J. S22026/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
RAYMOND FRANKLIN PEAKE, III                :
                                           :
                         Appellant         :     No. 1581 MDA 2015

                  Appeal from the PCRA Order August 12, 2015
              In the Court of Common Pleas of Cumberland County
                Criminal Division No(s): CP-21-CR-0002579-2010

BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                                   FILED MAY 05, 2016

        Appellant, Raymond Franklin Peake, appeals pro se from the order

entered in the Cumberland County Court of Common Pleas dismissing his

second Petition filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546, as untimely. We affirm on the basis that the PCRA

Petition is untimely and the trial court properly found that the court lacks

jurisdiction to review the petition.

        On August 16, 2012, Appellant entered a negotiated plea of nolo

contendere to second-degree murder and theft by unlawful taking related to

the shooting death of Todd Getgen at a rifle range in Cumberland County.

Pursuant to the plea negotiations, the trial court sentenced Appellant to life



*
    Retired Senior Judge assigned to the Superior Court.
J.S22026/16


imprisonment without the possibility of parole. Appellant did not file a direct

appeal. His judgment of sentence therefore became final on September 15,

2012. 42 Pa.C.S. § 9545(b)(3).

      Appellant timely filed his first PCRA Petition on August 19, 2013,

raising several claims of ineffective assistance of counsel. The PCRA court

denied the Petition as meritless on January 27, 2014, and this Court

affirmed the denial on June 24, 2014.        Commonwealth v. Raymond

Franklin Peake, III, No. 2198 MDA 2013 (Pa. Super. filed June 24, 2014)

(unpublished memorandum). Appellant did not file a Petition for Allowance

of Appeal in the Pennsylvania Supreme Court.

      Appellant filed the instant PCRA Petition on July 6, 2015. The PCRA

court dismissed this second Petition as untimely on August 12, 2015.

      Appellant timely appealed. Appellant raises five issues on appeal:

            (1) The Court erred in denying [A]ppellant relief
            based upon Appellant’s claim that trial counsel was
            ineffective by inducing appellant to plead [n]olo
            [c]ontendere   through    the  use     of   coercive
            statements.

            (2) The Court erred in denying Appellant relief based
            upon Appellant’s claim that [t]rial [c]ounsel was
            ineffective in that [c]ounsels’ statements to
            Appellant caused Appellant to enter a plea under
            duress.

            (3) The Court erred in denying Appellant relief based
            upon Appellant’s claim that [t]rial [c]ounsel’s
            ineffective assistance of counsel rendered Appellant’s
            [n]olo    [c]ontendere     [p]leas   unknowing    and
            involuntary.



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J.S22026/16


            (4) The Court erred in denying Appellant relief based
            upon Appellant’s claim that [t]rial [c]ounsel was
            ineffective by failing to keep Appellant informed and
            apprised of the case against him.

            (5) The Court erred in denying Appellant relief based
            upon Appellant’s claim that [t]rial [c]ounsel was
            ineffective by failing to obtain expert witness
            testimony that was critical to Appellant’s case?

Appellant’s Brief at 8.

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”     Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc). Before addressing

the merits of Appellant’s claims, we must first determine whether we have

jurisdiction to entertain the underlying PCRA Petition. See Commonwealth

v. Hackett, 956 A.2d 978, 983 (Pa. 2008) (explaining that the timeliness of

a PCRA petition is a jurisdictional requisite).

      Under the PCRA, any PCRA Petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 9545(b)(1). A judgment of sentence 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 the expiration of time for seeking the review.” 42 Pa.C.S. §9545(b)(3).

The PCRA’s timeliness requirements are jurisdictional in nature, and a court




                                       -3-
J.S22026/16


may not address the merits of the issues raised if the PCRA petition was not

timely filed. Commonwealth. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, because Appellant filed the instant petition nearly three years

after his judgment of sentence became final, it is facially untimely under the

PCRA.

      Pennsylvania courts may consider an untimely PCRA petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S. § 9545(b), which provides the following:

      (b) Time for filing petition.

      (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.

      (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.




                                      -4-
J.S22026/16


42 Pa.C.S. § 9545(b)(1)-(2).    See, e.g., Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the

claim had been timely raised within 60-day timeframe).

