J-S07043-20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                    Appellee               :
                                           :
          v.                               :
                                           :
DAVID PHILLIP PIERGROSSI,                  :
                                           :
                    Appellant              :     No. 2483 EDA 2019

                    Appeal from the Order Entered July 31, 2019
               in the Court of Common Pleas of Montgomery County
                Criminal Division at No(s): CP-46-CR-0005014-2012

BEFORE:        NICHOLS, J., KING, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                              Filed:May 21, 2020

     David Phillip Piergrossi (Appellant) appeals pro se from the July 31,

2019 order denying Appellant’s petition to reinstate his appeal rights. Upon

review, we affirm.

     A prior panel of this Court provided the following background.

               Following a two[-]day jury trial, Appellant was
               convicted of [robbery, terroristic threats, theft by
               unlawful    taking,     receiving   stolen    property,
               possessing an instrument of crime, and simple
               assault.1] On May 5, 2015, Appellant received an
               aggregate sentence of 11-25 years to be served in a
               state correctional facility. Appellant did not file any
               post sentence motions.        Appellant filed a direct
               appeal. The Superior Court affirmed the judgment of

1 “The evidence of record demonstrates that on June 18, 2012, [Appellant]
held up a supervisor in the jewelry department of a Kohl’s Department Store
and forced her at gunpoint to hand over gold chains from a display case.”
Commonwealth v. Piergrossi, 151 A.3d 1144 (Pa. Super. 2016)
(unpublished memorandum at 1).

*Retired Senior Judge assigned to the Superior Court.
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             sentence by opinion dated May 11, 2016.            On
             November 8, 2016, the Pennsylvania Supreme Court
             denied [Appellant’s] petition for allowance of appeal.

             On July 21, 2017, [] Appellant filed a pro se [petition
             entitled] “Post Conviction Relief Act (PCRA)”[2]
             alleging a constitutional violation such that no
             reliable adjudication of guilt or innocence could have
             taken place and that he received ineffective
             assistance of counsel. Robert Adshead, Esquire, was
             subsequently appointed to serve as PCRA counsel
             pursuant to an order issued by the PCRA court on
             July 26, 2017. In a “no-merit” letter dated October
             25, 2017, and prepared in accordance with
             Commonwealth v. Finley, 550 A.2d 213 (Pa.
             Super. 1988), PCRA counsel advised Appellant that,
             in his opinion, Appellant is not eligible for the PCRA
             [] relief alleged in his petition.        By order of
             November 22, 2017, the PCRA court notified []
             Appellant of its intention to dismiss the petition
             without a hearing.       On December 1[2, 2017,]
             Appellant responded to the dismissal notice. On
             January 9, 2018, the PCRA court issued an order
             dismissing the petition without a hearing.            []
             Appellant filed a notice of appeal, which was
             docketed February 13, 2018.             The envelope
             accompanying the notice indicates it was mailed on
             February 9, 2018.

        PCRA Court Opinion, 6/14/2018, at 1-3.

Commonwealth        v.   Piergrossi,    216   A.3d   362   (Pa.   Super.   2019)

(unpublished memorandum at 1-2) (original brackets and unnecessary

capitalization omitted, paragraph breaks added).

        Because Appellant’s notice of appeal was post-marked February 9,

2018, the 31st day after the entry of the PCRA order appealed from, this



2   42 Pa.C.S. §§ 9541-9546.

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Court concluded that “even applying the prisoner mailbox rule, Appellant's

notice was filed beyond the jurisdictional time limit.”       Id. (unpublished

memorandum at 3-4 & n.2). Moreover, although the PCRA court had raised

the issue of quashal in its opinion, Appellant did not address it in his brief.

Id. (unpublished memorandum at 4). Accordingly, this Court quashed

Appellant’s PCRA appeal as untimely filed. Id.

      On June 25, 2019, Appellant filed a petition to reinstate his PCRA

appeal rights, arguing that this Court erred in determining that his notice of

appeal had been filed untimely. On July 31, 2019, the PCRA court dismissed

Appellant’s petition, noting that it was without jurisdiction to grant the relief

requested. Order, 7/31/2019; see also PCRA Court Opinion, 9/27/2019, at

3 (“Failing to timely seek reconsideration in the Superior Court did not give

th[e PCRA c]ourt jurisdiction to reinstate [Appellant’s] appellate rights.”).

