J-S03034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANTOINE SPANN

                            Appellant                 No. 1983 EDA 2014


                   Appeal from the PCRA Order June 24, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0110831-1991


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                  FILED MAY 26, 2015

       Antoine Spann appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, dated June 24, 2014,

dismissing his serial petition filed under the Post-Conviction Relief Act

(“PCRA”)1 as untimely. Spann seeks relief from the judgment of sentence of

life imprisonment imposed on May 11, 1992, following his jury conviction of

second-degree murder.2          Because we agree the petition is untimely, we

affirm.

       Spann’s conviction arose out of a shooting on October 23, 1990, when

Spann, accompanied by four cohorts, shot and killed Clarence Davis.       On
____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 2502.
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January 21, 1992, a jury found Spann guilty of second-degree murder, but

not guilty of possession of an instrument of crime.3 The trial court denied

Spann’s post-verdict motions and, on May 11, 1992, imposed a mandatory

sentence of life imprisonment. This Court affirmed the judgment of sentence

on July 7, 1993, and the Supreme Court denied allocatur on February 23,

1994.4

       The PCRA court set forth the remainder of the procedural history as

follows:

              On June 6, 1995, Spann filed a pro se PCRA petition, which
       was dismissed without prejudice due to his pending federal
       habeas petition. After Spann’s habeas petition was dismissed,
       he filed another pro se PCRA petition on September 7, 1995.
       PCRA counsel was appointed and counsel filed an amended
       petition raising three claims of ineffectiveness of trial counsel.
       On November 27, 1996, the Honorable Ricardo C. Jackson
       dismissed the PCRA petition. Spann subsequently appealed the
       dismissal to the Superior Court and the Court affirmed the
       dismissal on December 12, 1997.[5] On July 30, 1999, Spann
       filed a “nunc pro tunc application addressing the reasons [he]
       failed to file petition for allowance of appeal nunc pro tunc on a
       timely basis” in the Supreme Court of Pennsylvania, which the
       Court denied per curiam on October 26, 1999.

              On February 11, 2000, Spann filed a second pro se PCRA
       petition, which the Honorable Ricardo C. Jackson dismissed as
       untimely on June 28, 2000. On June 14, 2010, Spann filed a
____________________________________________


3
    See 18 Pa.C.S. § 907.
4
    Commonwealth v. Spann, 633 A.2d 1225 (Pa. Super. 1993)
(unpublished memorandum), appeal denied, 641 A.2d 585 (Pa. 1994).
5
    Commonwealth v. Spann, 706 A.2d 1259 (Pa. Super. 1997)
(unpublished memorandum).



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       third pro se PCRA petition, which the Honorable Ricardo C.
       Jackson also dismissed as untimely on September 28, 2011.

              On October 18, 2012, Spann filed the instant PCRA
       petition. In response, the Commonwealth filed a Motion to
       Dismiss on January 7, 2014. The matter was first listed before
       this court for decision on May 28, 2014. On May 28, 2014,
       following a review of the record, evidence, Spann’s petition, and
       the Commonwealth’s submission, this court sent Spann a 907
       Notice, pursuant to Pa.R.Crim.P. 907(1). Spann filed a response
       to the 907 Notice on June 19, 2014. On June 25, 2014[,] this
       court dismissed the PCRA petition.

PCRA Court Opinion, 7/21/2014, at unnumbered 2. This pro se appeal

followed.6

       As a preliminary matter, Spann has filed a Motion to Strike the

Commonwealth’s appellee brief as being untimely. See Motion for Leave to

Strike Appellee’s Untimely Brief from Record, 12/29/2014. Spann avers that

although this Court gave the Commonwealth one extension of time, on

September 26, 2014, in which to file a brief by November 18, 2014, the

Commonwealth filed a brief 27 days after this due date.         Id. We deny

Spann’s motion, as he was not prejudiced by the Commonwealth’s late filing

of its brief. We now turn to the substantive claims.

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

the underlying petition. Thus, we must first determine whether the instant



____________________________________________


6
  The PCRA court did not order Spann to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b).



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PCRA petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766,

768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).

      The PCRA timeliness requirement … is mandatory and
      jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
      1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
      A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa.
      1, 753 A.2d 201, 203 (2000)). The court cannot ignore a
      petition’s untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013).

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

underlying judgment becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment

is deemed 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. §

9545(b)(3).    Here, Spann’s petition for allowance of appeal with the

Pennsylvania Supreme Court was denied on February 23, 1994. Therefore,

Spann’s sentence became final on May 24, 1994, when his time to file a

petition for writ of certiorari with the United States Supreme Court expired.

See Sup. Ct. R. 13. Moreover, pursuant to Section 9545(b)(1), Spann had

one year from the date his judgment of sentence became final to file a PCRA

petition.   See Taylor, supra.     The instant petition was not filed until




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October 18, 2012, approximately 18 years later, making it patently

untimely.7

       An untimely PCRA petition may, nevertheless, 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. § 9545(b)(1)(i-iii). Furthermore, a PCRA petition alleging any of

the exceptions under Section 9545(b)(1) must be filed within 60 days of

when the PCRA claim could have first been brought. 42 Pa.C.S. §

9545(b)(2).

       Moreover, we are mindful that “although this Court is willing to

construe liberally materials filed by a pro se litigant, pro se status generally
____________________________________________


7
  There exists a proviso to the 1995 amendments to the PCRA that provides
a grace period for petitioners whose judgments became final on or before
the January 16, 1996 effective date of the amendments. However, the
proviso applies to first PCRA petitions only, and the petition must be filed by
January 16, 1997. See Commonwealth v. Thomas, 718 A.2d 326 (Pa.
Super. 1998) (en banc). It is evident Spann is not entitled to the relief
provided by the proviso.



