J-S35037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    HERBERT DALE CONAWAY                       :
                                               :
                      Appellant                :   No. 1877 WDA 2016

                Appeal from the PCRA Order November 29, 2016
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0001863-2011


BEFORE:      LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JUNE 02, 2017

        Appellant, Herbert Dale Conaway, appeals pro se from the November

29, 2016, order entered in the Court of Common Pleas of Fayette County

dismissing as untimely his second petition filed under the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After a careful review, we

affirm.

        The relevant facts and procedural history are as follows: Appellant was

arrested for the rape of a young woman who was volunteering with Habitat

for Humanity.       Represented by counsel, Appellant proceeded to a jury trial,

following which the jury convicted him of rape by forcible compulsion, 18

Pa.C.S.A. § 3121(a)(1), and related offenses.           The trial court sentenced
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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Appellant to an aggregate of 96 months to 200 months in prison, and

Appellant filed a timely post-sentence motion, which the trial court denied on

August 16, 2012. Thereafter, on August 27, 2012, Appellant filed a timely,

counseled direct appeal to this Court.1

        On appeal, Appellant contended (1) he should be granted a new trial

due to the prosecutor’s Brady2 violation, i.e., its failure to produce the

victim’s emergency room examination records until after the start of trial;

(2) the evidence was insufficient to support his conviction under Section

3121(a)(1); (3) the jury’s verdict was against the weight of the evidence;

and (4) he should be granted a new trial due to the Commonwealth’s failure

to present a prima facie case of guilt at the preliminary hearing. This Court

found Appellant was not entitled to relief, and consequently, on February 5,

2013, we affirmed his judgment of sentence.        See Commonwealth v.

Conaway, No. 1320 WDA 2012 (Pa.Super. filed 2/5/13) (unpublished

memorandum). Appellant did not file a petition for allowance of appeal with

our Supreme Court.

        On or about February 21, 2013, Appellant filed a timely pro se PCRA

petition, counsel was appointed to assist Appellant, and thereafter, counsel

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1
 On August 27, 2012, Appellant also filed a pro se PCRA petition; however,
on September 7, 2012, Appellant’s counsel filed a petition discontinuing the
PCRA petition on the basis it had been prematurely filed.
2
    Brady v. Maryland, 373 U.S. 83 (1963).



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filed a petition to withdraw and a Turner/Finley3 brief.         The PCRA court

granted counsel’s petition to withdraw and, ultimately, dismissed Appellant’s

first PCRA petition on March 30, 2015. Appellant did not file an appeal to

this Court.

       On or about October 6, 2016, Appellant filed a pro se PCRA petition,

and the PCRA court provided Appellant with notice of its intent to dismiss

pursuant to Pa.R.Crim.P. 907.              Appellant filed a pro se response in

opposition to the PCRA court’s notice, and by opinion and order entered on

November 29, 2016, the PCRA court dismissed Appellant’s second petition

on the basis it was untimely filed. This timely pro se appeal followed, and all

Pa.R.A.P. 1925 requirements have been met.

       Appellant presents the following claims for our review:

       1. The Appellant should be granted collateral relief since the
          Commonwealth failed to disclose material, exculpatory
          evidence and there is a reasonable probability that, had the
          evidence been disclosed to the defense, the result of the trial
          would have been different.
       2. The Appellant should be granted collateral relief since the
          Commonwealth failed to present sufficient evidence that the
          Appellant committed the crime charged, since there was no
          physical evidence of an assault kind [sic] and no threat of
          force presented.
       3. The Appellant should be granted collateral relief because the
          verdict in this case was against the weight of the evidence.

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3
  Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).




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     4. The Appellant should be granted collateral relief since the
        Commonwealth failed to establish prima facie evidence of
        Appellant’s guilt at the Omnibus pretrial hearing.
     5. The Appellant should be granted collateral relief due to the
        ineffectiveness of trial counsel failing to properly investigate
        Appellant’s actual claim of innocence.
     6. The Appellant should be granted collateral relief due to the
        ineffectiveness of trial counsel failing to call material medical
        witnesses to confirm Appellant’s medical impossibility to
        commit these crimes.
     7. The Appellant should be granted collateral relief due to the
        ineffectiveness of trial counsel [in] failing to properly locate
        and interview witnesses.
     8. Did the court err by allowing counsel to withdraw and forcing
        Appellant to proceed pro se in spite of the fact that there are
        isues [sic] of arguable merit in this case and that the court’s
        decision to allow counsel to withdraw constructively denied
        Appellant[ ] counsel during his PCRA litigation[.]
     9. The Appellant should be granted collateral relief due to the
        judicial misconduct of the trial judge when he sentenced
        Appellant to a presentence investigation report nor an
        evaluation of the State’s Sexual Offender’s Assessment Board
        in violation of Rule 32(b) of the Federal Rules of Criminal
        Procedure and 42 Pa.C.S.A. § 9794(3).

Appellant’s Brief, Statement of the Questions Presented.

     Preliminarily, we must determine whether Appellant’s instant PCRA

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000).   “Our standard of review of the denial of PCRA relief is

clear; we are limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”          Commonwealth v.

Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and

quotation marks omitted).




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      Pennsylvania law makes it clear that no court has jurisdiction to hear

an untimely PCRA petition.     Commonwealth v. Robinson, 575 Pa. 500,

837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective

January 19, 1996, provide that a PCRA petition, including a second or

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

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed

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 the time for seeking review.” 42 Pa.C.S.A. §

9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1).        To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law 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 Pennsylvania after
               the time period provided in this section and has been
               held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).



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     “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).

Moreover, “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) (citations omitted). See 42

Pa.C.S.A. § 9545(b)(2).

     In the case before us, this Court affirmed Appellant’s judgment of

sentence on February 5, 2013, and Appellant did not file a petition for

allowance of appeal with our Supreme Court. Accordingly, his judgment of

sentence became final on March 7, 2013, when the thirty-day time period for

filing a petition for allowance of appeal with our Supreme Court expired.

See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113.     Appellant had one year

from that date, or until March 7, 2014, to file a timely PCRA petition. See

42 Pa.C.S.A. § 9545(b).   However, Appellant did not file his instant PCRA

petition until October 6, 2016, and thus, it is patently untimely.   See 42

Pa.C.S.A. § 9545(b)(1).

     Moreover, Appellant has neither recognized that his second PCRA

petition was untimely filed nor set forth any argument concerning the




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Section 9545(b)(1)(i)-(iii) exceptions.4 Consequently, we conclude the PCRA

court properly denied Appellant relief on the basis his second PCRA petition

was untimely filed.

       Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2017




____________________________________________


4
  We note that, in his first claim, Appellant presents the same alleged Brady
violation, which this Court rejected on direct appeal. Moreover, to the
extent Appellant presents ineffective assistance of counsel claims, such
claims do not save an otherwise untimely petition for review on the merits.
Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780 (2000).
Also, to the extent Appellant avers his sentence is illegal, we note that the
Supreme Court has specifically held that “[a]lthough legality of sentence is
always subject to review within the PCRA, [legality of sentencing] claims
must still first satisfy the PCRA’s time limits or one of the exceptions
thereto.” Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 223
(1999). Finally, we note that Appellant was not entitled to the assistance of
counsel with regard to his second PCRA petition. Commonwealth v. Haag,
570 Pa. 289, 809 A.2d 271 (2002).




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