J-S49029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ROBERT ALLEN

                            Appellant               No. 3314 EDA 2013


                  Appeal from the PCRA Order October 24, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0335082-1993


BEFORE: OLSON, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                          FILED DECEMBER 17, 2014

        Robert Allen appeals from the order entered October 24, 2013, in the

Philadelphia County Court of Common Pleas dismissing his third petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.

Allen seeks relief from the judgment of sentence of life imprisonment

imposed on October 19, 1994, after a jury found him guilty of second-

degree murder, robbery, kidnapping, and recklessly endangering another

person.1 On appeal, Allen argues the PCRA court erred in determining his

petition was untimely filed when he demonstrated an exception to the

timeliness requirements, namely, that the United States Supreme Court’s

decisions in Missouri v. Frye, 132 S.Ct. 1399 (U.S. 2012), and Lafler v.
____________________________________________


1
    18 Pa.C.S. §§ 2502(b), 3701, 2901 and 2705, respectively.
J-S49029-14



Cooper, 132 S.Ct. 1376 (U.S. 2012), recognized a constitutional right,

applicable to the facts of his case, that “wasn’t being considered correctly.”

Allen’s Brief at 4. For the reasons set forth below, we affirm.

        On October 18, 1994, a jury found Allen guilty of the above-stated

charges for his role in the murder and carjacking of Dr. Yeong Ho Yu on

February 14, 1993. The next day, the trial court imposed a sentence of life

imprisonment for the charge of second-degree murder.2 This Court affirmed

the judgment of sentence on December 20, 1995.                 Commonwealth v.

Allen, 674 A.2d 310 (Pa. Super. 1995) (unpublished memorandum).

        On July 8, 1996, Allen filed a timely, pro se PCRA petition. Counsel

was appointed, but later filed a petition to withdraw and accompanying

Turner/Finley3 “no-merit” letter.              By order entered June 19, 1997, the

PCRA court dismissed Allen’s petition and granted counsel’s petition to

withdraw.     Thereafter, a panel of this Court affirmed the order on appeal,

and the Pennsylvania Supreme Court denied Allen’s petition for review.

Commonwealth v. Allen, 724 A.2d 950 (Pa. Super. 1998), appeal denied,

734 A.3d 392 (Pa. 1998).




____________________________________________


2
    No further punishment was imposed on the remaining charges.
3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




                                           -2-
J-S49029-14



       On May 2, 2005, Allen filed his second PCRA petition, pro se.        The

PCRA court dismissed the petition on August 31, 2005, and Allen did not file

an appeal.

       The instant petition, Allen’s third, was filed on April 16, 2012. On July

22, 2013, the PCRA court sent Allen notice, pursuant to Pa.R.Crim.P. 907, of

its intent to dismiss the petition without first conducting an evidentiary

hearing. Although Allen filed a pro se response on July 31, 2013, the PCRA

court ultimately dismissed the petition as untimely filed on October 24,

2013. This timely appeal followed.4

       When reviewing an order dismissing a PCRA petition, we must

determine whether the ruling of the PCRA court is supported by record

evidence and is free of legal error.           Commonwealth v. Burkett, 5 A.3d

1260, 1267 (Pa. Super. 2010). “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.”           Commonwealth v. Carter, 21 A.3d

680, 682 (Pa. Super. 2011) (citation omitted).

       Here, the PCRA court determined that Allen’s petition was untimely

filed. The PCRA mandates that any petition for relief, “including a second or




____________________________________________


4
  The PCRA court did not direct Allen to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).




                                           -3-
J-S49029-14



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

becomes final[.]” 42 Pa.C.S. §9545(b)(1).

        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.

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

omitted).

        Allen’s judgment of sentence became final on January 19, 1996, thirty

days after this Court affirmed his sentence on direct appeal, and Allen failed

to file a petition for review in the Pennsylvania Supreme Court. Therefore,

Allen had until January 19, 1997, to file a timely PCRA petition.5          The

present petition, filed on April 18, 2012, more than 15 years later, is

patently untimely.

