J-S74041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANDRE VANCLIFF                             :
                                               :
                       Appellant               :   No. 2242 EDA 2016

                   Appeal from the PCRA Order June 13, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0508101-1992


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                              FILED MARCH 27, 2018

        Appellant, Andre Vancliff, appeals from the order entered June 13, 2016,

denying as untimely his second petition filed under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        On October 5, 1993, following a jury trial, Appellant was convicted of

first-degree murder and possession of an instrument of crime (“PIC”).1 On

August 3, 1994, Appellant received a life sentence for murder and a concurrent

term of two and one-half to five years of imprisonment for PIC. Appellant

timely appealed. On April 21, 1995, this Court affirmed Appellant’s judgment

of sentence, and his petition for allocatur was denied September 13, 1995.

See Commonwealth v. VanCliff, 663 A.2d 255 (Pa. Super. 1995)

(unpublished memorandum), appeal denied, 668 A.2d 1130 (Pa. 1995).

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1   18 Pa.C.S. §§ 2502 and 907, respectively.
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Appellant did not file a petition for writ of certiorari with the United States

Supreme Court.

       Appellant pro se filed his first petition seeking PCRA relief on July 8,

1998.2    On November 30, 1998, the petition was dismissed as untimely.

Appellant did not appeal the dismissal of his first petition.

       On March 19, 2012, Appellant pro se filed a second, untimely PCRA

petition. In the petition, he raised vague allegations of ineffective assistance

of trial counsel and prosecutorial misconduct, claiming he had been denied his

right to a fair trial because his first trial allegedly resulted in an acquittal.3 On

March 21, 2012, Appellant filed a supplemental petition, baldly asserting he

was entitled to PCRA relief based upon the newly discovered facts exception.

       On March 31, 2012, the PCRA court sent Appellant notice pursuant to

Pa.R.Crim.P. 907, and Appellant pro se filed a response.4 Following a lengthy

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2 Appellant’s first PCRA petition is not contained within the certified record and
does not appear on the docket. The Philadelphia prothonotary’s office
represented to this Court that the 1998 petition was lost. However, we note
that this does not affect our analysis, as both the trial court and Appellant
agree that his first PCRA petition was filed July 8, 1998, and dismissed as
untimely on November 30, 1998.

3On July 7, 1993, Appellant had a jury trial, which resulted in a hung jury.
Appellant was retried and subsequently convicted.

4 It should be noted that the docket does not comply with Pa.R.Crim.P. 114
in that it does not reflect the time and manner of the service to Appellant.
However, the actual 907 notice in the certified record notes the prison
address where the letters were mailed. Further, there are no certificates of
service attached to the 907 notices in the certified record. (Footnote Continued)



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delay for which there is no clear explanation, the matter was reassigned to

another judge of the same court, and a new 907 notice was sent to Appellant

on April 17, 2016. Appellant did not respond. On June 13, 2016, the court

formally dismissed the petition. Appellant pro se and timely appealed.

       The PCRA court did not order compliance with Pa.R.A.P. 1925(b), and

Appellant did not file a statement of errors. Nevertheless, the court issued a

Rule 1925(a) opinion.

       Herein, Appellant presents the following issues on appeal:5

1. Did the PCRA court err when denying [A]ppellant an evidentiary hearing to
   counsel abandonment of not notifying [sic] the Appellant of the
   Pennsylvania Supreme Court denial of his allowance of appeal, causing the
   Appellant to fall under the timely PCRA time line rule, in determining if
   [A]ppellant is entitled to reinstatement of his [appellate] rights to proceed
   under 42 Pa.C.S.A. 9545.

2. Did the PCRA court interfere with [appellate] right to present appeal
   ineffective claims [sic] that was not heard under Post Conviction Petition
   when it granted (after Superior Court denial), on record counsel withdrawal
   without Finley[6]/Letter [sic] of [appellate] claims, or evidentiary hearing
   of client/attorney communication of Appellant assertion of time-bar, and
   when on record counsel re-appointed by this court could not argue or file


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See Pa.R.Crim.P. Rule 576 (requiring that “[a]ll documents that are filed and
served pursuant to this rule shall include a certificate of service”).

5 In Appellant’s PCRA petition, he raised issues of ineffective assistance of
counsel and prosecutorial misconduct but does not raise them in his appeal.
Therefore, Appellant has waived these issues for purposes of appeal. See
Commonwealth v. Sanchez, 36 A.3d 24, 81 (Pa. 2011) (concluding that
abandoned issues on appeal are not reviewable).

