J-S49009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MUWSA GREEN

                            Appellant                 No. 2255 EDA 2015


                   Appeal from the PCRA Order June 19, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002785-2008
                                          CP-51-CR-0014817-2007


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

MEMORANDUM BY PANELLA, J.                               FILED JULY 21, 2016

        Appellant, Muwsa Green, appeals pro se from the PCRA order entered

June 19, 2015, in the Court of Common Pleas of Philadelphia County, which

denied his second Post Conviction Relief Act Petition.1 We affirm.

        On July 28, 2008, Appellant entered guilty pleas at docket number CP-

51-CR-0014817-2007 to Robbery, Rape, Simple Assault, and Carrying a

Firearm without a License and at number CP-51-CR-0002785-2008 to one

count of Simple Assault and two counts each of Involuntary Deviate Sexual

Intercourse and Terroristic Threats. The trial court sentenced Appellant on

December 5, 2008. Appellant did not file a direct appeal.
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*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
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       On April 13, 2009, Appellant filed a pro se PCRA petition and the PCRA

court appointed counsel. Appellant then filed an amended PCRA petition.

Appointed counsel        later   filed a       Turner/Finley2   no-merit letter   and

requested permission to withdraw. The PCRA court issued notice of its intent

to dismiss Appellant’s petition without a hearing. The PCRA court dismissed

appellant’s petition on September 16, 2010.

       Appellant filed a second pro se PCRA petition on October 15, 2013. An

Amended petition followed on February 26, 2014. The PCRA court again

issued notice of its intent to dismiss without a hearing. The court dismissed

the petition on June 19, 2015. This timely appeal followed.

       As a threshold matter, we note that the timeliness of a PCRA petition

is a jurisdictional requisite. See Commonwealth v. Hackett, 956 A.2d 978,

983 (Pa. 2008). A court cannot hear an untimely petition. Commonwealth

v. Flanagan, 854 A.2d 489, 509 (Pa. 2004). Therefore, a PCRA petition

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

final. See 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final at the

conclusion of direct review or at the expiration of time for seeking review.

See 42 Pa.C.S.A. § 9545(b)(3).




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



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       Three statutory exceptions to the PCRA’s timeliness provisions allow

for very limited circumstances under which the late filing of a petition will be

excused. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner asserting a

timeliness exception must file a petition within 60 days of the date the claim

could have been presented. See 42 Pa.C.S.A. § 9545(b)(2).

       Appellant’s judgment of sentence became final on January 5, 2009,3

30 days following the imposition of sentence when the time for filing a direct

appeal expired. See Pa.R.A.P. 903. Thus, Appellant’s petition filed on

October 15, 2013, is patently untimely.

       The PCRA court did not conduct a timeliness inquiry, but rather

dismissed Appellant’s petition on the merits. We will address the timeliness

issue based on the two exceptions cited in the amended PCRA petition. See

also Commonwealth v. Wilson, 824 A.2d 331, 335 (Pa. Super. 2003) (en

banc) (“Since Appellant’s PCRA petition is untimely, our review focuses on

whether Appellant has pled and proven that one of the three limited

exceptions to the timeliness requirements of the PCRA apply.”).

       In   his   amended       petition,      Appellant   purports   to   invoke   the

governmental interference and newly discovered evidence exceptions to the



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3
 The thirty-day deadline actually ended on January 4, 2009. But January 4
was a Sunday. See 1 Pa.C.S.A. § 1908.




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PCRA’s jurisdictional time bar.4 Our Supreme Court has repeatedly stated it

is the petitioner’s burden to allege and prove that one of the timeliness

exceptions applies. See, e.g., Commonwealth v. Hawkins, 953 A.2d

1248, 1253 (Pa. 2008).

       Regarding his claim of governmental obstruction, Appellant fails to

assert in his petition or on appeal in what manner his failure to timely file

the petition “was the result of interference by government officials with the

presentation of the claim[.]” 42 Pa.C.S.A. § 9545(b)(1)(i). Further, to the

extent Appellant’s claim can be interpreted to suggest his trial counsel and

appointed PCRA counsel in some way prevented the timely filing of his PCRA

petition, we note that the PCRA specifically excludes “defense counsel” from

the definition of governmental officials for the purposes of invoking the

exception. See 42 Pa.C.S.A. § 9545(b)(4) (“For purposes of this subchapter,

“government officials” shall not include defense counsel, whether appointed

or retained.”). As such, Appellant’s bald allegation of governmental

interference fails.

       Appellant also fails to properly invoke the newly discovered evidence

exception under § 9545(b)(1)(ii). Although Appellant argues he was

incompetent due to depression and the use of drugs during the time in which

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4
  Appellant does not address the applicability of the timeliness exceptions in
his appellate brief. However, because Appellant invoked the exceptions in his
amended PCRA petition, we will proceed to address their applicability herein.



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his right to file a timely PCRA petition had lapsed,5 he offers no evidence in

support of his claim of incompetence. As there simply is no evidence to

substantiate Appellant’s claim of incompetency, or that the incompetency

caused Appellant to be unable to timely file a PCRA petition, this claim

cannot qualify as a fact which was previously unknown and could not have

been ascertained by the exercise of due diligence. Cf. Commonwealth v.

Cruz, 852 A.2d 287 (Pa. 2003). More egregiously, Appellant fails to assert

that he filed his second PCRA petition within 60 days of becoming sufficiently

competent to ascertain the facts upon which his underlying PCRA claims are

predicated. Accordingly, Appellant also cannot satisfy the newly discovered

evidence exception to the one-year filing period.

       Appellant lastly alleges that the PCRA court failed to give adequate

notice of its intent to dismiss, see Pa.R.Crim.P. 907, his first PCRA petition

without a hearing, such that he was deprived of the opportunity of filing a

timely appeal. This claim fails for multiple reasons. The record belies

Appellant’s assertion. It is not even an exception to the timeliness

requirement. And “[t]he failure to challenge the absence of a Rule 907 notice

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5
  Our interpretation of Appellant’s argument is generous. Appellant actually
argues in his brief that he “was incompetent during the state appellate
process preventing compliance with state procedural rules.” Appellant’s Brief
at 8. Appellant additionally argues that he was incompetent at the time he
entered his guilty plea, but he raises this argument in the context of
ineffective assistance of counsel, not in support of a PCRA timeliness
exception.



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constitutes waiver.” Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.

Super. 2013) (citation omitted).

       Appellant has failed to establish that his claims fall within any of the

three exceptions to the PCRA’s timeliness requirements. Accordingly, we

affirm the dismissal of his second PCRA petition.6

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2016




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6
  “[W]e may affirm a PCRA court’s decision on any grounds if the record
supports it.” Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super.
2014) (citation omitted).



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