J-S51013-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

THOMAS PINCKNEY

                        Appellant                    No. 3631 EDA 2016


               Appeal from the PCRA Order October 19, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0802161-1995


BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 17, 2017

     Thomas Pinckney appeals from the order dismissing his third pro se

PCRA petition as untimely. We affirm.

     The PCRA court ably set forth the following:

            On September 13, 1995, following a jury trial presided
     over by the Honorable Eugene H. Clarke, Jr., [Appellant] was
     convicted of second-degree murder and criminal conspiracy. The
     trial court imposed the mandatory sentence of life imprisonment
     for the murder conviction and a lesser term of incarceration for
     the remaining conviction. On December 31, 1997, the Superior
     Court affirmed the judgment of sentence. [Commonwealth v.
     Pinckney, 706 A.2d 1256 (Pa.Super. 1997) (unpublished
     memorandum).] [Appellant] did not file a petition for allowance
     of appeal with the Pennsylvania Supreme Court.

            On January 4, 1999, [Appellant] filed his first pro se PCRA
     petition.   Counsel was appointed and subsequently filed a
     Turner/Finley no merit letter. On September 8, 1999, the
     PCRA court issued an order denying the petition and permitted
     counsel to withdraw. No appeal was pursued.

* Former Justice specially assigned to the Superior Court.
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             On June 3, 2003, [Appellant] filed his second PCRA
      petition.    The PCRA court issued an order dismissing
      [Appellant’s] petition as untimely on November 19, 2003. The
      Superior Court affirmed the dismissal on August 5, 2004.
      [Commonwealth v. Pinckney, 860 A.2d 1133 (Pa.Super.
      2004) (unpublished memorandum).]

            On July 31, 2014, [Appellant] filed the instant pro se,
      hybrid PCRA/habeas corpus petition.          [Appellant] filed a
      supplemental PCRA petition on February 19, 2016[,] that was
      reviewed jointly with his initial petition.          Pursuant to
      Pennsylvania Rule of Criminal Procedure 907, [Appellant] was
      served notice of the PCRA court’s intention to dismiss his petition
      on July 19, 2016.      On October 19, 2016, the PCRA court
      dismissed his PCRA petition as untimely. On November 14,
      2016, the instant notice of appeal was timely filed to the
      Superior Court.

PCRA Court Opinion, 1/25/17, at 1-2 (internal footnotes omitted).           This

matter is now ready for our review.

      Appellant raises three claims for our consideration:

      (1)   Did the Court Read and Review the Psychological and
            Medical Brief submitted in Miller v. Alabama[, 567 U.S.
            460 (2012).][?]

      (2)   Is [Appellant] part of the Protected Class under the
            Constitution and Law of Pennsylvania[?]

      (3)   Under the Juvenile Act should [Appellant’s] case [have]
            been submitted to Juvenile Court first[?]

Appellant’s brief at 2.




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       Before reaching the merits of this matter, we must first determine

whether it is properly before us.1 It is well-settled that all PCRA petitions,

including subsequent petitions, must be filed within one year of the date that

a defendant’s judgment becomes final, unless an exception to the one-year

time restriction is applicable.       42 Pa.C.S. § 9545(b)(1).   This time-bar is

jurisdictional in nature.     Thus, if a PCRA petition is untimely, “neither this

Court nor the trial court has jurisdiction over the petition.” Commonwealth

v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). Whether

a petition is timely is a question of law. As such, our standard of review is

de novo and our scope of review is plenary. Commonwealth v. Hudson,

156 A.3d 1194, 1197 (Pa.Super. 2017).

       When a PCRA petition is untimely, the petitioner bears the burden of

pleading and proving that one of the statutory exceptions applies. Id. If no

exception applies, then the petition must be dismissed, as this Court cannot

consider its merits. Id. The PCRA reads, in relevant part, as follows:

       (b)    Time for filing petition.-

          (1)    Any petition under this subchapter, including a second
                 or subsequent petition, shall be filed within one year of
____________________________________________


1
  Appellant styled the instant petition as a petition for habeas corpus relief
pursuant to the PCRA.       It is undisputed that the trial court properly
considered this matter as arising under the PCRA. See Commonwealth v.
Turner, 65 A.3d 462, 465-466 (Pa.Super. 2013) (observing, “[u]nless the
PCRA could not provide for a potential remedy, the PCRA subsumes the writ
of habeas corpus.”).



