J-S73022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
JAMES LEE STANLEY,                        :
                                          :
                    Appellant             :   No. 549 MDA 2017

                   Appeal from the PCRA Order March 8, 2017
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0001321-2005,
                            CP-06-CR-0003610-2004

BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                             FILED MARCH 26, 2018

      Appellant, James Lee Stanley, appeals pro se from the March 8, 2017

Order entered in the Berks County Court of Common Pleas dismissing as

untimely his second Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm on the

basis that Appellant’s PCRA Petition is untimely and this Court, thus, lacks

jurisdiction to review the Petition.

      In June 2006, a jury convicted Appellant of burglarizing two separate

residences.    On July 7, 2006, the trial court sentenced Appellant to an

aggregate term of 19 to 38 years’ imprisonment.              This Court affirmed

Appellant’s Judgment of Sentence on April 7, 2008.           Commonwealth v.

Stanley, 953 A.2d 840 (Pa. Super. 2008) (unpublished memorandum).

Appellant did not file a Petition for Allowance of Appeal.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       On June 26, 2008, Appellant filed his first pro se PCRA Petition, in

which he alleged a Batson violation.1            The PCRA court appointed counsel

and eventually permitted counsel to withdraw pursuant to Turner/Finley.2

       On January 5, 2009, the PCRA court dismissed Appellant’s PCRA

Petition. This Court affirmed on October 8, 2009, and our Supreme Court

denied allowance of appeal.          Commonwealth v. Stanley, 988 A.2d 731

(Pa. Super. filed Oct. 8, 2009) (unpublished memorandum), appeal denied,

4 A.3d 1053 (Pa. filed Aug. 23, 2010).

       On June 11, 2015, Appellant filed the instant pro se PCRA Petition, his

second, claiming, inter alia, ineffectiveness of trial and PCRA counsel. The

PCRA court appointed counsel, and counsel eventually sought to withdraw

pursuant to Turner/Finley.

       On February 10, 2017, the PCRA court issued notice of its intent to

dismiss Appellant’s PCRA Petition without a hearing pursuant to Pa.R.Crim.P.

____________________________________________


1 Batson v. Kentucky, 476 U.S. 79 (1986) (holding that while a defendant
has no right to a jury composed in whole or in part of persons of his own
race, the Equal Protection Clause guarantees that the government will not
exclude members of the defendant’s race from the jury venire based on
race). See also Commonwealth v. Garrett, 689 A.2d 912, 915 n.3 (Pa.
Super. 1997) (observing that the U.S. Supreme Court has expanded the
principles in Batson and held that “any racial discrimination in the jury
selection process violates the rights of the excluded jurors and
fundamentally undermines the integrity of the judicial process.” (citing
Georgia v. McCollum, 505 U.S. 42 (1992))).

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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907. Appellant responded pro se on March 6, 2017. On March 8, 2017, the

PCRA court dismissed Appellant’s PCRA Petition.

     On March 27, 2017, Appellant timely filed a pro se Notice of Appeal.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

     Appellant presents six issues for our review:

     1) Did attorney Randall L. Miller, Esq., render ineffective
     assistance of counsel?

     2) Did the prosecution bring in perjury [sic] testimony?

     3) Did the Commonwealth’s evidence support this conviction?

     4) Did the judge along with the district attorney allowed [sic] a
     member from jury to hear testimony knowing she was related to
     the alledged [sic] victim?

     5) The Commonwealth’s key witness knew he didn’t have
     evidence to support there [sic] case. So why were charges
     brought against Defendant?

     6) Did attorney Osmer S. Deming, Esq. render ineffective
     assistance?

Appellant’s Brief at 5-6 (suggested answers omitted).

     We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).


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      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA Petition is a jurisdictional

requisite).

      Under the PCRA, any Petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence becomes final

“at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review.”           42 Pa.C.S. §

9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature,

and a court may not address the merits of the issues raised if the PCRA

petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091,

1093 (Pa. 2010).

      Here, Appellant’s Judgment of Sentence became final on May 7, 2008,

upon expiration of the time to file a Petition for Allowance of Appeal with our

Supreme Court. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a). In order

to be timely, Appellant needed to submit his PCRA Petition by May 7, 2009.

Id. Appellant filed this PCRA Petition on June 11, 2015, more than seven

years after his Judgment of Sentence became final. The PCRA court properly




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concluded that Appellant’s Petition is facially untimely. PCRA Court Opinion,

dated 4/20/17, at 6.

      Pennsylvania courts may consider an untimely PCRA petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S. § 9545(b), which provides the following:

      (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.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have
      been presented.

42 Pa.C.S. § 9545(b)(1)-(2).     See, e.g., Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the

claim had been timely raised within 60-day timeframe).




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     Here, Appellant makes two arguments with respect to his attempt to

invoke a timeliness exception.        First, Appellant attempts to invoke the

timeliness exception under Section 9545(b)(1)(ii) with respect to his claim

that trial counsel was ineffective for failing to investigate Appellant’s

competency issues.       Appellant’s Brief at 15.   In support of his claim of a

timeliness exception, Appellant baldly avers that on May 20, 2015 he

discovered   that   he    was   mentally   incompetent    throughout   all   court

proceedings. Appellant’s Brief at 15.

     The exception in Section 9545(b)(1)(ii) requires a petitioner to plead

and prove that “1) the facts upon which the claim was predicated were

unknown [at the time of trial;] and 2) could not have been ascertained by

the exercise of due diligence [prior to trial].” Commonwealth v. Bennett,

930 A.2d 1264, 1272 (Pa. 2007).              “Due diligence demands that the

petitioner take reasonable steps to protect his own interests.      A petitioner

must explain why he could not have learned the new fact(s) earlier with the

exercise of due diligence. This rule is strictly enforced.” Commonwealth

v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011) (citations omitted).

     The PCRA court concluded that Appellant (1) “does not attempt to

explain why or how his alleged incompetency only became known to him on

May 20, 2015, nearly nine years after his trial[;]” (2) “did, in fact, have

knowledge about his alleged mental incompetence prior to trial, well before

May 20, 2015” because he alleged that he conveyed these concerns to his


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trial counsel; and (3) failed to demonstrate due diligence.      PCRA Court

Opinion at 7-8. We agree with the PCRA court’s assessment.

     Appellant also claims that his “actual innocence” entitles him to relief

or a timeliness exception. Appellant’s Brief at 17-18. In support, Appellant

argues that the Commonwealth did not prove its burden beyond a

reasonable doubt.      Appellant’s Brief at 17-27.   This is, in essence, a

challenge to the sufficiency and weight of the evidence.

     Challenges to the sufficiency and weight of the evidence are not

cognizable under the PCRA. See Commonwealth v. Price, 876 A.2d 988,

995 (Pa. Super. 2005).     Appellant’s attempt to fashion his sufficiency and

weight claim into an “actual innocence” argument fails.

     Accordingly, the PCRA court properly concluded that Appellant failed to

plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. §

9545(b)(1), and properly dismissed Appellant’s Petition as untimely.     See

PCRA Court Opinion at 5-8. We, thus, affirm the denial of PCRA relief.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/26/2018



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