J-S50015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                     v.

THOMAS MOORE

                          Appellant                  No. 921 EDA 2017


                  Appeal from the PCRA Order January 5, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1105912-2003


BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY PANELLA, J.                        FILED OCTOBER 03, 2017

      Appellant, Thomas Moore, appeals pro se from the order dismissing his

latest pro se petition—his fourth—filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

      The PCRA court summarized the relevant facts and procedural history

as follows:

            On April 10, 2006, following a non-jury trial before the
      Honorable Chris R. Wogan, [Moore] was convicted of robbery
      and theft charges. On July 12, 2006, [Moore] was sentenced to a
      term of ten to twenty years’ incarceration. The Superior Court
      affirmed the judgment of sentence on January 8, 2008, and the
      Pennsylvania Supreme Court denied allocator on July 10, 2008.

              On November 5, 2008, [Moore] timely filed his first pro se
      PCRA petition. David S. Rudenstein, Esquire was appointed [and]
      subsequently filed a [Turner/Finley] no-merit letter. The PCRA
      court denied the petition on September 24, 2009 and granted
      counsel leave to withdraw. [Moore] did not appeal the denial of
      relief.
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             On April 26, 2012, [Moore] filed his second pro se PCRA
      petition. On April 1, 2014, the PCRA court dismissed the
      untimely petition. [Moore’s] appeal was dismissed by the
      Superior Court for failure to substantially comply with the Rules
      of Appellate Procedure.

             On August 31, 2015, [Moore] filed his third pro se PCRA
      petition. On June 1, 2016, the PCRA court dismissed his petition
      as untimely. [Moore] did not appeal the dismissal.

             On June 13, 2016, [Moore] filed the instant pro se PCRA
      petition, his fourth. [Moore] subsequently submitted numerous
      supplemental filings. Pursuant to the Pennsylvania Rule of
      Criminal Procedure 907, [Moore] was served notice of [the PCRA
      court’s] intention to dismiss his PCRA petition on September 9,
      2016. [Moore] submitted numerous responses to the Rule 907
      notice. On January 5, 2017, the instant notice of appeal was
      timely filed to the Superior Court.

PCRA Court Opinion, 3/31/17, at 1-2 (footnotes omitted).

      Prior to reaching the merits of Moore’s claims, we must first consider

the timeliness of his PCRA petition. 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).

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      Instantly, Moore’s judgment of sentence became final on October 8,

2008, when his time for seeking a writ of certiorari with the United States

Supreme Court expired. His fourth PCRA petition, filed over seven years later

on June 13, 2016, is patently untimely. Thus, the PCRA court lacked

jurisdiction to review Moore’s petition unless he was able to successfully

plead and prove one of the statutory exceptions to the PCRA’s time-bar. See

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      A petitioner asserting one of these exceptions must file a petition

within 60 days of the date the claim could have first been presented. See 42

Pa.C.S.A. § 9545(b)(2). Exceptions to the time bar must be pled in the

petition, and may not be raised for the first time on appeal. See

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007). See

also Pa.R.A.P. 302(a) (providing that issues not raised before the lower

court are waived and cannot be raised for the first time on appeal).

      Our review of the record reveals that Moore has failed to successfully

plead any of the exceptions to the PCRA’s time bar. Through his petition,

Moore attempts to plead an exception to the PCRA time bar under 42

Pa.C.S.A. § 9545(b)(1)(iii); i.e., a newly announced constitutional right. See

PCRA Petition, filed 6/13/16. Moore claims the United States Supreme

Court’s holding in Welch v. United States, 136 S.Ct. 1257 (2016),

mandates that Alleyne v. United States, 133 S.Ct. 2151 (2013), be

applied retroactively to all cases on collateral review.


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      There are three problems with Moore’s position. First, Moore’s reliance

on Welch is entirely misplaced. The sole purpose of the Welch decision was

to determine whether Johnson v. United States, 135 S.Ct. 2551 (2015),

applied retroactively to cases on collateral review. In Johnson, the Court

held that the “residual clause” of 18 U.S.C. § 924(e)(2)(B)(ii) was

unconstitutionally vague. Obviously, Moore was not sentenced under this

provision; thus, the Welch holding mandating retroactive invalidation of

sentences pursuant to § 924(e)(2)(B)(ii) has no bearing on Moore’s

sentence. Second, neither Welch nor Johnson even addresses Alleyne and

thus cannot reasonably be found to mandate the retroactive application of

Alleyne. Finally, Moore fails to assert this exception in his appellate brief. By

abandoning his argument, he has waived all claims that the newly

discovered constitutional right exception applies to his PCRA petition. See

Commonwealth v. Price, 876 A.2d 988, 996 (Pa. Super. 2005) (holding

that an issue identified on appeal, but not developed in an appellate brief is

waived).

      Additionally, in his appellate brief, Moore attempts to raise the

governmental interference exception to the PCRA time bar, see 42 Pa.C.S.A.

§ 9545(b)(1)(i), by asserting that a detective suppressed a promissory




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note.1 See Appellate Brief, at 3. In order for a petitioner to obtain relief from

the PCRA’s time bar under this exception, he must plead that there was

governmental interference that prevented him from presenting his claim.

Moore, however, failed to raise this issue in his petition. See PCRA Petition,

filed 6/13/16. While Moore did raise this issue with the PCRA court in a

series of responses to the PCRA court’s Rule 907 notice, he failed to plead or

prove that he filed his petition within 60 days of discovering the

governmental interference or the newly discovered evidence. Thus, he has

waived this issues on appeal. See Burton, 936 A.2d at 525; 42 Pa.C.S.A. §

9545(b)(2).

       In sum, Moore’s latest PCRA petition is patently untimely, and he has

failed to plead and prove an exception to the time bar. Therefore, the PCRA

court properly concluded that it lacked jurisdiction and correctly denied

Moore post-conviction relief.

       Order affirmed.




____________________________________________


1
  Through his appellate brief, Moore also asserts that he was raped in prison
immediately prior to the waiver trial and trial counsel was ineffective for
failing to inform the trial court. See Appellant Brief, at 12. This allegation,
while disturbing, does not establish a time-bar exception. See
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (“It is well settled that
allegations of ineffective assistance of counsel will not overcome the
jurisdictional timeliness requirements of the PCRA.”)



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/2017




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