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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                            :
                                            :
JOSEPH ANTONIO GRIGGS,                      :
                                            :
                           Appellant        :     No. 229 MDA 2014


                Appeal from the PCRA Order December 16, 2013
               In the Court of Common Pleas of Dauphin County
               Criminal Division No(s).: CP-22-CR-0004991-2008

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 12, 2014

        Appellant, Joseph Antonio Griggs, appeals pro se from the order

entered in the Dauphin County Court of Common Pleas dismissing his first

petition for relief filed pursuant to the Post Conviction Relief Act1 (“PCRA”) as

untimely and without merit. Appellant avers, inter alia, that his petition is

timely pursuant to 42 Pa.C.S. § 9545(b)(1)(iii). We affirm.

        A prior panel of this Court summarized the facts and procedural history

of this case as follows:

              [Appellant] and [the] victim[, Kristi Drasher] left the
              home of a friend at approximately 1:00 a.m. on

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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              September 7, 2008. The two arrived at the parking
              lot of the Thompson Institute and conversed until
              approximately 3:45 a.m., at which time, [Appellant]
              proceeded to rape and assault the victim.        At
              approximately    5:30    a.m.   the  victim   drove
              [Appellant] to a motel, then immediately called
              friends who transported her to the hospital. The
              victim spoke to the police on September 7, 2008 and
              again two days later. [Appellant] was arrested on
              September 10, 2008, and subsequently charged with
              Rape by Forcible Compulsion, Aggravated Assault,
              and Terroristic Threats with Intent to Terrorize
              Another.

         [Appellant] was subsequently convicted by a jury of rape
         and aggravated assault and acquitted of Terroristic
         threats. On June 3, 2010, [Appellant] was sentenced to
         300 months’ imprisonment on the rape charge and 60 to
         120 months’ imprisonment on the aggravated assault
         charge. The trial court also ordered that [Appellant] serve
         120 months of probation following his term of confinement
         and was classified as a sexually violent predator subject to
         lifetime registration under Megal’s Law II.

         [Appellant] did not file post-sentence motions. He filed his
         notice of appeal on July 12, 2010.

Commonwealth v. Griggs, 1106 MDA 2010 (unpublished memorandum at

1-2) (Pa. Super. May 10, 2011) (footnote omitted). On May 10, 2011, this

Court affirmed the judgment of sentence. Id.

      The PCRA court summarized further the procedural history of this case

as follows:

         [Appellant] filed the instant petition seeking relief under
         the [PCRA] and on October 19, 2012, Jennifer Tobias,
         [E]squire, was appointed as PCRA counsel. On March 6,
         2013, Attorney Tobias was permitted to withdraw; on
         March 22, 2013, Jonathan Crisp, [E]squire, was appointed
         as replacement PCRA counsel. On November 1, 2013,
         Attorney Crisp filed an Amended Petition to Withdraw. On


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           November 5, 2013, Judge [Lawrence F.] Clark[, Jr.]
           notified [Appellant] that he intended to dismiss his PCRA
           petition and [Appellant] filed objections on November 20,
           2013 and again on December 5, 2013. On December 16,
           201[3], Judge Clark[2] issued a Memorandum Opinion
           dismissing the PCRA Petition [and granting counsel’s
           motion to withdraw].

PCRA Ct. Statement in Lieu of Rule 1925(a) Opinion, 3/14/14, at 2 (footnote

omitted).      Judge Tully noted that Judge Clark, in his memorandum

dismissing the PCRA petition, “had examined Attorney Crisp’s Motion to

Withdraw, found his factual, procedural, and legal analysis to be cogent and

accurate and had adopted it as its own.”      Id. at 1.   In the twenty─page

amended motion to withdraw, counsel averred the PCRA petition was

untimely and addressed Appellant’s claims, finding them to be without merit.

Judge Tully, in his March 14th statement, deferred to the December 16th

memorandum of Judge Clark. Id. at 2.

         This timely appeal followed. On February 20, 2014, Appellant filed a

motion requesting DNA testing.      The PCRA court opined that it “lack[ed]

jurisdiction to enter any rule, as a result of the outstanding appeal.” Id. at

2 n.2.

         Appellant raises the following issues for our review, reproduced

verbatim:



2
   Judge Clark retired and the Honorable William T. Tully issued the
statement in lieu of a Rule 1925(a) opinion.




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       1. Whether PCRA court committed an error of law in
       dismissing Appellant’s petition under the Post-Conviction
       Relief Act’s exception of 42 Pa.C.S.A. § 9545 (B)(1)(iii)
       After-Recognized     Constitutional   Right    Exception-
       Confrontation Clause.