      This appeal followed.3 On appeal, Appellant raises two questions for

our review: (1) whether the PCRA court erred in denying Appellant’s petition

to reinstate his PCRA appeal rights without a hearing, and (2) whether

Appellant’s rights were violated by this Court’s ignoring the prisoner mailbox

rule in quashing his prior appeal as untimely filed. Appellant’s Brief at 2.

      On review of orders denying PCRA relief, our standard is to determine

whether the PCRA court’s ruling is free of legal error and supported by the



3 Both Appellant and the PCRA court have complied with the mandates of
Pa.R.A.P. 1925.

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record.   Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super.

2017) (citation omitted). A petition to reinstate the right to appeal an order

denying   a   first   PCRA   petition   is   a   second   PCRA   petition.    See

Commonwealth v. Fairiror, 809 A.2d 396, 397 (Pa. Super. 2002)

(“[Fairiror’s] January 8, 2001 petition for reinstatement of PCRA appellate

rights nunc pro tunc must be considered a second [] PCRA petition. … [A]ll

requests for reinstatement of appellate rights, including PCRA appellate

rights, must meet the timeliness requirements of the PCRA.”).

      Under the PCRA, all petitions must be filed within one year of the date

that the petitioner’s judgment became final, unless one of three statutory

exceptions applies. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Chester,

895 A.2d 520, 522 (Pa. 2006).           For purposes of the PCRA, a judgment

becomes final at the conclusion of direct review. 42 Pa.C.S. § 9545(b)(3).

“The PCRA’s time restrictions are jurisdictional in nature.”        Chester, 895

A.2d at 522. “Thus, ‘[i]f a PCRA petition is untimely, neither this Court nor

the trial court has jurisdiction over the petition.       Without jurisdiction, we

simply do not have the legal authority to address the substantive claims.’”

Id. (quoting Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa. 2005)).

      Instantly, Appellant’s direct appeal concluded on November 8, 2016,

when our Supreme Court denied Appellant’s petition for allowance of appeal.

Commonwealth v. Piergrossi, 160 A.3d 792 (Pa. 2016).                   Therefore,

Appellant’s judgment of sentence became final on February 6, 2017, when


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the period for Appellant to file a petition for a writ of certiorari with the

United States Supreme Court expired.         See 42 Pa.C.S. § 9545(b)(3);

U.S.Sup.Ct.R. 13(1) (stating “a petition for a writ of certiorari to review a

judgment in any case ... is timely when it is filed with the Clerk of this Court

within 90 days after entry of the judgment”).      Accordingly, Appellant had

until February 6, 2018, to file timely a PCRA petition.     Appellant filed his

petition seeking to restore his PCRA appeal rights on June 25, 2019. In light

of our case law, this petition constituted a second PCRA petition, and was

subject to the PCRA’s timeliness requirements.            Because Appellant’s

judgment of sentence became final in 2017, his petition is patently untimely,

and he had the burden of pleading and proving an exception to the time-bar.

42 Pa.C.S. § 9545(b)(1).

      Appellant’s petition did not allege any of the statutory exceptions to

the PCRA’s one-year time bar.          Therefore, the PCRA court correctly

concluded that it was without jurisdiction to reach the merits of Appellant’s

petition to restore his PCRA appeal rights nunc pro tunc, and we conclude

that the PCRA court did not err by dismissing Appellant’s petition without a

hearing.   See Commonwealth v. Hernandez, 79 A.3d 649, 654 (Pa.

Super. 2013) (concluding that the lower court correctly determined it was

without jurisdiction to decide merits of untimely filed PCRA petition where

Hernandez did not plead and prove any of the exceptions to the PCRA’s

time-bar). “Likewise, we lack jurisdiction to reach the merits of the appeal.


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See Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)

(holding that Superior Court lacks jurisdiction to reach merits of appeal from

untimely PCRA petition).” Hernandez, 79 A.3d at 655.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/20




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