J-A27030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TERRENCE FITZPATRICK,                      :
                                               :
                       Appellant               :   No. 1034 EDA 2019

               Appeal from the PCRA Order Entered March 5, 2019
     In the Court of Common Pleas of Northampton County Criminal Division
                       at No(s): CP-48-CR-0000713-2007


BEFORE:      BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                               FILED MARCH 06, 2020

        Appellant, Terrence Fitzpatrick, appeals from the order denying his third

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

        The PCRA court summarized the procedural history of this case as

follows:
               On March 13, 2008, [Appellant] was convicted by a jury of
        two counts of attempted murder,2 two counts of aggravated
        assault,3 conspiracy to commit murder,4 conspiracy to commit
        aggravated assault,5 and firearms not to be carried without a
        license.6 On June 9, 2008, [Appellant] was sentenced to twenty
        to forty years in prison on the first count of attempted murder and
        a concurrent term of nine to eighteen years on the second
        attempted murder count. [Appellant] was also sentenced to
        concurrent terms of nine to eighteen years for conspiracy to
        commit criminal homicide, four to eight years for conspiracy to
        commit aggravated assault, and four to eight years for carrying a


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*   Retired Senior Judge assigned to the Superior Court.
J-A27030-19


     firearm without a license, for an aggregate sentence of twenty to
     forty years in state prison.

           2   18 Pa.C.S.A. § 901; 18 Pa.C.S.A. § 2502.

           3  18 Pa.C.S.A. § 2702 (amended Oct. 24, 2012,
           effective Dec. 24, 2012, amended Dec. 18, 2013,
           effective Jan. 1, 2014).

           4   18 Pa.C.S.A. § 903; 18 Pa.C.S.A. § 2502.

           518 Pa.C.S.A. § 903; 18 Pa.C.S.A. § 2702 (amended
           Oct. 24, 2012, effective Dec. 24, 2012, amended Dec.
           18, 2013, effective Jan. 1, 2014).

           6  18 Pa.C.S.A. § 6105 (amended Oct. 17, 2008,
           effective Dec. 16, 2008, amended Nov. 3, 2016,
           effective Jan. 3, 2017).

           [Appellant] filed post-sentence motions, which the court
     denied in an order filed on October 16, 2008. [Appellant] filed an
     appeal to the Superior Court from that order, and, on March 8,
     2010, the Superior Court affirmed the sentence of this court.
     [Appellant] thereafter filed a petition for allowance of appeal to
     the Pennsylvania Supreme Court, which was denied on August 31,
     2010.

            On October 31, 2011, [Appellant] filed a “Motion for Post-
     Conviction Collateral Relief” (“First PCRA Petition”).         On
     November 9, 2011, the court entered an order appointing Brian M.
     Monahan, Esquire to represent [Appellant] with regard to his First
     PCRA Petition. On March 23, 2012, Attorney Monahan filed a no-
     merit letter, pursuant to the mandates of Commonwealth v.
     Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley,
     550 A.2d 213 (Pa. Super. 1988). That same day, the court filed
     a “Notice of Intention to Dismiss P.C.R.A. Petition without a
     Hearing and Grant Petition to Withdraw Appearance,” based upon
     Attorney Monahan’s no-merit letter. A copy of the notice was sent
     to [Appellant] by certified mail. When [Appellant] did not file a
     response to the notice within twenty days, on April 16, 2012, the
     court entered an order dismissing [Appellant’s] First PCRA
     Petition, pursuant to Rule of Criminal Procedure 907(1), and an
     additional order granting Attorney Monahan leave to withdraw his
     appearance.

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            On May 8, 2012, [Appellant] filed an appeal to the Superior
     Court from the court’s order dismissing his First PCRA Petition. On
     February 1, 2013, the Superior Court affirmed the court’s order
     dismissing [Appellant’s] First PCRA Petition. [Appellant] then
     petitioned the Supreme Court of Pennsylvania for allowance of
     appeal, which was denied on July 2, 2013.

           On August 28, 2015, [Appellant] filed a “Petition for Post-
     Conviction Collateral Relief” (“Second PCRA Petition”).        On
     November 3, 2016, the court filed an “Order of Court and Notice
     of Intention to Dismiss [Appellant’s] Petition without a Hearing.”
     On November 21, 2016, [Appellant] filed a “Brief in Opposition” to
     the court’s notice. On December 5, 2016, the court entered an
     order dismissing [Appellant’s] Second PCRA Petition pursuant to
     Rule of Criminal Procedure 907(1).

