J-S65013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

    PAUL PARHAM

                           Appellant                   No. 441 EDA 2017


                  Appeal from the PCRA Order January 5, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0306161-1997


BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                         FILED NOVEMBER 14, 2017

        Appellant, Paul Parham, appeals pro se from the January 5, 2017 order

dismissing his fifth petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The factual background and procedural history of this case are as

follows. On February 6, 1990, Appellant shot a taxi driver. On December 22,

1999, Appellant was convicted of aggravated assault1 and possessing an

instrument of crime.2 On May 18, 2000, the trial court sentenced Appellant

to an aggregate term of 9 to 18 years’ imprisonment. This Court dismissed

Appellant’s direct appeal for failure to file a brief. On May 22, 2001, Appellant




1   18 Pa.C.S.A. § 2702.

2   18 Pa.C.S.A. § 907.
J-S65013-17

filed a pro se PCRA petition. On September 17, 2001, the PCRA court granted

the petition and reinstated Appellant’s direct appellate rights nunc pro tunc.

Thereafter, counsel was appointed; however, no second direct appeal was

taken to this Court.

      On February 26, 2006, Appellant filed his second pro se PCRA petition.3

Counsel was appointed. On October 9, 2007 the PCRA court dismissed the

petition.   Appellant did not appeal that dismissal.    On October 25, 2007,

Appellant filed his third pro se PCRA petition. On April 14, 2008, the PCRA

court dismissed the petition.   This Court affirmed and our Supreme Court

denied allowance of appeal. Commonwealth v. Parham, 972 A.2d 559 (Pa.

Super. 2009) (unpublished memorandum), appeal denied, 980 A.2d 607 (Pa.

2009). On December 27, 2010, Appellant filed his fourth pro se PCRA petition.

On May 11, 2015, the PCRA court dismissed the petition. This Court affirmed

the dismissal. Commonwealth v. Parham, 141 A.3d 592, 2016 WL 563166

(Pa. Super. 2016) (unpublished memorandum).

      On May 20, 2016, Appellant filed his fifth pro se PCRA petition.       On

September 30, 2016, the PCRA court issued notice of its intent to dismiss the

petition without an evidentiary hearing. See Pa.R.Crim.P. 907. On October




3 For clarity, we refer to this petition as Appellant’s second petition although
it was his first for timeliness purposes. See Commonwealth v. Callahan,
101 A.3d 118, 122 (Pa. Super. 2014) (citation omitted).


                                     -2-
J-S65013-17

14, 2016, Appellant filed a response to the Rule 907 notice. On January 5,

2017, the PCRA court dismissed the petition. This timely appeal followed.4

      Appellant presents one issue for our review:

      Whether this Court should [r]emand this matter to the [PCRA
      court] for [] further proceedings based on [newly-discovered
      facts] regarding the competency of [PCRA] counsel[?]

Appellant’s Brief at 3.

      “Crucial to the determination of any PCRA appeal is the timeliness of the

underlying petition.” Commonwealth v. Brown, 141 A.3d 491, 499 (Pa.

Super. 2016) (citation omitted).      The timeliness requirement for PCRA

petitions “is mandatory and jurisdictional in nature[.]” Commonwealth v.

Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citation omitted).

      A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1).         “[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.”   42 Pa.C.S.A. § 9545(b)(3).      Appellant’s judgment of sentence

became final on October 17, 2001. Appellant’s fifth PCRA petition was filed

on May 20, 2016. Thus, the petition was patently untimely.




4The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure
1925(b). Nonetheless, on April 6, 2017, the PCRA court issued a Rule 1925(a)
opinion.


                                     -3-
J-S65013-17

      An untimely PCRA petition may be considered if one of the following

three exceptions applies:

      (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.

42 Pa.C.S.A. § 9545(b)(1). If an exception applies, a PCRA petition may be

considered if it is filed “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2). “The petitioner bears the burden to

plead and prove an applicable statutory exception.”         Commonwealth v.

Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017), appeal denied, 2017 WL

3614192 (Pa. Aug. 23, 2017).

      In his lone appellate issue, Appellant argues that the PCRA court erred

in dismissing his petition as untimely because he satisfied the newly-

discovered fact exception to the PCRA’s one-year time bar.            The newly-

discovered fact exception

      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. If the petitioner
      alleges and proves these two components, then the PCRA court
      has jurisdiction over the claim under this subsection.


                                      -4-
J-S65013-17



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

quotation marks and citations omitted; emphasis removed).

       Appellant argues that he recently discovered that PCRA counsel had

disciplinary and personal problems at the time he represented Appellant. This

argument      fails,      however,   because   the   attorney   Appellant   references

throughout his fifth PCRA petition and his brief before this Court never

represented him in this case. Instead, that attorney referenced by Appellant

was only appointed to represent Appellant in CP-51-CR-0506761-1997, which

is not the subject of this appeal. Accordingly, Appellant failed to plead and

prove the applicability of a timeliness exception and the PCRA court properly

held that it lacked jurisdiction to reach the merits of the petition.

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




                                          -5-
