J-S01030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 NEAL I. MCCOLLUM                          :
                                           :
                    Appellant              :    No. 1117 MDA 2018

            Appeal from the PCRA Order Entered June 21, 2018
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0002018-2004


BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.:                 FILED: JANUARY 28, 2019

     Neal I. McCollum (Appellant) appeals pro se from the order denying as

untimely his third petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541–9546. We affirm.

     This Court previously explained:

     In April 2006, [Appellant] was convicted of rape of a child and
     related offenses, stemming from his having repeatedly sexually
     assaulted the mentally handicapped minor daughter of his then-
     girlfriend. [Appellant] was sentenced to serve an aggregate prison
     term of 21 to 42 years. This Court affirmed [Appellant’s] judgment
     of sentence, after which the Supreme Court of Pennsylvania
     denied allowance of appeal. See Commonwealth v. McCollum,
     945 A.2d 765 (Pa. Super. 2007) (unpublished memorandum),
     appeal denied, 951 A.2d 1162 (Pa. 2008). In September 2008,
     [Appellant] filed a timely Petition for collateral relief under the Post
     Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541–9546, which
     the PCRA court dismissed. This Court affirmed the dismissal, after
     which the Supreme Court of Pennsylvania denied allowance of
     appeal. See Commonwealth v. McCollum, 6 A.3d 572 (Pa.
     Super. 2010) (unpublished memorandum), appeal denied, 2011
     Pa. LEXIS 1126 (Pa. 2011).


*Retired Senior Judge assigned to the Superior Court.
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      In February 2012, [Appellant] filed a Habeas Corpus Petition in
      the United States District Court for the Middle District of
      Pennsylvania, which the federal court dismissed. See McCollum
      v. Cameron, 2012 U.S. Dist. LEXIS 88953, 2012 WL 2462294
      (M.D. Pa. 2012).

Commonwealth v. McCollum, No. 839 MDA 2016, at *1 (Pa. Super. Ct. Mar.

30, 2017) (affirming the denial of Appellant’s second PCRA petition).       In

finding that Appellant’s second PCRA petition was untimely, we stated that his

“judgment of sentence became final in October 2008.” Id. at *2, citing 42

Pa.C.S.A. § 9545(b)(1) (providing that a PCRA petition must be filed within

one year of the judgment of sentence becoming final).

      Instantly, Appellant filed the underlying pro se “Petition for Habeas

Corpus Relief” on January 22, 2018. Citing Commonwealth v. Jackson, 30

A.3d 516, 521 (Pa. Super. 2011), the PCRA court recognized that a petition

“filed after the judgment of sentence becomes final will be treated as a PCRA

petition” and properly treated Appellant’s petition as being filed under the

PCRA.   See PCRA Court Notice Pursuant to Pennsylvania Rule of Criminal

Procedure 907, 4/19/18, at 1 n.1. On April 19, 2018, the PCRA court issued

notice of intent to dismiss the PCRA petition without a hearing pursuant to

Rule 907. See id. On June 21, 2018, the PCRA court dismissed the petition

on the basis that it was untimely. Appellant filed this appeal on July 5, 2018.

      On appeal, Appellant lists nine issues. See Appellant’s Brief at 1. In

the summary of his argument, Appellant states verbatim:

            Has the PCRA court or any court properly dismissed
      Appellant’s Construed PCRA petition because none of the claims

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      had any merit. This Honorable Court has the Authority and Power
      to over turn an Error so great it numbs the conscience of all who
      may have opportunity to counter act delayed justice; or just
      maybe do the right thing by an innocent man. In addition, the
      claims of ineffective assistance of counsel presented are more
      than bold assertions that do have support with the documentation
      hereto within.

Appellant’s Brief at 4.