            On September 25, 2017, [Appellant] filed an appeal to the
     Superior Court from the court’s order dismissing his Second PCRA
     Petition. On May 25, 2018, the Superior Court affirmed the court’s
     order dismissing [Appellant’s] Second PCRA Petition. [Appellant]
     did not petition the Supreme Court of Pennsylvania for allowance
     of appeal.

            On December 27, 2018, [Appellant] filed his Third PCRA
     Petition, in which he raises three issues. First, he argues that he
     received ineffective assistance of counsel during the trial and post-
     conviction stages of his case. Second, [Appellant] argues that his
     co-defendant’s Sixth Amendment rights were violated when the
     Commonwealth obtained a search warrant to remove a bullet from
     the victim’s body while the co-defendant remained in prison
     without counsel. Thus, [Appellant] argues that his conviction was
     based on an unconstitutional search, since that bullet was
     ultimately used to implicate [Appellant’s] guilt. Lastly, [Appellant]
     argues that his trial and his co-defendant’s trial should have been
     severed. He further asserts that these arguments are timely in
     light of Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007).

PCRA Court Opinion, 2/1/19, at 2-5.

     On February 1, 2019, the PCRA court issued a notice of intent to dismiss

the petition without a hearing. Appellant filed a response, and on March 5,

2019, the PCRA court dismissed Appellant’s petition. Appellant filed a notice

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of appeal on April 1, 2019.          Appellant and the trial court complied with

Pa.R.A.P. 1925.1

       On appeal, Appellant presents the following issues for our review:

       I.    Whether the underlying trial and post conviction
       proceedings were so fundamentally unfair that it deprived
       Appellant of due process?

       II.   Whether the facts surrounding the violation of co-
       defendant’s, Brandon Fleming, Sixth Amendment rights were
       unknown to Appellant, and, as a consequence, interfered with
       Appellant’s ability to timely raise his claims for relief under the
       PCRA?

       III. Whether the underlying judges and detectives interfered
       with Appellant’s ability to timely raise his claims for relief under
       the PCRA?

       IV.   Whether the trial court failed to protect Appellant from a
       prejudicial joinder trial after the discovery of the second bullet?

       V.   Whether Appellant received layered ineffective assistance of
       counsel?

Appellant’s Brief at 5.

       When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).     This Court is limited to determining whether the evidence of



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1  The PCRA court filed a “Statement” pursuant to Pa.R.A.P. 1925(a), and in it
relied on the reasoning for the dismissal in its Notice of Intention to Dismiss
filed February 1, 2019.

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record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016). The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).

       A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final.            42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.       Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). A judgment of sentence

“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.

§ 9545(b)(3).

       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. § 9545(b)(1)(i), (ii), and

(iii), is met.2 A petition invoking one of these exceptions must be filed within


____________________________________________


2   The exceptions to the timeliness requirement are:

       (i)    the failure to raise the claim previously was the result of
       interference by government officials with the presentation of the



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J-A27030-19


one year of the date the claim could first have been presented. 3 42 Pa.C.S.

§ 9545(b)(2).

       Our review of the record reflects that Appellant was sentenced on June

9, 2008. Appellant’s judgment of sentence was affirmed on March 8, 2010,

Commonwealth v. Fitzpatrick, 996 A.2d 540, 3259 EDA 2008, (Pa. Super.

filed March 8, 2010), and his petition for allowance of appeal to the

Pennsylvania      Supreme       Court     was    denied   on   August   31,   2010.

Commonwealth v. Fitzpatrick, 4 A.3d 157, 246 MAL 2010 (Pa. filed August

31, 2010). Appellant did not seek review with the U.S. Supreme Court. As

such, Appellant’s judgment of sentence became final for PCRA purposes on

____________________________________________


       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. § 9545(b)(1)(i), (ii), and (iii).
3   Until recently, a petition invoking an exception was required to be filed
within sixty days of the date the claim could have been presented. However,
Act 146 of 2018 amended 42 Pa.C.S. § 9545(b)(2), and Section 9545(b)(2)
now provides that a PCRA petition invoking a timeliness exception must be
filed within one year of the date the claim could have been presented. See
2018 Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018,
§ 2 and § 3 (“[T]he amendment ... shall apply to claims arising on Dec. 24,
2017 or thereafter.”). Although applicable to Appellant’s instant petition, the
change in the law from sixty days to one year does not impact our analysis.

