J-S02023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

CHARLES DYCHES

                          Appellant                  No. 270 EDA 2014


                Appeal from the PCRA Order December 18, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006062-2008

BEFORE: MUNDY, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                        FILED FEBRUARY 09, 2015

      Appellant, Charles Dyches, appeals pro se from the order entered on

December 18, 2013 dismissing his second petition filed under the Post-

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

      This Court has previously outlined the factual background of this case

as follows:

      On the evening of August 22, 2007, Officer [Richard] Fitzgerald
      was conducting an investigation in the area of 4800 Comly
      Street, in the city and county of Philadelphia. He was a member
      of the Narcotics Field Unit and had just arrested two individuals
      for possessing and delivering crack cocaine.

      One of the arrested individuals wished to cooperate and provide
      information as to the origins of the narcotics that he was
      delivering. This cooperating witness stated that a[n African-
      American] male named Worm had supplied him the
      crack[]cocaine, and led Officer Fitzgerald to a residence at 2113
      North 9th Street, in the city and county of Philadelphia. Upon
      arriving at this location, the cooperating witness called Worm on
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     a police cell phone and ordered up several bundles of crack
     cocaine. The male voice on the other end of the call said he
     would call back once the items were together.

     At approximately 8:00 p.m., Officer Fitzgerald and two other
     officers established surveillance of 2113 North 9th Street. About
     [15] minutes later, a white Buick parked in front of the residence
     and Appellant exited the vehicle. Appellant went into the trunk
     of the vehicle and pulled the lining out of the trunk and went into
     the lining and pulled out a black bag. He then closed the trunk,
     placed the black bag under his arm, and entered the residence []
     using a key.

     A little after 9:00 p.m., Appellant exited the residence and
     returned to the trunk of the white Buick. He removed a dark-
     colored object from his front waistband, placed this object in the
     trunk, and then entered the vehicle and drove northbound on 9 th
     Street. Based on his experience in narcotics’ investigations,
     Officer Fitzgerald believed the dark-colored object that Appellant
     placed in the trunk was a gun.           He therefore relayed a
     description of Appellant and his vehicle to back-up officers, and
     urged the officers to use caution.

     Officer [Richard] Nicoletti, who served in the Narcotics Field Unit
     for [17] years, also participated in the surveillance of 2113 North
     9th Street. He and his partner were dressed in plainclothes and
     were parked in an unmarked vehicle approximately one [] block
     behind Officer Fitzgerald’s vehicle. Similar to Officer Fitzgerald,
     Officer Nicoletti observed Appellant park a white Buick in front of
     2113 North 9th Street, and enter the residence. Approximately
     one [] hour later, he observed Appellant exit the residence and
     open the vehicle’s trunk.

     At this point, Officer Nicoletti received a radio call from Officer
     Fitzgerald advising that Appellant just came out of the house and
     just put a gun in the trunk of the white Buick. When Appellant
     subsequently left 9th Street, Officer Nicoletti and his partner
     followed him to Broad Street, where he turned southbound.
     Officer Nicoletti directed a uniformed police officer to pull over
     Appellant at the intersection of Broad and Norris Streets.

                                   ***




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      With Appellant’s permission, Officer Nicoletti used the keys from
      the vehicle’s ignition to open the trunk, inside he discovered a
      loaded gun sitting right in the middle. Officer Nicoletti seized the
      gun and placed Appellant under arrest. . . . During a subsequent
      search of Appellant’s person, the officer recovered approximately
      $5600.00.

      Officer Nicoletti then seized Appellant’s vehicle, drove it to
      headquarters, and prepared a warrant for the house and car.

                                       ***

      [H]e and other officers executed these warrants in the early
      morning of August 23, 2007.

      While executing the search warrant for the residence, the police
      discovered two individuals in one of the three second-floor
      rooms, in which they recovered several packets of crack cocaine.
      The police forced open the door to another second-floor room,
      inside which they discovered numerous bags of crack cocaine,
      hundreds maybe thousands of new small crack bags not yet
      filled, over 200 crack bags that were already filled with crack,
      and a Taurus gun box. The gun box contained the same serial
      number as the gun recovered from Appellant’s vehicle.

