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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
ZACHARY O. McDONALD,                      :         No. 241 EDA 2018
                                          :
                         Appellant        :


                 Appeal from the PCRA Order December 1, 2017,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-1201521-1995


BEFORE: STABILE, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED MAY 31, 2019

        Zachary McDonald appeals from the December 1, 2017 order dismissing

as untimely his serial petition filed pursuant to the Post Conviction Relief Act

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

        The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows: On March 20, 1997, a jury found appellant

guilty of second-degree murder, arson, two counts of aggravated assault, and

three counts of recklessly endangering another person.1 These convictions

stem from an incident whereby appellant intentionally set fire to his mother’s

couch after she refused to give him a cigarette, resulting in the death of a

seven-year old boy and injuries to appellant’s six-year old brother.         On




1   18 Pa.C.S.A. §§ 2502(b), 3301(a)(1), 2702(a)(1), and 2705, respectively.
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June 11, 1997, appellant was sentenced to a mandatory term of life

imprisonment for second-degree murder and a consecutive aggregate term of

10 to 20 years’ imprisonment for the remaining convictions. On October 24,

2000, a panel of this court affirmed appellant’s judgment of sentence, and

appellant did not seek allowance of appeal with our supreme court.          See

Commonwealth v. McDonald, 767 A.2d 1110 (Pa.Super. 2000).

        Appellant filed his first pro se PCRA petition on May 1, 2001, and

counsel was appointed to represent him.          Following the issuance of a

Pa.R.Crim.P. 907(1) notice on October 22, 2002, the PCRA court dismissed

appellant’s petition without a hearing on November 25, 2002.         Appellant’s

untimely appeal from that dismissal was quashed by this court on March 26,

2004, and our supreme court denied allocatur on November 30, 2004. See

Commonwealth v. McDonald, 850 A.2d 11 (Pa.Super. 2004), appeal

denied, 863 A.2d 1144 (Pa. 2004).

        Following several unsuccessful attempts under the PCRA, appellant filed

the instant PCRA petition, his fourth, with the assistance of counsel2 on

August 4, 2017. Appellant’s petition asserted that the United States Supreme

Court’s recent decision in McWilliams v. Dunn,         U.S.    , 137 S.Ct. 1790

(2017), created a newly recognized constitutional right that rendered his

instant petition timely and the PCRA court’s dismissal of his third PCRA petition

unlawful. (See PCRA petition, 8/4/17 at 5-6.) Appellant filed an amendment


2   Appellant is represented by Cheryl J. Strum, Esq. (“PCRA counsel”).


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to his petition on August 21, 2017. On October 19, 2017, the PCRA court

provided appellant with notice of its intention to dismiss his petition without a

hearing, pursuant to Rule 907. Appellant filed a response to the PCRA court’s

Rule 907 notice on November 3, 2017. Thereafter, on December 1, 2017, the

PCRA court dismissed appellant’s petition as untimely.        This timely appeal

followed on December 22, 2017.3

      Appellant raises the following issue for our review:

            Whether the [PCRA c]ourt erred in not ordering the
            f-MRI and other testing recommended by Dr. Sadoff
            because [a]ppellant’s family could not afford to pay
            for the testing all in violation of the due process clause
            of the Fourteenth Amendment as interpreted by the
            United    States Supreme           Court’s decision     in
            McWilliams v. Dunn?

Appellant’s brief at 1-2.

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)

(citations omitted). “This Court grants great deference to the findings of the


3 On December 27, 2017, the PCRA court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b) statement on
January 9, 2018, and the PCRA court filed its Rule 1925(a) opinion on June 15,
2018.


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PCRA court, and we will not disturb those findings merely because the record

could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d

136, 140 (Pa.Super. 2002) (citation omitted).

      Preliminarily, we must 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). All PCRA petitions, including second and subsequent petitions, must

be filed within one year of when a defendant’s judgment of sentence becomes

final. See 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).

      Here, the record reveals that appellant’s judgment of sentence became

final on November 23, 2000, when the time period for filing a petition for

allowance of appeal with our supreme court expired. See 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 of the entry of the order of the Superior

Court sought to be reviewed”); 42 Pa.C.S.A. § 9545(b)(3).            Accordingly,

appellant had until November 23, 20014 to file a timely PCRA petition.

Appellant’s instant petition was filed on August 4, 2017, nearly 16 years past




4It is unclear from the record as to whether November 23, 2001, the day after
Thanksgiving, constituted a court holiday.


