J-S90024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MUHAMMAD AZIZ A/K/A RICHARD
HARRIS A/K/A SAMUEL LEWIS

                            Appellant                No. 883 EDA 2016


              Appeal from the PCRA Order Dated January 28, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0107501-1999
                                         CP-51-CR-0107511-1999

BEFORE: OTT, J., SOLANO, J., and JENKINS, J.

MEMORANDUM BY SOLANO, J.:                       FILED DECEMBER 21, 2016

        Appellant, Muhammad Aziz (also known as Samuel Lewis and Richard

Harris), appeals pro se from the order dismissing his third petition filed

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The

PCRA court dismissed Appellant’s petition as untimely, and we affirm.

        On June 3, 1999, a jury convicted Appellant of first-degree murder,

two counts of robbery, aggravated assault, criminal conspiracy, and

possessing an instrument of crime. Trial Ct. Op., 11/16/99, at 1-2.1

Appellant was sentenced to life imprisonment for the murder conviction and

lesser terms of incarceration on the remaining charges. Id. at 2. Through his


____________________________________________


1
    18 Pa.C.S. §§ 2502, 3701, 2702, 903, and 907, respectively.
J-S90024-16



trial counsel, Appellant filed a timely direct appeal. Id. Appellant claimed

that the evidence was insufficient to support the convictions of murder and

aggravated assault, complained of an alleged discovery violation, and

challenged the propriety of the trial court’s questioning of a trial witness. Id.

at 6. On August 31, 2000, this Court dismissed the appeal for failure to file a

brief. PCRA Ct. Op., 5/16/16, at 1.2

       Appellant filed his first pro se PCRA petition in August, 2003. PCRA Ct.

Op., 5/16/16, at 1.3 In that petition, Appellant complained that his trial

counsel was ineffective for failing to preserve his appellate rights by (1)

failing to file a brief, and (2) failing to advise him that his direct appeal had

been dismissed. PCRA Pet., 8/11/03, at 3.4 Appellant alleged that he was

unaware of his counsel’s ineffectiveness until June 8, 2003, when he
____________________________________________


2
  Apparently, Appellant’s trial counsel did not file an appellate brief because
he was told by Appellant’s family that the family had retained another
attorney for purposes of the appeal. Turner/Finley Letter, 5/13/04, at 2.
We note that Appellant’s trial counsel was not granted leave to withdraw by
the trial court or this Court during the course of Appellant’s direct appeal.
3
  The trial court said the petition was filed on August 11, 2003, PCRA Ct.
Op., 5/16/16, at 1, but the petition was postmarked August 6, 2003, PCRA
Pet., 8/11/03. Under the “prisoner mailbox rule,” it therefore may be
deemed filed on August 6, 2003. See Commonwealth v. Little, 716 A.2d
1287, 1289 (Pa. Super. 1998). The difference in dates is not relevant to the
matter currently before this Court.
4
  Appellant also asserted in his first petition that trial counsel was ineffective
for failing to adequately research, interview, and present witnesses at trial,
to move for the suppression of evidence, and to object to prosecutorial
misconduct and the admission of certain evidence and testimony. PCRA Pet.,
8/11/03, at 3.



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received a copy of the Superior Court’s docket sheet in response to his

request. Id.5 The PCRA court appointed counsel, who subsequently filed a

petition to withdraw and a “no merit” letter pursuant to Commonwealth v.

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

A.2d 213 (Pa. Super. 1988) (en banc). PCRA Ct. Op., 5/16/16, at 1. In the

letter, appointed PCRA counsel explained that Appellant’s petition was
____________________________________________


5
  Docketed on the trial court’s record is a letter dated June 6, 2001, and
allegedly sent to Appellant from a supervisor of the Post Trial Unit of the
Philadelphia County Court of Common Pleas Criminal Division. Enclosed with
the letter was a copy of the August 31, 2000 order dismissing his direct
appeal. The letter stated:

             Please see the attached Order entered in the Superior
       Court in reference to your appeal. The appeal was dismissed due
       to counsel’s failure to file a brief, without prejudice to appellant’s
       rights under the Post Conviction Relief Act.

            If you want to have your appeal rights reinstated, you
       must file a PCRA Petition. PCRA Petitions are available through
       county or state prison authorities.

                                           ...

              Upon receipt by the PCRA Unit, your petition will be
       reviewed on an individual basis, and where appropriate, counsel
       will be appointed.

