J-S26021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
              v.                         :
                                         :
 RASHAWN FARMER-SHAW                     :
                                         :
                   Appellant             :        No. 4068 EDA 2017

             Appeal from the PCRA Order November 17, 2017
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0606951-2002,
                          CP-51-CR-0714361-2002


BEFORE:    PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

JUDGMENT ORDER BY GANTMAN, P.J.E.:                     FILED MAY 29, 2019

      Appellant, Rashawn Farmer-Shaw, appeals pro se from the order

entered in the Philadelphia County Court of Common Pleas, which dismissed

his second petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. On February 27, 2004, a jury convicted Appellant

at Docket Nos. 606951-2002 and 714361-2002, collectively, of robbery,

conspiracy to commit robbery, possession of an instrument of crime (“PIC”),

and related offenses. That same day, the court sentenced Appellant at both

docket numbers to an aggregate term of 20 to 40 years’ incarceration.

Appellant sought no direct review, so the judgment of sentence became final

on Monday, March 29, 2004, the last day he could have filed a direct appeal.

      On December 1, 2008, Appellant pro se filed his first PCRA petition at

both docket numbers. The PCRA court appointed counsel and later denied
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S26021-19


relief on August 16, 2013. This Court affirmed on December 3, 2014. See

Commonwealth v. Farmer-Shaw, 116 A.3d 677 (Pa.Super. 2014)

(unpublished memorandum). On March 23, 2016, Appellant filed pro se his

second and current PCRA petition at both docket numbers. The PCRA court

issued Rule 907 notice, and Appellant responded pro se on October 13, 2017.

On November 17, 2017, the PCRA court dismissed Appellant’s petition at both

docket numbers. Appellant filed pro se a timely notice of appeal at both docket

numbers on December 11, 2017.1                 The PCRA court ordered Appellant on

December 26, 2017, to file a concise statement of errors complained of on

appeal per Pa.R.A.P. 1925(b); Appellant failed to comply.

       Preliminarily, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A

PCRA petition, including a second or subsequent petition, shall be filed within

one year of the date the underlying judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1).        A judgment of sentence 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.A. § 9545(b)(3). The

statutory exceptions to the PCRA time-bar allow very limited circumstances to

____________________________________________


1Appellant filed his notice of appeal prior to June 1, 2018. Thus, this case
does not present a jurisdictional issue pursuant to Commonwealth v.
Walker, ___ Pa. ___, 185 A.3d 969 (2018).



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excuse the late filing of a petition; a petitioner asserting a timeliness exception

must also file the petition within 60 days of when the claim could first have

been presented.2 42 Pa.C.S.A. § 9545(b)(1-2). When asserting the newly

created constitutional right exception under Section 9545(b)(1)(iii), “a

petitioner must prove that there is a ‘new’ constitutional right and that the

right ‘has been held’ by that court to apply retroactively.” Commonwealth

v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal denied, 616 Pa. 625,

46 A.3d 715 (2012). Additionally, to be eligible for relief under the PCRA, a

petitioner must plead and prove, inter alia, his allegations of error were not

previously litigated. 42 Pa.C.S.A. § 9543(a)(3).

       Instantly, Appellant’s judgment of sentence became final on Monday,

March 29, 2004, upon expiration of the time to file a direct appeal.          See

Pa.R.A.P. 903(a). Appellant filed the current PCRA petition on March 23, 2016,

which is patently untimely.          See 42 Pa.C.S.A. § 9545(b)(1).      Appellant

attempts to invoke the “new constitutional right” exception to the PCRA time

bar, relying on Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186

L.Ed.2d 314 (decided on June 17, 2013), and its Pennsylvania progeny.

Alleyne, however, does not apply in Appellant’s case. See Commonwealth

v. Washington, 636 Pa. 301, 142 A.3d 810 (2016) (holding Alleyne cannot


____________________________________________


2As of December 24, 2018, Section 9545(b)(2) changed the 60-day rule and
now allows one year from the date the claim first could have been presented.
See Act 2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24,
2018]. This amendment does not apply to Appellant’s case.

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be used retroactively on collateral review to challenge sentences which

became final before Alleyne was decided).                Furthermore, Appellant

unsuccessfully litigated a substantially identical claim in his first PCRA petition.

See 42 Pa.C.S.A. § 9543(a)(3).        Thus, Appellant’s petition remains time-

barred, and the PCRA court lacked jurisdiction to review it.         See Ziegler,

supra. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/19




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