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November 29, 2010, ninety days after the Pennsylvania Supreme Court denied

allocatur and time expired for Appellant to file an appeal with the United States

Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (“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.”); U.S. Sup. Ct. R. 13.

Therefore, Appellant had to file the current PCRA petition by November 29,

2011, in order for it to be timely.    See 42 Pa.C.S. § 9545(b)(1) (a PCRA

petition must be filed within one year of the date that the judgment of

sentence becomes final). Appellant did not file the instant PCRA petition until

December 27, 2018.       Thus, Appellant’s instant PCRA petition is patently

untimely.

      As previously stated, if a petitioner does not file a timely PCRA petition,

his petition may nevertheless be received under any of the three limited

exceptions to the timeliness requirements of the PCRA.              42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within one year of the date that the exception could be asserted. 42

Pa.C.S. § 9545(b)(2). It is the petitioner’s burden to allege and prove that

one of the exceptions exists. Commonwealth v. Whitehawk, 146 A.3d 266,

269–270 (Pa. Super. 2016).

      In an effort to establish an exception to the PCRA time-bar, Appellant

argues that


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      the first two exceptions to the timely filing requirements of the
      PCRA have been satisfied: (1) the surreptitious actions of the
      judges and detectives involved in the deprivation of [co-
      defendant’s] Sixth Amendment rights and the surgically removed
      bullet not only interfered with Appellant’s ability to properly
      defend himself at trial, but also precluded him from timely raising
      such claims when seeking collateral relief under the PCRA; and (2)
      the facts surrounding the surgically removed bullet, specifically
      the deprivation of [co-defendant’s] Sixth Amendment rights, were
      unknown to Appellant because he was not present during [co-
      defendant’s] arraignment proceedings.

Appellant’s Brief at 11. Appellant further avers that in addition to establishing

these two exceptions, he is also able to “demonstrate that the underlying

proceedings were so fundamentally unfair, that the entire process itself should

be rendered ‘presumptively unreliable under the Sixth Amendment. Bennett,

supra.[’]” Id. at 12. Appellant maintains that

      there is no difference between the court appointed PCRA attorney
      at issue in Bennett who failed to timely submit an appellate brief,
      and the court appointed PCRA attorney at issue in this matter who
      provides a timely brief with a blatantly erroneous opinion. This is
      because the result of such attorneys’ actions is the same – i.e.,
      their representation results in the functional equivalent of a
      complete denial of counsel.

Id. at 13 (verbatim).

      Appellant first argues that he has established the exception to the PCRA

time-bar under subsection 9545(b)(1)(i).          Appellant’s Brief at 28-29.

Appellant argues that government officials involved in his case interfered with

his claims under the PCRA, as follows:

      (1) the    magistrate judge who failed to advise co-defendant
      Fleming   of his right to counsel; (2) the judge who issued the
      warrant   to allow the search of victim Dowe while co-defendant
      Fleming   (a primary suspect of the shooting victim) remained in

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      prison without an attorney; and (3) the detectives who obtained
      the warrant, oversaw the search of victim Dowe, and sent the
      purported bullet to the Pennsylvania State Police for forensics
      testing.

Id. at 29. Appellant further states that

      [i]n light of Appellant being unaware of such government officials
      being involved in the deprivation of his claims involving violation
      of the Constitution, and also not having the ability to learn (or
      appreciate the legal significance) of such facts, Appellant submits
      that the first exception to the timely filing requirements under
      § 9545(b)(1)(i) is . . . satisfied in this instance.

Id. at 29-30.

      In order to meet the statutory requirements of the “governmental

interference” exception to the PCRA’s one year jurisdictional time-bar,

Appellant was required to plead and prove that his “failure to raise the claim

[or claims] 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) (emphasis

in original)(quoting 42 Pa.C.S. § 9545(b)(1)(i)).

