J-S31002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 RAYSHAWN EDWARDS                        :
                                         :
                   Appellant             :   No. 546 WDA 2018

              Appeal from the PCRA Order December 21, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0008553-2011


BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                             FILED JULY 03, 2019

     Appellant, Rayshawn Edwards, filed a petition under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The PCRA court dismissed

Appellant’s petition by order entered on December 21, 2017. Since no appeal

of the December 21, 2017 order was taken, Appellant subsequently sought

reinstatement of his PCRA appellate rights on March 8, 2018. Thereafter, on

March 19, 2018, Appellant requested reconsideration of the order that denied

reinstatement of his PCRA appellate rights.     Ultimately, the PCRA court

reinstated Appellant’s PCRA appeal rights by order entered on March 29, 2018.

     Upon review, we deem Appellant’s March 8, 2018 reinstatement request

to be a second PCRA petition. Because that petition was facially untimely and

did not plead any exception to the PCRA’s one-year time-bar, we conclude

that the PCRA court lacked jurisdiction to award relief and we dismiss this

appeal.
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        Appellant was found guilty of third-degree murder, aggravated assault,

and recklessly endangering another person.1 On July 21, 2012, the trial court

sentenced Appellant to serve an aggregate term of 20 to 40 years in prison.

We affirmed Appellant’s judgment of sentence on July 29, 2014 and the

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal on March 23, 2016. Commonwealth v. Edwards, 105 A.3d 805 (Pa.

Super. 2014) (unpublished memorandum) at 1-11, appeal denied, 135 A.3d

583 (Pa. 2016).

        On May 18, 2017, Appellant’s PCRA counsel (hereinafter “PCRA

Counsel”) filed a timely PCRA petition on Appellant’s behalf.      Within this

petition, PCRA Counsel declared that he “intends to raise claims of ineffective

assistance of counsel and potentially after discovered evidence” and requested

that the PCRA court grant him “an extension of time of [90] days to file an

amended petition.”         Appellant’s PCRA Petition, 5/18/17, at 1-2 (some

capitalization omitted).      On June 6, 2017, the PCRA court granted PCRA

Counsel an “extension of time to August 18, 2017” to file the amended PCRA

petition. PCRA Court Order, 6/6/17, at 1.

        On November 29, 2017, the PCRA court notified Appellant that it

intended to dismiss his petition in 20 days, without holding a hearing. PCRA

Court Order, 11/29/17, at 1; see also Pa.R.Crim.P. 907(1). As the notice

declared, the court intended to dismiss the petition because:      “[Appellant]

____________________________________________


1   18 Pa.C.S.A. §§ 2502(c), 2702(a)(1), and 2705, respectively.

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fail[ed] to file an amended [PCRA] petition by August 18, 2017, and

[Appellant] fail[ed] to request an extension of time to file the petition.” PCRA

Court Order, 11/29/17, at 1 (paragraphing and some capitalization omitted).

      Appellant requested a further extension of time to file the amended

petition, which the PCRA court denied. See PCRA Court Order, 11/30/17, at

1. On December 5, 2017, PCRA Counsel filed an amended PCRA petition on

Appellant’s behalf. The amended PCRA petition asserted the following claims:

1) trial counsel was ineffective for failing to call Lashaya White as a witness

and 2) the “unavailability at the time of trial of exculpatory evidence that has

subsequently become available and would have changed the outcome of the

trial if it had been introduced.” Appellant’s Amended PCRA Petition, 12/5/17,

at ¶¶ 39-50; 42 Pa.C.S.A. § 9543(a)(2)(ii) and (vi). As to the latter claim,

Appellant averred that, after his trial, he spoke with three individuals and that

all three of these individuals would testify that Appellant “could not have been

the shooter in this matter.” Id. at ¶¶ 44-50.

      The PCRA court dismissed Appellant’s petition on December 21, 2017.

PCRA Court Order, 12/21/17, at 1. Appellant did not file a timely notice of

appeal from this order.

      On March 8, 2018, PCRA Counsel filed a “Petition for Reinstatement of

Appellate Rights” on Appellant’s behalf. The petition requested that the court

reinstate Appellant’s PCRA appellate rights and alleged:

        Within counsel moved offices in November, 2017. Despite
        updating his address with AOPC, the Disciplinary Board and


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        Allegheny County Court Administration some mail continued
        to be delivered to counsel's prior address.

        Counsel's mail forwarding has been inconsistent, and counsel
        did not receive a copy of the court's order dismissing the
        amended petition.

Appellant’s “Petition for Reinstatement of Appellate Rights,” 3/8/18, at 1-2

(paragraph numbering and some capitalization omitted).

      On March 8, 2018, the PCRA court denied Appellant’s petition. However,

on March 19, 2018, PCRA Counsel filed a motion for reconsideration on

Appellant’s behalf and claimed that Appellant was entitled to relief because:

        [PCRA] Counsel's failure to perfect [Appellant’s] appellate
        rights constitutes ineffective assistance of counsel as [PCRA
        C]ounsel should have been diligent in monitoring the docket
        for [the PCRA court’s] order denying [Appellant’s] amended
        petition and/or response to notice.

