J-S63022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DARRYL BLACKWELL,

                            Appellant                 No. 2536 EDA 2015


                    Appeal from the PCRA Order July 24, 2015
              In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0219841-1987, CP-51-CR-0303591-
                                      1987


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

MEMORANDUM BY SHOGAN, J.:                        FILED NOVEMBER 03, 2016

        Appellant, Darryl Blackwell, appeals from the order denying his serial

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

        This Court previously summarized the facts of the crime, as follows:

                Appellant and the victim, June Lane, who was his former
        girlfriend, lived in separate residences in West Philadelphia.1 On
        November 16, 1986 [A]ppellant lured Ms. Lane into his house on
        the false pretext that he was repaying a loan owed to her. Once
        [A]ppellant had Ms. Lane in his home he punched her, dragged
        her to the second floor, bound her with an electrical cord, taped
        her mouth shut, wrapped a tie around her neck and raped her.
        Appellant threatened to hurt Ms. Lane and members of her
        family if she told anyone about the crimes.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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          1
            The victim initially lived in her grandmother’s house
          in West Philadelphia.

           Ms. Lane returned to her grandmother’s home in a
     hysterical state and told her grandmother that [A]ppellant had
     raped her. The grandmother called her son, who was the
     victim’s uncle, and told him about the rape. He took the victim
     to a police station and then to the hospital.

           Appellant was arrested and when the police searched his
     house they found the electrical cord, the tape and the tie.
     Appellant was charged with rape.

            Appellant was released on bail on November 21, 1986.
     After his release he admitted to a friend, Robert Belk, that he
     had raped the victim. He also told Belk that he should have
     killed the victim and disposed of the physical evidence that had
     been subsequently seized by the police. N.T., 2/26/87, at 18.

            The victim moved from her grandmother’s home to her
     uncle’s home. She appeared at the November 26, 1986 first
     listing of [A]ppellant’s preliminary hearing but the case was
     continued pursuant to [A]ppellant’s request. On December 7,
     1986 the victim spent the night at her grandmother’s house. The
     next morning she left to go to work. Appellant was sitting on his
     front porch, which was located two houses away from the
     grandmother’s home. Appellant confronted the victim on the
     sidewalk and grabbed her arm. He ordered her not to testify
     against him. She ran toward her grandmother’s porch and
     [A]ppellant followed her.     Appellant produced a .22 caliber
     revolver and pointed it at the victim. N.T., 5/9/89, at 50. He
     shot the victim three times, in her head, her face and her hand.
     Appellant then fled into his home. The victim then staggered to
     her grandmother’s porch and her grandmother helped her into
     the house.

           Appellant barricaded himself in his house and police
     arrived.2 Over several hours police negotiators and a minister
     attempted to get [A]ppellant to surrender. Appellant was on a
     second floor landing and threw the .22 caliber revolver to the
     base of the staircase leading to the second floor. Police then
     entered the house and found [A]ppellant lying at the top of the
     staircase; police subsequently determined that [A]ppellant had
     apparently shot himself twice in his head. Upon discovering

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     [A]ppellant an officer asked him if he was hurt. Appellant
     replied, “I f-ked up.” N.T., 5/8/89, at 64. The police began to
     assist [A]ppellant and [A]ppellant stated, “How’s the girl?” Id. at
     65. An officer asked [A]ppellant to whom he was referring.
     Appellant replied, “The girl I shot.” Id. Appellant was eventually
     charged with retaliation against a witness, aggravated assault,
     possessing an instrument of crime and related charges.3
           2
              The police took the victim to the hospital where
           she underwent emergency brain surgery; she
           suffered seizures as a result of the surgery.
           3
             Appellant underwent emergency surgery and was
           hospitalized for two weeks. He was then sent to the
           Psychiatric Unit of Holmesburg Prison in Philadelphia.

           The victim was eventually discharged from the hospital.
     Because of the seizures resulting from the emergency brain
     surgery the doctors prescribed Dilantin in an attempt to control
     any possible future seizures. The victim began to have severe
     headaches and re-entered the hospital. The victim died on
     January 26, 1987. The medical examiner determined that the
     cause of death was fulminating hepatitis (with liver failure 4)
     caused by the gunshot wounds, the craniotomy (which is a
     surgical opening of the skull) performed upon her during
     emergency surgery immediately after the shooting, and, the
     Dilantin therapy; the manner of death was determined to be
     homicide. N.T., 5/9/89, at 52.
           4
             The victim had no history of liver problems prior to
           being shot by [A]ppellant.

Commonwealth v. Blackwell, 647 A.2d 915, 917–918 (Pa. Super. 1994).

