J-A28014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM WINSTON                            :
                                               :
                       Appellant               :   No. 716 EDA 2019

             Appeal from the PCRA Order Entered February 21, 2019
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0402771-1975


BEFORE:      PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                            FILED MARCH 03, 2020

        William Winston, pro se, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied as untimely his

fourth post-conviction petition, but the first that was filed pursuant to the Post

Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. After review,

we find that Winston’s petition is facially untimely, and he has failed to prove

any of the three statutory exceptions to the PCRA’s time-bar. Therefore, the

PCRA court correctly concluded that it lacked jurisdiction to consider the merits

of his petition, and correspondingly, we affirm.

        Winston was found guilty by a jury of second-degree murder, attempted

rape, and aggravated assault on November 24, 1975. The court sentenced




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   Former Justice specially assigned to the Superior Court.
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Winston to life in prison without the possibility of parole plus three to ten years

on June 7, 1976.

      Winston filed a counseled notice of appeal to our Supreme Court on the

same date he was sentenced. Several months later, while his appeal was still

pending, Winston filed a pro se petition, his first, under the PCRA’s

predecessor, the Post Conviction Hearing Act (“PCHA”). The PCHA court

dismissed the petition as premature. Thereafter, Winston instructed his direct

appeal counsel to discontinue his appeal, which resulted in that appeal’s

abandonment.

      Winston then filed, pro se, his second petition pursuant to the PCHA.

Counsel was appointed and an amended petition was filed. That petition was

ultimately dismissed, and our Supreme Court affirmed the PCHA court’s

dismissal order. Several years later, Winston filed, again pro se, his third PCHA

petition. That petition was dismissed as meritless by the PCHA court, and

Winston did not pursue any appeal from his third petition’s dismissal.

      On January 13, 2016, Winston, pro se in this instance as well, filed the

present PCRA petition, which was found to be untimely by the PCRA court.

Winston timely appealed this decision.

      This Court's standard of review as to an order dismissing a PCRA petition

is whether the determination of the PCRA court is supported by the record

evidence and is free of legal error. See Commonwealth v. Hart, 911 A.2d

939, 941 (Pa. Super. 2006) (citation omitted). The PCRA court's findings will

not be disturbed unless there is no support for the findings in the certified

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record. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001).

       Prior to addressing any of the claims in Winston’s petition, we must first

consider the petition’s timeliness. See Commonwealth v. Miller, 102 A.3d

988, 992 (Pa. Super. 2014).

       A PCRA petition, including a second or subsequent one, must be
       filed within one year of the date the petitioner’s judgment of
       sentence becomes final, unless he pleads and proves one of the
       three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
       judgment becomes final at the conclusion of direct review by this
       Court or the United States Supreme Court, or at the expiration of
       the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3).
       The PCRA’s timeliness requirements are jurisdictional; therefore,
       a court may not address the merits of the issues raised if the
       petition was not timely filed. The timeliness requirements apply to
       all PCRA petitions, regardless of the nature of the individual claims
       raised therein. The PCRA squarely places upon the petitioner the
       burden of proving an untimely petition fits within one of the three
       exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (some internal

citations and footnote omitted).

       Winston’s judgment of sentence became final on July 8, 1977, the date

his direct appeal was withdrawn while pending before our Supreme Court. See

Commonwealth v. DiVentura, 734 A.2d 397, 399 (Pa. Super. 1999)

(identifying that the petitioner’s “judgment of sentence became final … when

he withdrew his direct appeal”). Accordingly, July 10, 1978,1 is the operative

date for the PCRA’s time-bar, and any petition filed after that date is untimely.

____________________________________________


1July 8, 1978, fell on a Saturday. Therefore, Winston had until the following
Monday to file a timely petition. See 1 Pa.C.S.A. § 1908.

