J-S08021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                          Appellee

                    v.

OSCAR EUGENE BROWN,

                          Appellant                      No. 888 WDA 2017


              Appeal from the PCRA Order dated June 5, 2017,
             in the Court of Common Pleas of Allegheny County,
           Criminal Division, at No(s): CP-02-CR-0002628-2005 &
                          CP-02-CR-0004588-2005.


BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.:                             FILED MARCH 9, 2018

     Appellant, Oscar Eugene Brown, appeals from the order denying as

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

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

     The   pertinent     facts   and   partial   procedural   history   have   been

summarized as follows:

        On March 27, 2006, following a three-day trial, a jury found
        Appellant guilty of criminal homicide, criminal attempt,
        aggravated assault, carrying a firearm without a license,
        burglary, recklessly endangering another person, criminal
        conspiracy, and two counts of possession of a controlled
        substance. The conviction stems from a January 12, 2005,
        confrontation during which Appellant and his co-defendant,
        shot Christopher Martine and Joshua Woy, killing Mr.
        Martine and seriously injuring Mr. Woy. On June 26, 2006,
        the trial court imposed an aggregate sentence of life
        imprisonment. Appellant filed a direct appeal and this Court
        affirmed the judgment of sentence on December 27, 2007.

*Former Justice specially assigned to the Superior Court.
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         (See Commonwealth v. Brown, 945 A.2d 757 (Pa. Super.
         2007) (unpublished memorandum)). Appellant did not file
         a petition for allowance of appeal in our Supreme Court.

            On November 6, 2008, Appellant filed a first counseled
         PCRA petition. The PCRA court held a hearing on June 30,
         2009, and issued an order denying the petition on July 29,
         2009. Appellant appealed from the order to this Court, but
         subsequently withdrew the appeal.

            On March 22, 2010, Appellant filed [a] second counseled
         PCRA petition. The PCRA court held a hearing on the
         petition on June 21, 2012. On January 22, 2013, the court
         issued an order denying Appellant’s petition. On February
         15, 2013, Appellant filed a timely notice of appeal.

            On March 9, 2013, in accordance with [Pa.R.A.P.]
         1925(b), the PCRA court entered an order requiring
         Appellant to file a concise statement of errors no later than
         May 7, 2013. The order stated: “[A]ppellant is notified that
         any issue not properly included in the Statement timely filed
         and served pursuant to [Pa.R.A.P.] 1925(b) shall be deemed
         waived.” On March 26, 2013, Appellant’s former counsel,
         Thomas J. Farrell, Esq., filed a petition for leave to withdraw
         because Appellant had retained [new] counsel, Ralph D.
         Karsh, Esq. On April 2, 2013, [Superior] Court issued a per
         curiam order noting Mr. [Karsh’s] entry of appearance in
         this case and excusing Mr. Farrell from representation. On
         May 7, 2013, Appellant, through counsel, filed a motion
         requesting a one-week extension of time to file the Rule
         1925(b) statement. On that same date, the PCRA court
         entered an order granting Appellant’s motion, and directed
         him to file the statement “no later than May 31, 2013.” On
         June 7, 2013, Appellant, through counsel, filed an untimely
         Rule 1925(b) statement. The trial court filed a Rule 1925(a)
         opinion on December 4, 2013, addressing the issues raised
         in Appellant’s untimely statement.

Commonwealth v. Brown, 319 WDA 2013, unpublished memorandum at 1-

3 (citations and footnotes omitted).

      On November 6, 2014, this Court, citing controlling precedent,

concluded that, Appellant’s failure to file a timely Rule 1925(b) statement

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resulted in waiver of these claims. See Brown, unpublished memorandum

at 7. We therefore affirmed the order denying post-conviction relief. Id. at

8. The Pennsylvania Supreme Court denied Appellant’s petition for allowance

of appeal on July 15, 2015.

      On October 2, 2015, Appellant filed the PCRA at issue, his third. The

Commonwealth filed its answer to the petition on March 28, 2016. On May 1,

2017, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss

Appellant’s petition for lack of jurisdiction. Appellant filed his response on May

21, 2017.     By order entered June 5, 2017, the PCRA court dismissed

Appellant’s third PCRA petition as untimely. This timely appeal follows. The

PCRA court did not require Pa.R.A.P. 1925 compliance.

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

latest PCRA petition as untimely. Thus, we must determine whether the PCRA

court correctly determined that Appellant’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

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


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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. sections 9545(b)(1)(i),

(ii), and (iii), is met.1 42 Pa.C.S. § 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 651-52 (citations

omitted); see also 42 Pa.C.S.A. § 9545(b)(2).