       2. PCRA Court committed an error of law and/or abuse in
       it’s discretion dismissing Appellant’s PCRA as “patently
       untimely.”

       3. Was Appellant’s trial counsel ineffective?

       4. Was the Appellant’s “Exculpatory Evidence or Newly
       Discovered Evidence” ignored by the PCRA Court appointed
       attorney’s?

       5. Was Appellant prejudiced by the Lower Court of Dauphin
       County and the Commonwealth of Dauphin County
       (District Attorney’s office), who inturn committed
       Prosecutorial misconduct and error of law?

       6. Was trial attorney’s Public Defender’s office misleading,
       not effective and not thorough in Appellant’s direct Appeal?

       7. Did prosecution withhold evidence from appellant for
       trial?

       8. Did attorney agree that sentence given to Appellant was
       illegal in nature?

       9. Was trial attorney ineffective for not calling and
       interviewing key character witness’s?

       10. Whether Appellant was coerced into false confession?

       11. Was a DNA kit performed?

       12. Whether detective committed perjury when questioned
       about conducting a rape exam?

       13. Whether trial attorney was ineffective for not bringing
       up alleged medicle history.




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            14. Whether trial attorney was ineffective for not pusuing a
            defense for inconsistent statement made by alleged.

            15. Whether trial attorney was ineffective for not objecting
            to questions asked and answers about DNA reports.

            16. Whether PCRA attorney was ineffective for not raising
            argument for Appellant nunc pro tunc.

            17. Whether Appellant have merit to Appellant right nunc
            pro tunc.

Appellant’s Brief at 4-6.

      Before examining the merits of Appellant’s claims, we consider

whether the PCRA court had jurisdiction to entertain the underlying PCRA

petition.

                We . . . turn to the time limits imposed by the PCRA, as
            they implicate our jurisdiction to address any and all of
            Appellant’s claims. To be timely, a PCRA petition must be
            filed within one year of the date that the petitioner’s
            judgment of sentence became final, unless the petition
            alleges and the petitioner proves one or more of the
            following statutory exceptions:

               (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




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           this section and has been held by that court to
           apply retroactively.[3]

        42 Pa.C.S. § 9545(b)(1) (emphasis added).

           We emphasize that it is the petitioner who bears the
        burden to allege and prove that one of the timeliness
        exceptions applies. In addition, a petition invoking any of
        the timeliness exceptions must be filed within 60 days of
        the date the claim first could have been presented. 42
        Pa.C.S. § 9545(b)(2). . . .

Commonwealth v. Marshall, 947 A.2d 714, 719-20 (Pa. 2008) (some

citations omitted and emphasis added).

     Our Supreme Court has stated:

        This Court has repeatedly stated that the PCRA timeliness
        requirements are jurisdictional in nature and, accordingly,
        a PCRA court cannot hear untimely PCRA petitions. In
        addition, we have noted that the PCRA confers no
        authority upon this Court to fashion ad hoc equitable
        exceptions to the PCRA time-bar in addition to those
        exceptions expressly delineated in the Act. We have also
        recognized     that    the PCRA’s    time   restriction  is
        constitutionally valid.

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

and quotation marks omitted).

     Appellant was sentenced on June 3, 2010. His judgment of sentence

was affirmed by this Court on May 10, 2011.         Appellant did not seek

discretionary review in the Supreme Court of Pennsylvania.        Thus, his

judgment of sentence became final on June 9, 2011.       See 42 Pa.C.S. §

3
 We note that a “ruling on retroactivity of the new constitutional law must
have been made prior to the filing of the petition for collateral review.”
Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002).



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9545(b)(3); Pa.R.A.P. 1113(a). Appellant then had until June 11, 2012,4 to

file a PCRA petition.     Appellant’s PCRA petition was filed on October 16,

2012.     Thus, it is patently untimely.    Therefore, we review whether his

petition alleged and proved, as Appellant claims, the exception at section

9545(b)(1)(iii). See 42 Pa.C.S. § 9545(b)(1)(iii).

        In his PCRA petition, Appellant did not identify “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.” See id. Appellant

did not affirmatively     prove any of the three exceptions to the PCRA’s

timeliness requirement.     See Marshall, supra.      Thus, we agree with the

PCRA court that it could not address Appellant’s claims. See id.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/12/2014




4
  June 9, 2012 fell on Saturday. See 1 Pa.C.S. § 1908 (providing that when
last day of any period of time referred to in any statute falls on Saturday,
Sunday, or legal holiday, such day shall be omitted from computation).



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