J-S68033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

STEPHEN PALMER

                            Appellant                No. 2968 EDA 2014


                Appeal from the PCRA Order September 17, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1204301-2000


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                        FILED DECEMBER 28, 2015

        Appellant, Stephen Palmer, appeals from the September 17, 2014

order, dismissing as untimely, his second petition for relief filed pursuant to

the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.        After careful

review, we affirm.

        We summarize the relevant procedural history of this case as follows.

On November 2, 2001, Appellant was sentenced to life imprisonment without

the possibility of parole after the trial court convicted him of one count of

first-degree murder, and two counts each of recklessly endangering another

person and possession of an instrument of a crime.1 This Court affirmed the

judgment of sentence on January 10, 2003. Commonwealth v. Palmer, --

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1
    18 Pa.C.S.A. §§ 2502(a), 2705, and 907(a), respectively.
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- A.3d. ---, 3490 EDA 2001 (Pa. Super. 2003) (unpublished memorandum)

(Palmer I). Appellant did not file a petition for allowance of appeal with our

Supreme Court.

      On February 6, 2004, Appellant filed a timely counseled PCRA petition,

which the PCRA court dismissed on October 25, 2005. This Court affirmed

that order on August 20, 2007. Commonwealth v. Palmer, 935 A.2d 18

(Pa. Super. 2007) (unpublished memorandum) (Palmer II), appeal denied,

945 A.2d 169 (Pa. 2008). Relevant to the instant appeal, Appellant argued

to this Court that all prior counsel were “ineffective for failing to have him

evaluated by a mental health professional to determine whether he suffered

from organic brain damage that might have produced the basis for a defense

at trial.” Id. at 4-5. Specifically, Appellant wished to use this hypothetical

evaluation to “develop … the issue of the defense of diminished capacity, the

issue of lack of intent, the issue of mistaken belief self-defense, and the

issue of post traumatic stress[.]”      Id. at 4, quoting Appellant’s Brief

(Palmer II) at 4.      On February 13, 2008, our Supreme Court denied

Appellant’s petition for allowance of appeal.

      Appellant filed the instant pro se PCRA petition on April 25, 2012.

Appellant retained private counsel, who filed an amended petition on

December 10, 2013. On June 16, 2014, the Commonwealth filed a motion

to dismiss, to which Appellant filed a response on August 11, 2014.      That

same day, the PCRA court entered an order notifying Appellant of its


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intention to dismiss his petition without a hearing pursuant to Pennsylvania

Rule of Criminal Procedure 907. Appellant filed an amended PCRA petition

the next day, on August 12, 2014, and filed a response to the PCRA court’s

Rule 907 notice on September 2, 2014. On September 17, 2014, the PCRA

court entered an order dismissing Appellant’s PCRA petition. On October 14,

2014, Appellant filed a timely notice of appeal.2

       On appeal, Appellant presents four issues for our review.

               1.    Was trial counsel ineffective for failing to
                     investigate and present compelling mental
                     health evidence that would have provided
                     Appellant a viable defense to first-degree
                     murder?

               2.    Was the [p]etition filed in the [PCRA] court
                     timely?

               3.    Were the claims presented to the [PCRA] court
                     waived?

               4.    Were the claims presented to the [PCRA] court
                     previously litigated?

Appellant’s Brief at 1-2.

       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.”


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2
 The PCRA court did not direct Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The PCRA court filed its Rule 1925(a) opinion on March
19, 2015.



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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
           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

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fishing expedition for any possible evidence that may support some

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

omitted).

      We address only Appellant’s second issue, as it is dispositive because

it pertains to our consideration of the timeliness of Appellant’s PCRA petition,

which 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, 135 S. Ct. 707 (2014).        This is to “accord finality to the

collateral review process.”   Commonwealth v. Watts, 23 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.




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Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation omitted).             The PCRA

provides, in relevant part, 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:

                        (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.

                  (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.

                                          …

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42 Pa.C.S.A. § 9545(b).

        In the case sub judice, Appellant was sentenced on November 2, 2001,

and this Court affirmed Appellant’s judgment of sentence on January 10,

2003.     As a result, Appellant’s judgment of sentence became final on

February 10, 2003, when the filing period for an allocatur petition with our

Supreme Court expired.3            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[]”); Pa.R.A.P. 1113(a) (stating, “a petition for allowance of appeal

shall be filed with the Prothonotary of the Supreme Court within 30 days

after the entry of the order of the Superior Court … sought to be

reviewed[]”).     Appellant filed the instant petition on April 25, 2012; as a

result, it was patently untimely.

