J-S47032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

EUGENE MCCLURE

                         Appellant                   No. 3111 EDA 2013


         Appeal from the PCRA Order entered on October 31, 2013
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No.: CP-51-CR-1031753-1988


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

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

      Eugene McClure challenges the order of October 31, 2013, which

dismissed his third petition for collateral relief under the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. In his petition, McClure argued

that he was entitled to relief under the United States Supreme Court’s

decision in Missouri v. Frye, 132 S.Ct. 1399 (U.S. 2012), in which the

Court held that defense counsel has a duty to convey to the defendant

potentially favorable plea bargains proposed by the prosecution.      The trial

court ruled that Frye did not create a new and retroactive constitutional

right such as would incur the application of an exception to the PCRA’s

jurisdictional time limit, thus concluding that it lacked jurisdiction to grant

McClure relief. We affirm.
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      Given the circumstances of this case and the grounds of our

disposition, we need only review the procedural history of this case:

      On November 10, 1989, following a jury trial . . ., [McClure] was
      convicted of one count of murder of the second degree (18
      Pa.C.S. § 2502(b)), one count of criminal conspiracy (18 Pa.C.S.
      § 903), one count of kidnapping (18 Pa.C.S. § 2901), and two
      counts of burglary (18 Pa.C.S. § 3502). On March 2, 1990, the
      [trial court] imposed the mandatory sentence of life in prison for
      the murder charge (18 Pa.C.S. § 1102(a)(1)), to be followed by
      an aggregate sentence of 10-20 years[’] imprisonment for the
      other charges.     [McClure] appealed and the Superior Court
      affirmed his judgment of sentence on January 17, 1996.
      [McClure] did not file a petition for allocatur to the
      [Pennsylvania] Supreme Court.        [McClure’s] judgment of
      sentence thus became final on February 16, 1996. . . .

      On October 1, 1997, [McClure] filed his first pro se petition
      pursuant to the [PCRA]. [The PCRA court appointed PCRA
      counsel to represent McClure.] On October 2, 2000, pursuant to
      Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
      (en banc), [PCRA counsel] filed a letter stating that there was no
      merit to [McClure’s] claims for collateral relief and a motion to
      withdraw as counsel. On January 26, 2001, [the PCRA court]
      dismissed [McClure’s] petition as untimely and granted counsel’s
      motion to withdraw.        [McClure] filed an appeal, which was
      dismissed for failure to file a brief on August 23, 2001.

      On June 16, 2006, [McClure] filed his second PCRA petition. As
      it was his second petition, no counsel was appointed.         On
      November 15, 2007, [the PCRA court] dismissed [McClure’s]
      petition as untimely. [McClure] did not appeal the dismissal.

      On May 31, 2012, [McClure] filed his third PCRA Petition, styled
      as a petition for writ of habeas corpus. The [PCRA court] issued
      a Rule 907 Notice of Intent to Dismiss [McClure’s] petition as
      untimely on February 5, 2013. On February 22, 2013 [new
      counsel was appointed to represent McClure.]1 As a Rule 907
      Notice had already been filed, [counsel] filed two Rule 907
      Responses, instead of an Amended Petition, on [McClure’s]
      behalf. See Response to Notice Pursuant to Pa.R.Crim.P. 907,
      4/23/2013, and Amendment to Response to Notice Pursuant to
      Pa.R.Crim.P. 907, 5/2/2013. . . .    On October 31, 2013, the


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      [PCRA court] dismissed [McClure’s] PCRA [petition], styled as a
      habeas petition, as untimely.

      _______________
         1
            While an indigent PCRA litigant is typically only entitled
         to    court-appointed     counsel    on   his    first PCRA,
         see Pa.R.Crim.P. 904(C), [McClure] raised in this, his third
         petition, a claim pertaining to a recently-decided United
         States Supreme Court case, Frye, 132 S.Ct. 1399. The
         Post-Trial Unit of this Court therefore appointed counsel for
         [McClure] in order to investigate the merits of this claim.
         See Pa.R.Crim.P. 904(E) (authorizing appointment of
         counsel for any indigent defendant on a PCRA petition
         “whenever the interests of justice require it”).

PCRA Court Opinion (“P.C.O.”), 2/19/2014, at 1-2 (citations modified;

footnote omitted).

      On November 8, 2013, McClure filed a counseled notice of appeal from

the PCRA court’s dismissal of his PCRA petition. On November 12, 2013, the

PCRA court issued an order directing McClure to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). McClure filed

his Rule 1925(b) statement on November 15, 2013. On February 19, 2014,

the PCRA court issued the above-excerpted Rule 1925(a) opinion.