      Before proceeding further, we turn to the PCRA court’s determination

that Appellant’s petition was untimely. Our standard of review of an order

denying PCRA relief is “whether the PCRA court’s determination is supported

by the evidence of record and free of legal error. We grant great deference

to the PCRA court’s findings, and we will not disturb those findings unless they

are unsupported by the certified record.” Commonwealth v. Holt, 175 A.3d

1014, 1017 (Pa. Super. 2017) (citation omitted). Before we reach the merits

of a petitioner’s claim, Section 9545 of the PCRA requires that “[a]ny petition

under this subchapter, including a second or subsequent petition, shall be filed

within one year of the date the judgment becomes final.”        42 Pa.C.S.A. §

9545(b)(1).    The timeliness requirement of the PCRA is “mandatory and

jurisdictional in nature.” Commonwealth v. McKeever, 947 A.2d 782, 784-

785 (Pa. Super. 2008) (citing omitted). Therefore, “no court may disregard,

alter, or create equitable exceptions to the timeliness requirement in order to

reach the substance of a petitioner’s arguments.” Id. Although the timeliness

requirement is mandatory and jurisdictional, “an untimely petition may be

received when the petition alleges, and the petitioner proves, that any of the


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three limited exceptions to the time for filing set forth at 42 Pa.C.S.A. §

9545(b)(1)(i), (ii), and (iii), is met.”   Commonwealth v. Hernandez, 79

A.3d 649, 651 (Pa. Super. 2013).       The three 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.A. § 9545(b)(1)(i)-(iii). A petition invoking an exception “shall be

filed within 60 days of the date the claim could have been presented.” 42

Pa.C.S.A. § 9545(b)(2).

      As noted above, this Court previously held that Appellant’s judgment of

sentence became final in October 2008. Commonwealth v. McCollum, No.

839 MDA 2016, at *2. Under Section 9545(b)(1), Appellant had to file his

PCRA petition within one year, by October 2009, to meet the PCRA’s timeliness

requirement. Appellant filed the underlying petition on January 22, 2018 –

nearly 10 years after his judgment of sentence became final. Therefore, we

are without jurisdiction to decide Appellant’s appeal unless he has pled and


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proved one of the three exceptions of Section 9545(b)(1). Appellant has failed

to do so.

       The PCRA court accurately summarized the content of Appellant’s

petition:

             [Appellant] claims that the behavior of various members of
       the Dauphin County justice system and a justice on the
       Pennsylvania Supreme Court bench in sending and/or receiving
       certain emails (of public record) reflect bias against persons of
       color and perpetuate negative stereotypes. [Appellant] seeks to
       have his sentence vacated as a consequence of such emails and,
       in support, asserts that a Pennsylvania Supreme Court justice was
       in proceedings before the Judicial Conduct Board at the time
       [Appellant’s] prior Habeas Corpus petition was pending.

              [Appellant’s] vague and tenuous contention that those
       involved in sending/receiving such emails in some way interfered
       with his request for relief is insufficient to invoke any of the
       timeliness exceptions. See Commonwealth v. Crews, 863 A.2d
       498, 501 (Pa. 2004) (petitioner has the burden to plead in the
       petition and prove that one of the exceptions applies; such burden
       entails an acknowledgement that the PCRA petition under review
       is untimely but that an exception applies).

PCRA Court’s Notice Pursuant to Rule 907, 4/19/18, at 2.

       In his appellate brief, Appellant fails to mention or argue – with regard

to alleged impropriety of members of the judiciary or otherwise – that his

petition qualifies for an exception to the PCRA’s timeliness requirement.

Appellant does not reference the PCRA’s time restrictions or address the PCRA

court’s finding that his petition is untimely. See Appellant’s Brief at 4-10.1

____________________________________________


1 As best we can discern, Appellant’s assertions concerning an “invalid
charging instrument,” “faulty criminal complaint and information sheet,”



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       In sum, Appellant has failed to advance an exception to the PCRA’s time

bar. See Commonwealth v. Gibbs, 981 A.2d 274, 284 (Pa. Super. 2009)

(It is an appellant’s obligation to sufficiently develop arguments in his brief by

applying the relevant law to the facts of the case, persuade this Court that

there were errors below, and convince us relief is due because of those

errors.). We thus affirm the order of the PCRA court denying as untimely

Appellant’s third petition filed pursuant to the PCRA.

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/28/2019




____________________________________________


illegal sentence, and ineffectiveness of counsel, are claims that Appellant has
already raised, or waived because he could have raised them previously. 42
Pa.C.S.A. §9544 (a), (b).

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