6   Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).



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    Turner/Finley[7], against herself, denial of denial [sic] [A]ppellant[’s]
    appealable issues?

3. Should this [Appellant] be granted his PCRA rights reinstated due to
   counsel misconduct causing his untimely filing?[8]

See Appellant’s Brief at 4 (unnecessary capitalization omitted).

       We review an order denying a petition under the PCRA to determine

whether the court’s decision is free of legal error. See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). Whether a petition is timely filed is

a question of law. See Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa.

2008).

       We begin by addressing the timeliness of Appellant’s petition, as the

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded in order to address the merits of his claims except as the statute

permits. See Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa. Super 2017).

Any PCRA petition, including second and subsequent petitions, must be filed

within one year of the date on which the judgment of sentence becomes final.

See Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). There


____________________________________________


7Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Finley, 550 A.2d at
213.

8 During the pendency of this appeal, Janis Smarro, Esq., was still listed as
counsel of record from Appellant’s first appeal over twenty years ago. Upon
receiving notice of the instant appeal, she filed an application in this Court,
seeking to withdraw as counsel as she had not represented Appellant since his
original appeal. This motion was denied without prejudice to seek the same
relief in the PCRA court. She filed her petition with the PCRA court. Upon
receipt of the PCRA’s court’s order, this Court relieved her of representation.

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are three exceptions to the jurisdictional time limit:

      (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)-(iii); see also Commonwealth v. Perrin, 947

A.2d 1284, 1286 (Pa. Super. 2008) (noting that in order to invoke a statutory

exception to the PCRA time-bar, a petitioner must properly plead and prove

all required elements of the exception). Additionally, any petition attempting

to invoke these exceptions “shall be filed within 60 days of the date the claim

could have been presented.”           42 Pa.C.S. § 9545(b)(2); see also

Commonwealth v. Gamboa–Taylor, 753 A.2d 780, 783 (Pa. 2000).

      Appellant’s judgment of sentence became final on December 12, 1995,

ninety days after the Pennsylvania Supreme Court denied allocatur and the

time to file a petition for writ of certiorari with the United States Supreme

Court expired. See Pa.C.S. § 9545(b)(3) (“[A] judgment becomes final at the

conclusion of direct review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the


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review.”); see also Commonwealth v. Owens, 718 A.2d 330, 331 (Pa.

Super. 1998). Therefore, Appellant had one year, or until December 12, 1996,

to timely file a petition. Appellant filed the instant petition on March 19, 2012,

fifteen years, three months and seven days afterwards, and it is patently

untimely. Accordingly, Appellant must plead and prove that one of the

enumerated exceptions to the one year time-bar is applicable. See 42 Pa.C.S.

§ 9545 (b)(1); Perrin, 947 A.2d at 1286.

      In his brief to this Court, Appellant asserts that his claim is timely based

upon the newly discovered facts exception to the one-year time limitation.

See Appellant’s Brief at 10.     However, it is unclear to what fact or facts

Appellant refers, nor when Appellant discovered them. Affording Appellant

the most generous benefit of the doubt, we infer that Appellant references

former counsel’s depriving him of an opportunity to timely file his first PCRA

petition. However, Appellant did not raise this issue before the PCRA court or

in response to the 907 notice.      Accordingly, we deem this issue waived.

Pa.R.A.P. 302(a) (“issues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”); see also Commonwealth v.

Washington, 927 A.2d 586, 601 (Pa. 2007) (finding that “any claim not

raised in the PCRA petition is waived and not cognizable on appeal.”).

      Further, absent waiver, Appellant cannot establish this exception.

Appellant suggests before this Court that he did not learn of counsel’s alleged

abandonment until August 1, 1997, when the Pennsylvania Supreme Court


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responded to his inquiry and informed him of the date of the denial of his

petition for allocatur. See Appellant’s Brief at 10. However, his petition, filed

almost fifteen years after the date of discovery, does not meet the

requirement of Section 9545(b)(2), because it was not filed within sixty days

of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).

      For the aforementioned reasons, Appellant’s second petition is untimely,

and he has failed to plead and prove an exception to the statutory time-bar.

Accordingly, the PCRA court was without jurisdiction to consider Appellant’s

claims. See Rizvi, 166 A.3d at 347.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/18




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