Appellant’s “Petition for Reconsideration,” 3/19/18, at 1 (some capitalization

omitted).

      On March 29, 2018, the PCRA court entered an order that granted

Appellant’s Petition for Reconsideration and reinstated Appellant’s PCRA

appellate rights. PCRA Court Order, 3/29/18, at 1. Appellant then filed a

notice of appeal on April 16, 2018. We must vacate the PCRA court’s March

29, 2018 order and dismiss this appeal.

      The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.    This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]



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petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further, since

the time-bar implicates the subject matter jurisdiction of our courts, we are

required to first determine the timeliness of a petition before we are able to

consider any of the underlying claims. Commonwealth v. Yarris, 731 A.2d

581, 586 (Pa. 1999). Our Supreme Court has explained:

         the PCRA timeliness requirements are jurisdictional in nature
         and, accordingly, a PCRA court is precluded from considering
         untimely PCRA petitions. See, e.g., Commonwealth v.
         Murray, 753 A.2d 201, 203 (Pa. 2000) (stating that “given
         the fact that the PCRA's timeliness requirements are
         mandatory and jurisdictional in nature, no court may properly
         disregard or alter them in order to reach the merits of the
         claims raised in a PCRA petition that is filed in an untimely
         manner”); Commonwealth v. Fahy, 737 A.2d 214, 220 (Pa.
         1999) (holding that where a petitioner fails to satisfy the
         PCRA time requirements, this Court has no jurisdiction to
         entertain the petition). [The Pennsylvania Supreme Court
         has] also held that even where the PCRA court does not
         address the applicability of the PCRA timing mandate, th[e
         Court would] consider the issue sua sponte, as it is a
         threshold question implicating our subject matter jurisdiction
         and ability to grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).

      In the case at bar, Appellant’s judgment of sentence became final at the

end of the day on June 21, 2016, which was 90 days after the Pennsylvania

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

Appellant’s time for filing a petition for writ of certiorari with the United States

Supreme Court expired. See U.S.Sup.Ct.R. 13(1). Appellant then had until



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June 21, 2017 to file a facially timely PCRA petition.            42 Pa.C.S.A.

§ 9545(b)(1).

      In the case at bar, Appellant initially filed a timely PCRA petition on May

18, 2017. However, the PCRA court dismissed this petition on December 21,

2017 and Appellant did not file a timely notice of appeal from this dismissal.

Instead, on March 8, 2018, Appellant filed a “Petition for Reinstatement of

Appellate Rights,” where he requested the reinstatement of his PCRA appellate

rights.

      However, Appellant’s “Petition for Reinstatement of Appellate Rights”

sought relief available under the PCRA and, thus, the petition constitutes a

second PCRA petition. See Commonwealth v. Blackwell, 936 A.2d 497,

501 (Pa. Super. 2007) (“[a]lthough [the petitioner’s] request for nunc pro

tunc restoration of his PCRA appellate rights was improper [in] form, our

courts have consistently treated such requests as a PCRA petition”);

Commonwealth v. Fairiror, 809 A.2d 396, 391 (Pa. Super. 2002) (holding

that, generally, “requests for reinstatement of appellate rights, including PCRA

appellate rights,” are PCRA petitions that “must meet the timeliness

requirements of the PCRA”); see also Commonwealth v. West, 938 A.2d

1034, 1043 (Pa. 2007) (“[t]he PCRA subsumes all forms of collateral relief,

including habeas corpus, to the extent a remedy is available under such

enactment”). Thus, Appellant could only obtain relief from his “Petition for

Reinstatement of Appellate Rights” through the PCRA – and Appellant could

only do so by complying with the PCRA’s timing requirements.                See

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Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa. Super. 2004) (“[a]s

[a]ppellant's claim falls under the PCRA, he can only find relief under the

PCRA's strictures”); Fairiror, 809 A.2d at 397.

      Appellant’s “Petition for Reinstatement of Appellate Rights” was facially

untimely under the PCRA, as it was filed more than one year after Appellant’s

judgment of sentence became final. 42 Pa.C.S.A. § 9545(b)(1). Moreover,

within the petition, Appellant did not plead any exception to the one-year

time-bar.   See id.; Appellant’s “Petition for Reinstatement of Appellate

Rights,” 3/8/18, at 1-2; Appellant’s “Petition for Reconsideration,” 3/19/18,

at 1; see also Commonwealth v. Robinson, 139 A.3d 178, 186 (Pa. 2016)

(“there is no statutory exception to the PCRA time-bar applicable to claims

alleging the ineffectiveness of post-conviction counsel”).    “Thus, because

Appellant’s second PCRA petition was untimely, the PCRA court had no

jurisdiction to grant reinstatement of [Appellant’s] PCRA appellate rights.”

Fairiror, 809 A.2d at 399. We, therefore, vacate the PCRA court’s March 29,

2018 order, which granted Appellant’s Petition for Reconsideration and

reinstated Appellant’s PCRA appellate rights, and we dismiss this appeal.

      PCRA court’s March 29, 2018 order vacated.           Appeal dismissed.

Jurisdiction relinquished.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/2019




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