J-S51025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LEON LEWIS,

                            Appellant                 No. 2115 EDA 2016


                    Appeal from the PCRA Order June 6, 2016
              In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0226811-1993, CP-51-CR-0226901-
           1993, CP-51-CR-0227181-1993, CP-51-CR-0230231-1993

BEFORE: BOWES and SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                       FILED NOVEMBER 22, 2017

        Appellant, Leon Lewis, appeals pro se from the order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

        Twenty-five years ago, on November 16, 1992, Appellant and a cohort

held up, at gunpoint, the patrons and employees of Doobie’s Bar in

Philadelphia. Before fleeing, the robbers ordered Tanqueray Gin and orange

juice and ultimately barricaded everyone in the bathroom. Commonwealth

v. Lewis, 767 A.2d 1110, 1850 EDA 1999 (Pa. Super. 2000) (unpublished



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*
    Former Justice specially assigned to the Superior Court.
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memorandum) (“Lewis I).1 One week later, Appellant and a cohort held up,

at gunpoint, patrons and employees of Cherry Street Tavern in Philadelphia

on November 23, 1992. The men ordered Tanqueray Gin and orange juice

and eventually, barricaded everyone in the bathroom before fleeing.       Id.

Five days later, on November 28, 1992, Appellant and two men held up, at

gunpoint, employees of Track and Turf Tavern in Philadelphia.       They first

ordered Tanqueray Gin and orange juice, stole the employees’ money,

emptied the cash register, then barricaded the employees in the bathroom

before absconding.       Id.    On November 30, 1992, after being warned by

police of the recent neighborhood robberies, the bartender at Cavanaugh’s

Bar in Philadelphia had a patron telephone police when Appellant, who had

the handle of a gun sticking out of his waistband, and two men entered the

bar and ordered Tanqueray Gin and orange juice.       Id.   Police arrived and

patted down the men, who gave the police officers false names. The men

were arrested and criminally charged.

       Following a jury trial on April 6, 1994, Appellant was convicted of

thirteen counts of robbery, four counts of criminal conspiracy, and five

counts of carrying a firearm on public streets.     The trial court sentenced

Appellant on June 3, 1994, to an aggregate term of incarceration of 120 to

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1
   Because Appellant has not provided the notes of testimony from trial in
the record certified to us on appeal, we reference a prior decision of the
Court in setting forth the pertinent facts of the underlying crimes.



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240 years. Appellant did not file a direct appeal, but on January 14, 1997,

he filed a timely pro se first PCRA petition seeking reinstatement of his direct

appeal rights nunc pro tunc.     Following the appointment of counsel, the

Commonwealth agreed to reinstatement of Appellant’s direct appeal rights

nunc pro tunc, and Appellant filed the appeal on June 18, 1999. This Court

affirmed the judgment of sentence.         Lewis I, 1850 EDA 1999.          Our

Supreme Court denied Appellant’s petition for allowance of appeal on April 4,

2001. Commonwealth v. Lewis, 785 A.2d 88, 699 EAL 2000 (Pa. 2001).

       On May 17, 2002, Appellant filed a second pro se PCRA petition.

Because his first petition resulted in the restoration of his direct appeal

rights, however, the petition properly was treated as his first petition. See

Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013)

(“[W]hen a PCRA petitioner’s direct appeal rights are reinstated nunc pro

tunc in his first PCRA petition, a subsequent PCRA petition will be considered

a first PCRA petition for timeliness purposes.”). Appointed counsel sought to

withdraw, the PCRA court denied the PCRA petition, and it entered an order

permitting counsel to withdraw. Appellant proceeded with his appeal pro se.

Concluding that prior counsel’s no-merit letter inadequately failed to address

Appellant’s claims, this Court vacated the PCRA court’s order and remanded

for the appointment of new counsel. Commonwealth v. Lewis, 855 A.2d

134, 496 EDA 2003 (Pa. Super. 2004) (unpublished memorandum) (Lewis

II).


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      On April 26, 2005, new counsel filed an amended PCRA petition,

whereupon     Appellant   sought    to   represent   himself    pursuant   to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). Following a hearing,

Appellant was permitted to proceed pro se.     Appellant amended his PCRA

petition, which the PCRA court denied without a hearing on October 4, 2006.

We affirmed the denial of PCRA relief on appeal.         Commonwealth v.

