J-A04015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    EARL EUGENE BOX

                             Appellant                   No. 132 MDA 2017


            Appeal from the PCRA Order entered December 7, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No: CP-22-CR-0000965-1975


BEFORE: STABILE, NICHOLS, AND RANSOM,* JJ.

MEMORANDUM BY STABILE, J.:                                  FILED MAY 31, 2018

        Appellant, Earl Eugene Box, appeals pro se from the December 7, 2016

order entered in the Court of Common Pleas of Dauphin County, granting

appointed counsel’s motion to withdraw and dismissing Appellant’s seventh

petition for collateral relief filed pursuant to the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9541-9546.1 Following review, we affirm.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1 The PCRA court refers to the instant petition as Appellant’s fifth PCRA
petition. From the record, it appears this is actually Appellant’s seventh
petition for collateral relief, with the appeal from denial of a fifth petition being
dismissed by this Court in 2007 for failure to file a brief and the appeal from
denial of a sixth petition being quashed as untimely in 2008. See Docket
Entries at pp. 12 and 14.
J-A04015-18


        In this appeal, Appellant asks us to consider two issues:

        I.    Did the PCRA court err by dismissing Appellant’s [PCRA]
              petition pursuant to counsel’s “no merit” letter that failed to
              comport with appellate standards governing withdrawal of
              counsel’s representation in a PCRA proceeding, and did the
              PCRA court err in not conducting an evidentiary hearing on
              Appella[nt]’s ex-wife’s affidavit and Mr. Jamie Luquis’ official
              response to Appella[nt]’s June 7, 2016 request, and did the
              PCRA court err in not issuing a Rule 907 notice, and should
              appointed counsel have filed a “no merit” letter without ever
              communicating with Appellant in regards to the additional
              issues Appellant wished counsel to raise in an amended
              petition, and did the PCRA court conduct an independent
              review of the ultimate merits of the issues on the timeliness
              requirements, and did PCRA counsel render ineffective
              assistance of counsel?

        II.   Whether the prosecution’s “suppression” of Appellant’s
              “whereabouts” in 1970 and its knowing use of Massey’s false
              testimony and the Commonwealth improperly permitting
              Massey to do so denied Appellant a fair trial or due process
              by preventing Appe[]llant from impeaching Massey with the
              Brady[2] material that the Commonwealth intentionally
              suppressed, and whether the trial judge or the undisclosed
              Brady evidence prevented Appellant from impeach[i]ng
              Massey by showing bias or interest when it comes to who
              allegedly fired the shot in the ceiling at Abe’s Tavern?

Appellant’s Brief at 4-5.

        In Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008), our

Supreme Court stated:

        Our standard of review of the denial of PCRA relief is clear: we
        are “limited to determining whether the PCRA court's findings are
        supported     by   the   record  and    without   legal    error.”
____________________________________________


2   Brady v. Maryland, 373 U.S. 83 (1963).


                                           -2-
J-A04015-18


       Commonwealth v. Hawkins, 953 A.2d 1248, 1251 (Pa. 2006).
       We note that a second or subsequent petition must present a
       strong prima facie showing that a miscarriage of justice may have
       occurred. Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d
       154, 160 (1999). Finally, the petition must be timely, as the Act’s
       timeliness restrictions are jurisdictional in nature and are to be
       strictly construed. Commonwealth v. Abu–Jamal, 596 Pa. 219,
       941 A.2d 1263, 1267–68 (2008).

Id. at 309.

       On appeal from denial of Appellant’s fourth PCRA petition, this Court

noted that Appellant was convicted of second-degree murder and two counts

of robbery following a jury trial in September of 1975. See Commonwealth

v. Box, No. 1919 MDA 2003, unpublished memorandum at 1 (Pa. Super. filed

July 21, 2004). He was sentenced to life in prison for the murder conviction

with consecutive sentences of ten to twenty years in prison for the robbery

convictions. Our Supreme Court affirmed Appellant’s judgment of sentence

on October 27, 1978,3 and Appellant did not seek review from the United

States Supreme Court. Id. at 1-2. Therefore, his judgment of sentence was

final on December 26, 1978, 60 days after his judgment of sentence was

affirmed, and he had until December 26, 1979 to file a timely petition for

collateral review.    Id. at 6.4



____________________________________________


3   Commonwealth v. Box, 391 A.2d 1316 (Pa. 1978).

4 Under U.S.Sup.Ct.R. 22(2) in effect at the time of Appellant’s direct appeal,
the time for seeking certiorari to the United States Supreme Court was 60
days. Rule 22(2) was subsequently renumbered as Rule 13, effective January
1, 1990, and now provides a 90-day period for seeking certiorari.

                                           -3-
J-A04015-18


       The instant appeal is an appeal from dismissal of Appellant’s seventh

petition for collateral relief. This petition was filed on March 28, 2016, more

than thirty-seven years after his judgment of sentence became final.

Therefore, the petition is patently untimely and we may not consider it unless

Appellant has presented and proved an exception to the PCRA’s timeliness

requirement. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time restrictions are

jurisdictional in nature. Thus, [i]f a PCRA petition is untimely, neither this

Court nor the [PCRA] court has jurisdiction over the petition.          Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.

