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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                   v.                     :
                                          :
MIKE GERALD, A/K/A GERALD MIKE,           :          No. 906 WDA 2014
                                          :
                        Appellant         :


                 Appeal from the PCRA Order, April 24, 2014,
             in the Court of Common Pleas of Allegheny County
              Criminal Division at No. CP-02-CR-0011398-2003


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED NOVEMBER 06, 2015

      Mike Gerald a/k/a Gerald Mike appeals pro se from the order filed in

the Court of Common Pleas of Allegheny County which dismissed, without a

hearing, his second petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.          Because we agree with the PCRA

court that appellant’s facially untimely petition failed to establish a statutory

exception to the one-year jurisdictional time limit for filing a petition under

the PCRA, we affirm.

      Following a coroner’s inquest on August 4, 2003, appellant was

charged with one count of criminal homicide in connection with the shooting




* Retired Senior Judge assigned to the Superior Court.
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death of John Mitchell on March 15, 1998.1     Mitchell was shot once in the

chest at close range with a .40 caliber semi-automatic handgun. Appellant

admitted to police officers that he shot the victim but claimed it was an

accident.2 On August 24, 2004, a jury convicted appellant of third-degree

murder.3     On November 11, 2004, the court sentenced appellant to 20 to

40 years’ imprisonment.4 On December 15, 2004, appellant filed a notice of

appeal.5 The judgment of sentence was affirmed by this court on August 24,

2006. On September 22, 2006, appellant, through counsel, filed a petition




1
  The facts of this case are set forth in Commonwealth v. Gerald,
No. 2165 WDA 2004, unpublished memorandum (Pa.Super. filed August 24,
2006).
2
  Appellant claimed another individual, Jermaine Brown, was playing with the
gun and that he became concerned and asked Brown for the firearm.
Appellant stated that Brown removed the magazine and handed the gun to
appellant. Once appellant had possession of the gun, he pulled the slide
back at which time the gun accidently discharged hitting the victim in the
chest.   Appellant also told the detectives that he fled the house and
discarded the gun en route to his girlfriend’s house. (Notes of testimony,
8/19/04 (T.T.) at 277.) At trial, the Commonwealth’s expert criminalist,
Robert Levine, Ph.D., testified that after a magazine is removed from a gun,
if a person pulls back on the slide with a cartridge still in the chamber,
normally the gun would not fire and the live round would be ejected from
the gun. (T.T. at 220-224.)
3
    18 Pa.C.S.A. § 2502(c).
4
 Appellant’s trial counsel was Robert Foreman, Esq., of the Office of Public
Defender.
5
  Appellant’s direct appeal counsel was Scott Rudolf, Esq., also of the Office
of Public Defender.


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for allowance of appeal in the Pennsylvania Supreme Court.            On March 6,

2007, the petition was denied.

      On March 5, 2010, appellant, through his PCRA counsel, Scott Coffey,

Esq., filed his first (amended) PCRA petition.6        (Docket #56.)      The post-

conviction issues raised included: ineffective assistance of trial counsel for

failing to move to suppress appellant’s confession; ineffective assistance of

trial counsel for failing to utilize appellant’s girlfriend, Lisa Fields, at trial to

prove that appellant’s confession was coerced; ineffective assistance of trial

counsel for failing to request a corpus delicti             jury instruction; and

ineffective assistance of trial counsel for failing to cross-examine Monte

Nichols regarding his expectation of leniency for testifying against appellant.

An evidentiary PCRA hearing was held on June 8, 2010.              The PCRA court

dismissed appellant’s PCRA petition on November 16, 2010, based on its

determination that all claims raised therein were meritless.

      On November 22, 2011, the PCRA court appointed Christy Foreman,

Esq., to represent appellant on appeal.         Attorney Foreman filed a timely

notice of appeal, and raised the same issues Attorney Coffey had raised in

the PCRA petition. On August 21, 2012, this court affirmed the PCRA court’s




6
 Appellant initially requested the court’s permission to represent himself. A
hearing was held pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.
1998). After the trial court issued a notice of intention to dismiss appellant’s
pro se PCRA petition, appellant agreed to counseled representation.


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ruling.   Commonwealth v. Gerald, No. 1911 WDA 2010, unpublished

memorandum (Pa.Super. filed August 21, 2012). A petition for allowance of

appeal was filed, and denied by our supreme court on March 13, 2013.

