J-S96043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

LANCE B. RUCKER

                          Appellant                 No. 1247 WDA 2016


              Appeal from the PCRA Order Dated July 13, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0011745-1997
                                        CP-02-CR-0012372-1997

BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

MEMORANDUM BY SOLANO, J.:                              FILED APRIL 7, 2017

      Appellant, Lance B. Rucker, appeals pro se from the order dismissing

as untimely his fifth petition for post-conviction relief filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–46. We affirm.

      This Court previously summarized the factual history underlying this

appeal as follows:

          The charges [against Appellant] arose from the September 8,
      1997 robbery and murder of Frank Ventrosco at this home in the
      City of Pittsburgh.      Appellant, Wilford Bernard and Gregory
      Barnett had gone there with the intent of stealing a large
      amount of marijuana and cocaine they believed was in the
      house. As a ruse to gain entrance to the house, Appellant
      banged on the door and announced to Mr. Ventrosco that he was
      a City of Pittsburgh Police Officer. Appellant then pointed a gun
      at the victim. As the victim held his hands in the air, Appellant
      fired a fatal shot directly into the victim’s stomach.

Commonwealth v. Rucker, 809 A.2d 964 (Pa. Super. 2002) (unpublished

memorandum at 1-2).
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        Appellant was charged with second-degree murder, robbery, violation

of the Uniform Firearms Act, impersonating a public servant and criminal

conspiracy.1 He was tried by a jury and convicted of all charges. On April

23,    2001,    the   trial   court    sentenced   Appellant   to     mandatory   life

imprisonment. He filed a direct appeal, and this Court affirmed his judgment

of sentence on August 20, 2002.            Commonwealth v. Rucker, 809 A.2d

964 (Pa. Super. 2002) (unpublished memorandum). Appellant subsequently

filed a nunc pro tunc petition for allowance of appeal, which the Pennsylvania

Supreme Court denied on March 7, 2006. Commonwealth v. Rucker, 895

A.2d 549 (Pa. 2006).

        In the intervening years, Appellant has sought relief under the PCRA

on four prior occasions and without success.            He filed the pro se PCRA

petition in this appeal – his fifth – on September 16, 2015. Although not

required to do so, the PCRA court appointed counsel to represent Appellant,

and on February 19, 2016, counsel filed a “no merit” letter pursuant to

Commonwealth            v.    Turner,      544   A.2d   927    (Pa.     1988),    and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On

February 25, 2016, the PCRA court granted counsel’s petition to withdraw.

On March 10, 2016, Appellant filed a pro se request to proceed pro se with

standby counsel, and on March 25, 2016, Appellant filed a pro se response in


____________________________________________


1
    18 Pa.C.S. §§ 2501, 3701, 6106, 4912 and 903, respectively.



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opposition to counsel’s “no merit” letter. The PCRA court denied Appellant’s

request for standby counsel on April 14, 2016. On July 13, 2016, the PCRA

court dismissed Appellant’s PCRA petition without a hearing.2       This timely

appeal followed.

       Appellant presents two issues for our review:

       1. Whether the state consistent with the due process clause, can
          convict petitioner for the attempted theft of illegal drugs that
          the robbery statute does not classify as property under state
          law, for the purpose of establishing the underlying felony of
          second degree murder.

       2. Whether the failure to raise the claim previously was the
          result of interference by government officials when the trial
          court, prosecutor, and defense counsel mislead petitioner and
          the jury to believe the robbery statute established illegal
          drugs to be a commodity state law recognized as property,
          notwithstanding the purchase, use, or ownership of illegal
          drugs is not property in which federal law protects.

Appellant’s Brief at 4.

       We begin by noting our standard of review of an order dismissing a

petition under the PCRA:         we must determinate whether the order of the

PCRA court is supported by the evidence of record and is free of legal error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the
____________________________________________


2
  Although the PCRA court did not issue notice of its intent to dismiss
Appellant’s petition pursuant to Pennsylvania Rule of Criminal Procedure
907, failure to issue notice as required by the rule governing disposition of a
PCRA petition is not reversible error when the record is clear that the
petition is untimely. Commonwealth v. Ziegler, 148 A.3d 849, 851 n.2
(Pa. Super. 2016).



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findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).

      In addition, before we look to the merits of an appellant’s claims, we

must determine whether the PCRA petition was timely. The timeliness of a

post-conviction petition is jurisdictional. Commonwealth v. Albrecht, 994

A.2d 1091, 1093 (Pa. 2010) (citation omitted).             If a petition is untimely,

neither an appellate court nor the PCRA court has jurisdiction over the

petition.     Id.   “Without jurisdiction, we simply do not have the legal

authority to address the substantive claims” raised in an untimely petition.

Id.

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa–

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S. § 9545(b)(1).                      Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there    exists   after-discovered    facts   or   evidence;   or   (3)   a    new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                 A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa–Taylor, 753

A.2d at 783. See also 42 Pa.C.S. § 9545(b)(2).

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        Instantly, Appellant’s judgment of sentence was entered on April 23,

2001.    He filed an appeal with this Court and we affirmed on August 20,

2002. Appellant was granted leave to file a petition for allowance of appeal

with the Pennsylvania Supreme Court nunc pro tunc, and the Supreme Court

denied the petition on March 7, 2006. Appellant did not petition for a writ of

certiori with the United States Supreme Court. Therefore, his judgment of

sentence became final 90 days later, on June 5, 2006. U.S. Sup. Ct. R. 13

(petition for writ of certiorari is deemed timely when filed within 90 days

after discretionary review is denied by the Pennsylvania Supreme Court). As

Appellant filed the instant petition on September 16, 2015, it is untimely

unless he has satisfied his burden of pleading and proving that one of the

enumerated exceptions applies.      See Commonwealth v. Beasley, 741

A.2d 1258, 1261 (Pa. 1999).

        Appellant concedes that his PCRA petition is untimely.     Appellant’s

Brief at 8.   However, he attempts to circumvent the PCRA’s time bar by

invoking the government interference exception in Section 42 Pa.C.S.

§ 9545(b)(1)(i) and claiming that his delay was the result of interference by

government officials “when the trial court, prosecutor, and defense counsel

mislead petitioner and the jury to believe the robbery statute established

illegal drugs to be a commodity state law recognized as property,

notwithstanding the purchase, use, or ownership of illegal drugs is not

property in which federal law protects.” Appellant's Brief at 4. Among other

reasons, Appellant’s argument fails because he does not provide facts

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supporting it.    Although he asserts that he filed his September 16, 2015

PCRA petition within sixty days of the date the claim first could have been

presented – noting that he learned about the viability of this claim on

September 1, 2015 – he does not say how he learned of this claim or

otherwise explain his general statement that “his due diligent efforts

ascertained” his government interference claims.          Id. at 6, 12.    Appellant

merely   states   that   he   “received   critical   incorrect   legal   advice   that

demonstrates his failure to raise the claims previously was due to the

interference by government officials[.]”         Id. at 6.       Further, Appellant

disregards the fact that the counsel who allegedly are the source of the

misinformation do not qualify as government officials for purposes of Section

9545(b)(1)(i).    See Commonwealth v. Yarris, 731 A.2d 581, 587 (Pa.

1999) (the drafters of the 1995 amendments specifically excluded “defense

counsel” from the public officials whose interference gives rise to a claim

under Section 9545(b)(1)(i)).

      In sum, Appellant’s PCRA petition is untimely, and he has failed to

establish the applicability of his asserted government interference exception

to the statutory time bar.     Therefore, the PCRA court properly determined

that it had no jurisdiction and dismissed the petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2017




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