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confers no special benefit upon an appellant.” Commonwealth v. Lyons,

833 A.2d 245, 252 (Pa. Super. 2003) (citation omitted), appeal denied, 879

A.2d 782 (Pa. 2005). It merits mention that Spann’s brief is disjointed and

unintelligible at some points.

       Nevertheless, a review of the brief reveals that Spann raises the

following arguments on appeal: (1) PCRA counsel was ineffective; 8 (2) the

trial court engaged in “governmental interference” in 1998 when it

determined that Spann’s “petition” for nunc pro tunc relief was defective;9

____________________________________________


8
   For example, Spann claims PCRA counsel was ineffective for not filing the
correct document with the court, for not informing the appropriate authority
about the unethical conduct by the District Attorney’s Office, for not being
aware of the personal relationship between Spann’s trial counsel and the
prosecutor, for not objecting to a certain witness’s statement at the PCRA
hearing, for not raising the issue that the trial judge withheld exculpatory
evidence from the jury, and for abandoning Spann during the PCRA hearing.
Spann’s Brief at 6-31. Spann also alleges PCRA counsel knew about a
conspiracy between the trial judge and the District Attorney’s Office and did
not inform the appropriate authority about this “miscarriage of justice.” Id.
at 22.
9
   Spann states that he received a letter from a clerk of courts that a “new
rule” of constitutional law applied retroactively to his case but fails to explain
how this unidentified rule applied. Id. at 33. Moreover, he claims the clerk
of courts sent his petition to the trial court, instead of the Pennsylvania
Supreme Court, and without the Court’s knowledge, which was a negligent
action that impeded the proper filing of the document. Id. at 34. Likewise,
he contends “it took an extra thirty seven (37) days for [him] to receive
back his defective brief and prevented [him] from correcting, and
resubmitting his brief in a timely manner.” Id. at 35. Additionally, in this
section of Spann’s argument, he complains of judicial bias, and, asserts that
in 1999, the District Attorney’s Office prevented him from exhausting his
state remedies. Id. at 37-38.




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and (3) Spann received information in February of 2010 concerning “newly

discovered evidence” of alleged prosecutorial misconduct.10

       With respect to Spann’s first issue regarding ineffective assistance, we

are guided by the following:

       Our Supreme Court has made clear that the section
       9545(b)(1)(ii) exception will not apply to alleged ineffective
       assistance of counsel claims, even if the claims were not
       knowable until advised of their existence by present counsel.
       See Commonwealth v. Bronshtein, 561 Pa. 611, 752 A.2d
       868 (Pa. 2000); Commonwealth v. Pursell, 561 Pa. 214, 749
       A.2d 911 (Pa. 2000); see also [Commonwealth v. Fahy, 737
       A.2d 214, 223 (Pa. 1999);] (claim of ineffective assistance of
       counsel does not save an otherwise untimely petition for review
       on merits).

Commonwealth v. Perrin, 947 A.2d 1284, 1287 (Pa. Super. 2008).

Accordingly, Spann’s first claim does not qualify under any of the three

enumerated exceptions to the timeliness requirement.

       With respect to Spann’s second issue of governmental interference, we

find this argument fails for several reasons. First, Spann neglects to even

plead that he made this assertion within 60 days of when the claim could

have first been brought pursuant to Section 9545(b)(2).        Second, as the

PCRA court found:
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10
   Specifically, Spann maintains he received a letter in early 2010, from the
“Defender Association,” which informed him that District Attorney’s Office
was trying to convict him of a “20 year old case,” and there was exculpatory
evidence that would prove trial counsel’s conflict of interest in the matter.
Id. at 39-40. He also contends that PCRA counsel “knew all about the
unethical conduct against her client, but would not file this evidence in her
amended PCRA petition[.]” Id. at 40.



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      Spann’s claim attempts to invoke the governmental interference
      timeliness exception set forth in 42 Pa.C.S. § 9545(b)(1)(i);
      however, his reliance on the exception is misplaced.            The
      language of 42 Pa.C.S. § 9545(b)(1)(i) provides that the
      petitioner must prove that “the failure to raise the claim
      previously was the result of interference by government
      officials.”     The exception, therefore, only applies to
      governmentala interference with the petitioner’s timely
      presentation of PCRA claims. Spann’s claim provides no details
      about the trial court’s alleged interference with paperwork
      related to a “cover-up” with his appeal; however, the bare
      allegation of the court’s “interference” has nothing to do with his
      failure to raise a PCRA claim and, as such, his claim must fail.

PCRA Court Opinion, 7/21/2014, at unnumbered 5-6 (footnote omitted). We

agree with the court’s sound reasoning, and conclude the governmental

interference to the time bar is inapplicable to the present matter.

      Lastly, with respect to Spann’s “newly discovered evidence” argument,

we note that he did not file the present petition within 60 days of the date

that his claim could have been presented. As alleged by Spann, he received

this “newly discovered evidence” of alleged prosecutorial misconduct in

February of 2010; however, he did not file his present PCRA petition until

October 18, 2012, which was well past the 60-day period. As such, we also

find Spann fails to invoke the exception pursuant to Section 9545(b)(1)(ii),

for after-discovered facts, to excuse his untimely petition.

      Accordingly, there is no dispute that Spann filed his fourth PCRA

petition more than one year after his judgment of sentence became final.

Based on the aforementioned, we conclude Spann failed to satisfy his burden

of pleading and proving the applicability of the government interference


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and/or after-discovered evidence exceptions to the PCRA’s timeliness

requirement.   Therefore, we affirm the PCRA court’s order dismissing

Spann’s PCRA petition.

     Order affirmed.      Spann’s Motion for Leave to Strike Appellee’s

Untimely Brief from Record denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2015




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