     The PCRA court summarized the procedural history as follows:

           On May 9, 1989, [Appellant] entered into a negotiated
     guilty plea to first-degree murder, possessing an instrument of
     crime, retaliation against a witness and rape. [Appellant] was
     thereafter sentenced to life imprisonment for the murder and
     lesser consecutive sentences for the remaining charges.
     [Appellant] did not seek to withdraw his plea. He also declined
     to seek reconsideration of his sentence or to pursue a direct
     appeal.

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             On September 18, 1989, [Appellant] filed a PCRA petition.
       Counsel was appointed and thereafter, the PCRA petition was
       withdrawn without prejudice on March 12, 1992 to permit
       [Appellant] to retain private counsel. Rather than obtaining
       representation, [Appellant] filed another pro se PCRA petition on
       June 9, 1992. Counsel was again appointed and subsequently
       filed a Finley2 no-merit letter.     The PCRA court dismissed
       [Appellant]'s petition on March 5, 1993. The Superior Court
       affirmed the dismissal on September 12, 1994.3                The
       Pennsylvania Supreme Court denied allocatur on January 17,
       1995.4
              2
                 Commonwealth v. Finley, 550 A.2d 213 (Pa.
              Super. 1988).
              3
                Commonwealth v. Blackwell, 647 A.2d 915 (Pa.
              Super. 1994).
              4
                Commonwealth v. Blackwell, 655 A.2d 509 (Pa.
              1995).

             On October 7, 2013, [Appellant] filed the instant pro se
       PCRA petition.     Pursuant to Pennsylvania Rule of Criminal
       Procedure 907, [Appellant] was served notice of the lower
       court’s intention to dismiss his petition on June 12, 2015. On
       July 24, 2015, the PCRA court dismissed his petition as untimely.
       On August 17, 2015, the instant notice of appeal was filed to the
       Superior Court.

PCRA Opinion, 9/11/15, at 1–2.1

       Appellant raises the following questions on appeal:

             Is the Appellant’s sentence in violation of Alleyne v. U.S.,
       133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), which is held a
       “substantive rule” and must be applied retroactively[?]


____________________________________________


1
   The PCRA court did not order Appellant to file a statement of errors
pursuant to Pa.R.A.P. 1925.



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             The U.S. Supreme Court’s decision in Alleyne, supra, id., at
       2163-64 applies, the ruling renders all [A]ppellant’s sentences,
       18 Pa.C.S.A. §§ 2502; 907; 3121; 4953 unconstitutional. See,
       Comm v. Hopkins, 117 A.3d 247, 2015 Pa. LEXIS 1282 in that
       the mandatory minimum statute allows a trial Judge to
       determine if the evidence triggers application of mandatory
       minimum sentence, violating [A]ppellant’s rights of 14th
       Amendment Due Process, 6th Amendment notice and jury trial
       plus Pa. Const. Art. 1. § 9 rights. Alleyne, is retroactive when
       any sentencing decisions not based upon prior convictions, and
       automatically impose maximum sentences on all charges
       submitted by Prosecution based upon preponderance of evidence
       standard. Alleyne, id., at 2157; also Comm v. Newman, 99 A.3d
       87, 2014 Pa. Super 178 (April 23, 2014).

Appellant’s Amended Brief at 4. (emphases in original).2, 3

       “In reviewing the propriety of an order granting or denying PCRA

relief, an appellate court is limited to ascertaining whether the record

supports the determination of the PCRA court and whether the ruling is free

of legal error.” Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super.

2013) (citing Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009)).

This Court is limited to determining whether the evidence of record supports

the conclusions of the PCRA court and whether the ruling is free of legal

error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012).

We grant great deference to the PCRA court’s findings that are supported in

____________________________________________


2
   While Appellant filed his combination original brief and reproduced record
on February 1, 2016, he filed a combined amended brief and reproduced
record, by permission, on March 29, 2016.
3
  Appellant’s Application for Relief titled, “Letter of Notice,” seeking to object
to the Commonwealth’s late filing of its brief is hereby denied.



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the record and will not disturb them unless they have no support in the

certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super.

2014).   “There is no absolute right to an evidentiary hearing on a PCRA

petition, and if the PCRA court can determine from the record that no

genuine issues of material fact exist, then a hearing is not necessary.”

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (quoting

Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003)). “[S]uch a

decision is within the discretion of the PCRA court and will not be overturned

absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601,

617 (Pa. 2015).

      The timeliness of a PCRA petition is a jurisdictional threshold that may

not be disregarded in order to reach the merits of the claims raised in a

PCRA petition that is untimely. Commonwealth v. Cintora, 69 A.3d 759,

762 (Pa. Super. 2013). “We have repeatedly stated it is the [petitioner’s]

burden to allege and prove that one of the timeliness exceptions applies.

See, e.g., Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).

Whether [a petitioner] has carried his burden is a threshold inquiry prior to

considering the merits of any claim.”     Commonwealth v. Edmiston, 65

A.3d 339, 346 (Pa. 2013).

