J-S55016-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                        Appellee          :
                                          :
            v.                            :
                                          :
DARRYL BUTLER,                            :
                                          :
                        Appellant         :     No. 3126 EDA 2013


           Appeal from the PCRA Order Entered October 22, 2013,
            In the Court of Common Pleas of Philadelphia County,
             Criminal Division, at No. CP-51-CR-0615311-1992.


BEFORE: BOWES, SHOGAN and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED OCTOBER 22, 2014

      Appellant, Darryl Butler, appeals pro se from the order entered on

October 22, 2013, that denied as untimely his fourth petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We

affirm.

      In its opinion, the PCRA court set forth the relevant facts and

procedural history of this matter as follows:

            On March 29, 1993, following a jury trial, Petitioner was
      found guilty of first degree murder and possession of an
      instrument of crime. Petitioner was formally sentenced by the
      Honorable David Savitt to a term of life imprisonment on
      February 16, 1994. On September 15, 1994, the Pennsylvania
      Superior Court affirmed the judgment of sentence. Allocatur was
      denied [October] 27, 1994.[1]


1
  The PCRA court opinion erroneously indicates that the Supreme Court
denied allocatur on December 27, 1994. See Commonwealth v. Butler,
J-S55016-14




            On January 16, 1997, Petitioner filed his first pro se PCRA
     petition. Counsel was appointed, and an Amended Petition filed.
     After review, on April 7, 1998, Petitioner’s first PCRA petition
     was dismissed. The dismissal was affirmed by the Superior
     Court on June 9, 1999.

            On September 19, 2002, Petitioner filed his second PCRA
     petition. After review, it was dismissed as untimely on April 8,
     2003. The Superior Court affirmed the dismissal on April 15,
     2004.

           On January 3, 2006, Petitioner filed his third PCRA petition.
     After review, the petition was dismissed as untimely.          The
     Superior [Court] affirmed the dismissal on March 11, 2008.
     Allocatur was denied August 14, 2008.

           Petitioner filed the instant PCRA petition, his fourth, on
     July 1, 2011.[2] After conducting an extensive and exhaustive
     review of the record and applicable case law, this Court finds
     that Petitioner’s petition for post conviction collateral relief is
     untimely filed. Therefore, this Court does not have jurisdiction
     to consider Petitioner’s PCRA petition.

PCRA Court Opinion, 10/22/13, at 1-2.

     Appellant presents the following issue for our review:

     Did the PCRA Court abuse [its] discretion in denying the PCRA
     [petition] in this instant case?


655 A.2d 983 (Pa. 1994) (petition for allowance of appeal denied October
27, 1994).

2
  Based on the postage time stamp on Appellant’s fourth PCRA petition, it
appears that the notice was deposited in the prison’s mail on June 29, 2011.
Although this discrepancy does not affect our disposition of the case, we will
deem Appellant’s fourth petition to be filed on June 29, 2011, pursuant to
the “prisoner mailbox rule.” See Commonwealth v. Crawford, 17 A.3d
1279, 1281 (Pa. Super. 2011) (“Under the prisoner mailbox rule, we deem a
pro se document filed on the date it is placed in the hands of prison
authorities for mailing.”).

                                      -2-
J-S55016-14




Appellant’s Brief at 1.

      It is well settled that the timeliness of a PCRA petition is a

jurisdictional threshold and may not be disregarded in order to reach the

merits of the claims raised in a PCRA petition. Commonwealth v. Lawson,

90 A.3d 1, 4 (Pa. Super. 2014). Effective January 16, 1996, the PCRA was

amended to require a petitioner to file any PCRA petition within one year of

the date his judgment of sentence 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 at the expiration of time for seeking

the review.”   42 Pa.C.S. § 9545(b)(3).      Where a petitioner’s judgment of

sentence became final on or before the effective date of the amendment,

January 16, 1996, a special grace proviso allowed first PCRA petitions to be

filed by January 16, 1997. See Commonwealth v. Alcorn, 703 A.2d 1054,

1056-1057 (Pa. Super. 1997) (explaining the application of the PCRA grace

proviso).

      However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),




                                       -3-
J-S55016-14



and (iii), is met.3 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented.

