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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

REUBEN BROWN

                            Appellant                  No. 935 EDA 2014


                Appeal from the PCRA Order of February 24, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0207261-1995


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                          FILED FEBRUARY 10, 2015

       Reuben Brown appeals, pro se, the February 24, 2014 order dismissing

his fourth petition for relief pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-46, as untimely. We affirm.

       On October 28, 1996, Brown was convicted by a jury of first-degree

murder, two counts of robbery, possession of an instrument of crime, and

criminal conspiracy.1       Thereafter, the trial court sentenced Brown to life

imprisonment for first-degree murder, five to ten years for each of the two

counts of robbery, five to ten years for criminal conspiracy, and six to sixty

months for possession of an instrument of crime. This Court affirmed the

judgment of sentence on July 27, 1999, and our Supreme Court denied

____________________________________________


1
       18 Pa.C.S. §§ 2502(a), 3701, 907, 903, respectively.
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review on January 5, 2000.         See Commonwealth v. Brown, 742 A.2d

1140 (Pa. Super. 1999) (unpublished memorandum), appeal denied, 749

A.2d 465 (Pa. 2000).

         Brown timely filed a pro se PCRA petition on January 27, 2000, his

first.   On June 1, 2000, the court appointed Attorney David Rudenstein to

represent Brown. On July 19, 2000, Attorney Rudenstein filed an amended

petition, in which he raised an issue regarding a recanting witness.          The

PCRA court allowed Attorney Rudenstein time to locate the recanting witness

in order to hold a hearing. Ultimately, Attorney Rudenstein was unable to

locate the recanting witness, and the PCRA court dismissed Brown’s first

PCRA petition on February 28, 2001.

         On September 5, 2003, Brown filed a second PCRA petition. On June

18, 2004, the PCRA court dismissed that petition as untimely. Brown filed a

third PCRA petition on June 15, 2009. On January 11, 2011, the PCRA court

again dismissed the petition as untimely.

         On March 19, 2012, Brown filed a fourth PCRA petition.           In that

petition, Brown alleged that his facially untimely petition satisfied the newly

recognized     constitutional   right   exception   to   the   PCRA’s   timeliness

requirements.     See 42 Pa.C.S. § 9545(b)(1)(iii), discussed infra.       Brown

filed additional amendments to his fourth PCRA petition on May 21, 2012,

and October 20, 2012.

         On March 24, 2014, the PCRA court dismissed Brown’s fourth PCRA

petition as untimely. On March 31, 2014, the PCRA court ordered Brown to

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file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), which Brown timely submitted on April 17, 2014.          On

June 4, 2014, the PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a)

in response to Brown’s concise statement.

       Brown raises three substantive claims for our consideration, which

Brown generally lists as claims of PCRA counsel abandonment, PCRA

counsel’s ineffectiveness, and prosecutorial misconduct and governmental

interference. See Brief for Brown at ii.2

       Our standard of review for an order denying PCRA relief is well-settled:

       This Court’s standard of review regarding a PCRA court’s order is
       whether the determination of the PCRA court is supported by the
       evidence of record and is free of legal error. Great deference is
       granted to the findings of the PCRA court, and these findings will
       not be disturbed unless they have no support in the certified
       record. Moreover, a PCRA court may decline to hold a hearing
       on the petition if the PCRA court determines that a petitioner’s
       claim is patently frivolous and is without a trace of support in
       either the record or from other evidence.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted).

       However, before considering the merits of Brown’s issues, we first

must determine whether his petition was timely, thus conferring the PCRA
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2
       Brown numbered only the pages in the argument section of his brief,
in violation of Pa.R.A.P. 2173 (requiring the pages of briefs, the reproduced
record, and any supplemental reproduced record to be numbered separately
in Arabic figures and not in Roman numerals). Nonetheless, the defects in
Brown’s brief are not substantial, and do not merit any form of sanction.
See Pa.R.A.P. 2101.



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court with jurisdiction in the first instance to consider his claims on their

merits.

     It is well-settled that:

     A PCRA petition, including a second or subsequent one, must be
     filed within one year of the date the petitioner’s judgment of
     sentence became final, unless he pleads and proves one of the
     three exceptions outlined in 42 Pa.C.S. § 9545(b)(1).           A
     judgment becomes final at the conclusion of direct review by this
     Court or the United States Supreme Court, or at the expiration
     of the time for seeking such review. 42 Pa.C.S. § 9545(b)(3).
     The PCRA’s timeliness requirements are jurisdictional; therefore,
     a court may not address the merits of the issues raised if the
     petition was not timely filed. The timeliness requirements apply
     to all PCRA petitions, regardless of the nature of the individual
     claims raised therein.     The PCRA squarely places upon the
     petitioner the burden of proving an untimely petition fits within
     one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).


