J-S35012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ALTON D. BROWN

                            Appellant                No. 1459 EDA 2014


                  Appeal from the PCRA Order April 14, 2014
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0001095-1997


BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                            FILED AUGUST 13, 2015

        Appellant, Alton D. Brown, appeals from the April 14, 2014 order

dismissing as untimely his latest serial petition, filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.        After careful

consideration, we affirm.

        The PCRA court has summarized the anfractuous procedural history of

this case as follows.

                    On November 19, 1997, following a three-day
              jury trial, this court found Appellant guilty of two
              charges of robbery[,18 Pa.C.S.A. § 3701(a)(2),] and
              two charges of possession of a weapon with criminal
              intent,[ 18 Pa.C.S.A. § 907(b),] arising from his
              actions in the course of two separate convenience
              store robberies at knife-point on January 16 and 27
              of that year. On January 8, 1998, the court held a
____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
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          sentencing hearing and found that Appellant was a
          high risk, dangerous offender [in accordance with 42
          Pa.C.S.A. § 9714].      As a result, Appellant was
          sentenced to ten to twenty years[’] incarceration on
          each count of Robbery to be served consecutively
          [and consecutively to a 30-70 year sentence from a
          conviction in Delaware County]. On December 22,
          1998, the Superior Court of Pennsylvania affirmed
          this sentence, and on June 16, 1999, the Supreme
          Court of Pennsylvania denied further appellate
          review of the case.       [See Commonwealth v.
          Brown, 736 A.2d 4 (Pa. Super. 1998) (unpublished
          memorandum), appeal denied, 739 A.2d 1055 (Pa.
          1999).]

                 Appellant filed his first of many pro se petitions
          for post conviction relief under the []PCRA[] on April
          20, 2000, and the court appointed counsel, Carol A.
          Sweeney, Esquire, to assist him in his claim.
          Appellant filed a petition to proceed pro se on June
          6, 2000, which this court denied. Subsequently, this
          court denied his PCRA petition on November 28,
          2000 following a full hearing. Then, after a lengthy
          series of petitions, appeals, and remands in
          Appellant’s initial PCRA claim, on November 21,
          2007, the Supreme Court of Pennsylvania denied his
          Petition for Allowance of Appeal and Application for
          Writ of Mandamus. [See Commonwealth v.
          Brown, 797 A.2d 1021 (Pa. Super. 2002)
          (unpublished memorandum, affirming the PCRA
          court’s denial of PCRA relief), vacated, 845 A.2d 199
          (Pa. 2004) (per curiam order, remanding to PCRA
          court for a Grazier hearing), Commonwealth v.
          Brown, 928 A.2d 1119 (Pa. Super. 2007)
          (unpublished memorandum, affirming the PCRA
          court’s determination that Appellant knowingly
          waived his right to counsel during his appeal from
          the denial of his first PCRA petition), appeal denied,
          934 A.2d 1275 (Pa. 2007).]

               However, Appellant had previously and
          prematurely filed a second PCRA petition on
          September 19, 2002 while his initial PCRA petition
          was still pending. Accordingly, on October 10, 2002,

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          this court deferred consideration of the second
          petition until the resolution of the first.     This
          occurred on September 22, 2008 when this court
          notified Appellant that his second PCRA petition
          would be dismissed without a hearing. Appellant
          objected on October 6, 2008, and this court
          conducted an evidentiary hearing and argument on
          January 5, 2009 out of an abundance of caution.

                After a thorough review of the record,
          including supplemental briefs submitted by the
          Appellant and the Commonwealth, this court
          dismissed Appellant’s second PCRA motion in the
          Order of July 7, 2009 because Appellant had failed to
          timely file that petition. Appellant appealed this
          order, and on November 24, 2010, the Superior
          Court affirmed that Appellant failed to timely file his
          second PCRA petition[, and] on October 18, 2011,
          the Supreme Court of Pennsylvania denied
          Appellant’s Petition for Allowance of Appeal. [See
          Commonwealth v. Brown, 22 A.3d 1079 (Pa.
          Super. 2010) (unpublished memorandum), appeal
          denied, 30 A.3d 1192 (Pa. 2011).]