     Here, Appellant’s judgment of sentence became final on September

15, 2012, upon expiration of the time to file a Notice of Appeal with the

Pennsylvania Superior Court. See 42 Pa.C.S. §9545(b)(3). In order to be

timely, Appellant needed to submit his PCRA petition by September 15,

2013. Id. Appellant filed this PCRA petition on July 6, 2015, well after the

one-year deadline.

     The PCRA court properly concluded that Appellant failed to plead any

of the timeliness exceptions provided in 42 Pa.C.S. §9545(b)(1) and the

petition is untimely.   PCRA Court Opinion, dated 11/6/15, at 5-6 (citing

Commonwealth v. Lawson, 549 A.2d 107, 112 (Pa. 1988)).

     Appellant, on appeal, avers that his PCRA petition is timely “because

Petitioner has severe mental health issues and was denied meaningful,

adequate[,] and effective access to the Court.” Appellant’s Brief at 12. This

bald allegation does not fall within one of the exceptions set forth in 42

Pa.C.S. § 9545(b).

     Moreover, the Appellant waived any consideration of this allegation.

Appellant did not raise this issue below, does not develop this averment in

his brief, and cites no legal authority to support his statement. See




                                    -5-
J.S22026/16


Pa.R.A.P. 302(a); Pa.R.A.P. 2119(a); and Commonwealth v. Spots, 18

A.3d 244, 282 (Pa. 2011).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/5/2016




                               -6-
                                                                                   Circulated 03/30/2016 09:38 AM




COMMONWEAL TH                                      : IN THE COURT OF COMMON PLEAS OF
                                                   : CUMBERLAND COUNTY, PENNSYLVANIA

                                                   : CP-21-CR-2579-2010

                                                   :   CHARGE: 1. CRIMINAL HOMICIDE-
                                                   :   MURDER OF THE 2ND DEGREE;
          v.                                       :   4. THEFT BY UNLAWFUL TAKING OR
                                                   :   DISPOSITION                  (')
                                                                                                                     r-        )

                                                                                           (
                                                                                                                          ·'   1


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RAYMOND FRANKLIN PEAKE, Ill                                                                I                         -,
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OTN: L574944-6                                     : AFFIANT: DET. TIMOTHY LIVELY          j
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                                                                                                                                       I --·
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                         IN RE: OPINION PURSUANT TO PA.R.A.P.1925                                                              )
                                                                                                                                       t ....J

                                                                                                                     Ct)
Ebert, Jr., J., November 6, 2015 -                                                                                   !'            I
                                                                                                                     ,_J.)
                                                                                           :· ......
          Raymond Franklin Peake, Ill, Defendant in the above-captioned case, appeals

the denial of his second Motion for Post-Conviction Collateral Relief (hereinafter

"Second PCRA"). Defendant specifically complains of the following errors:

          1. The Court erred in denying appellant relief based upon appellant's claim
          that trial counsel was ineffective by inducing appellant to plead Nolo
          Contendere through the use of coercive statements.

          2. The Court erred in denying appellant relief based upon Appellant's
          claim that Trial Counsel was ineffective in that Counsels' statements to
          Appellant caused Appellant to enter a plea under duress.

          3. The Court erred in denying Appellant relief based upon Appellant's
          claim that Trial Counsels [sic] ineffective assistance of counsel rendered
          Appellant's Nolo Contendere Pleas unknowing and involuntary.

          4. The Court erred in denying Appellant relief based upon Appellant's
          claim that Trial Counsel was ineffective by failing to keep Appellant
          informed and apprised of the case against him.

          5. The Court erred in denying Appellant relief based upon Appellant's
          claim that Trial Counsel was ineffective by failing to obtain expert witness
          testimony that was critical to Appellant's case?"

1
    Concise Statement of the Errors Complained of on Appeal, filed Oct. 13, 2015
'   t   ,,   ~




                                                 Procedural History

                    Defendant pied nolo contendere on August 16, 2012, to criminal homicide,

             murder in the 2nd Degree, and theft by unlawful taking or disposition, a felony of the   z=
             degree. This plea was made pursuant to a negotiated plea agreement for a set

             sentence of life without the possibility of parole for the criminal homicide charge and a

             maximum sentence of five to ten years for the theft charge to run consecutive to the life

             sentence. Defendant did not file a direct appeal.