Lewis, 947 A.2d 827, 3143 EDA 2006 (Pa. Super. 2007) (unpublished

memorandum) (Lewis III). Our Supreme Court denied Appellant’s petition

for allowance of appeal. Commonwealth v. Lewis, 955 A.2d 357, 189 EAL

2008 (Pa. 2008).

      Less than two weeks after our Supreme Court denied relief, Appellant

filed a pro se petition for writ of habeas corpus in federal court on

September 8, 2008. The United States Magistrate recommended dismissal

of the petition, and Appellant filed a motion for reconsideration. The federal

district court denied the petition for writ of habeas corpus on June 17, 2010,

and declined to issue a certificate of appealability to the court of appeals.

Lewis v. Tennis, 2010 WL 2510217, civil action no. 08-4498 (E.D.Pa.

2010).




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       On January 20, 2011, Appellant filed a PCRA petition, followed by an

amended petition on January 31, 2011.2 While the PCRA court indicated its

intent to dismiss the petitions on September 30, 2011, it failed to enter such

order.    On August 19, 2015,3 Appellant filed a second amended PCRA

petition, and the PCRA court issued notice of intent to dismiss on May 16,

2016. The PCRA court formally dismissed the petitions as untimely on June

6, 2016. Appellant filed a notice of appeal to this Court on June 27, 2016.

The PCRA court did not order the filing of a Pa.R.A.P. 1925(b) statement.

       Appellant presents the following issues on appeal:

          1. Did the PCRA Court err when denying Appellant’s timely
             PCRA petition which entitled appellant to enumerated
             exceptions under 42 Pa.C.S.A. § 9545(b)(1)(i) and 42
             Pa.C.S.A. § (b)(1)(ii)[?]
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2
    These petitions were not in the certified record, although they are
docketed as filed. It is Appellant’s responsibility to provide this Court with a
complete record. Commonwealth v. Kleinicke, 895 A.2d 562, 575 (Pa.
Super. 2006) (en banc) (the responsibility rests upon the appellant to
ensure that the record certified on appeal contains all of the materials
necessary for the reviewing court to perform its duty). Despite Appellant’s
dereliction, our Prothonotary reached out to the lower court to obtain the
petitions. We were able to obtain only the January 20, 2011 PCRA petition.

3
   The docket entries recorded the filing of a supplemental amended PCRA
petition on August 19, 2015, but the document filed on that date actually is
a Supplemental Memorandum of Law in Support of Petitioner’s Amended
Motion for Post Conviction Collateral Relief. Certified Docket Entry 93. The
PCRA court stated in its Pa.R.A.P. 1925(a) opinion that a supplemental
amended PCRA petition was filed on May 21, 2015. PCRA Court Opinion,
11/2/16, at 3. However, the docket in the certified record does not contain
an entry for May 21, 2015. Once again, our Prothonotary contacted the
PCRA court, but a Supplemental Amended PCRA petition was not provided to
this Court.



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         2. Did the PCRA court err, and commit reversible error when
            it dismissed Appellant’s petition without the benefit of a
            properly conducted evidentiary hearing, to develop the
            layered claim of appellate counsel’s ineffectiveness,
            therefore being able to render a fully informed legal
            opinion?

         3. Did the PCRA Court err and commit a Miscarriage of justice
            and reversible error when the Government interfered (trial
            Court) with Appellant’s access to records in the State
            Courts or when facts were omitted from the records (MC
            9211-3599 is not apart [sic] of this appeal)[?]

         4. Did the commonwealth’s prosecuting attorney err, and
            commit reversible error, when she permitted known false
            documents (evidence) to remain on the records,
            uncorrected, when it was presented to the Appellate Court,
            there impeding justice and perpetrating a knowing fraud
            upon the judiciary[?]

         5. The question presented here is whether the Hon. Judge
            Woods-Skipper denial of Appellant’s 2 recusal motion and
            her subsequent judicial participation violated the Due
            process clause of the Fourteenth Amendment and violated
            clearly establish Federal Law[?]

Appellant’s Brief at 5.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error.   Commonwealth v. Robinson, 139 A.3d 178, 185

(Pa. 2016). The PCRA court’s findings will not be disturbed unless there is

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no support for them in the certified record. Commonwealth v. Lippert, 85

A.3d 1095, 1100 (Pa. Super. 2014).