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See id. (discussing the 1995 amendment to the PCRA which allowed any

petitioner with a final judgment of sentence prior to its effective date to file,

within one year, his or her first PCRA petition, but also finding that the filing

of a PCHA petition is equivalent to a prior-filed PCRA petition). Winston’s

instant and fourth post-conviction petition, filed over thirty-five years after his

judgment of sentence became final, is facially untimely. However, there are

three statutory exceptions that, if he were to successfully plead and prove any

one of them, Winston could use to surmount the PCRA’s time-bar. See 42

Pa.C.S.A. § 9545(b)(1)(i-iii).

      The PCRA’s three time-bar exceptions are as follows:

      (i) the failure to raise the claim previously 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.

Id. A petitioner asserting any one of these exceptions must file a petition

within one year of the date the claim could have first been presented. See 42

Pa.C.S.A. § 9545(b)(2). Nevertheless, if the claim arose prior to December

24, 2017, the petitioner would have only had sixty days to assert that claim.

See id.


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      Winston has filed the present petition as a pro se litigant.

      Although this Court is willing to construe liberally materials filed
      by a pro se litigant, pro se status generally confers no special
      benefit upon an appellant. Accordingly, a pro se litigant must
      comply with the procedural rules set forth in the Pennsylvania
      Rules of the Court. This Court may quash or dismiss an appeal if
      an appellant fails to conform with the requirements set forth in
      the Pennsylvania Rules of Appellate Procedure.

Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa. Super. 2003)

(citations omitted).

      The only basis presented in Winston’s brief to circumvent the PCRA’s

time-bar is the newly discovered facts exception. See Appellant’s Brief, at 7

(“Did the PCRA [c]ourt err when it denied [Winston’s] timeliness exception

pursuant to [42 Pa.C.S.A] § 9545(b)(ii) based on a faulty reading of

Com[monwealth] v. Burton, [121 A.3d 1063 (Pa. Super. 2015)]?”). To the

best of our ability in interpreting Winston’s argument, Winston asserts that his

“life sentence without parole is illegal under [18 Pa.C.S.A. §] 2502(b),”

Appellant’s Brief, at 13, based on some combination of what he has titled

Pennsylvania Act No. 46, H.B. 1060 P.L. 213 (“Act 46”) as well as 18 Pa.C.S.A.

§ 1103(1). Further, Winston asserts that his petition is timely under Burton

because he employed “robust efforts in due diligence [to ascertain] the

legislative language,” Appellant’s Brief, at 13, informing him of the illegality

of his life sentence.

      Although he does not provide us with the date for his discovery of what

he submits are newly discovered facts, we will assume without actually


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deciding that Winston acted with due diligence in making his discovery. In

Burton, we held that, when assessing due diligence in uncovering what would

thereafter be purportedly newly discovered facts, the presumption of access

to publically available information does not apply to pro se petitioners. See

121 A.3d at 1073.

       In essence, Winston relies upon the fact that Act 46 apparently defines

second-degree murder as a first-degree felony. Winston then uses this

definition to suggest that his term of imprisonment for his second-degree

murder offense should not have been more than twenty years pursuant to 18

Pa.C.S.A. § 1103(1).

       First, Winston was sentenced under 18 Pa.C.S.A. § 1102(b) rather than

18 Pa.C.S.A. § 1103(1).2 Section 1102(b) mandates that a defendant

convicted of second-degree murder “shall be sentenced to a term of life

imprisonment.” 18 Pa.C.S.A. § 1102(b). Second, a statute or act in existence

at the time of Winston’s trial is not a “new fact” within the meaning of the

PCRA. See Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011)

(distinguishing a “fact” from the “law”).



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2 The Commonwealth correctly notes that if Winston’s argument is based on
Commonwealth v. McKenna, 383 A.2d 174 (Pa. 1978), which Winston cited
in his petition, it still fails. McKenna found 18 Pa.C.S.A. § 1102(a)
unconstitutional, as it allowed for “unfettered discretion in imposition of the
death penalty.” See id., at 179. The court did not sentence Winston under
section 1102(a), but rather section 1102(b), which did not provide for the
imposition of the death penalty and therefore was not affected by McKenna.

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      Accordingly, Winston has failed to plead and prove any exception to the

PRCA’s time-bar. Therefore, the PCRA court did not err in dismissing his

patently untimely petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/20




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