                    Defendant filed his first pro se PCRA (hereinafter "First PCRA") on August 19,

             2013, claiming ineffective assistance of counsel. This Court then appointed Jacob

             Jividen, Esquire, to represent Defendant for his First PCRA. Thereafter, Attorney

             Jividen fifed an Amended PCRA Petition on September 23, 2013. Attorney Jividen filed

             a Second Amended PCRA Petition on October 22, 2013. Defendant's First PCRA

             raised issues of ineffective assistance of counsel, specifically:

                   a. Trial counsel was ineffective by inducing Petitioner to plead nolo
                   contendere through the use of coercive statements.           Specifically,
                   Petitioner was told that his wife would be imprisoned if he proceeded to
                   trial and she testified;

                    b. Trial counsel was ineffective in that counsels' statements to Petitioner
                    caused Petitioner to enter a plea under duress;

                    c. Trial counsels' ineffective assistance of counsel rendered Petitioner's
                    nolo contendere plea unknowing and involuntary;

                    d. Trial counsel was ineffective by failing to keep Petitioner informed and
                    apprised of the case against him;

                   e. Trial counsel was ineffective for failing to raise Petitioner's competency
                   to stand trial based upon Petitioner's mental state and prior history of post-
                   traumatic stress disorder and by failing to obtain Petitioner's military health
                   records; and




                                                          2
'   t   •       ...




                      f. Trial counsel was ineffective by failing to obtain witness testimony that
                      was critical to Petitioner's case. Specifically, Petitioner requested that a
                      ballistics expert be retained to review the Commonwealth's evidence and
                      consult with Petitioner's attorneys. Petitioner avers that he was never
                      informed as to whether an expert had been retained in regard to his case.
                      Petitioner further avers that he never received any reports or results of
                      testing from a defense expert witness.2

            A hearing was held on Defendant's First PCRA on November 22, 2013, and November

            26, 2013. This Court denied Defendant's First PCRA on November 26, 2013.

            Defendant appealed the denial of his First PCRA. On June 24, 2014, the Pennsylvania

            Superior Court affirmed this Court's denial of Defendant's First PCRA, finding none of

            Defendant's ineffective assistance of counsel claims to be meritorious. See

            Commonwealth v. Peake, 2198 MDA 2013 (Pa. Super. June 24, 2014).

                      Defendant filed his Second PCRA prose on July 6, 2015, raising the same

            issues raised in his First PCRA. The Commonwealth filed a Motion to Dismiss

            Defendant's PCRA Petition on July 9, 2015. On August 6, 2015, this Court issued an

            Order that it intended to dismiss Defendant's Second PCRA within 20 days because it

            was untimely, the claims had been waived, the claims had been previously litigated, and

            Defendant had not shown that a miscarriage of justice might have occurred. Defendant

            filed an Opposition to the Commonwealth's Motion to Dismiss on August 11, 2015. On

            August 12, 2015, this Court dismissed Defendant's Second PCRA. The instant appeal

            followed.

                                                   Statement of Facts

                      This Court detailed the facts of this case in its prior 1925 Opinion, dated January

            27, 2014. That Opinion is fully incorporated herein.


            2
             Second Amended Petition for Post-Conviction   Relief Pursuant to the Post Conviction Relief Act, filed
            Oct. 22, 2013

                                                               3
f   r   •    ..




                                                     Discussion

                   To be eligible for PCRA relief, a defendant "must prove by a preponderance of

            the evidence that his conviction or sentence resulted from one or more of the

            enumerated circumstances found in" 42 Pa.C.S.A § 9543(a)(2). Commonwealth v.