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                  the date the judgment of sentence 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 the government officials
                        with the presentation of the claim in violation of the
                        Constitution or law of the United States;

                 ii.    the facts upon which the claim is predicated were
                        unknown to the petition 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) and (2).

      Here, Appellant’s judgment of sentence became final on January 30,

1998, thirty days after this Court affirmed the judgment of sentence and the

time for filing a petition for allowance of appeal with our Supreme Court

expired.    See Commonwealth v. Pinckney, 860 A.2d 1133 (Pa.Super.

2004) (unpublished memorandum at *4).              Therefore, Appellant had until

January 30, 1999, to file a timely PCRA petition.           However, he filed the

instant petition on July 31, 2014, rendering this petition facially untimely. In

order for this Court to exercise its jurisdiction, Appellant must plead and

prove one of the three statutory exceptions detailed above.



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      Appellant alleges that his petition was timely pursuant to 42 Pa.C.S. §

9545(b)(1)(ii) and (iii).    In Commonwealth v. Bennett, 930 A.2d 1264

(Pa. 2007), our Supreme Court explained that subsection (b)(1)(ii) is

triggered “when 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.”   Id. at 1270 (quoting 42 Pa.C.S. § 9545 (b)(1)(ii)).    Hence, it

concluded that where a petitioner pleads and proves both elements of the

exception, the PCRA court has jurisdiction over the claim.      Appellant also

argues that his petition is based on a newly-recognized constitutional right.

That exception to the PCRA’s time-bar provides that a PCRA petition is

considered timely if it asserts a constitutional right recognized by our High

Court or the United States Supreme Court as applying retroactively.         42

Pa.C.S. § 9545(b)(1)(iii).

      In order to meet the timeliness exceptions, Appellant relies on

Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014), which held that

expert testimony regarding eyewitness identification was not per se

impermissible. He maintains that, since the Walker decision had not been

decided at the time of his trial, its holding represents a fact unknown to him.

In addition, he contends that Walker created a new constitutional right to

expert testimony concerning eyewitness identification. Finally, since Walker

was decided on May 28, 2014, and Appellant filed his PCRA petition on July




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31, 2014, he avers that he invoked his exceptions within the timeframe

dictated by 42 Pa.C.S. § 9545(b)(2).

       Instantly, this Court has recognized that judicial decisions cannot be

considered newly-discovered facts for the purposes of overcoming the PCRA

statutory time-bar.         Commonwealth v. Cintora, 69 A.3d 759, 763

(Pa.Super. 2013) (noting, “Our Courts have expressly rejected the notion

that judicial decisions can be considered newly-discovered facts which would

invoke the protections afforded by section 9545(b)(1)(ii).”). Moreover, the

High Court in Walker, supra, did not purport to establish a constitutional

right to expert testimony regarding eyewitness identification, but rather, it

found that, in light of increases in scientific understanding on the topic and

developments in case law, a per se ban on such testimony was “too extreme

an approach in determining whether relevant testimony should be admitted

in this area.”     Walker, supra at 791.         Instead, the High Court left the

admission of such evidence to the discretion of the trial court. As Appellant

has not pled and proven an exception to the PCRA’s statutory time-bar, the

PCRA court properly concluded that his petition was untimely.2

____________________________________________


2
  In his supplemental PCRA petition, Appellant raises a claim that his
sentence of life imprisonment without parole violates the Supreme Court’s
ruling in Miller v. Alabama, 567 U.S. 460 (2012). We have previously held
that Miller does not satisfy the exception provided in 42 Pa.C.S. §
9545(b)(1)(iii) when applied to persons who were eighteen years of age or
older when the committed their crimes. Commonwealth v. Cintora, 69
(Footnote Continued Next Page)


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      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2017




                       _______________________
(Footnote Continued)

A.3d 759, 764 (Pa.Super. 2013). Although, Appellant did not present his
claim pursuant to Miller as an exception to the statutory time bar, such a
claim would fail since he was nineteen at the time he committed his crimes.



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