              It will be to your advantage to file the PCRA Petition within
       thirty (30) days, or the Quarter Sessions file will be returned to
       storage, which will cause delay in the processing of your Petition.

Letter, 6/6/01. Other than advising Appellant to file a petition within 30
days, the letter did not advise Appellant of any timing requirements for filing
a petition under the PCRA. The record does not clearly reflect how the letter
was addressed or whether Appellant was likely to have received it.




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untimely and did not meet any of the exceptions to the PCRA’s timeliness

requirements. Turner/Finley Letter, 5/13/04, at 3-4.

       On May 14, 2004, the PCRA court notified Appellant that his PCRA

petition would be dismissed without a hearing, and that he had thirty days to

respond. Order, 5/14/04.6 On June 15, 2004, rather than contest the

impending dismissal, Appellant filed a pro se motion to withdraw his PCRA

petition. Mot., 6/15/04. In the motion, Appellant asserted that he recognized

that the PCRA court lacked jurisdiction to grant him relief due to his untimely

petition. Id. at 2.7 The trial court dismissed the petition as untimely on

June 21, 2004, and permitted counsel to withdraw. Order, 6/21/04.

Appellant was sent a copy of the order with a cover letter which advised of

his right to appeal the dismissal within 30 days. Letter, 6/21/04. Appellant

did not appeal the dismissal. PCRA Ct. Op., 5/16/16, at 2.




____________________________________________


6
  Pa.R.Crim.P. 907 requires a PCRA court to give a petitioner twenty days to
respond to such a notice.
7
  Appellant now alleges that he withdrew his first petition upon the advice of
a “jailhouse lawyer,” who advised him not to respond to the court’s notice of
intent to dismiss and instead to withdraw his PCRA petition and file a petition
for habeas corpus in federal court. PCRA Pet., 8/28/13, at 4; see also id. at
Ex. B (unsigned first page of a “Declaration of Stanley Phillip,” which states
that he was employed as a paralegal by the Department of Corrections and
advised Appellant to not respond to the Rule 907 Notice from the court and
instead to withdraw his first petition).



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       On August 10, 2008, Appellant filed a second pro se PCRA petition.

PCRA Ct. Op., 5/16/16, at 2.8 The allegations in Appellant’s second petition

echoed those of his first: he complained that his trial attorney was

ineffective for failing to file a brief on direct appeal and for failing to advise

Appellant that his appeal had been dismissed. PCRA Pet., 8/10/08, at 3. 9

New PCRA counsel was again appointed, and again counsel filed a no-merit

letter and petition to withdraw pursuant to Turner/Finley, concluding that

Appellant’s second PCRA petition was also untimely. PCRA Ct. Op., 5/16/16,

at 2. The PCRA court dismissed the petition on September 21, 2009. Id.

       Appellant appealed the dismissal pro se on October 26, 2009, and

claimed that both his trial counsel and his second appointed PCRA counsel

were ineffective. Statement of Matters Complained of on Appeal, 10/26/09.10

The PCRA court appointed new counsel to assist Appellant with the appeal,

____________________________________________


8
  Appellant’s second petition also referenced the docket numbers for four
other cases involving Appellant. PCRA Ct. Op., 5/16/16, at 2.
9
  Appellant also complained that his trial counsel was ineffective for failing to
preserve his right to a police line-up, that the evidence was insufficient to
support the verdicts against him, and that his trial had been subject to
judicial and prosecutorial misconduct. PCRA Pet., 8/10/08, at 3.
10
   Appellant includes in his current petition a letter from appointed counsel
for his second petition in which counsel admits that he was unable to
promptly communicate with Appellant and provide him with copies of court
documents due to lack of funds. See PCRA Pet., 8/28/13. Ex. C. The letter
appears to have been sent to Appellant on the same date that counsel filed
his Turner/Finley letter explaining that Appellant’s second PCRA petition did
not merit relief due to its untimeliness.



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but appointed counsel once again filed a letter advising that the petition was

untimely and requesting withdrawal. Tuner/Finley Letter, 6/13/11.11 On

February 27, 2012, this Court permitted appointed counsel to withdraw and

quashed the appeal as untimely, as Appellant had filed his notice of appeal

more than thirty days after his PCRA petition had been dismissed.