                 Undeterred, Appellant filed a third round of
          PCRA petitions. After his petitions of December 19,
          2011 and January 3, 2012, this court appointed
          Bonnie Keagy, Esquire, on January 18, 2012 to
          represent Appellant in these further actions. After
          Appellant filed two more PCRA petitions on January
          20, 2012 and February 17, 2012, Ms. Keagy filed a
          petition to withdraw on March 23, 2012, which
          included the requisite Finley letter.          [See
          Commonwealth v. Finley, 550 A.2d 213, 215 (Pa.
          Super. 1988).] This court reviewed Ms. Keagy’s
          Finley letter and conducted a full and independent
          review of the claims, reaching the same conclusions.
          On March 26, 2012, this court granted Ms. Keagy’s
          petition to withdraw and denied Appellant’s PCRA
          petitions.

                Displaying uncanny persistence, Appellant filed
          a further motion for post conviction relief on April 5,
          2012 for the reconsideration of the court’s March 26,

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          2012 denial of his PCRA motion. In response, in two
          separate orders on April 12, 2012, the court granted
          Appellant an evidentiary hearing to further establish
          his claim and appointed Coley Reynolds, Esquire, to
          represent him in the matter.       …    Following the
          repetitive pattern of Appellant’s post conviction
          actions, he appealed this court’s denial of his Motion
          for Modification of Sentence. On July 3, 2013, the
          Superior Court reviewed and affirmed this court’s
          decision. [See Commonwealth v. Brown, 82 A.3d
          1053      (Pa.     Super.     2013)      (unpublished
          memorandum).]

                 In the fourth and final round of pro se PCRA
          motions, bringing the case to the current appeal,
          Appellant filed a pro se correspondence with this
          court on December 31, 2013, attempting to resurrect
          his PCRA claims. In response, this court issued its
          order of January 15, 2014, stating that Appellant’s
          February 17, 2012 PCRA petition had been denied
          and further reiterated that his petitions of March 26,
          2012, April 20, 2012, April 30, 2012, May 2, 2012,
          and May 9, 2012 had all been dismissed. Appellant
          filed a motion to reconsider that order on February
          7, 2014, which this court granted in the March 13,
          2014 order. Accordingly, in that order, this court
          reappointed Ms. Keagy to represent Appellant in the
          reexamination of his claims.      Unhappy with Ms.
          Keagy, Appellant requested to proceed pro se in the
          matter on March 21, 2014, and Ms. Keagy filed a
          petition to withdraw once again from the case on
          March 25, 2014, including her second Finley letter
          addressed to Appellant. In three separate orders on
          April 15, 2014, this court granted Ms. Keagy’s
          petition to withdraw, allowed Appellant to continue
          pro se, and issued the order presently on appeal.

                 The April 14, 2014 order presently on appeal
          denied Appellant’s February 17, 2012 Amended
          Petition for Post Conviction Relief because of his
          failure to timely file the petition with this court. That
          order also specifically denied all of Appellant’s PCRA
          petitions and related motions, [filed on December
          19, 2011, January 3, 2012, January 20, 2012,

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            February 17, 2012, April 5, 2012, April 26, 2012,
            May 7, 2012, May 9, 2012, February 4, 2014, and
            March 20, 2014, respectively,] including the
            underlying December 19, 2011 Petition for Post
            Conviction Relief. On May 12, 2014, Appellant filed a
            Notice of Appeal to the Superior Court and requested
            review of the April 14, 2014 order. Accordingly on
            May 18, 2014, this court ordered Appellant to file a
            Concise Statement of Matters Complained of on
            Appeal within 21 days. Appellant filed his Concise
            Statement on June 16, 2014, 28 days after the order
            demanding it.

PCRA Court Opinion, 7/11/14, at 1-5 (footnotes omitted).

      On appeal, Appellant raises the following questions for our review.

            I.     [Whether the] trial court erred in denying
            [Appellant’s] motion for appointment of unbias [sic]
            counsel not associated with its judicial system and/or
            request for leave to proceed pro se, and, by
            appointing bias [sic] counsel to represent [Appellant]
            after [Appellant] had notified [the trial court] of a
            conflict between the two, and after counsel had been
            previously allowed to withdraw?

            II.   Whether trial court erred in its summery [sic]
            denial of post-conviction relief?

Appellant’s Brief at 1.

