J-S67035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

STRATTON PEAY

                            Appellant                     No. 552 EDA 2016


                  Appeal from the PCRA Order January 28, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0105571-1997


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED SEPTEMBER 07, 2016

       Appellant Stratton Peay appeals, pro se, the order entered in the Court

of Common Pleas of Philadelphia County on January 28, 2016, dismissing as

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

(“PCRA”).1 After our review, we affirm.

       On February 24, 1999, Appellant was convicted of third degree

murder, aggravated assault, recklessly endangering another person and

possessing an instrument of crime.             On March 25, 1999, the trial court

sentenced Appellant to an aggregate term of life in prison.2         Following his

____________________________________________


1
 42 Pa.C.S.A. §§ 9541-46.
2
  Although Appellant was convicted of third degree murder, this was his
second conviction for that charge. Accordingly, the trial court imposed a
mandatory sentence of life imprisonment for this second third degree
(Footnote Continued Next Page)

*Former Justice specially assigned to the Superior Court.
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appeal, this Court affirmed the judgment of sentence on August 24, 2002,

and our Supreme Court denied his petition for allowance of appeal on

December 17, 2002.          Appellant filed a timely first PCRA petition on March

11, 2003, pro se, following which counsel was appointed and filed an

amended       petition,    although     Appellant       continued     to   file   numerous

documents, pro se.         The PCRA court ultimately dismissed the petition on

September 24, 2008.

      Appellant filed the instant PCRA petition on October 10, 2013, and he

amended the same on April 3, 2015.                      Therein, Appellant alleged a

detective’s    misconduct       in   coercing     his    confession    constituted    after

discovered evidence and that trial counsel had been ineffective. Appellant

also asserted his innocence and claimed he had been the victim of a

governmental conspiracy to prevent him from accessing the courts.

      After notifying Appellant of its intent to dismiss his PCRA petition

pursuant to Pa.R.Crim.P. 907 and following its review of Appellant’s answer

thereto, the trial court denied the petition without a hearing on January 28,

2016.3 Appellant filed a timely appeal with this Court on February 12, 2016,

and in his brief, presents the following questions for our review:
                       _______________________
(Footnote Continued)

murder conviction under 42 Pa.C.S.A. § 9715(a). Appellant’s life sentence
did not preclude the possibility of parole.
3
  In his response to the PCRA court’s dismissal notice, Appellant effectively
attempted to invoke the governmental interference exception to the PCRA
time-bar, see 42 Pa.C.S. § 9545(b)(1)(i) and claimed his confession had
been coerced.



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      1.   DID THE LOWER COURT ERR WHEN IT DISMISSED
      [APPELLANT’S] PCRA PETITION WITOUT [sic] HEARING EVEN
      THOUGH [APPELLANT] PROPERLY PLED AND WOULD HAVE BEEN
      ABLE TO PROVE ISSUES THAT WOULD HAVE LEAD [sic] TO
      RELIEF IN THE FORM OF DISMISSAL OF CHARGES, OR A NEW
      TRIAL, WHEREIN THE PROSECUTION WITHHELD IMPEACHMENT
      EVIDENCE OF A MATERIAL LEVEL CONCERNING DETECTIVE
      LUBIEJEWSKI’S PRIOR HISTORY OF MISCONDUCT CONCERNING
      CONFESSIONS?

      2.   DID THE LOWER COURT ERR WHEN IT DISMISSED
      [APPELLANT’S] PCRA PETITION WITHOUT HEARING EVEN
      THOUGH [APPELLANT] PROPERLY PLED AND WOULD HAVE BEEN
      ABLE TO PROVE ISSUES THAT WOULD HAVE LEAD [sic] TO
      RELIEF IN THE FORM OF DISMISSAL OF CHARGES, OR A NEW
      TRIAL, WHERE TRIAL COUNSEL COMMITTED INEFFECTIVE
      ASSISTANCE OF COUNSEL BY FAILURE TO INVESTIGATE AND
      OBTAIN    IMPEACHMENT  EVIDENCE   AGAINST   DETECTIVE
      LUBIEJEWSKI?