      In order to be considered timely, a first, or any subsequent PCRA

petition, must be filed within one year of the date the petitioner’s judgment

of sentence becomes final.     42 Pa.C.S. § 9545(b)(1).       A judgment of


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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).

       As noted, Appellant pled guilty on May 9, 1989, and he did not file a

direct appeal. Thus, Appellant’s judgment of sentence became final on June

8, 1989, thirty days after the time expired for Appellant to file a direct

appeal to this Court.       42 Pa.C.S. § 9545(b)(3).   Where the judgment of

sentence became final before the effective date of the 1995 amendments to

the PCRA, a first petition shall be deemed timely if it was filed within one

year of the effective date of the 1995 amendments.        Commonwealth v.

Thomas, 718 A.2d 326, 328 (Pa. Super. 1998); Act of November 17, 1995,

P.L. 1118, No. 32 (Spec. Sess. No. 1), § 3(1). “Because the effective date

of the amendments is January 16, 1996, the operative deadline for first-time

PCRA petitions is January 16, 1997.” Commonwealth v. Voss, 838 A.2d

795, 799 (Pa. Super. 2003).

       Instantly, the current petition is considered to be Appellant’s second

petition filed pursuant to the PCRA.4 Thus, Appellant’s second PCRA petition,


____________________________________________


4
   In Blackwell, 647 A.2d 915, we stated, “For purposes of this appeal we
will treat [A]ppellant’s [second and] current PCRA [petition] as his first PCRA
[petition], since his initial PCRA petition was withdrawn without prejudice.”
Id. at 919 n.7.



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filed twenty-four years after his judgment of sentence became final, is

patently untimely as it was not filed until October 7, 2013.

       Nevertheless, 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),

and (iii), is met.5    “That burden necessarily entails an acknowledgment by

the petitioner that the PCRA petition under review is untimely but that one

or more of the exceptions apply.” Beasley, 741 A.2d at 1261. “However,

the PCRA limits the reach of the exceptions by providing that a petition

invoking any of the exceptions must be filed within 60 days of the date the

claim first could have been presented.” Commonwealth v. Walters, 135

A.3d 589, 592 (Pa. Super. 2016) (citing Commonwealth v. Leggett, 16
____________________________________________


5
    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).




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A.3d 1144, 1146 (Pa. Super. 2011), and 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).

      The PCRA court appropriately and succinctly addressed Appellant’s

issue as follows:

            In attempt to satisfy the PCRA’s timeliness exception,
      [Appellant] advanced a claim based upon the new constitutional
      right announced in Alleyne v. United States, 133 S.Ct. 2151
      (2013). His petition failed however to satisfy the PCRA time-bar
      in two distinct, but equally fatal ways; first, his petition failed to
      invoke the exception within sixty days of the date the claim
      could have been presented, namely June 17, 2013, the date the
      United States Supreme Court decided Alleyne. His petition was
      not filed until October 7, 2013, well-beyond the sixty-day
      mandate.

            Second, in the recent decision Commonwealth v. Miller,
      102 A.3d 988, 995 (Pa. Super. 2014), the Superior Court
      concluded that “even assuming that Alleyne did announce a new
      constitutional right, neither our Supreme Court, nor the United
      States Supreme Court has held that Alleyne is to be applied
      retroactively to cases in which the judgment of sentence had
      become final.” Thus, his petition failed to satisfy the “newly
      recognized constitutional right” exception specified in 42 Pa.C.S.
      § 9545(b)(iii).5
            5
               Nonetheless, Alleyne would not provide a basis for
            relief for his guilty plea to murder based upon his
            erroneous interpretation that Alleyne conveyed a
            right for a jury determination of the elements of his
            murder charge. See 907 response, 6/30/15 at 1.

PCRA Opinion, 9/11/15, at 4.




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      The PCRA court is correct.    While this Court has held that Alleyne

applies retroactively to cases that were on direct appeal when Alleyne was

issued, we have declined to construe that decision as applying retroactively

to cases during collateral review. Commonwealth v. Ruiz, 131 A.3d. 54,

58 (Pa. Super. 2015).      Indeed, our Supreme Court recently held that

“Alleyne does not apply retroactively to cases pending on collateral review.”

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

      Appellant’s judgment of sentence became final on June 8, 1989.

Alleyne was decided on June 17, 2013. Clearly, Appellant’s PCRA petition

does not qualify for the new constitutional-right exception to the PCRA time-

bar under Alleyne.

      Therefore, because the instant PCRA petition was untimely and no

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

presented.    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 the authority to address the merits of any

substantive claims raised in the PCRA petition.    See Commonwealth v.

Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to

a court’s right or competency to adjudicate a controversy.”).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2016




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