                   Our standard of review of the denial of a PCRA
            petition is limited to examining whether the court’s
            rulings are supported by the evidence of record and
            free of legal error. This Court treats the findings of
            the PCRA court with deference if the record supports
            those findings. It is an appellant’s burden to
            persuade this Court that the PCRA court erred and
            that relief is due.

Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)

(citation omitted).


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     Instantly, the PCRA court dismissed Appellant’s current PCRA petition

as untimely. “[I]t is well-settled that … a question of timeliness implicates

the jurisdiction of our Court.”     Commonwealth v. Gandy, 38 A.3d 899,

902 (Pa. Super. 2012) (internal quotation marks and citation omitted),

appeal denied, 49 A.3d 442 (Pa. 2012).                  “Because these timeliness

requirements are mandatory and jurisdictional in nature, no court may

properly disregard or alter them in order to reach the merits of the claims

raised   in   a   PCRA   petition   that   is   filed   in   an   untimely   manner.”

Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa. 2012) (internal quotation

marks and citation omitted).        The PCRA “confers no authority upon this

Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]”

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted).

This is to “accord finality to the collateral review process.” Id. “It is well

settled that [a]ny and all PCRA petitions must be filed [in a timely manner]

unless one of three statutory exceptions applies.”                Commonwealth v.

Garcia, 23 A.3d 1059, 1061-1062 (Pa. Super. 2011) (internal quotation

marks and citations omitted), appeal denied, 38 A.3d 823 (Pa. 2012). “We

have repeatedly stated it is the appellant’s burden to allege and prove that

one of the timeliness exceptions applies. Whether Appellant has carried his

burden is a threshold inquiry prior to considering the merits of any claim.”

Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013) (citation

omitted), cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013).


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Consequently, an appellant must acknowledge that his PCRA petition is

untimely, and demonstrate with particularity that one or more of the

statutory exceptions applies. See Commonwealth v. Wharton, 886 A.2d

1120, 1125-26 (Pa. 2005).

     The Act provides for the following possible exceptions to the timeliness

requirement.


           § 9545. Jurisdiction and proceedings

                                      …

           (b) Time for filing petition.—

                 (1) Any petition under this subchapter,
                 including a second or subsequent petition, shall
                 be [timely] filed … unless the petition alleges
                 and the petitioner proves that:

                       (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



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                           and has been held by that court to apply
                           retroactively.

                    (2) Any petition invoking an exception
                    provided in paragraph (1) shall be filed within
                    60 days of the date the claim could have been
                    presented.

                                             …

42 Pa.C.S.A. § 9545(b).

      Appellant’s instant PCRA petition is facially untimely.        His sentence

became final on September 14, 1999, 90 days after our Supreme Court

denied Appellant’s petition for allowance of appeal on June 16, 1999, being

the time allowed to file a writ of certiorari with the United States Supreme

Court. See U.S. S. Ct. R. 13(1). Therefore, Appellant had until September

14, 2000, one year from that date, to file a first or any subsequent PCRA

petition.     See 42 Pa.C.S.A. § 9545(b)(3).       As noted, it is required that

Appellant pleads and proves one of the statutory exceptions to the PCRA’s

time limits to invoke the PCRA or this Court’s jurisdiction to consider his

petition. See Edmiston, supra.

      In an effort to implicate the Section 9545(b)(1)(ii) newly-discovered

fact exception, Appellant makes a bald assertion that he “was incompetent

during      sentencing,   direct   appeal,   and   post-conviction   proceedings.”

Appellant’s Brief at 5. Citing Commonwealth v. Cruz, 852 A.2d 287 (Pa.

2004), Appellant avers his incompetence qualifies as an after-discovered fact




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for the purpose of the Section 9545(b)(1)(ii) timeliness exception to the

PCRA. Id. at 6.

            Claims that were defaulted due to [Appellant’s]
            mental incompetence may qualify under the
            statutory after-discovered evidence exception on the
            basis that incompetence rendered petitioner unable
            to timely discover the factual basis for collateral
            claims. Indeed, the unique nature of Appellant’s
            claims sounding in incompetency requires that he be
            afforded an opportunity to attempt to prove that he
            was incompetent at the relevant times and that
            incompetence qualifies under the after-discovered
            evidence exception to the PCRA time-bar.