      Before this Court, McClure raises one issue: “Did the PCRA court err

when it dismissed [McClure’s] PCRA petition without a hearing . . . since

[McClure] is entitled to relief pursuant to [Frye] . . . .?”   Brief for McClure

at 4. We agree with the PCRA court that McClure invokes Frye in vain under

the circumstances of this case.

      Our standard of review on appeal from an order denying a PCRA

petition is whether the determination of the PCRA court is supported by the


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evidence of record and is free of legal error.      See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified

record.      See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.

Super. 2001).     However, before we may review the PCRA court’s decision

substantively, we must confirm our jurisdiction to consider McClure’s

petition.

      It is well-established that the PCRA time limits are jurisdictional, and

must be strictly construed, regardless of the potential merit of the claims

asserted.     Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super.

2011). Courts may not disregard or alter these filing requirements in order

to reach the merits of the claims raised in a PCRA petition that is untimely

filed. Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

      Despite facial untimeliness, a tardy PCRA petition nonetheless will be

considered timely if (but only if) the petitioner pleads and proves the

application of one or more of the exceptions to the one-year time limit

enumerated in subsection 9545(b)(1) of the PCRA.           McClure seeks to

establish only one exception, which the PCRA defines as follows:

      (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:

                                     ****

            (iii)   the right asserted is a constitutional right that
            was recognized by the Supreme Court of the United States

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         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.

42 Pa.C.S. § 9545(b).

      Because McClure undisputedly filed his petition within sixty days of the

Supreme Court’s publication of Frye, the two jurisdictional questions at

issue in this case are whether the Court’s decision in Frye recognized a new

rule of constitutional import, and whether that rule has been held by the

Court to apply retroactively.   The trial court determined correctly that the

answer to both questions is no.

      McClure’s argument effectively ends before it begins.      In McClure’s

brief, he admits that this Court already has held that Frye did not establish

the sort of “new” and retroactive constitutional right that qualifies for the

timeliness exception set forth in subsection 9545(b)(1)(iii).    See Brief for

McClure at 12-13 (discussing Commonwealth v. Feliciano, 69 A.3d 1270

(Pa. Super. 2013)).     However, he insists that “[t]he Superior Court’s

decision in Feliciano was wrongly decided. . . .        Frye created a new

constitutional right in the context of the plea negotiation process.” Id. at 12

(citing Rishi Batra, Lafler and Frye:    A New Constitutional Standard for

Negotiation, 14 Cardozo J. of Conflict. Res. 309 (2013)).

      What McClure declines to face squarely is the time-honored principle

that, for as long as one of this Court’s decisions has not been overturned by


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our Supreme Court, that decision continues to bind this Court.             Marks v.

N’wide Ins. Co., 762 A.2d 1098, 1101 (Pa. Super. 2000) (citing Sorber v.

Amer. Motorists Ins. Co., 680 A.2d 881, 882 (Pa. Super. 1996)). But see

Freed v. Geisinger Med. Ctr., 971 A.2d 1202, 1212 (Pa. 2009) (“[T]he

doctrine of stare decisis is not a vehicle for perpetuating error, but rather a

legal concept which responds to the demands of justice and, thus, permits

the orderly process of the law to flourish. We should not follow a governing

decision   that   is   unworkable.”   (ellipsis   and   internal    quotation   marks

omitted)). While McClure makes some effort to establish that Feliciano was

wrongly decided, see Brief for McClure at 12-13, his argument is

unconvincing.      Moreover, we reaffirmed our holding in Feliciano in

Commonwealth v. Hernandez, 79 A.3d 649 (Pa. Super. 2013), which

again rejected the Frye timeliness argument.

      Put simply, there is nothing to distinguish McClure’s argument that he

should be entitled to the benefit of the “new retroactive constitutional right”

exception to the PCRA’s time bar from the parallel arguments raised in

Feliciano and Hernandez, which this Court rejected.                We can discern no

basis upon which to deviate from our commitment to honor stare decisis by

departing from this Court’s earlier rulings on the question presented in the

instant case. Our rulings in Feliciano and Hernandez are supported amply

by prior precedent.      Consequently, we do not find that either decision is

clearly erroneous or unworkable.




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      It is beyond cavil, and undisputed, that the instant PCRA petition was

facially untimely.   Moreover, it is recognized by all parties and the PCRA

court that the sole exception invoked by McClure is the “new retroactive

constitutional right” exception embodied in PCRA subsection 9545(b)(1)(iii).

Our binding decisions in Feliciano and Hernandez establish beyond any

reasonable dispute that Frye did not establish the sort of new and

retroactive right to which subsection 9545(b)(1)(iii) applies; this conclusion

will bind this Court unless and until it is modified or overturned by a higher

court or this Court sitting en banc. Thus, the trial court did not err or abuse

its discretion in determining that it lacked jurisdiction and dismissing

McClure’s PCRA petition without a hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2014




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