Commonwealth v. Lewis, 3199 EDA 2009, at 2 (Pa. Super., Feb. 27,

2012) (unpublished memorandum) (citing Pa.R.A.P. 903), appeal denied,

47 A.3d 846 (Pa., July 2, 2012).12 We noted that even if his appeal had been

timely, Appellant would not have been entitled to relief, as his second PCRA

petition was patently untimely and Appellant failed to establish any of the

exceptions     to   the   PCRA’s    timing     requirements.   Id.   at   2   n.3.   The

Pennsylvania Supreme Court denied allocatur on July 2, 2012. Lewis, 47

A.3d 846.

       Appellant filed the instant PCRA petition, his third, pro se on

August 28, 2013. PCRA Ct. Op., 5/16/16, at 2.13 In the petition, Appellant

____________________________________________


11
   Appellant claims that counsel appointed to assist with the appeal of his
second PCRA petition failed to conduct an independent review, and
plagiarized part of previous PCRA counsel’s brief. Appellant’s Brief at 7.
12
   This Court determined that Appellant had not alleged or proven that he
delivered his appeal to prison authorities in conformance with the prisoner
mailbox rule. Lewis, 3199 EDA 2009, at 2.
13
   Actually, what Appellant filed was a motion entitled “Pro Se Motion for
Reinstatement of Direct Appeal Rights Nunc Pro Tunc.” The court correctly
treated that motion as Appellant’s third PCRA petition. See Notice Pursuant
(Footnote Continued Next Page)


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alleged that his trial counsel was ineffective for abandoning him on direct

appeal without notice, all subsequent PCRA counsel were ineffective for filing

Tuner/Finley      letters     and    for    failing     to    investigate    trial   counsel’s

ineffectiveness, and the PCRA court had erred by allowing PCRA counsel to

withdraw without conducting an independent review. PCRA Pet., 8/28/13, at

3.   Appellant   also      argued,    for   the       first   time,   that   the     PCRA   “is

unconstitutional, vague, and contradictory.” Id.

      The PCRA court found that Appellant’s petition was untimely “by

approximately twelve years,” and, on December 11, 2015, sent Appellant

notice of its intent to dismiss the petition without a hearing, pursuant to Rule

907 of the Pennsylvania Rules of Criminal Procedure. Notice, 12/11/15.

Appellant responded to the dismissal on December 28, 2015, by requesting

a 30-day extension of time in which to file a response, claiming that he had

limited access to the prison law library due to the holidays. Mot. for

Extension of Time to File Answer, 12/28/15. The PCRA court did not rule on

Appellant’s motion for an extension, and Appellant never filed a substantive

response to the Rule 907 Notice. The PCRA court dismissed the petition on




                       _______________________
(Footnote Continued)

to Pennsylvania Rule of Criminal Procedure 907, 12/11/15                               (citing
Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001)).




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January 28, 2016, and Appellant filed the instant notice of appeal on

February 17, 2016. PCRA Ct. Op., 5/16/16, at 2.14

       In his brief to this Court, Appellant presents the following issues:

       (Q1) Whether the PCRA Court erred as a matter of law and
       constitution by dismissing Appellant’s PCRA as untimely where
       he met the timeliness exception provided by statute (42 Pa.C.S.
       § 9545)

       (Q2) Whether the PCRA is unconstitutional? Whether the PCRA’s
       timeliness statute in foreclosing on otherwise meritorious claims
       derived    from   deprivations    of   constitutional  rights   is
       unconstitutional and diametrically opposed to U.S. Supreme
       Court precedent?

Appellant’s Brief at 1.

       Our standard of review of the dismissal of a PCRA petition is as

follows:

               We review an order dismissing a petition under the PCRA
       in the light most favorable to the prevailing party at the PCRA
       level. This review is limited to the findings of the PCRA court and
       the evidence of record. We will not disturb a PCRA court’s ruling
       if it is supported by evidence of record and is free of legal error.
       This Court may affirm a PCRA court’s decision on any grounds if
       the record supports it. Further, we grant great deference to the
       factual findings of the PCRA court and will not disturb those
       findings unless they have no support in the record. However, we
       afford no such deference to its legal conclusions. Where the
       petitioner raises questions of law, our standard of review is de
       novo and our scope of review plenary.



____________________________________________


14
   The PCRA court did not order Appellant to file a 1925(b) statement of
errors complained of on appeal, and Appellant did not file one.



