J-S70019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

SAVOY S. ROBINSON

                            Appellant                   No. 805 EDA 2014


                 Appeal from the PCRA Order February 10, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0807931-2004


BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                            FILED JANUARY 16, 2015

        Appellant, Savoy S. Robinson, appeals pro se from the February 10,

2014 order dismissing, without a hearing, his second petition for relief filed

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

9546. After careful review, we affirm.

        The PCRA court has set forth the relevant facts and procedural history

of this case as follows.

                     On April 13, 2005, [A]ppellant was sentenced
              to life plus 2 ½ - 5 years[’] incarceration after a jury
              found him guilty of first[-]degree murder and
              possession of an instrument of crime for the shooting
              death of Geary Turner on July 11, 2004, at the
              Coleman Hall halfway house in Philadelphia.1           A
              direct appeal was taken and the judgment of
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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           sentence was affirmed by the Superior Court of
           Pennsylvania      on     November        14,    2006.
           [Commonwealth v. Robinson, 915 A.2d 149 (Pa.
           Super. 2006) (unpublished memorandum), appeal
           denied, 923 A.2d 1173 (Pa. 2007)]. The Supreme
           Court of Pennsylvania denied [A]ppellant’s petition
           for review on May 17, 2007. [Id.] On July 10[,]
           2007, [A]ppellant filed a timely first PCRA which was
           dismissed on October 3, 2008. The dismissal was
           affirmed by the Superior Court on November 24,
           2009. [Commonwealth v. Robinson, 988 A.2d
           728 (Pa. Super. 2009) (unpublished memorandum)].
           Appellant did not file a petition for allowance of
           appeal to the Pennsylvania Supreme Court.2 On
           September 26, 2013, [A]ppellant filed this, his
           second[] petition for PCRA relief[.]

           1
               18 Pa.C.S.[A.] §§ 2502 and 907, respectively.
           2
             Appellant notes in his petition that, on January 20,
           2010, he filed a petition for writ of habeas corpus
           under 28 U.S.C. § 2254 in the United States District
           Court for the Eastern District of Pennsylvania. On
           November 4, 2011, the petition was dismissed and
           [A]ppellant appealed to the United States Court of
           Appeals. On February 7, 2012, the petition was
           denied. On April 16, 2012, the Supreme Court of the
           United States denied review, and the request for
           rehearing was denied June 18, 2012.          Appellant
           suggests this tolls the PCRA timeliness requirements.
           However, our Supreme Court has held that apart
           from    the   specifically  enumerated      exceptions
           contained in Section 9545(b), “the period for filing a
           PCRA petition is not subject to the doctrine of
           equitable tolling[.]”    Commonwealth v. Lewis,
           2013 PA Super 62, 63 A.3d 1274, 1278-79 (Pa.
           Super. Ct. 2013)[.]

PCRA Court Opinion, 5/23/14, at 1-2 (footnotes in original).

     Thereafter, on February 10, 2014, the PCRA court denied Appellant’s

petition as untimely. On March 10, 2014, Appellant filed a timely notice of


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appeal, along with a concise statement of matters complained of on appeal

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), and on May

23, 2014, the trial court filed its Rule 1925(a) opinion.

      We begin by noting our well-settled standard of review. “In reviewing

the   denial    of   PCRA    relief,   we   examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”          Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).            “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”             Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      We also note that a PCRA petitioner is not automatically entitled to an

evidentiary hearing.        We review the PCRA court’s decision dismissing a

petition without a hearing for an abuse of discretion.          Commonwealth v.

Roney, 79 A.3d 595, 604 (Pa. 2013) (citation omitted).

               [T]he right to an evidentiary hearing on a post-
               conviction petition is not absolute. It is within the
               PCRA court’s discretion to decline to hold a hearing if
               the petitioner’s claim is patently frivolous and has no

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              support either in the record or other evidence. It is
              the responsibility of the reviewing court on appeal to
              examine each issue raised in the PCRA petition in
              light of the record certified before it in order to
              determine if the PCRA court erred in its
              determination that there were no genuine issues of
              material fact in controversy and in denying relief
              without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal

citations omitted). “[A]n evidentiary hearing is not meant to function as a

fishing expedition for any possible evidence that may support some

speculative claim of ineffectiveness.”        Roney, supra at 605 (citation

omitted).