42 Pa.C.S. § 9545(b)(2).

        Our review of the record reflects that Appellant’s judgment of sentence

became final on January 25, 1995, ninety days after the Pennsylvania

Supreme Court denied allocatur and time expired for Appellant to file an

appeal with the United States Supreme Court.         42 Pa.C.S. § 9545(b)(3);

U.S. Sup. Ct. R. 13. Accordingly, Appellant’s judgment of sentence became

final prior to the effective date of the PCRA amendments.             However,

Appellant’s instant PCRA petition, which was filed on July 1, 2011, does not

qualify for the grace proviso as it was neither Appellant’s first PCRA petition,




3
    The exceptions to the timeliness requirement are:

        (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)(i), (ii), and (iii).


                                        -4-
J-S55016-14



nor was it filed before January 16, 1997. Thus, the instant PCRA petition is

patently untimely.

      As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. §

9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted.

42 Pa.C.S. § 9545(b)(2).     In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,

1167 (Pa. Super. 2001).

      Appellant attempts to invoke the exception of the after-recognized

constitutional right enumerated at 42 Pa.C.S. 9545(b)(1)(iii).    Appellant’s

Brief at 2.   Appellant maintains that Melendez-Diaz v. Massachusetts,

129 S.Ct. 2527 (2009), created “a new rule of law” and that rule should be

applied retroactively to Appellant’s case. Id. at 6, 10. Invoking Melendez-

Diaz, Appellant claims that he was denied his right to confrontation when

the Commonwealth failed to make the forensic pathologist and toxicologist

available for examination at trial. Id. at 2. Accordingly, Appellant maintains

that he is entitled to a new trial. Id. at 6.




                                        -5-
J-S55016-14



      We first note that the United States Supreme Court filed the

Melendez-Diaz decision on June 25, 2009.          Because Appellant filed his

petition in 2011, far outside of the sixty-day filing period required by section

9545(b)(2), he did not successfully invoke an exception necessary to

circumvent the PCRA’s timeliness requirement.        See Commonwealth v.

Leggett, 16 A.3d 1144, 1146 (Pa. Super. 2011) (stating that a PCRA

petition must be filed within sixty days of the filing of the judicial decision

that created a new right).

      Furthermore, we have held that Melendez-Diaz did not establish a

new constitutional right for the purpose of the timeliness exception at 42

Pa.C.S. § 9545(b)(1)(iii).    Leggett, 16 A.3d at 1147.        The majority in

Melendez–Diaz expressly provided that its holding was not new, but stated

that the Court was “faithfully applying [Crawford v. Washington, 541 U.S.

36 (2009)] to the facts of th[e] case,” and its decision “involves little more

than the application of [its] holding” in Crawford.     Melendez–Diaz, 557

U.S. at 313, 329.

      Moreover, with regard to Appellant’s claim that Melendez-Diaz should

be applied retroactively, we have encountered this claim previously and have

explained:

      Melendez–Diaz has not been held by the Supreme Court to
      apply retroactively on collateral appeal[fn] and “the [Court] has
      expressly provided that its decision in Crawford, upon which
      Melendez–Diaz relies, does not apply retroactively to cases


                                       -6-
J-S55016-14



      already final on direct review.” Commonwealth v. Leggett, 16
      A.3d 1144, 1147 (Pa.Super.2011) (citing Whorton v. Bockting,
      549 U.S. 406, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007) (holding
      Crawford does not apply retroactively because it was not “a
      watershed rule of criminal procedure implicating the fundamental
      fairness and accuracy of the criminal proceeding”)).
             [fn]
                The U.S. Supreme Court has directed lower courts
             to apply Melendez–Diaz to cases pending final
             review on direct, but not collateral, appeal.
             Commonwealth v. Leggett, 16 A.3d 1144, 1147 n.
             8 (Pa.Super.2011).

Commonwealth v. Brandon, 51 A.3d 231, 236 (Pa. Super. 2012).

      Because the instant PCRA petition was untimely and no exceptions

apply, the PCRA court lacked jurisdiction to address the claims presented

and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa.

Super. 2002) (holding that PCRA court lacks jurisdiction to hear untimely

petition).   Likewise, we lack jurisdiction to reach the merits of the appeal.

See Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)

(holding that Superior Court lacks jurisdiction to reach merits of appeal from

untimely PCRA petition).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/22/2014



                                       -7-