      3.   DID LOWER COURT COMMIT AN ABUSE OF DISCRETION
      WHEN IT DISMISSED [APPELLANT’S] PCRA PETITION WITHOUT
      HEARING EVEN THOUGH [APPELLANT] PROPERLY PLED AND
      WOULD HAVE BEEN ABLE TO PROVE ISSUES THAT WOULD HAVE
      LEAD [sic] TO RELIEF IN THE FORM OF DISMISSAL OF
      CHARGES, OR A NEW TRIAL, CONCERNING PROSECUTORIAL
      MISCONDUCT AND INEFFECTIVE ASSISTANCE OF COUNSEL
      CONCERNING IMPEACHMENT EVIDENCE OF MATERIAL LEVEL
      AGAINST DETECTIVE LUBIEJEWSKI, AND BY FAILURE TO GRANT
      DNA/FINGERPRINT TESTING OF 6 FIRED SHELL-CASINS [sic]
      FOUND AT SCENEOF [sic] CRIMES?

Brief of Appellant at i-ii.

      Our standard of review of a PCRA court's dismissal of a PCRA petition

is limited to examining whether the PCRA court's determination is supported

by the record evidence and free of legal error. Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa.Super. 2003) (en banc).       Before addressing the



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merits of Appellant's claims, we must first determine whether we have

jurisdiction to entertain the underlying PCRA petition. See Commonwealth

v. Hackett, 598 Pa. 350, 956 A.2d 978, 983 (2008) (explaining that the

timeliness of a PCRA petition is a jurisdictional requisite).

      A PCRA petition, including a second or subsequent petition, shall be

filed within one year of the date the underlying judgment becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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

the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused.    42 Pa.C.S.A. § 9545(b)(1).       To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by   government      officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law 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 Pennsylvania after
               the time period provide 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).   “We emphasize that it is the petitioner

who bears the burden to allege and prove that one of the timeliness

exceptions applies.” Commonwealth v. Marshall, 596 Pa. 587, 596, 947

A.2d 714, 719 (2008) (citations omitted). A petitioner invoking one of these

exceptions must file his petition within sixty (60) days of the date the claim

could have been presented.     42 Pa.C.S.A. § 9545(b)(2).       Moreover, our

Supreme Court has repeatedly stated, “a claim of ineffective assistance of

counsel does not save an otherwise untimely petition for review on the

merits.” Commonwealth v. Morris, 573 Pa. 157, 175, 822 A.2d 684, 694

(2003).

      Instantly, Appellant was sentenced on March 25, 1999.        This Court

affirmed his judgment of sentence on August 13, 2002, and our Supreme

Court denied his petition for allocator on December 17, 2002.    Appellant did

not seek allowance of appeal with the United States Supreme Court;

therefore, Appellant’s judgment of sentence became final ninety days

thereafter on March 17, 2003. See U.S.Sup.Ct.R. 13.1 (allowing ninety days

for the filing of a writ of certiorari in the Supreme Court of the United

States); 42 Pa.C.S.A. § 9545(b)(3) (providing “a judgment 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[ ]”). Appellant filed the

instant PCRA petition on October 10, 2013; therefore, it is patently untimely,


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and the trial court could not address the merits of Appellant’s petition unless

a timeliness exception applied.

      Despite his attempt to invoke the governmental interference exception

to the PCRA timeliness requirements, Appellant has not asserted a

governmental official had prevented him from timely challenging the

voluntariness of his confession. In fact, Appellant filed a timely first PCRA

petition in 2003, at which time he argued his confession had been fabricated

and coerced and challenged trial counsel’s ineffectiveness.     Appellant has

neither acknowledged the untimeliness of the instant PCRA petition nor

otherwise invoked any of the three timeliness exceptions to the PCRA time-

bar. Rather, he has raised claims that have been previously litigated either

on direct appeal or in his first PCRA petition. See 42 Pa.C.S. § 9544(a)(2)

(providing a claim is previously litigated for purposes of the PCRA if the

highest court in which the petitioner was entitled to review as a matter of

right has ruled on its merits).

      Based on the foregoing, we find the PCRA court lacked jurisdiction to

consider the merits of Appellant’s instant PCRA petition and properly

dismissed it as untimely filed.    Accordingly, we affirm the PCRA court’s

January 28, 2016, Order.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2016




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