      Before we can proceed further in this appeal, we must first address the

deficiencies in Appellant’s brief. Generally, appellate briefs are required to

conform to the Rules of Appellate Procedure.            See Pa.R.A.P. 2101.     “This

Court may … dismiss an appeal if the appellant fails to conform to the

requirements set forth in the Pennsylvania Rules of Appellate Procedure.”

In re Ullman, 995 A.2d 1207, 1211 (Pa. Super. 2010) (citation omitted),

appeal denied, 20 A.3d 489 (Pa. 2011). This Court is willing to construe pro

se materials liberally, but “pro se status confers no special benefit on an

appellant.”    Id. at 1211-1212.      “[A]ny layperson choosing to represent

himself in a legal proceeding must, to some reasonable extent, assume that

his   lack    of   expertise   and   legal   training     will   be   his   undoing.”

Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 2005) (citation

omitted).     Additionally, “[t]his Court will not act as counsel and will not

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develop arguments on behalf of an appellant.” Commonwealth v. Kane,

10 A.3d 327, 331 (Pa. Super. 2010) (citation omitted), appeal denied, 29

A.3d 796 (Pa. 2011).

      In the case sub judice, Appellant’s brief does not contain a statement

of the questions involved which is required by the Rules of Appellate

Procedure. See Pa.R.A.P. 2111(a)(4), 2116. Nevertheless, because we can

discern from Appellant’s brief that he is arguing his PCRA petition should be

treated as timely based on the newly discovered evidence exception to the

PCRA time-bar, we decline to find waiver.         Accordingly, we must first

consider the timeliness of Appellant’s PCRA petition because it implicates the

jurisdiction of this Court and the PCRA court. Commonwealth v. Davis, 86

A.3d 883, 887 (Pa. Super. 2014) (citation omitted).

      Pennsylvania law makes clear that when “a PCRA petition is untimely,

neither this Court nor the trial court has jurisdiction over the petition.”

Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014) (citation

omitted), appeal denied, 101 A.3d 103 (Pa. 2014). The “period for filing a

PCRA petition is not subject to the doctrine of equitable tolling; instead, the

time for filing a PCRA petition can be extended only if the PCRA permits it to

be extended[.]”    Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014)

(internal quotation marks and citation omitted), cert. denied, Ali v.

Pennsylvania, --- U.S. ---, 2014 WL 2881005 (2014). This is to “accord

finality to the collateral review process.”   Commonwealth v. Watts, 23


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A.3d 980, 983 (Pa. 2011) (citation omitted). “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.A.   §   9545(b)(1)(i),   (ii),   and   (iii),   are   met.”

Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation

omitted).

        Instantly, Appellant acknowledges that his second pro se PCRA petition

is patently untimely.    Appellant’s Brief at 8.    Appellant was sentenced on

April 13, 2005, this Court affirmed the judgment of sentence on November

16, 2006, and our Supreme Court denied allocatur on May 17, 2007.

Therefore, Appellant’s judgment of sentence became final on August 15,

2007, when the period for Appellant to file a petition for a writ of certiorari in

the United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3)

(stating, “a judgment 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[]”); U.S. Sup. Ct. R. 13(1) (stating “a petition for a writ of

certiorari to review a judgment in any case … is timely when it is filed with

the Clerk of this Court within 90 days after entry of the judgment[]”).

Accordingly, to be timely, any initial or subsequent PCRA petition had to be

filed by August 15, 2008. See 42 Pa.C.S.A. § 9545(b)(3). Appellant filed

the instant petition on September 26, 2013, more than five years after his


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judgment of sentence became final. As a result, it was patently untimely.

Nevertheless, Appellant avers that his PCRA petition is timely under the

newly-discovered    evidence   exception     defined   in   subsection   (b)(1)(ii).

Appellant’s Brief at 8.

      Subsection (b)(1)(ii) provides as follows.