      Officer Nicoletti additionally testified that the keys, which he
      earlier confiscated from Appellant, fit the front door of the
      residence, and fit the door of the second-floor room in which he
      recovered the above-referenced drugs.          He also recovered
      hospital bills from Appellant’s vehicle that were addressed to
      2113 North 9th Street, and testified that Appellant had told him
      2113 North 9th Street was his residence.

Commonwealth v. Dyches, 31 A.3d 735 (Pa. Super. 2011) (per curiam)

(unpublished memorandum), at 1-5 (internal quotation marks, ellipses,

alterations, and citations omitted).

      The relevant procedural history of this case is as follows. On May 22,

2008, Appellant was charged via criminal information with possession with




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intent to deliver a controlled substance,1 possession of a controlled

substance,2 possession of drug paraphernalia,3 conspiracy to possess with

intent to deliver a controlled substance,4 possession of a firearm by a

prohibited person,5 carrying a firearm without a license,6 carrying a firearm

on the streets of Philadelphia,7 criminal use of a communication facility,8 and

possessing an instrument of crime.9 On April 10, 2010, Appellant was found

guilty of possession with intent to distribute a controlled substance, carrying

a firearm without a license, and carrying a firearm on the streets of

Philadelphia.

        On June 1, 2010, Appellant was found guilty of possession of a firearm

by a prohibited person.10       That same day, Appellant was sentenced to an


1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(16).
3
    35 P.S. § 780-113(a)(32).
4
    18 Pa.C.S.A. § 903.
5
    18 Pa.C.S.A. § 6105(a)(1).
6
    18 Pa.C.S.A. § 6106(a)(1).
7
    18 Pa.C.S.A. § 6108.
8
    18 Pa.C.S.A. § 7512(a).
9
    18 Pa.C.S.A. § 907(a).
10
   The possession of a firearm by a prohibited person charge was tried
separately so as to not prejudice Appellant with admission of his prior felony
conviction.


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aggregate term of 7 to 14 years’ imprisonment. Appellant filed a notice of

appeal, and this Court affirmed his judgment of sentence on June 27, 2011.

Commonwealth v. Dyches, 31 A.3d 735 (Pa. Super. 2011) (per curiam)

(unpublished memorandum). Appellant did not seek review by our Supreme

Court.

        Appellant thereafter filed a pro se PCRA petition on March 23, 2012.

Counsel was appointed and filed an amended petition.          The PCRA court

eventually dismissed the amended petition on June 18, 2013. Appellant did

not appeal the dismissal of his first PCRA petition. Appellant filed this, his

second, pro se PCRA petition on September 20, 2013.         On December 18,

2013 the PCRA court dismissed the petition without an evidentiary hearing. 11

This timely appeal followed.12

        Appellant presents four questions for our review:


11
     We note

        that the PCRA court failed to comply with [Pennsylvania Rule of
        Criminal Procedure] 907 by not providing Appellant with notice
        that it intended to dismiss Appellant’s PCRA petition without
        holding an evidentiary hearing. However, our Supreme Court
        has held that where the PCRA petition is untimely, the failure to
        provide such notice is not reversible error.

 Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (internal
quotation marks and citation omitted).
12
   On February 5, 2014, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).      On February 25, 2014, Appellant filed his concise
statement. On June 12, 2014, the trial court issued its Rule 1925(a)
opinion. All issues raised on appeal were included in his concise statement.


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   1. Did [Appellant] meet the timeliness requirements for filing a
      second/subsequent PCRA petition as determined under 42
      Pa.C.S.A. § 954[5]?

   2. Were all of [Appellant’s] prior counsel ineffective for failing to
      subpoena [Appellant’s] phone records to establish that the
      individual sought in the drug investigation was not [Appellant]?
      Further, did the ineffectiveness extend into trial counsel’s
      entering into a stipulation with the prosecution regarding drugs
      allegedly found in [Appellant’s] vehicle trunk?