      Appellant’s argument under this exception is unclear.        To the extent

Appellant claims any alleged interference by the magistrate judge, the judge

who issued the warrant, and the detective who obtained the warrant, we find

no merit to these claims. All of these government officials were involved in

Appellant’s case pretrial.   As such, Appellant was aware of these alleged

interferences at the time of trial, and could have raised them at trial, on direct


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appeal, or in his first two PCRA petitions. Thus, Appellant failed to prove that

his failure to raise these claims previously was as a result of interference by

government officials. Chester, 895 A.2d at 523-524.

      We next address Appellant’s assertions that he has established the

exception under subsection 9545(b)(1)(ii).        Appellant’s Brief at 16-28.

Appellant argues that his

      conviction was made and upheld on appeal as a result of co-
      defendant Fleming being denied counsel following his preliminary
      arraignment as required under the Sixth Amendment and
      Pa.R.Crim.P. 540(H).     While co-defendant Fleming was held
      captive in the Northampton County prison, the Palmer Twp. police
      conducted a search of the victim co-defendant Fleming was
      charged with attempting to murder, Marvin Dowe. The bullet
      purportedly recovered from Mr. Dowe would then be used to arrest
      and convict Appellant.

Id. at 16-17.   Appellant further argues that neither his trial nor his PCRA

counsel questioned “the blatant violation of co-defendant Fleming’s 6th

Amendment rights as a result of Fleming being unrepresented for over a

month after his preliminary arraignment nor did Appellant’s prior counsel

question whether such a violation impacted the constitutionality of the search

of Mr. Dowe.” Id. at 17. Appellant continues: “Most importantly, neither

counsel questioned whether Appellant was afforded due process under the 5th

and 14th Amendments of the Constitution when he was convicted to a sentence

of twenty (20) to forty (40) years in prison on evidence produced from an

unconstitutional search.” Id.




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      This Court has stated the following in outlining the exception under

Section 9545(b)(1)(ii):

            The timeliness exception set forth in Section 9545(b)(1)(ii)
      requires a petitioner to demonstrate he did not know the facts
      upon which he based his petition and could not have learned those
      facts earlier by the exercise of due diligence. 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. Additionally, the focus of this
      exception “is on the newly discovered facts, not on a newly
      discovered or newly willing source for previously known facts.”

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (internal

citations omitted).

      Furthermore, Appellant’s claims constitute assertions of trial and PCRA

counsel ineffectiveness.    Generally, a claim of ineffectiveness does not

constitute a “fact” for purposes of the timeliness exception allowed by 42

Pa.C.S.A. § 9545(b)(1)(ii). See Commonwealth v. Gamboa-Taylor, 753

A.2d 780, 785 (Pa. 2000) (“a claim for ineffective assistance of counsel does

not save an otherwise untimely petition for review on the merits.”) (citing

Commonwealth v. Lark, 746 A.2d 585, 589–590 (Pa. 2000)) (holding that

couching argument in terms of ineffectiveness cannot save a petition that does

not fall into an exception to the jurisdictional time-bar). Accordingly, these

claims of ineffectiveness do not constitute an exception to the PCRA time-bar.

      In an effort to circumvent this line of cases, Appellant relies on Bennett,

930 A.2d at 1268, and asserts “that the entire process itself should be

rendered ‘presumptively unreliable under the Sixth Amendment.’” Appellant’s

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Brief at 12.        Appellant maintains that PCRA counsel’s conclusion that

introduction at trial of a second bullet removed from the victim’s car did not

put Appellant’s interests at direct odds with his co-defendant’s defense was

erroneous. Id. at 12-13. He posits that counsel was therefore ineffective and

      submits herein that there is no difference between the court
      appointed PCRA attorney at issue in Bennett who failed to timely
      submit an appellate brief, and the court appointed PCRA attorney
      at issue in this matter who provides a timely brief with a blatantly
      erroneous opinion. This is because the result of such attorneys’
      actions is the same – i.e., their representation results in the
      functional equivalent of a complete denial of counsel.           As
      recognized under Bennett, a denial of counsel mandates the
      presumption of prejudice because the process itself has been
      rendered presumptively unreliable under the Sixth Amendment.
      When the process is rendered presumptively unreliable, a
      petitioner-defendant such as Appellant is to be afforded leeway in
      the preservation of his PCRA claims.

Id. at 13-14 (internal quotation marks and citations omitted).