      On February 3, 2014, appellant, pro se, filed his second PCRA petition

which is at issue here. (Docket #79.) On March 25, 2014, the court issued

a notice, pursuant to Pa.R.Crim.P. 907, of its intention to dismiss the petition

without a hearing on the grounds that all issues were time-barred.

(Docket #80.) Appellant responded and on April 24, 2014, the PCRA court

dismissed his PCRA petition.

      Appellant raises the following issues on appeal:

            (A)   DID   BRIAN   WIESMANTLE[]     CAUSE   A
                  MISCARRIAGE    OF   JUSTICE   WHEN   HE
                  INTENTIONOLLY [SIC] CHOSE TO LIE AND
                  FALSIFY EVIDENCE IN ORDER FOR THE GRAND
                  JURY TO PURSUE CRIMINOL [SIC] CHARGES.

                  (1)   WAS COURT APPOINTED COUNSEL
                        CHRIST    [SIC]    P.  FOREMAN
                        ESQUIRE      INEFFECTIVE    FOR
                        FAILING     TO     DEMONSTRATE
                        MEANINGFULL [SIC] PARTICIPATIN
                        [SIC]   EFFECTIVELY    LEAVEING
                        [SIC]      APPEALANT       [SIC]
                        UNCOUNSELED ON ISSUES (1-6).
                        AND EFFECTIVELY MISLEADING
                        APPEALANT [SIC] IN REGAURD
                        [SIC] TO HIS NEXT STAGE OF
                        APPEAL[?]

                  (2)   WAS MS. FOREMAN ESQUIRE
                        INEFFECTIVE FOR FAILING TO
                        REFUTE     THE     EVIDENTIARY
                        HEARING     TRANSCRIPTS     AS
                        INACURATE [SIC][?]


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               (3)   WAS MS. FOREMAN, ESQUIRE
                     INEFFECTIVE IN HER FAILURE TO
                     ADDRESS PETITIONER[’]S ISSUES
                     OF INEFFECTIVE WITH PRIOR
                     PCRA COUNSEL SCOTT COFFY
                     [SIC], ESQUIRE[?]

               (4)   WAS MS. FOREMAN, ESQUIRE
                     INEFFECTIVE FOR FAILING TO
                     ARGUE, LITIGATE OR SUPPORT
                     PETITIONER[’]S ISSUES BY THE
                     RECORD IN REGAURD [SIC] TO
                     WHETHER TRIAL COUNSEL WAS
                     INEFFECTIVE FOR FAILING TO
                     CROSS EXAMINE MONTEE [SIC]
                     NICHOLS REGAURDING [SIC] THE
                     SENTENCE AND FINES HE FACED
                     LEAVEING    [SIC]   PETITIONER
                     EFFECTIVELY UNCOUNSELED[?]

               (5)   WAS MS. FOREMAN, ESQUIRE WAS
                     [SIC] INEFFECTIVE FOR FAILING
                     TO ARGUE, LITIGATE OR SUPPORT
                     PETITIONER[’]S ISSUES BY THE
                     RECORD IN REGAURD [SIC] TO
                     TRIAL   COUNSEL      FAILING   TO
                     SUPPRESS             INVOLUNTARY
                     STATEMENT TO POLICE, FAILING
                     TO FILE A HABEAS CORPUS
                     PITITION [SIC] AFTER NO CORPUS
                     DELECTI     INSTRUCTION       WAS
                     PROVIDED       MS[.]     FOREMAN
                     FAILING     TO     SHOW      HOW
                     PETITIONER WAS PREJUDICED BY
                     THE ABSENCE OF THE JURY
                     INSTRUCTION FOR FAILING TO
                     ASSERT     TRIAL      COUNSEL[’]S
                     INEFFECTIVENESS THROUGH THE
                     RECORD        LEAVEING       [SIC]
                     PETITIONER            EFFECTIVELY
                     UNCOUNSELED[?]




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                    (6)   WAS MS. FOREMAN, ESQUIRE
                          INEFFECTIVE FOR FAILING TO
                          ARGUE, LITIGATE OR SUPPORT
                          PETITIONER[’]S ISSUE BY THE
                          RECORD IN REGAURD [SIC] TO
                          DETECTIVE DALE CONOFARI[’]S
                          TESTIMONY     AT   EVIDENTIARY
                          HEARING      LEAVEING     [SIC]
                          PETITIONER         EFFECTIVELY
                          UNCOUSELED [SIC] DUE TO HIS
                          FALSIFICATION OF EVIDENCE[?]