 Appellant’s Brief at 6 (citation omitted).

     In Cruz, our Supreme Court held that incompetence, rendering an

individual “unable to discover the facts that would form the basis of his

substantive PCRA claims,” can qualify as an after-discovered fact.     Cruz,

supra at 296-297.     In that case, the record showed the appellant, at the

time of the homicides for which he was charged, shot himself in the head

and, at the time of his nolo contendere plea, was unable to discuss the facts

of the case with his attorney.       Id. at 288.     Further, no inquiry into

competency was ever made on the record.            Id. at 296.   Under those

circumstances, the Supreme Court held the appellant “should be afforded an

opportunity to attempt to prove that he was incompetent at the relevant

times and that the incompetence qualifies under the after-discovered

evidence exception….” Id. at 297.




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        In this case, no such factual predicate, suggesting the possibility of

Appellant’s incompetence, exists in the record, and Appellant alludes to

none.     To the contrary, the record of this case with its repeated and

extensive litigation, including determinations by the trial court that Appellant

knowingly, intelligently, and voluntarily waived his right to counsel to

proceed pro se, belies any suggestion of Appellant’s incompetency. As this

Court has clarified, Cruz does not stand for the proposition that a bald claim

of incompetency will entitle a PCRA petitioner to a hearing to prove a Section

9545(b)(1)(ii) exception applies.     Commonwealth Liebensperger, 904

A.2d 40, 47 (Pa. Super. 2006) (noting the “unique facts” of Cruz and

holding that a petitioner’s failure to assert the causes and timing of his

alleged incompetence and the timing of his emergence therefrom precludes

application of the after-discovered evidence exception recognized in Cruz).

“[T]he general rule remains that mental illness or psychological condition,

absent more, will not serve as an exception to the PCRA’s jurisdictional time

requirements.”     Commonwealth v. Monaco, 996 A.2d 1076, 1081 (Pa.

Super. 2010) (citation omitted), appeal denied, 20 A.3d 1210 (Pa. 2011).

        Because Appellant failed to adequately plead an exception to the

PCRA’s time constraints, we discern no error by the trial court in dismissing

Appellant’s latest PCRA petition as untimely. Lacking jurisdiction to address




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          this court deferred consideration of the second
          petition until the resolution of the first.     This
          occurred on September 22, 2008 when this court
          notified Appellant that his second PCRA petition
          would be dismissed without a hearing. Appellant
          objected on October 6, 2008, and this court
          conducted an evidentiary hearing and argument on
          January 5, 2009 out of an abundance of caution.

                After a thorough review of the record,
          including supplemental briefs submitted by the
          Appellant and the Commonwealth, this court
          dismissed Appellant’s second PCRA motion in the
          Order of July 7, 2009 because Appellant had failed to
          timely file that petition. Appellant appealed this
          order, and on November 24, 2010, the Superior
          Court affirmed that Appellant failed to timely file his
          second PCRA petition[, and] on October 18, 2011,
          the Supreme Court of Pennsylvania denied
          Appellant’s Petition for Allowance of Appeal. [See
          Commonwealth v. Brown, 22 A.3d 1079 (Pa.
          Super. 2010) (unpublished memorandum), appeal
          denied, 30 A.3d 1192 (Pa. 2011).]

                 Undeterred, Appellant filed a third round of
          PCRA petitions. After his petitions of December 19,
          2011 and January 3, 2012, this court appointed
          Bonnie Keagy, Esquire, on January 18, 2012 to
          represent Appellant in these further actions. After
          Appellant filed two more PCRA petitions on January
          20, 2012 and February 17, 2012, Ms. Keagy filed a
          petition to withdraw on March 23, 2012, which
          included the requisite Finley letter.          [See
          Commonwealth v. Finley, 550 A.2d 213, 215 (Pa.
          Super. 1988).] This court reviewed Ms. Keagy’s
          Finley letter and conducted a full and independent
          review of the claims, reaching the same conclusions.
          On March 26, 2012, this court granted Ms. Keagy’s
          petition to withdraw and denied Appellant’s PCRA
          petitions.

                Displaying uncanny persistence, Appellant filed
          a further motion for post conviction relief on April 5,
          2012 for the reconsideration of the court’s March 26,

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