   3. Did the Commonwealth violate [Appellant’s] rights under Brady
      v. Maryland[, 373 U.S. 83 (1963)] by withholding exculpatory
      evidence from the defense relating to computerized records of
      vehicle identification(s), locations of vehicles, and police officer
      car assignments which would have impeached the trial testimony
      of the Commonwealth witnesses?

   4. Does imposition of the mandatory sentence for drugs, i.e.,
      possession with intent, represent a non-waivable illegal sentence
      because the relevant factors permitting the imposition of the
      mandatory sentence were not determined by a jury beyond a
      reasonable doubt as required by Apprendi v. New Jersey[, 530
      U.S. 466 (2000)] and as interpreted by Alleyene v. United
      States[, 133 S.Ct. 2151 (2013)]?

Appellant’s Brief at 4.

      In his first issue, Appellant contends that his PCRA petition was timely.

“Pennsylvania law makes clear that when 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) (internal

quotation marks omitted). A PCRA petition is timely if it is “filed within one

year of the date the judgment [of sentence] becomes final.” 42 Pa.C.S.A.

§ 9545(b)(1).    “[A] judgment becomes final at the conclusion of direct

review, including discretionary review in the Supreme Court of the United



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States and the Supreme Court of Pennsylvania, or at the expiration of time

for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). “As the timeliness of a

PCRA petition is a question of law, our standard of review is de novo and our

scope of review is plenary.” Commonwealth v. Callahan, 101 A.3d 118,

121 (Pa. Super. 2014) (citation omitted).

      Appellant contends that the time period for filing a PCRA petition was

tolled during the pendency of his first PCRA petition.      This argument is

without merit. The time period for filing a PCRA petition is not tolled during

the pendency of a previous PCRA petition. See id. at 122. Thus, Appellant’s

judgment of sentence became final on July 27, 2011 (30 days after this

Court affirmed his judgment of sentence) since Appellant failed to seek

allowance of appeal from our Supreme Court.          Accordingly, the instant

petition, filed in September 2013, is patently untimely.

      An untimely PCRA petition may be considered if one of the following

three exceptions applies:

      (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.


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42 Pa.C.S.A. § 9545(b)(1)(i-iii).   If an exception applies, a PCRA petition

may be considered if it is filed “within 60 days of the date the claim could

have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

      Appellant contends that he has satisfied the after-discovered evidence

exception.   Specifically, he claims that the police radio call log is after-

discovered evidence.     In order to satisfy the after-discovered evidence

exception, Appellant must plead and prove “that the facts upon which the []

claim is predicated were not previously known to the petitioner and could

not have been ascertained through due diligence.”        Commonwealth v.

Hawkins, 953 A.2d 1248, 1253 (Pa. 2006) (citation omitted).

      As noted above, a petitioner must plead and prove the existence of a

timeliness exception in order for the PCRA court to have jurisdiction over an

untimely petition. Failure to plead the applicability of a timeliness exception

in the PCRA petition renders the PCRA court without jurisdiction to consider

the merits of the petition. See Commonwealth v. Derrickson, 923 A.2d

466, 468-469 (Pa. Super. 2007), appeal denied, 934 A.2d 72 (Pa. 2007).

Furthermore, “exceptions to the time bar must be pled in the PCRA petition,

and may not be raised for the first time on appeal.”      Commonwealth v.

Burton, 936 A.2d 521, 525 (Pa. Super. 2007), appeal denied, 959 A.2d

927 (Pa. 2008). In this case, Appellant’s PCRA petition did not allege that

he satisfied one of the PCRA’s timeliness exceptions. Instead, he raised the

applicability of the after-discovered evidence exception for the first time on


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appeal. Accordingly, he failed to plead and prove the applicability of a PCRA

timeliness exception and the trial court properly held that it lacked

jurisdiction over his untimely petition.13

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/9/2015




13
    Appellant has not invoked the new constitutional rule exception on
grounds that Alleyne created a new rule of constitutional law that has been
made retroactive to cases on collateral review. In any event, no relief would
be due to Appellant because this Court has held that Alleyne did not create
a new constitutional rule that has been made retroactive for purposes of
collateral review. See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.
Super. 2014).


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