final Order dismissing [Appellant’s] PCRA on May 22,
      2012, and granted counsel’s application to withdraw.
      [Appellant] was left with the option to proceed pro se or with
      private counsel if he wished to pursue an appeal to Superior
      Court. [Appellant] chose the former option and filed a pro se
      timely Notice of Appeal.

      [Appellant] had the opportunity to raise some or all of [his]
      issues following denial of his PCRA. He pursued litigation of
      some claims while discarding others. Thus, [Appellant] cannot
      allege any new claims within the instant PCRA which he could
      have pursued during the course of his prior PCRA appeal.
      Moreover, any new claims would still need to be raised within
      one year from the date that judgment of sentence became final,
                       _______________________
(Footnote Continued)

42 Pa.C.S.A. § 9545(b)(1).



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      or by September 4, 2012. As the instant PCRA was filed on
      December [19], 2013, the current PCRA is untimely on its face.

                                 ***

      Moreover, [Appellant] does not provide any information that
      would suggest that any of the instant claims constituted after-
      discovered evidence, that would allow him to plead that or any
      other statutory exception under [§] 9545(b)(1). On this basis
      alone, [Appellant] is further time-barred from raising this second
      PCRA.

Turner/Finely No-Merit Letter, 5/6/14, at 6-7.

      Our review confirms appointed counsel’s determination that Appellant

failed to allege or prove any exception to the time bar to save his facially

untimely petition. See Appellant’s Second PCRA Petition, 12/19/13, at § 4A,

in which Appellant marked two boxes, one indicating his petition was his first

PCRA petition being utilized solely to obtain nunc pro tunc restoration of

direct appeal rights abandoned by counsel, and a second indicating the

petition was a second PCRA petition being filed within one year of the date

his conviction became final. A petitioner is to mark the final box in § 4A if

the petition is outside the one-year PCRA time limitation and then designate

the time bar exception(s) claimed.         Appellant did not mark any box

signifying his petition was filed beyond the one-year deadline or claiming

any exception to the time bar.

      Appellant has continued to maintain that his December 19, 2013

petition was timely filed.   In his response to the PCRA court’s Rule 907

notice, Appellant asserts that his petition was not untimely, “that the tolling


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time stops at each stage of appeal,” and that he had “at least five months in

which to file a [PCRA, w]hich is one year from the time that he had to seek

review.” Response to Rule 907 Notice at ¶ 8. Further, in his brief, Appellant

asserted that “[a]t the time Appellant filed this second [PCRA p]etition he

had at least six (6) months remaining on his time to file.” Appellant’s Brief

at 5.    Again, Appellant’s judgment of sentence was final on September 4,

2011. His second PCRA petition, filed on December 19, 2013, was clearly

not filed within one year of September 4, 2011.

        In its Rule 1925(a) opinion, the PCRA court explained it lacked

jurisdiction over Appellant’s petition because the petition was time-barred

and Appellant failed to allege or establish any exception to the PCRA’s one-

year time requirement. PCRA Court 1925(a) Opinion, 8/12/14, at 3 (citing

and     incorporating    by   reference     appointed   counsel’s    no-merit    letter).

Further, in light of the heightened standard when reviewing a second or

subsequent PCRA petition, the court determined that Appellant failed to

demonstrate that a miscarriage of justice occurred or that he was innocent

of    the   crimes   with     which   he    was   charged.     Id.    at   3-5   (citing

Commonwealth            v.    Fahy,   737    A.2d   214,     223    (Pa.   1999)    and

Commonwealth v. Austin, 721 A.2d 375 (Pa. Super. 1998)).

        We agree with the PCRA court that Appellant’s second PCRA petition is

time-barred and that he has failed to plead and prove any exception to save

it from the PCRA’s one-year time restriction.            Therefore, we are without


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jurisdiction to review either of the issues Appellant asks us to consider in this

appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/1/2015




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