J-S01021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FRAZIER CISCO GRACE

                            Appellant                 No. 719 WDA 2014


                   Appeal from the PCRA Order April 11, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0015667-2005


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                       FILED DECEMBER 24, 2014

        Appellant, Frazier Cisco Grace, appeals pro se from the order entered

in the Allegheny County Court of Common Pleas, which dismissed his

petition filed for relief pursuant to the Post Conviction Relief Act (“PCRA”).1

We affirm.

        The trial court sets forth the relevant facts and procedural history of

this appeal as follows:

          On February 14, 2007, following a trial by jury at which
          [Appellant] acted pro se, [Appellant] was convicted of one
          count each of rape, involuntary deviate sexual intercourse,
          sexual assault, kidnapping, unlawful restraint, and simple
          assault.[2] On May 14, 2007, [Appellant] was sentenced
____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
  18 Pa.C.S. §§ 3121(a)(1), (a)(2); 3123(a)(1), (a)(2); 3124.1; 2901(a);
2902; 2701(a)(1), respectively.
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       to 120 to 240 months[’] incarceration for rape, with a
       consecutive sentence of 114 to 228 months[’]
       incarceration for involuntary deviate sexual intercourse; no
       additional sentence was imposed on the remaining counts.

       On October 1, 2009, after [Appellant] filed a first petition
       under the [PCRA], this [c]ourt issued an [o]rder appointing
       Alan R. Patterson, Esquire, as counsel for [Appellant]. On
       February 11, 2010, counsel filed an amended petition,
       seeking alternatively to have [Appellant’s] right to direct
       [appeal] reinstated nunc pro tunc. By [o]rder of [c]ourt,
       [Appellant’s] appellate rights were reinstated on June 16,
       2010. A notice of appeal from the May 14, 2007 judgment
       of sentence was filed on July 9, 2010.

       On direct appeal, [Appellant] claimed, inter alia, that the
       evidence was insufficient to allow a finding beyond a
       reasonable doubt that the rape had occurred. On June 10,
       2011, the Superior Court affirmed [Appellant’s] sentence;
       the Court specifically found [Appellant’s] sufficiency claim
       regarding his rape conviction to be waived due to the lack
       of legal authority presented, and the concession that a
       conviction could properly be based solely on circumstantial
       evidence. The Supreme Court of Pennsylvania denied
       Allocatur on May 6, 2012.

       On June 8, 2012, [Appellant] filed a second pro se PCRA
       petition. This [c]ourt appointed Charles Pass, Esquire, to
       represent [Appellant]. On July 23, 2012, Attorney Pass
       filed with this [c]ourt a no merit letter and motion to
       withdraw as counsel under [Commonwealth v. Turner,
       544 A.2d 927 (Pa.1988)] and [Commonwealth v. Finley,
       550 A.2d 213 (Pa.Super.1988)]. On July 30, 2012, this
       [c]ourt granted counsel's motion, and simultaneously
       provided [Appellant] notice of its intent to dismiss his
       petition without a hearing, pursuant to Pa.R.Crim.P. 907.
       This [c]ourt dismissed the petition as patently frivolous
       and without support on the record on August 16, 2012.
       [Appellant] filed a notice of appeal therefrom on
       September 9, 2012.

       In compliance with an [o]rder of this [c]ourt, [Appellant]
       filed a Pa.R.A.P. 1925(b) statement of matters complained
       of on appeal. Therein, [Appellant] did not raise any claims

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        of ineffective assistance of counsel pertaining to the
        representation provided to him by Mr. Patterson during
        either the first PCRA proceedings or during the subsequent
        appellate process.     The Superior Court affirmed the
        dismissal of the PCRA petition by memorandum opinion, on
        October 18, 2013.

        [Appellant] filed the instant pro se PCRA petition on
        January 8, 2014. On January 14, 2014, this [c]ourt issued
        a notice of intent to dismiss the petition without a hearing.
        This [c]ourt ultimately dismissed the petition as frivolous
        on April 11, 2014. A notice of appeal followed, on April 30,
        2014.1
            1
               [Appellant] filed two appeals, the first of which,
            docketed at No. 509 WDA 2014, was improperly filed
            from this [c]ourt’s [n]otice of [i]ntent to [d]ismiss.
            Thus, by [o]rder dated May 21, 2014, the Superior
            Court dismissed the appeal as premature. The instant
            appeal, at No. 719 WDA 2014, was allowed to
            proceed.