        However, the Act provides three exceptions to the time-for-filing

requirements.       An otherwise untimely petition is not time-barred if a

petitioner can plead and prove 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;




____________________________________________


5
    We note Allen did file a timely PCRA petition on July 8, 1996.




                                           -4-
J-S49029-14


      (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)-(iii).       Further, any petition invoking one of the

time-for-filing exceptions, must be filed “within 60 days of the date the claim

could have been presented.” Id. at § 9545(b)(2).

      Here,   Allen   invoked     the    newly   recognized   constitutional   right

exception, set forth in subsection (b)(1)(iii), based upon the United States

Supreme Court decisions in Frye and Lafler.           Preliminarily, we note that

Allen has met the timing requirement in subsection (b)(2), since he filed the

present petition on April 18, 2012, less than 60 days after the Frye and

Lafler decisions were filed on March 21, 2012.

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

our Supreme Court explained the parameters of the newly recognized

constitutional right exception:

      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


                                         -5-
J-S49029-14


      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).

      Relying on a recent decision of this Court, Commonwealth v.

Feliciano, 69 A.3d 1270 (Pa. Super. 2013), the PCRA court concluded

“neither Frye nor Lafler created a new constitutional right that applies

retroactively.”   PCRA Court Opinion, 2/20/2014, at unnumbered 4.         We

agree.

      In Frye, the United States Supreme Court considered “whether the

constitutional right to counsel extends to the negotiation and consideration

of plea offers that lapse or are rejected.” Frye, supra, 132 S. at 1404. In

concluding that it does, the Court held “defense counsel has the duty to

communicate formal offers from the prosecution to accept a plea on terms

and conditions that may be favorable to the accused.”      Id. at 1408.   In

Lafler, decided the same day, the Court considered the parameters of the

prejudice prong of an ineffectiveness claim when “counsel’s advice with

respect to the plea offer fell below the standard of adequate assistance of

counsel guaranteed by the Sixth Amendment[.]” Lafler, supra, 132 S. Ct.

at 1383. The Lafler Court held:

      In these circumstances a defendant must show that but for the
      ineffective advice of counsel there is a reasonable probability
      that the plea offer would have been presented to the court (i.e.,
      that the defendant would have accepted the plea and the
      prosecution would not have withdrawn it in light of intervening
      circumstances), that the court would have accepted its terms,
      and that the conviction or sentence, or both, under the offer’s


                                    -6-
J-S49029-14


       terms would have been less severe than under the judgment and
       sentence that in fact were imposed.

Id. at 1385.

       This Court, in Feliciano, supra, considered whether Frye and Lafler

created new constitutional rights sufficient to invoke the timeliness exception

set forth in Section 9545(b)(1)(iii).          Concluding they did not, this Court

opined:

       [The Frye and Lafler] decisions simply applied the Sixth
       Amendment right to counsel, and the Strickland[6] test for
       demonstrating counsel's ineffectiveness, to the particular
       circumstances at hand, i.e. where counsel’s conduct resulted in a
       plea offer lapsing or being rejected to the defendant's detriment.
       Accordingly, Appellant's reliance on Frye and Lafler in an
       attempt to satisfy the timeliness exception of section
       9545(b)(1)(iii) is unavailing.

Feliciano, supra, 69 A.3d at 1277. Although Allen argues Feliciano was

wrongly decided, we disagree. Furthermore, it is axiomatic that one panel of

this court “is not empowered to overrule another panel of the Superior

Court.” Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. 2013).

       However, even if we did determine that the Frye and Lafler decisions

announced a new constitutional right, the United States Supreme Court has

not determined that Frye and Lafler should apply retroactively.           See 42

Pa.C.S. § 9545(b)(1)(iii); Abdul-Salaam, supra, 812 A.2d at 501.             More




____________________________________________


6
    Strickland v. Washington, 466 U.S. 668 (1984).




                                           -7-
J-S49029-14



importantly, Allen fails to explain in his brief how the decisions in Frye and

Lafler apply to the facts of his case.

      Therefore, we agree with the ruling of the PCRA court that Allen’s third

PCRA petition was untimely filed, and Allen failed to demonstrate the

applicability of one of the time for filing exceptions. Accordingly, we affirm

the order denying relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/2014




                                     -8-