            Faulk, 21 A.3d 1196, 1200 (Pa. Super. 2011). Defendant's Second PCRA raises issues

            of ineffective assistance of counsel. 42 Pa.C.S. § 9543(a)(2)(ii). In order "to obtain a

            reversal of a PCRA court's summary dismissal of a petition, [a defendant] must show

            that he raised a genuine issue of fact which, if resolved in his favor, would have entitled

            him to relief". Commonwealth v. Baumhammers, 92 A.3d 708, 726 (Pa. 2014). For

            each claim in a PCRA summarily dismissed, a PCRA court's action is reviewed for an

            abuse of discretion. Id. at 727. Defendant's Second PCRA was properly dismissed for

            several reasons.

                                                    I. Timeliness

                   A PCRA, including a second or subsequent petition, must be filed within one year

            of the date the judgment becomes final unless an exception applies. 42 Pa.C.S. §

            9545(b)(1); see also Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012). The three

            exceptions for a late filing are: (1) failure to raise the claim was the result of interference

            by government officials; (2) the facts of the claim were unknown and could not have

            been ascertained by the exercise of due diligence; and (3) the right is a constitutional

            right held to apply retroactively. 42 Pa.C.S. § 9545(b). A judgment becomes final at

            the conclusion of direct review or the expiration of the time for seeking review. 42

            Pa.C.S. § 9545(b)(3). A court lacks jurisdiction to grant PCRA relief when a PCRA is

            untimely filed. Id. at 17. These timeliness requirements apply to all PCRA petitions and



                                                          4
the burden is on the petitioner to prove an untimely petition fits within one of the three

exceptions. Id.

       In this case, Defendant was sentenced to life imprisonment on August 16, 2012.

Defendant did not file a direct appeal. Therefore, Defendant's judgment became final

on September 15, 2012, or thirty days after he was sentenced.      Defendant had one

year, or until September 15, 2013, to file all of his PCRAs, unless one of the three

exceptions applied. Defendant's Second PCRA was not filed until July 6, 2015.          It must

be noted that the Defendant's Second PCRA did not raise ineffectiveness of his PCRA

counsel, but simply repeats his claims of ineffective trial counsel.   Accordingly,

Defendant's Second PCRA does not meet any of the exceptions for a late filing.

Therefore, Defendant's Second PCRA is untimely and there was no error in dismissing

Defendant's PCRA as this Court has no jurisdiction to hear an untimely PCRA.

                             II. Claims Previously Litigated

       Additionally, Defendant's Second PCRA was properly dismissed because all of

Defendant's claims have been previously litigated. An issue is deemed previously

litigated if "it has been raised and decided in a proceeding collaterally attacking the

conviction or sentence." 42 Pa.C.S. § 9544(a)(3).

       Here, all of Defendant's claims have been previously litigated. In his First PCRA,

Defendant raised all of the same issues related to ineffective assistance oLcounseLbe------.-

raises here. This is evident when reviewing and comparing the errors Defendant raises

here to the issues raised in his First PCRA and noting they are virtually identical.

       Furthermore, a "repetitive or serial petition may be entertained only for the

purpose of avoiding a demonstrated miscarriage of justice". Commonwealth v. Lawson,



                                             5
549 A.2d 107, 112 (Pa. 1988). The court in Lawson went on to state that, for example,

the defendant did not attack the fairness of the trial nor assert that he is innocent of the

crimes involved. Id. Here, Defendant likewise does not attack the fairness of his trial or

claim that he is innocent and has not demonstrated a miscarriage of justice. There was

no error in dismissing Defendant's second PCRA.

                                    iii. Waived Claims

        Finally, any claim raised by Defendant that is not considered previously litigated

has been waived. An issue is waived if the petitioner could have raised it but failed to

do so before trial, at trial, on direct appeal, or in a prior PCRA. 42 Pa.C.S.§ 9544(b).

Again, the Defendant pied nolo contendere to the charges on August 16, 2012, and did

not file a direct appeal. Defendant does not present any issue now that could not have

been raised during his First PCRA Petition. There was no error in dismissing

Defendant's Second PCRA.

                                        Conclusion

       This Court did not err in dismissing Defendant's Second PCRA. Defendant's

Second PCRA was untimely and all issues have been previously litigated or waived.

Defendant raised no issues that fit into any of the exceptions for filing a PCRA after one

year and this Second PCRA was properly dismissed.




                                                 M. L. Ebert, Jr.,


District Attorney's Office



                                             6