        However, Appellant avers that the governmental interference and

newly-discovered fact exceptions apply to the instant petition.    Appellant’s

Brief at 29.        In order to meet the statutory requirements of the


____________________________________________
3
   We observe that the 30th day fell on Sunday, February 9, 2003. When
computing the 30-day filing period “[if] the last day of any such period shall
fall on Saturday or Sunday … such day shall be omitted from the
computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30th day for Appellant to
file a timely petition for allowance of appeal was on Monday, February 10,
2003.



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governmental interference exception, “Appellant was required to plead and

prove that his failure to raise the claim previously was the result of

interference by government officials with the presentation of the claim [or

claims] in violation of the Constitution or laws of this Commonwealth or the

Constitution or laws of the United States ….” Commonwealth v. Chester,

895 A.2d 520, 523 (Pa. 2006) (internal quotation marks and citation

omitted; emphasis in original).   A defendant claiming this exception must

also show that “the information could not have been obtained earlier with

the exercise of due diligence.”   Commonwealth v. Hawkins, 953 A.2d

1248, 1253 (Pa. 2006) (citation omitted). Likewise, 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).


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      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 that a petitioner

must file the petition within 60 days 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).

      Appellant argues that both time-bar exceptions apply because Dr.

Gerald Cooke, a psychologist, was prevented by prison officials from

conducting “full and complete testing” to show that Appellant suffered

certain mental impairments, that if known, would have allowed him to raise

defenses at trial.   Appellant’s Brief at 30.   Therefore, Appellant concludes

that he has satisfied the government interference exception to the PCRA

time-bar. Id.    Once Dr. Cooke completed said tests, Appellant avers that

the full and complete report by Dr. Cooke meets the newly-discovered fact

exception as well. Id.


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      Appellant has carefully detailed in his brief how he allegedly exercised

due diligence from 2007 until 2011. See generally Appellant’s Brief at 34-

37.   However, Appellant does not provide any explanation as to what

diligence he exercised before 2007. When Appellant was before this Court

for his first PCRA appeal, he conceded that he had “not offered to prove facts

that would establish prior counsel’s ineffectiveness.” Palmer II, supra at

6. Although he accused prison officials of not permitting Dr. Cooke to use a

tape recorder, this Court noted “there is no explanation for the doctor’s

failure to complete other tests or to obtain additional background history and

do extensive interviewing about symptoms and problems, which he also

indicates were not completed.” Id. (internal quotation marks, brackets, and

citation omitted). It therefore appears that Appellant’s due diligence did not

begin until after this Court’s decision from his first PCRA appeal.

      As noted above, both the government interference and newly-

discovered fact exceptions, as well as the 60-day rule, contain a due

diligence requirement. See Edmiston, supra; Bennett, supra; Hawkins,

supra.   It is further axiomatic that the PCRA time-bar is to be strictly

construed.    Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267 (Pa.

2008) (citation omitted), cert. denied, Abu-Jamal v. Pennsylvania, 555

U.S. 916 (2008). The fact that Appellant returns to this Court claiming to

have corrected the deficiencies we pointed out in 2007, does not relieve him

of his burden to show that he acted with due diligence in bringing his claim


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when it first could have been presented, even before 2007. See Edmiston,

supra.     Due diligence requires a showing that Appellant could not have

obtained this information sooner.            Accordingly, Appellant was required to

plead and prove his due diligence prior to 2007, since the PCRA requires a

petitioner to present his claim at the earliest possible time. See id.

       Furthermore,      pertaining    to    government      interference,     the   PCRA

requires that the government interference be unconstitutional or illegal. See

42 Pa.C.S.A. § 9545(b)(1)(i) (allowing a time-bar exception where the

government interference was “in violation of the Constitution or laws of this

Commonwealth or the Constitution or laws of the United States[]”);

Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (rejecting

government interference argument regarding prison officials where the

defendant “fail[ed] to show any of the conditions of his incarceration were

illegal[]”).    Here, Appellant has not specifically alleged which provision of

state or federal law, statutory or constitutional, that prison officials violated

in preventing Dr. Cooke from using certain equipment.                     As a result,

Appellant’s government interference argument also fails on this basis.

       In addition, Appellant avers that this Court should deem his petition

timely,    in    part,   because      he     has     consistently   received     deficient

representation. Appellant’s Brief at 31. However, our Supreme Court has

also explained that an allegation of counsel ineffectiveness will not save an

otherwise untimely PCRA petition.             Commonwealth v. Gamboa-Taylor,


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753 A.2d 780, 785-786 (Pa. 2000). In light of all of these considerations,

we conclude that Appellant has not met either exception to the PCRA time-

bar. See id.; Lawson, supra.

     Based on the foregoing, we conclude that the PCRA court properly

dismissed Appellant’s second PCRA petition as untimely.   Accordingly, the

PCRA court’s September 17, 2014 order is affirmed.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/2015




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