Trial Court Opinion, filed September 8, 2014, at 1-3. On May 7, 2014, the

court ordered Appellant to file a concise statement of errors complained of

on appeal, pursuant to Pa.R.A.P. 1925(b), and Appellant complied on May

28, 2014.

     Appellant raises the following issues on appeal:

        WHETHER THE PCRA COURT COMMITTED ERROR WHEN
        [IT] DENIED APPELLANT’S PCRA [PETITION] WITHOUT [A]
        HEARING, BECAUSE MR. PATTERSON WAS INEFFECTIVE
        WHEN HE FAILED TO ARGUE APPELLANT’S SUFFICIENCY
        OF THE EVIDENCE CLAIM PROPERLY ON APPELLANT’S
        FIRST DIRECT APPEAL AND DID NOT COMPLY WITH
        PA.R.A.P. 2119(A) AND HAD APPELLANT’S SEXUAL
        ASSAULT ISSUE WAIVED AND ABANDONED[?]

        WHETHER ALAN R. PATTERSON WAS INEFFECTIVE FOR
        [FAILING] TO RAISE APPELLANT’S PROSECUTORIAL


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         MISCONDUCT [CLAIM] IN HIS AMENDED PCRA AND BRIEF
         FOR APPELLANT’S DIRECT APPEAL[?]

Appellant’s Brief at 4.

      Our review of a PCRA court’s decision “is limited to examining whether

the PCRA court’s findings of fact are supported by the record, and whether

its conclusions of law are free from legal error.”     Commonwealth v.

Koehler, 36 A.3d 121, 131 (Pa.2012).

      Before addressing the merits of Appellant’s claims, we must first

consider the timeliness of his PCRA petition because it implicates the

jurisdiction of both this Court and the PCRA court.    Commonwealth v.

Williams, 35 A.3d 44, 52 (Pa.Super.2011) (citation omitted), appeal

denied, 50 A.3d 121 (Pa.2012).     “Pennsylvania law makes clear that no

court has jurisdiction to hear an untimely PCRA petition.”   Id. Further, to

“accord finality to the collateral review process[,]” the PCRA “confers no

authority upon this Court to fashion ad hoc equitable exceptions to the PCRA

timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011).

      With respect to jurisdiction under the PCRA, this Court has further

explained:

         The most recent amendments to the PCRA...provide a
         PCRA petition, including a second or subsequent petition,
         shall be filed within one year of the date the underlying
         judgment becomes final. 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 the review.



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Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011).

This Court may review a PCRA petition filed more than one year after the

judgment of sentence becomes final only if the claim falls within one of the

following three statutory exceptions, which the petitioner must plead and

prove:

         § 9545. Jurisdiction and proceedings

                                  *    *    *

         (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 of sentence becomes final,
         unless the petition alleges and the petitioner proves that:

            (i) the failure to raise the claim 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).    Further, even if a petition pleads one of these

exceptions, the petition will not be considered unless it is “filed within 60

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

9545(b)(2).

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      Finally, a heightened standard applies to a second or subsequent PCRA

petition     to     avoid   “serial   requests   for    post-conviction   relief.”

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011).                 A second or

subsequent PCRA petition “will not be entertained unless a strong prima

facie showing is offered to demonstrate that a miscarriage of justice may

have occurred.”        Commonwealth v. Hawkins, 953 A.2d 1248, 1251

(Pa.2006).        In a second or subsequent post-conviction proceeding, “all

issues are waived except those which implicate a defendant’s innocence or

which raise the possibility that the proceedings resulting in conviction were

so unfair that a miscarriage of justice which no civilized society can tolerate

occurred.”         Commonwealth        v.   Williams,   660   A.2d    614,   618

(Pa.Super.1995).

      Instantly, Appellant’s judgment of sentence became final on August 6,

2012, when Appellant’s time for seeking review with the Supreme Court of

the United States had expired.        See Monaco, supra.      Appellant filed the

instant pro se PCRA petition more than a year later, on January 8, 2014.

Thus, his PCRA petition is facially untimely, and we must determine whether

Appellant has pled and proved any of the exceptions to the PCRA time

limitation. See 42 Pa.C.S. § 9545(b)(1).

      Although Appellant checked the box on his PCRA form that indicated

he might attempt to invoke the governmental interference exception to the

PCRA time bar, he does not plead, prove, or even mention this exception


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anywhere else in his PCRA petition or his appellate brief. Further, Appellant

makes no effort to explain why he did not bring his claims in a timely

manner.   Therefore, Appellant’s petition is time-barred, and the trial court

properly denied it. Accordingly, we affirm.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2014




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