            § 9545. Jurisdiction and proceedings

                                       …

            (b) Time for filing petition.—

                   (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:

                                              …

                          (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

                                              …

                   (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.A. § 9545(b).




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      Our Supreme Court has previously described a petitioner’s burden

under the newly-discovered evidence exception as follows.

            [S]ubsection (b)(1)(ii) has two components, which
            must be alleged and proved. Namely, the petitioner
            must establish that: 1) “the facts upon which the
            claim was predicated were unknown” and 2) “could
            not have been ascertained by the exercise of due
            diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
            added).

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphases

in original).   “Due diligence demands that the petitioner take reasonable

steps to protect his own interests. A petitioner must explain why he could

not have learned the new fact(s) earlier with the exercise of due diligence.

This rule is strictly enforced.” Commonwealth v. Williams, 35 A.3d 44, 53

(Pa. Super. 2011) (citation omitted), appeal denied, 50 A.3d 121 (Pa. 2012).

      Additionally, as this Court has often explained, all of the time-bar

exceptions are subject to a separate deadline.

                    The statutory exceptions to the timeliness
            requirements of the PCRA are also subject to a
            separate time limitation and must be filed within
            sixty (60) days of the time the claim could first have
            been presented. See 42 Pa.C.S.A. § 9545(b)(2).
            The sixty (60) day time limit … runs from the date
            the petitioner first learned of the alleged after-
            discovered facts. A petitioner must explain when he
            first learned of the facts underlying his PCRA claims
            and show that he brought his claim within sixty (60)
            days thereafter.

Id. (some citations omitted).    Our Supreme Court has held that Section

9545(b)(2) also requires a showing of due diligence insofar as a petitioner


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must file the petition within 60 days of the time that the claim could have

first been presented.   Commonwealth v. Edmiston, 65 A.3d 339, 350

(Pa. 2013), cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639

(2013).

      In this case, Appellant avers that his petition is timely based on his

newly discovered-evidence pertaining to his understanding of Pennsylvania’s

first-degree murder statute. Appellant’s Brief at 11. Specifically, Appellant

attempts to argue that once the Commonwealth elected not to pursue the

death penalty it was barred from proceeding with a first-degree murder trial.

Id. at 16. Without discussing the merits of Appellant’s argument, we must

conclude that said claim does not raise a newly-discovered evidence

exception to the PCRA time-bar.

      In Edmiston, our Supreme Court held in order for facts to be

considered newly-discovered evidence “the information must not be of public

record and must not be facts that were previously known but are now

presented through a newly discovered source.”      Edmiston, supra at 352.

Therein, the facts Edmiston relied on “were in the public domain and could

have been discovered by Appellant through the exercise of due diligence

prior to the filing of his [PCRA] Petition.”    Id.   Accordingly, the Court

concluded that Edmiston’s petition failed to satisfy the newly-discovered

evidence exception to the PCRA’s jurisdictional time limitations. Id. at 353.




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        Herein,   Appellant’s   claim   is   based   on   his   understanding   of

Pennsylvania law regarding first-degree murder pursuant to 18 Pa.C.S.A.

§ 2502(a). Said statute was readily available at the time of Appellant’s trial,

and we fail to see how this can arguably be considered a newly-discovered

fact.

        Furthermore, Appellant does not state when he learned of the new

evidence or that he filed his petition within 60 days of ascertaining it.       As

noted above, our Supreme Court has held that Section 9545(b)(2) requires a

petition be filed within 60 days of the date that the claim could have first

been filed. See Edmiston, supra. Appellant has made no such showing.

Therefore, we conclude Appellant has failed to plead and prove that his

petition is timely pursuant to Section 9545(b)(2).        See id.   As Appellant’s

brief does not allege that any other exception to the time-bar applies

regarding any other claim, the PCRA court was without jurisdiction to

consider the merits of Appellant’s petition. See Lawson, supra.

        Based on the foregoing, we conclude the PCRA court properly

dismissed Appellant’s PCRA petition, without a hearing, as untimely filed.

Accordingly, the PCRA court’s February 10, 2014 order is affirmed.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2015




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