              (B)   DID DR. LEVINE FOR THE PROSECUTION
                    CREATE A MISCARRIAGE OF JUSTICE WHEN
                    HIS TESTIMONY BLIND SIDED [SIC] THE
                    DEFENSE WITH DESCOVERY [SIC] VIOLATION
                    TESTIMONY TO PROVE CASATION [SIC][?]

              (C)   WAS IT TRIAL COURT ERROR PROSECUTOR
                    MISCONDUCT INEFFECTIVE ASSISTENCE [SIC]
                    OF COUNSEL WHEN THE COMMEN WEALTH
                    [SIC] WITH HELD [SIC] THE PRE[-]SENTENCE
                    REPORT FROM PETITIONER SENTENCE COURT
                    ERROR TO NOT SENTENCE DEFENDANT UNDER
                    GUIDELINES AT THE TIME OF THE CRIME.

              [D]   TRIAL COURT ERROR, INEFFECTIVE COUNSEL
                    TO NOT FILE MODIFICATION OF SENTENCE

Appellant’s brief at 2.

         All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s 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 States and the Supreme Court of Pennsylvania, or at the

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

The Pennsylvania Supreme Court has held that the PCRA’s time restriction is


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constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287 (Pa. 2004).

In addition, our supreme court has instructed that the timeliness of a PCRA

petition is jurisdictional.   If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118

(Pa.Super. 2014) (courts do not have jurisdiction over an untimely PCRA);

Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

      In this case, we affirmed the appellant’s judgment of sentence on

August 24, 2006. Appellant timely petitioned for allowance of appeal which

was denied on March 6, 2007.         United States Supreme Court Rule 13

provides that “[a] petition for writ of certiorari seeking review of a judgment

of a lower state court that is subject to discretionary review by the state

court of last resort is timely when filed with the Clerk within 90 days after

entry of the order denying discretionary review.”      U.S. Sup.Ct. Rule 13;

28 U.S.C.A. Under this rule, appellant had 90 days (i.e., until June 4, 2007)

to file a petition for certiorari in the United States Supreme Court with

respect to the Pennsylvania Supreme Court’s order.           Thus, appellant’s

judgment became final on June 4, 2007. 42 Pa.C.S.A. § 9545(b)(3). See

also Commonwealth v. Owens, 718 A.2d 330 (Pa.Super. 1998). Under

42 Pa.C.S.A. § 9545(b)(1), appellant had one year from this date, until

June 4, 2008, to file his PCRA petition. The instant petition, which the trial

court dismissed as time-barred, was filed on February 3, 2014, nearly seven

years after appellant’s judgment of sentence became final.



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      There are three narrow exceptions to the one-year time bar: when the

government has interfered with the defendant’s ability to present the claim,

when the defendant has recently discovered facts upon which his PCRA claim

is predicated, or when either the Pennsylvania Supreme Court or the United

States Supreme Court has recognized a new constitutional right and made

that right retroactive. 42 Pa.C.S.A. § 9545(b)(1)(i-iii); Commonwealth v.

Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The defendant has the

burden   of   pleading   and   proving   the   applicability   of   any   exception.

42 Pa.C.S.A. § 9545(b)(1). If an appellant fails to invoke a valid exception

to the time bar of the PCRA, this court may not review the petition.            See

42 Pa.C.S.A. § 9545(b)(1)(i-iii).

      Appellant has failed to specifically invoke any valid exception to what

is a facially untimely PCRA petition. He does not aver or demonstrate that

his various allegations of error were either caused by the interference by

government officials, or that it was unknown or not discoverable by him by

due diligence or that there are any newly recognized constitutional rights

that must be considered. “If the petition is determined to be untimely, and

no exception has been pled and proven, the petition must be dismissed

without a hearing because Pennsylvania courts are without jurisdiction to

consider the merits of the petition.” Commonwealth v. Perrin, 947 A.2d

1284, 1285 (Pa.Super. 2008).




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      As appellant’s second PCRA petition is clearly untimely and appellant

has failed to plead and prove the applicability of any exception to the PCRA’s

time-of-filing requirements, the PCRA court lacked jurisdiction to consider

the merits of appellant’s issues and did not err in dismissing appellant’s

petition without an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/6/2015




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