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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

                Timeliness of Appellant’s Third PCRA Petition

      As his first issue, Appellant claims that the instant PCRA petition was

timely.   The   timeliness   of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). When

a petition is untimely, the PCRA court is precluded from reaching the merits

of the petition. Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.

2014).

      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

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

appellant has thirty days after a decision of this Court to request review by

the Supreme Court of Pennsylvania. Pa.R.A.P. 1113.

      Exceptions to the time-bar apply when the petition alleges and the

petitioner proves one of the following:

          (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;


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          (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. § 9545(b)(1)(i)-(iii). A PCRA petition invoking one of these

statutory exceptions “must be filed within sixty days of the date the claim

could first have been presented.” Hernandez, 79 A.3d at 651-52; see also

42 Pa.C.S. § 9545(b)(2). Asserted exceptions to the time restrictions in the

PCRA must be included in the 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 the instant case, the PCRA court concluded that

              [Appellant]’s untimely petition failed . . . to invoke an
       exception to the timeliness provision specified in 42 [Pa.C.S.] §
       9545(b)(1). [Appellant]’s judgment of sentence became final on
       September 30, 2000, upon expiration of the thirty-day window
       to file a petition for allowance of appeal to the Pennsylvania
       Supreme Court. His petition, filed on August 23, 2013[,] was
       therefore untimely by approximately twelve years.

PCRA Ct. Op., 5/16/16, at 4 (citations omitted). We discern no error in this

analysis.15

____________________________________________


15
   As we affirm on this portion of the PCRA court’s reasoning, we do not
address the PCRA court’s other legal conclusions within its Pa.R.A.P. 1925(a)
opinion. See generally Commonwealth v. Doty, 48 A.3d 451, 456 (Pa.
(Footnote Continued Next Page)


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        In the instant PCRA petition and his appellate brief, Appellant argues

that he met the exception set forth in 42 Pa.C.S. § 9545(b)(1)(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”). See PCRA

Pet., 8/28/13, at 7-11; Appellant’s Brief at 4. Appellant claims that “the

factual predicate of his case was trial counsel’s abandonment by failing to

file a direct appeal brief after having committed to do so.” Appellant’s Brief

at 4. He asserts that his first PCRA petition, filed on or before August 11,

2003, was filed within sixty days of his discovery (on June 8, 2003) of his

abandonment by his trial counsel, and was therefore timely, and that his

first PCRA counsel was ineffective for failing to investigate and assert

Appellant’s exception to the time bar. Id. at 4-5. Appellant claims that he

then failed to respond to the notice dismissing his first PCRA petition or to

appeal the dismissal because he relied on the advice of a legal clerk at the

prison law library. Id. at 5-6.16 The fact remains, however, that Appellant

                       _______________________
(Footnote Continued)

Super. 2012) (appellate court is “not bound by the rationale of the trial court
and may affirm on any basis”) (citation omitted).
16
     Appellant argues:

              A pro se litigant and especially one like Appellant who is
        unable to navigate, comprehend, and articulate legal theories
        and procedures is dependent on the prison-provided legal
        assistance. An inmate legal clerk therefore, acts like a
        government representative tasked to provide critical legal
        guidance and assistance to indigent, illiterate, pro se litigants.
(Footnote Continued Next Page)


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J-S90024-16


withdrew his first PCRA petition, meaning that he could obtain no relief

under it. Even if Appellant did so because of a legal clerk’s incorrect advice,

and even if that advice somehow could be characterized as ineffective

assistance of “counsel,” the fact remains that no viable petition remained to

satisfy the 60-day requirement.

      Appellant further avers that appointed PCRA counsel on his second

petition admitted that he was unable to diligently perform his job due to lack

of funds, and was ineffective for failing to pursue the claim of his first PCRA

counsel’s ineffectiveness. Appellant’s Brief at 6. Appellant then claims that

following the dismissal of his second PCRA petition, his appointed appellate

counsel    was   also      ineffective    for    failing   to   pursue   prior   counsel’s

ineffectiveness, and she even plagiarized part of previous PCRA counsel’s

brief. Id. at 7. Appellant fails to allege, however, that he learned any of

these alleged new facts within 60 days of filing his third PCRA petition. See

42 Pa.C.S. § 9545(b)(1)(ii), (2) (a petition is timely if based upon facts

previously unknown to the petitioner if filed within sixty days of the

discovery of those facts).