      In Bennett, our Supreme Court acknowledged the line of cases holding

that an allegation of PCRA counsel’s ineffectiveness could not be invoked as a

newly discovered “fact” for purposes of subsection 9545(b)(1)(ii). Bennett,

930   A.2d     at    1272   (citing   Gamboa–Taylor,    753    A.2d   at     785;

Commonwealth v. Pursell, 749 A.2d 911, 916 (Pa. 2000)). The Bennett

Court distinguished those cases from the procedural scenario before it,

explaining that “[t]hose cases, however, have no relevance when the claim

emanates from the complete denial of counsel.” Bennett, 930 A.2d at 1273.

The Court further explained:

      Consistent with this jurisprudence, this Court has recognized a
      distinction between situations in which counsel has narrowed the

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      ambit of appellate review by the claims he has raised or foregone
      versus those instances, as here, in which counsel has failed to file
      an appeal at all. . . . Accordingly, following our prior case law,
      we hold that the analysis set forth in Gamboa–Taylor and
      subsequent case law does not apply to situations when counsel
      abandons his client for purposes of appeal.

Bennett, 930 A.2d at 1273 (emphasis added). As a result, the Court held

that “[the a]ppellant ha[d] made sufficient allegations that counsel abandoned

him for purposes of his first PCRA appeal by failing to file an appellate brief

and that [the a]ppellant’s relief under subsection (b)(1)(ii) is not controlled

by the Gamboa–Taylor line of case law.” Id. Furthermore, the Court stated

that having concluded that the appellant’s allegations bring his claim within

the ambit of subsection (b)(1)(ii), he must still prove that the facts were

“unknown” to him and that he could not have uncovered them by exercising

“due diligence.” Id. at 1274. Concluding that such questions required further

fact-finding and the PCRA court, acting as fact-finder, should determine

whether   Appellant    met   the   “proof”    requirement   under   42   Pa.C.S.

§ 9545(b)(1)(ii), the Court remanded the matter to the Superior Court for

remand to the PCRA court for further consideration. Id. at 1275.

      Thus, we disagree with Appellant’s assertion that Bennett supports his

claim that his PCRA petition meets the exception to the PCRA time-bar under

subsection 9545(b)(1)(ii). In the case sub judice, there is no evidence that

Appellant’s trial or PCRA counsel abandoned him. Thus, Bennett does not

apply on that basis.




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      Additionally, our Supreme Court subsequently clarified Bennett,

explaining that:

      The Bennett Court emphasized that any petitioner requesting a
      nunc pro tunc appeal based on an abandonment theory had to
      show due diligence and establish that the petition was filed in
      accordance with subsection (b)(2). We did not authorize courts
      to grant post-conviction relief in every instance where a petitioner
      has been abandoned by appellate counsel, and we neither stated
      nor implied that petitioners could circumvent the statutory filing
      deadline by citing Bennett as an independent basis for a new
      claim of ineffectiveness.

Commonwealth v. Watt, 23 A.3d 980, 986 (Pa. 2011). Accordingly, even

if Appellant could establish that counsel had abandoned him, he would also

have to prove that these facts were unknown to him and that he could not

have discovered these facts earlier exercising due diligence. Watt, 23 A.3d

at 986; Bennett, 930 A.2d at 1274. Moreover, he would have to establish a

timely filing of that petition pursuant to subsection 9545(b)(2). Id.

      In the case herein, Appellant neither argues nor proves when he first

learned of these newly discovered facts, why these facts could not have been

discovered earlier by exercising due diligence, or that he timely filed the

petition in relation to those newly discovered facts. Furthermore, we note that

Appellant would have been aware of what arguments his trial and previous

PCRA counsel had made or failed to make at the time of their respective filings.

Moreover, any alleged actions regarding co-defendant Fleming and his

representation or lack thereof occurred in 2006-2007. Appellant’s Brief at 18-

23. Appellant has failed to establish why he could not have uncovered those


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facts earlier by the exercise of due diligence. Accordingly, Appellant is unable

to invoke an exception on the basis of Bennett.

      Accordingly, Appellant’s claims amount to nothing more than assertions

of trial and PCRA counsel ineffectiveness. As a result, Appellant’s claims fail

to establish an exception to the PCRA time-bar. Gamboa-Taylor, 753 A.2d

at 785; Lark, 746 A.2d at 589–590.

      Consequently, because the instant PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396,

398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear

untimely petition).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/20




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