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the deadline and is patently untimely, unless appellant can plead and prove

that one of the three statutory exceptions to the one-year jurisdictional time-

bar applies.

      The three statutory exceptions to the PCRA time-bar are as follows:

               (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).

      To the extent appellant attempts to invoke the new-recognized

constitutional right exception based on McWilliams, appellant’s claim fails.

McWilliams, which was decided June 19, 2017, concerns the appointment of

an expert witness in the context of an indigent defendant needing assistance

“to prepare an effective defense based on his mental condition, when his

sanity at the time of the offense is seriously in question.” McWilliams, 137

S.Ct. at 1793 (emphasis omitted), quoting Ake v. Oklahoma, 470 U.S. 68,

70 (1985). In McWilliams, the United States Supreme Court extended its



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holding in Ake, which required states to provide indigent defendants with the

assistance of a psychiatrist in order to prepare a trial defense of incompetency,

where the accused makes a preliminary showing that his impaired mental

state at the time of the offense is likely to be a significant factor at trial. Ake,

470 U.S. at 86-87. Specifically, the McWilliams Court held that the State of

Alabama’s obligation under Ake was not discharged where the defendant had

the occasional help of a volunteer psychiatrist who was not sufficiently

available to the defense and recommended further psychiatric evaluation of

the defendant. McWilliams, 137 S.Ct. at 1800-1801.

      Upon review, we find that appellant’s reliance on McWilliams is

inapposite and his claim fails to satisfy any exception to the time-bar. Neither

McWilliams nor any other decision of the Pennsylvania or United States

Supreme Courts recognizes the right to the assistance of a psychiatric expert

in post-conviction proceedings.      On the contrary, our supreme court has

rejected the notion that Ake, and by logical extension McWilliams, should be

extended to PCRA proceedings.        See Commonwealth v. Paddy, 15 A.3d

431, 470 (Pa. 2011) (finding Ake inapplicable to petitioner’s request for

psychiatric/psychological assistance in PCRA proceeding because "Ake only

applies to the guilt and penalty phases of trial.”). Nor has the Unites States

Supreme Court expressly held that Ake and McWilliams apply retroactively

to cases on collateral review.

      Moreover, as properly recognized by the PCRA court in its opinion,



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          [Appellant’s] claim in the instant petition was
          effectively an extension of his third petition . . .
          However, as McWilliams does not apply to
          [appellant’s] case, and has not been held to apply
          retroactively to cases on post-conviction review, the
          instant petition was untimely and this Court lacked
          jurisdiction to entertain the merits of his claim.

          ....

          From     the    outset,   McWilliams       was   clearly
          distinguishable from [appellant’s] case. Ake and
          McWilliams explicitly address a defendant’s pretrial
          and trial rights concerning the preparation and
          presentation of a defense based on the accused’s
          mental state at the time of the offense. Where a
          petitioner seeks to present evidence of his state of
          mind at a different time (e.g., during the period to
          file a timely PCRA petition), or for the purpose of
          seeking post-conviction relief unrelated to whether he
          was provided the assistance in preparing and
          presenting a trial defense to which Ake entitles him,
          neither Ake nor McWilliams applies. [Appellant]
          neither alleged nor proved, in either the instant
          petition or in his third petition, that his mental state
          at the time of his crime was such that he could have
          presented a trial defense based on that mental
          condition. [Appellant] also never asserted that he
          established the threshold criteria discussed in Ake at
          any time before his trial, which would have entitled
          him to state-subsidized psychiatric assistance in
          preparing and presenting such a defense. Instead,
          [appellant] only clearly alleged that he was mentally
          incompetent during the time period in which he could
          have filed a timely PCRA petition, and only alleged this
          in support of his argument that he should be
          permitted to meet the timeliness exceptions to the
          PCRA. Ake provides no support to [appellant’s]
          argument that the Commonwealth of Pennsylvania
          was obligated to pay for additional mental health
          testing to determine whether he was incompetent
          during the relevant filing period for post-conviction
          relief, nor does McWilliams provide such support.



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PCRA court opinion, 6/15/18 at 7-10 (emphasis in original; footnotes

omitted).

      Based on the foregoing, we agree with the PCRA court that appellant

has failed to satisfy the newly recognized constitutional right exception to the

PCRA time-bar. See 42 Pa.C.S.A. §9545(b)(1)(iii). Accordingly, we discern

no error on the part of the PCRA court in dismissing appellant’s PCRA petition

as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/31/19




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