2006) (first alteration in original) (internal citations and quotation marks

omitted). As timeliness is separate and distinct from the merits of Appellant’s

underlying claims, we first determine whether this PCRA petition is timely

filed. See Stokes, 959 A.2d at 310 (consideration of Brady claim separate

from consideration of its timeliness).

       Appellant asserts that his current petition is saved from the PCRA’s time

bar based on after-discovered evidence consisting of an undisclosed prior

conviction of a witness who testified at Appellant’s 1975 trial. 5    Appellant




____________________________________________


5As this Court stated in Commonwealth v. Medina, 92 A.3d 1210 (Pa.
Super. 2014):



                                           -4-
J-A04015-18


contends he was not aware until February 2016 that the witness, Donald

Massey, a/k/a Donald Reinberry, had previously been convicted of obstructing

an officer in the execution of process or in the performance of his duties. That

evidence, he contends, could have been used to impeach Massey.

       In his Turner/Finley6 no-merit letter, appointed counsel explained:

             Upon review of the record, it is clear that [Appellant] wanted
       to impeach Donald Massey.           During the trial, [Appellant]
       interrupted the direct examination of Mr. Massey in front of the
       jury and gave a colloquy in open court how [Appellant] thought
       Mr. Massey was lying. Also, trial counsel . . . impeached Donald
       Massey with his prior testimony in [Appellant’s] case, prior
       testimony in [a related] trial and his prior statements to the
       Commonwealth. Further, Mr. Massey testified in open court that
       he plead guilty to the first-degree murder and various robberies.
       Mr. Massey received a life sentence for the murder plus a
       consecutive sentence of ten (10) to twenty (20) years for his
       involvement in the robberies. Mr. Massey testified that he
____________________________________________


       Our Supreme Court has previously described a petitioner’s burden
       under the newly-discovered fact exception as follows.

          [S]ubsection (b)(1)(ii) 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.” 42 Pa.C.S. § 9545(b)(1)(ii)
          (emphasis added).

       Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1272
       (2007).



Id. at 1216.


6Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


                                           -5-
J-A04015-18


     negotiated a deal with the Commonwealth in which Mr. Massey
     would receive the aforementioned sentence but prevented the
     Commonwealth from seeking the death penalty against Mr.
     Massey.

            [Appellant’s] claim that Mr. Massey’s prior criminal
     conviction for Obstruction [of] an Officer meets the timeliness
     exception is misplaced. This being [Appellant’s seventh] PCRA
     petition, there is not a prima facie showing that [a] miscarriage of
     justice occurred. [Appellant] obtained Mr. Massey’s criminal
     conviction because it is a public record. Further, [Appellant] and
     trial counsel knew the impeachment of Mr. Massey was vital to
     [Appellant’s] case. [Appellant] cannot claim [he] exercised due
     diligence into Mr. Massey’s criminal history thirty-one (31) years
     after his conviction and [six] PCRA petitions later.

           Undersigned counsel has also reviewed this timeliness issue
     as a Brady violation. Again, [Appellant’s] claim fails because
     [Appellant] could have obtained Mr. Massey’s criminal history
     before or during trial or with due diligence in his previous . . .
     PCRA petitions. See Commonwealth v. Bennett, 930 A.2d
     1264 (Pa. 2007), citing Commonwealth v. Johnson, 863 A.2d
     423 (Pa. 2004).

No-Merit Memorandum, 11/22/16, at 5-6 (references to Notes of Trial

Testimony omitted).

     Appellant’s contention that his untimely petition is saved by Brady is

misplaced. As in Stokes,

     Appellant’s argument is essentially that a Brady claim operates
     to negate—wholly—the statutory timeliness requirements set
     forth in the PCRA. Appellant’s reasoning would permit a PCRA
     petition to be filed at any time, as long as the claim is couched in
     terms of a Brady violation. But this Court has explicitly held
     otherwise. See Abu–Jamal, supra at 1268 (concluding that not
     only must a petitioner assert that “the facts upon which the Brady
     claim is predicated were not previously known to the petitioner,”
     but also that they “could not have been ascertained through due
     diligence”). See also Hawkins, supra at 1253 (“Although a
     Brady violation may fall within the governmental interference
     exception, the petitioner must plead and prove that the failure to

                                    -6-
J-A04015-18


       previously raise these claims was the result of interference by
       government officials, and that the information could not have
       been obtained earlier with the exercise of due diligence.”)

Stokes, 959 A.2d at 311 (citation omitted) (emphasis in original).

       As reflected in appointed counsel’s analysis quoted above, and

confirmed by our review of the record as well as statutory and case law,

Appellant has failed to establish an exception to the PCRA’s time bar. Further,

Appellant has not presented a strong prima facie showing that a miscarriage

of justice may have occurred. Therefore, we affirm the December 6, 2016

order granting counsel’s motion to withdraw and dismissing Appellant’s

seventh petition for collateral relief. We—like the PCRA court—do not have

jurisdiction to entertain the merits, if any, of Appellant’s issues, and we shall

not consider them.7

       Order affirmed. Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/31/18

____________________________________________


7 We note that Appellant contends the PCRA court erred in dismissing his
petition without providing a notice of intent to do so under of Pa.R.Crim.P.
907. However, “our Supreme Court has held that where the PCRA petition is
untimely, the failure to provide such notice is not reversible error.”
Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citations
omitted).


                                           -7-