Presently, Brown’s judgment of sentence became final on April 4, 2000,

which was ninety days after our Supreme Court denied his petition for

allowance of appeal.      See 42 Pa.C.S. § 9545(b)(3) (providing that 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). Therefore, to be timely Brown had one year from that date to file a

petition for collateral relief, unless he pleaded and proved that a timing

exception applied. See id. §§ 9545(b)(1)(i)-(iii).   Hence, Brown’s current




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petition, filed on March 19, 2012, is untimely on its face unless he has

pleaded and proven one of the statutory exceptions to the time-bar.

     The PCRA provides for the following timeliness exceptions:

     (1) Any petition under this subchapter, including a second or
     subsequent petition, shall be filed within one year of the date the
     judgment becomes final, 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 and has been held by that court to
        apply retroactively.

42 Pa.C.S. § 9545(b)(1).

     Additionally,   a   PCRA   petition   invoking   one   of   these   statutory

exceptions must “be filed within 60 days of the date the claim could have

been presented.” Id. § 9545(b)(2). Furthermore, “exceptions to the time

bar must be pled in the PCRA petition, and may not be raised for the first

time on appeal.”     Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.

Super. 2007) (citing Commonwealth v. Beasley, 741 A.2d 1258, 1261

(Pa. 1999)) (emphasis added).      Notably, Brown properly raised the issue




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alleging that an exception to the time bar applied in his fourth PCRA petition.

See Brown’s PCRA Petition, 7/30/13, at 1-2.

       Here, Brown attempts to invoke the newly-recognized constitutional

right exception pursuant to section 9545(b)(1)(iii). See Brown’s Brief at 6.

However, Brown’s invocation of that exception fails.

       Subsection (iii) of Section 9545 has two requirements. First, it
       provides that the right asserted is a constitutional right that was
       recognized by the Supreme Court of the United States or this
       court after the time provided in this section. Second, it provides
       that the right “has been held” by “that court” to apply
       retroactively. Thus, a petitioner must prove that there is a
       “new” constitutional right and that the right “has been held” by
       that court to apply retroactively. The language “has been held”
       is in the past tense. These words mean that the action has
       already occurred, i.e., “that court” has already held the new
       constitutional right to be retroactive to cases on collateral
       review. By employing the past tense in writing this provision,
       the legislature clearly intended that the right was already
       recognized at the time the petition was filed.

Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002).

       Here, Brown claims that the United States Supreme Court’s decision in

Maples v. Thomas, 132 S.Ct. 912 (2012), created a new constitutional

right that is applicable to claim that his PCRA counsel abandoned him during

his first PCRA proceedings.3         See Brief for Brown at 6.   In Maples, the

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3
      Brown also makes a boilerplate claim that Commonwealth v. Culver,
51 A.3d 866 (Pa. Super. 2012), “provides relief,” and that the case excuses
his untimeliness. See Brief for Brown at 6. However, Brown provides a
general citation to all three exceptions to the PCRA time bar. Id. (citing 42
Pa.C.S. §§ 9545(b)(1)(i, ii, and iii)). Brown does not develop this argument
(Footnote Continued Next Page)


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United States District Court for the Northern District of Alabama, and

subsequently, the United States Court of Appeals for the Eleventh Circuit,

rejected the petitioner’s request for a writ of habeas corpus in federal court

because the petitioner failed to timely appeal the Alabama trial court’s order

denying him post-conviction relief.              Maples, 132 S.Ct. 912 at 917.   The

United States Supreme Court reversed, and held that the petitioner was not

responsible for his untimely petition because, unbeknownst to the petitioner,

his counsel had abandoned him during his appeals process. Specifically, the

Maples Court held that the petitioner’s abandonment of counsel claim was

an extraordinary circumstance that enabled the petition to bypass the state

procedural ban to his federal habeas corpus petition. Id. at 922-928.

      Maples addressed a timeliness exception for a state procedural default

regarding a federal habeas corpus petition. Id. The Maples Court did not

create a new constitutional right that is applicable to Brown.            Therefore,

Brown’s reliance upon the newly recognized constitutional right exception to

the PCRA’s time bar necessarily fails. See Abdul-Salaam, 812 A.2d at 501.

Additionally, even had the holding in Maples provided Brown with a new

constitutional right, neither this Court nor the United States Supreme Court


                       _______________________
(Footnote Continued)

in any meaningful way, nor does he explain which of the three exceptions
that he believe is applicable or how the Culver decision satisfies the
elements of that exception. Consequently, this claim does not merit our
consideration.



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has ever held that Maples applies retroactively.         Id.; 42 Pa.C.S. §

9545(b)(1)(iii).

      Hence, based upon the foregoing, the PCRA court did not err in

dismissing Brown’s petition as untimely, and Brown has failed to establish

the applicability of an exception to the PCRA time-bar. See Jones, supra at

17; Carter, supra at 682. Thus, the PCRA court lacked the jurisdiction to

consider the merits of Brown’s claims within his PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2015




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