J-S08045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 THEODORE D. PRZYBYSZEWSKI, JR.          :
                                         :
                   Appellant             :   No. 245 EDA 2018

              Appeal from the PCRA Order December 13, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0300701-1985


BEFORE:    BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                     FILED MARCH 04, 2019

      Appellant, Theodore D. Przybyszewski, appeals pro se from the order

entered in the Court of Common Pleas of Philadelphia County dismissing his

untimely serial petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, without a hearing. We affirm.

      The PCRA court aptly summarizes the relevant procedural history of this

case as follows:

      Theodore Przybyszewski [hereinafter “Appellant”] was arrested
      and subsequently charged in connection with the stabbing death
      of Paul Puzycki on December 30, 1982, in the city and county of
      Philadelphia. On September 9, 1987, before the Honorable
      George J. Ivins, Appellant pled guilty to first-degree murder and
      possession of an instrument of crime. On that same date, the trial
      court sentenced Appellant to a mandatory term of life
      imprisonment without parole for the first-degree murder bill and
      a concurrent term of one to two years’ of state incarceration on
      the possession of an instrument of crime bill. Appellant’s direct
      appeal was dismissed by the Superior Court on February 11, 1988,
      due to counsel’s failure to file a brief.

____________________________________
* Former Justice specially assigned to the Superior Court.
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      On October 19, 1988, Appellant filed his first pro se PCRA petition.
      Counsel was appointed and subsequently filed a Turner/Finley
      no-merit letter.2 The PCRA court formally dismissed the petition
      on October 10, 1991. The Superior Court affirmed the PCRA
      court’s dismissal on August 13, 1992.3 The Supreme Court of
      Pennsylvania denied allocator on April 15, 1993.


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

      3 Commonwealth v. Przybyszewski, 3318 Phila. 1991 (Pa.
      Super. 1988).


      Appellant subsequently filed five additional PCRA Petitions
      between the time his first PCRA Petition was dismissed and the
      filing of the present PCRA Petition. Each of these serial PCRA
      petitions [was] dismissed as untimely without an evidentiary
      hearing.

      On June 21, 2017, Appellant filed the instant pro se PCRA petition,
      his seventh. Appellant also submitted numerous supplemental
      filings which were reviewed jointly with his 2017 petition.
      Pursuant to Pennsylvania Rule of Criminal Procedure 907,
      Appellant was served notice of the PCRA court’s intention to
      dismiss his petition on July 24, 2017. Appellant submitted
      responses to the Rule 907 notice on August 10, 2017 and August
      14, 2017. On December 13, 2017, the PCRA court dismissed his
      PCRA petition as untimely. On January 4, 2018, the instant notice
      of appeal was timely filed to the Superior Court.

PCRA Court Opinion, filed 4/2/18, at 1-2.

      In Appellant’s brief, he raises a host of ineffective assistance of counsel

claims, see brief, at 1-2, and what appears to be a jurisdictional claim not

raised previously with the PCRA court, see brief at 3. Before we address the

merits of Appellant’s ineffectiveness claims, we must determine if the PCRA

court had jurisdiction over the PCRA petition in question.


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      The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008).              “[T]he

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded in order to address the merits of the petition.” Commonwealth

v. Laird, ––– A.3d ––––, ––––, 2018 PA Super 343, 2018 WL 6597352 *1

(filed December 17, 2018) (citing Commonwealth v. Bennett, 593 Pa. 382,

930 A.2d 1264 (2007)). In other words, Pennsylvania law makes clear no

court has jurisdiction to hear an untimely PCRA petition. Commonwealth

v. Robinson, 575 Pa. 500, 508, 837 A.2d 1157, 1161 (2003).

      The PCRA requires a petition, including a second or subsequent petition,

to be filed within one year of the date the underlying judgment becomes final.

42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence is 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 review.” 42 Pa.C.S.A. § 9545(b)(3).

      Generally, to obtain merits review of a PCRA petition filed more than

one year after the sentence became final, the petitioner must allege and prove

at least one of the three timeliness exceptions.        See 42 Pa.C.S.A. §

9545(b)(1)(i)-(iii). The petitioner must allege and prove:

      (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;




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      (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.A. § 9545(b)(1)(i)-(iii). “[W]hen a PCRA petition is not filed within

one year of the expiration of direct review, or not eligible for one of the three

limited exceptions, or entitled to one of the exceptions, but not filed within 60

days of the date that the claim could have been first brought, the trial court

has no power to address the substantive merits of a petitioner's PCRA claims.”

Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783

(2000).

      Appellant attempts to bring the present petition within the jurisdiction

of this Court by invoking a 2017 United States Supreme Court decision,

McWilliams v. Dunn, 137 S.Ct. 1790 (filed June 19, 2017) (relating to

appointment of expert witness where indigent defendant requires assistance

to prepare effective defense based on his mental condition and sanity at time

of offense is seriously in question) as a Section 9545(b)(1)(iii) exception to

the PCRA time-bar that would otherwise apply against him. Our careful review

of the record, however, shows that Appellant never so much as mentioned

McWilliams in any of his filings below, let alone attempted to allege and prove

that McWilliams involved a constitutional right that applied retroactively in




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the present context.1 Appellant’s jurisdictional argument before us, therefore,

is waived. See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.

2007) (“exceptions to the time bar must be pled in the PCRA petition, and

may not be raised for the first time on appeal.”).

       Accordingly, we discern no error with the PCRA court’s conclusion that

Appellant failed to plead and prove any of the timeliness exceptions provided

____________________________________________


1 Instead, as noted by the PCRA court, Appellant centered his jurisdictional
argument on federal jurisprudence recognizing federal habeas corpus relief
may be required where ineffective assistance of counsel during initial-review
collateral proceedings caused a prisoner’s procedural default of a claim of
ineffective assistance of trial counsel. See Martinez v. Ryan, 132 S.Ct. 1309
(2012); Bey v. Superintendent Greene SCI, 856 F.3d 230 (2017) (applying
Martinez to allow for merits review of a procedurally defaulted federal habeas
claim). Regarding the attempt to apply Martinez to the PCRA, however, this
Court has explained:

       Martinez recognizes that for purposes of federal habeas corpus
       relief, “[i]nadequate assistance of counsel at initial-review
       collateral proceedings may establish cause for a prisoner's
       procedural default of a claim of ineffective assistance of trial
       counsel.” Martinez, supra at 1315. While Martinez represents
       a significant development in federal habeas corpus law, it is of no
       moment with respect to the way Pennsylvania courts apply the
       plain language of the time bar set forth in [ ] the PCRA.

Commonwealth v. Saunders, 60 A.3d 162 (Pa. Super. 2013). Accordingly,
in Saunders, we affirmed the dismissal of the appellant’s PCRA petition for
untimeliness, finding ““the trial court correctly held that Saunders failed to
establish any of the exceptions to the PCRA's requirement that all petitions be
filed within one year of the date a petitioner's judgment of sentence became
final.” Id.

Similarly, here, to the extent Appellant claimed a timeliness exception based
on Martinez, the PCRA court appropriately concluded that no such exception
is available under the relevant statutory scheme. In any event, Appellant has
effectively abandoned this claim in the present appeal to this Court.

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in Section 9545(b)(1).    We, thus, affirm the denial of PCRA relief and the

dismissal of Appellant’s petition as untimely.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/19




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