        In order to be considered timely, a first, or any subsequent PCRA

petition, must be filed within one year of the date the petitioner’s judgment

of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). The PCRA’s time-for-

filing requirements are mandatory and jurisdictional in nature, and a court

may not ignore them in order to reach the merits of the petition.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016).                   For

purposes of the PCRA, a judgment of sentence “becomes 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.” 42 Pa.C.S. § 9545(b)(3). Here,

the time for seeking review in the Supreme Court of the United States

expired on Tuesday, July 3, 2001, ninety days after the Pennsylvania

Supreme Court denied Appellant’s petition for allowance of appeal on April 4,

2001.    42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13.      Thus, in order to be

timely under the PCRA, Appellant was required to file his PCRA petition on or

before July 3, 2002. Because Appellant did not file the instant PCRA petition

until January 20, 2011, the petition is patently untimely.

        If a petitioner does not file a timely PCRA petition, his petition

nevertheless may be received under three limited exceptions to the




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timeliness requirements of the PCRA.             42 Pa.C.S. § 9545(b)(1).4   If a

petitioner asserts one of these exceptions, he must file his petition within

sixty days of the date that the exception could be asserted. 42 Pa.C.S. §

9545(b)(2). In order to be entitled to the exceptions to the PCRA’s one-year

filing deadline, “the petitioner must plead and prove specific facts that

demonstrate his claim was raised within the sixty-day time frame” under

section 9545(b)(2).       Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa.

Super. 2001).

       As we continue our analysis of the timeliness of Appellant’s PCRA

petitions, we endeavor to decipher Appellant’s unclear and disorganized




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4
    The exceptions to the timeliness requirement are:

       (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.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).



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arguments despite his noncompliance with our rules of appellate procedure.5

Appellant asserts that the failure to raise his claim previously was the result

of interference by government officials that he describes as “the withholding

of   pertinent    parts   of   transcript,     and   the   submitting   of   fraudulent

document[s].”      Appellant’s Brief at 16 (citing 42 Pa.C.S. § 9545(b)(1)(i)).

He also contends that this information constitutes newly discovered facts

that “arise[] out of the information discovered during his Federal habeas

proceedings.” Appellant’s Brief at 16 (citing 42 Pa.C.S. § 9545(b)(1)(ii)).

       Appellant’s allegations of government interference are undeveloped

and lacking in proof. He fails to identify what was withheld,6 by whom, what

documents were fraudulent, and when and by whom they were submitted.

Regarding Appellant’s allegation of newly discovered facts under Subsection

9545(b)(1)(ii), Appellant must establish “that the facts upon which the claim

is based were unknown to him and could not have been ascertained by the

exercise of due diligence.” Commonwealth v. Burton, 158 A.3d 618, 629

(Pa. 2017).      Appellant wholly fails to explain why he was unable to have


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5
  For example, Appellant has failed to comply with Pa.R.A.P. 2119(a), which
provides that the argument section shall be divided into as many parts as
there are questions to be argued.

6
   While Appellant makes reference to a suppression hearing transcript and
notes of testimony from his preliminary hearing, the reference is
unexplained, unsubstantiated, and unconnected to his claim of governmental
interference. Appellant’s Brief at 26.



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obtained the information, which in and of itself is not coherently identified,

earlier with the exercise of due diligence.7

       Based upon our review of the record, briefs, and applicable law, we

conclude that Appellant has failed to satisfy any exception to the PCRA time

bar. Thus, Appellant’s PCRA petition was untimely and no exceptions apply.

The PCRA court therefore correctly determined that it lacked jurisdiction to

address the issues presented and grant relief.        See Commonwealth v.

Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding that PCRA court

lacks jurisdiction to hear an untimely petition).      Likewise, we lack the

authority to address the merits of any substantive claims raised in

Appellant’s PCRA petition.         See Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to a court’s right or

competency to adjudicate a controversy.”). Accordingly, we affirm the PCRA

court’s order dismissing Appellant’s PCRA petition.

       Order affirmed.




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7
   In addition, we rely on the PCRA court’s explanation and rejection of
Appellant’s assertion of the applicability of the newly-discovered-fact
exception of 42 Pa.C.S. § 9545(b)(1)(ii) based upon statements provided by
SCI Green inmate Melvin Tomas to Nick Kato, a private investigator with the
Pennsylvania Innocence Project. PCRA Court Opinion, 11/2/16, at 5.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/22/2017




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