        Appellant did not file a petition for allowance of appeal to the

Pennsylvania Supreme Court after we affirmed his judgment of sentence on

December 27, 2007. Thus, for purposes of the time restrictions of the PCRA,

Appellant’s judgment of sentence became final on or about January 28, 2008,

after the thirty-day period for requesting such relief expired. See 42 Pa.C.S.

§ 9545(b)(3). Therefore, Appellant needed to file the PCRA petition at issue


____________________________________________


1   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).


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by January 28, 2009, in order for it to be timely. As Appellant filed the instant

petition on October 2, 2015, it is untimely, unless he has satisfied his burden

of pleading and proving that one of the enumerated exceptions applies. See

Hernandez, supra.

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

Rather, he argues that Pennsylvania should adopt the “stay and abey”

approach to post-conviction petition adopted by the federal courts. According

to Appellant:

         [H]e had or should have had ninety (90) more days as his
         appeal of his second PCRA was still pending for ninety (90)
         days after July 15, 2015, the date the Pennsylvania
         Supreme Court denied allowance of appeal in Appellant’s
         second PCRA. A timely filed Petition of Writ of Certiorari
         could have been filed during those ninety (90) days. When
         further review can be sought from an appellate court, a
         matter is still pending. Appellant [filed] the third PCRA
         during those ninety (90) days and the matter should have
         been considered stayed during that period of time.

Appellant’s Brief at 11. He further argues “whether or not this is the law he

asserts that it should be.” Id. at 13. We disagree.

      Appellant’s reliance upon Commonwealth v. Lark, 746 A.2d 585 (Pa.

2000), is misguided, as that case actually supports the opposite result. In

Lark, the Pennsylvania Supreme Court specifically held:

         [W]hen an appellant’s PCRA appeal is pending before a
         court, a subsequent PCRA petition cannot be filed until the
         resolution of review of the pending PCRA petition by the
         highest state court in which review is sought or upon the
         expiration of the time for seeking such review. If the
         subsequent petition is not filed within one year of the date
         when the judgment became final, then the petitioner must

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             plead and prove that one of the three exceptions to the time
             bar under 42 Pa.C.S. § 9545(b)(1) applies. The subsequent
             petition must also be filed within sixty days of the date of
             the order which finally resolves the previous PCRA petition,
             because this is the first “date the claim could have been
             presented.” 42 Pa.C.S. § 9545(b)(2).

Lark, 746 A.2d at 588 (emphasis added).

          The above language—which is binding on this Court—clearly establishes

that “final order which finally resolves the previous petition,” refers to the

“highest state court,” that is, the Pennsylvania Supreme Court.

          Appellant argues, “the law set forth in Lark should be brought into line

with the law that applies when determining when a judgment of sentence

becomes final, for purpose of determining whether a PCRA petition was timely

filed.”     Appellant’s Brief at 15.     The determination of sentence finality,

however, does not consider the filing of serial PCRA petitions. As this Court

has stated:

             In fixing the date upon which a judgment of sentence
             becomes final, the PCRA does not refer to the conclusion of
             collateral review or the time for appealing a collateral review
             determination. Thus, the plain language of the PCRA statute
             shows that a judgment of sentence becomes final
             immediately upon expiration of the time for seeking direct
             review, even if other collateral proceedings are still pending.

See Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa. Super. 2014).

          Moreover, to the extent Appellant deems his claim “an equitable

argument,” we note that case law establishes no equitable tolling.             See

Commonwealth v. Smallwood, 155 A.3d 1054, 1059 (Pa. Super. 2017)

(explaining statutory time period for filing PCRA petition is not subject to the


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doctrine of equitable tolling; rather, the time for filing can be extended only if

the PCRA statute permits it to be extended by operation of one of the

enumerated exceptions to the PCRA’s time-bar).

       Here, the PCRA correctly applied the Lark holding to conclude that

Appellant had sixty days from the date the Pennsylvania Supreme Court

denied allowance of appeal with regard to his second PCRA petition, to file his

third petition. Because Appellant filed his third petition, in which he alleged

newly discovered evidence of ineffective assistance of prior counsel, seventy-

nine days after the high court denied allowance of appeal, the PCRA court

lacked jurisdiction to consider the merits of the petition.2 We therefore affirm

its order denying post-conviction relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2018




____________________________________________


2 In reaching our decision, we note that this Court is currently considering
whether Lark prevents the PCRA court from considering a subsequently filed
PCRA petition, when a prior petition remains pending. See Commonwealth
v. Montgomery, 938 WDA 2016; J-E02005-17.


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