J-S15009-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEVON A. EVERETT                           :
                                               :
                       Appellant               :   No. 1103 WDA 2019

               Appeal from the PCRA Order Entered July 16, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0012952-2006


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

MEMORANDUM BY BENDER, P.J.E.:                             FILED MAY 15, 2020

        Appellant, Jevon A. Everett, appeals pro se from the post-conviction

court’s July 16, 2019 order denying, as untimely, his petition filed under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The facts underlying Appellant’s conviction are not pertinent to his

present appeal. We only briefly summarize the procedural history of his case,

as follows. In 2008, Appellant was convicted by a jury of first-degree murder.

He was sentenced on December 11, 2008, to a term of life imprisonment

without the possibility of parole. He filed a timely direct appeal, and after we

affirmed, our Supreme Court denied Appellant’s petition for permission to

appeal.    Commonwealth v. Everett, 26 A.3d 1202 (Pa. Super. Mar. 24,

2011), appeal denied, 32 A.3d 1275 (Pa. Oct. 31, 2011).

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      Appellant thereafter filed a timely, pro se PCRA petition, and counsel

was appointed. Ultimately, that petition was denied, and this Court affirmed

on appeal.    Commonwealth v. Everett, No. 35 WDA 2014, unpublished

memorandum (Pa. Super. Feb. 10, 2015). Appellant did not file a petition for

permission to appeal to our Supreme Court.

      On February 11, 2019, Appellant filed the pro se PCRA petition

underlying the present appeal.      On May 14, 2019, the court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition without a

hearing. He filed a pro se response, but on July 16, 2019, the court issued an

order dismissing his petition as being untimely filed.

      Appellant filed a timely, pro se notice of appeal, and he complied with

the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The court filed a Rule 1925(a) opinion on October

28, 2019.    Herein, Appellant raises six issues for our review, which we

reproduce verbatim:

      (1) Whether there was insufficient evidence to support the
      evidence on the basis that the evidence was insufficient to show
      Defendant committed the crime?

      (2) Whether ineffective assistance of counsel occurred when
      District Attorney to the courtroom, to stand directly behind the
      defense table where Defendant sat and watched in shock and awe!
      Defense Counsel failed to call a mistrial. Judge watched as jury
      was detained from outside the courtroom as children were
      escorted from courtroom, crying in front of jury.

      (3) Whether Defendant’s conviction was based of evidence known
      to be false and failed to correct false testimony that the key
      witness (coconspirator) had received no promises of


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      nonprosecution in exchange for his testimony, as well as other
      false statements?

      (4) WHETHER COUNSEL WAS INEFFECTIVE IN SEEKING EXPERT
      HELP ASSESSING JAIL-HOUSE INFORMANTS AND INCENTIVE
      WITNESSES. Informants are highly motivated to lie. But jurors
      don’t always have the information or skills to discern the truth?

      (5) Whether Defendant made out a prima facie case of juror
      tampering, juror bias and denied a hearing, voir dire or
      opportunity to prove actual bias and other outside issues effecting
      trial. The bias of a single juror is enough to violate the Sixth
      Amendment? The outside influences on (Travon Wheeler) Juror
      #12 raises a presumption of prejudice that imposes a heavy
      burden on the State to overcome by showing that influences were
      harmless, as counsel rendered ineffective counsel, failure to raise
      issue of voir dire?

      (6) Whether counsel has a duty to fully inform client of the risks
      of not accepting a plea offer of 10 to 20 years or face life imprison
      if found guilty. Counsel’s advice must be a reasonable assessment
      of the facts and law, but for bad advice, bald assertions and naked
      declarations that trial would end in hung jury as in first trial.
      Defendant would not have risk going to trial on such bad advice,
      alternatively risking his life?

Appellant’s Brief at 5.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.      Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007) (stating PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded to address the merits of the petition). Under the PCRA,


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any petition for post-conviction relief, including a second or subsequent one,

must be filed within one year of the date the judgment of sentence becomes

final, unless one of the following exceptions set forth in 42 Pa.C.S. §

9545(b)(1)(i)-(iii) applies:

       (b) Time for filing petition.--

          (1) Any petition under this subchapter, including a second
          or subsequent petition, shall be filed within one year of the
          date the judgment becomes final, unless the petition alleges
          and the petitioner proves that:

              (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). Additionally, as we discuss infra, at the time

Appellant’s claim arose in this case, section 9545(b)(2) required that any

petition attempting to invoke one of these exceptions “be filed within sixty

days of the date the claim could have been presented.”                42 Pa.C.S. §

9545(b)(2).1
____________________________________________


1An amendment to section 9545(b)(2), which became effective on December
24, 2018, changed the language to require that a petition “be filed within one



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       Here, Appellant’s judgment of sentence became final on January 31,

2012, ninety days after our Supreme Court denied his petition for permission

to appeal from his judgment of sentence.         See 42 Pa.C.S. § 9545(b)(3)

(stating that a judgment of sentence becomes final at the conclusion of direct

review or the expiration of the time for seeking the review); Commonwealth

v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the

PCRA, petitioner’s judgment of sentence becomes final ninety days after our

Supreme Court rejects his or her petition for allowance of appeal since

petitioner had ninety additional days to seek review with the United States

Supreme Court). Thus, Appellant’s present petition, filed in 2019, is patently

untimely.    For this Court to have jurisdiction to review the merits thereof,

Appellant must prove that he meets one of the exceptions to the timeliness

requirements set forth in 42 Pa.C.S. § 9545(b).

       Our review of whether Appellant has pled and proven a timeliness

exception in this case has been impeded by the nearly incomprehensible

nature of his lengthy, pro se brief. From what we can discern, Appellant’s only

claim relating to a timeliness exception is that he has obtained new evidence

in the form of an affidavit by one of the Commonwealth’s witnesses in this

case, Taj McBride. According to Appellant, in the affidavit, McBride states that


____________________________________________


year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2). That amendment applies to any claims arising on or after
December 24, 2017.


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“detectives threatened and intimidated [] [him] into incriminating [Appellant]

in this case.” Appellant’s Brief at 64.

      Notably, Appellant admits that he received McBride’s affidavit in

November of 2017. Id. This fact makes his petition filed in February of 2019

untimely under the 60-day requirement of section 9545(b)(2) that was in

effect when Appellant’s claim arose. Nevertheless, Appellant seems to argue

that his petition is timely because he filed it within 60 days of the denial of a

petition for writ of habeas corpus that Appellant filed in federal court, which

was also based on McBride’s affidavit. See id. Unfortunately for Appellant,

the fact that he had litigation pending in federal court did not preclude him

from filing his state post-conviction petition, nor toll the 60-day filing deadline.

See Commonwealth v. Fahy, 737 A.2d 214, 222, 223 (Pa. 1999) (holding

“that the period for filing a PCRA petition is not subject to the doctrine of

equitable tolling, save to the extent the doctrine is embraced by [section]

9545(b)(1)(i)-(iii)[,]” and “[t]o allow tolling of the PCRA’s time limitations

where a writ for federal habeas relief has been filed would undermine the

federal policy of initial state review, and in fact, would encourage initial review

in the federal system”).

      Accordingly,    because    Appellant    obtained    McBride’s   affidavit   in

November of 2017, his petition filed over one year later is untimely under

section 9545(b)(2). Because neither this claim, nor any other issue Appellant

states herein, meets a timeliness exception, the PCRA court did not err in

denying Appellant’s untimely petition.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2020




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