                       _______________________
(Footnote Continued)

      Intentionally providing critical erroneous and misleading
      information resulting in waiver [of] claims and forfeiture of
      constitutional rights is a serious issue and violates a prisoner[’]s
      fundamental right of access to the courts.

Appellant’s Brief at 6.



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     Appellant concludes that he is entitled to relief because “[f]our court-

appointed lawyers and one inmate paralegal had all abandoned, deceived or

just plainly misrepresented him.” Appellant’s Brief at 7. Appellant relies

heavily on Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), for the

proposition that ineffective assistance of counsel can be an after-discovered

“fact” falling within the second timeliness exception when counsel’s

ineffectiveness was so deficient as to represent complete abandonment by

counsel. But Appellant’s reliance on Bennett is misplaced.

     Generally, a claim of ineffectiveness does not constitute a “fact” for

purposes of the timeliness exception allowed by 42 Pa.C.S. § 9545 (b)(1)(ii).

See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785-86 (Pa.

2000). Bennett established an exception to this principle: where counsel

abandons a petitioner for purposes of appeal, and where the petitioner

exercises due diligence in discovering the abandonment and files a petition

within sixty days of that discovery, the petition will be considered timely.

See 930 A.2d at 1272-74 (holding petition may be timely where PCRA

counsel failed to file a brief on appeal, petitioner never received a copy of

the Superior Court’s order dismissing his PCRA appeal for failure to file the

brief, and petitioner filed a second petition within twenty-five days after

learning of the dismissal). The Court in Bennett added that because “it is

illogical to believe that a counsel that abandons his or her client for a

requested appeal will inform his client that his case has been dismissed


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because of his own failures,” it should not be presumed that a prisoner is

aware of the status of his own case, albeit a matter of public record. Id. at

1274.

        Although Bennett establishes an exception to the normal rule that

ineffectiveness of counsel is not a new fact, it remains essential for Appellant

to establish that he discovered new facts giving rise to a claim under

Bennett within sixty days of filing his third petition on August 28, 2013.

Appellant has failed to establish any such discovery, and his claim therefore

is untimely under Bennett.

        As Appellant failed to plead and prove any other timeliness exception,

we discern no error by the PCRA court in dismissing Appellant’s third petition

as untimely. See Ford, 44 A.3d at 1194.

          Constitutionality of the PCRA Timeliness Requirements

        In his second issue, Appellant claims that the time bar imposed by the

PCRA is unconstitutional, as it infringes on his right to file a direct appeal

under Article V, Section 9, of the Constitution of Pennsylvania and the Sixth

and Fourteenth Amendments to the United States Constitution. Appellant’s

Brief at 8. Appellant contends that “while there may be legislative limitations

or judicial limitations on [] constitutional rights, such limitations must be

reasonable,” id. (quoting Commonwealth v. Peterkin, 722 A.2d 638, 642

(Pa. 1998)), and that the PCRA’s timeliness requirements are unreasonable

as applied to Appellant, “since [they provide] a vehicle for where the state


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can pervert justice by foreclosing on petitioner’s constitutional rights, all in

the name of finality.” Id. at 9. Appellant additionally argues that “the

language of the PCRA is impermissibly vague, confusing, and contradictory,

which has left it open to arbitrary interpretation and enforcement by the

courts.” Id. at 10-11 (citing Commonwealth v. Lantzy, 736 A.2d 564 (Pa.

1999), and the dissent in Bennett).17

       As    Appellant     himself    acknowledges,   the   Supreme   Court   of

Pennsylvania has already upheld the constitutionality of the time restrictions

imposed by the PCRA. Appellant’s Brief at 9; see Peterkin, 722 A.2d at

642-43 (holding that the time restrictions for filing PCRA petitions are

constitutional); accord Commonwealth v. Fahy, 737 A.2d 214, 220 (Pa.

1999). We thus conclude Appellant’s issue lacks merit. This Court has no

authority to contradict the Supreme Court of Pennsylvania.

       Based on the foregoing, we discern no error by the PCRA court in

dismissing Appellant’s third untimely PCRA petition. See Ford, 44 A.3d at

1194. We therefore affirm the PCRA court’s order denying Appellant post-

conviction relief.

       Order affirmed.




____________________________________________


17
   The PCRA court did not address this issue in its order dismissing
Appellant’s PCRA petition or in the Rule 1925(a) opinion justifying its order.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2016




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