J-S45042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RONALD A. AIELLO,

                            Appellant                 No. 79 WDA 2016


                 Appeal from the PCRA Order December 8, 2015
               in the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0007117-2000


BEFORE: OLSON, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JULY 06, 2016

        Appellant, Ronald A. Aiello, appeals pro se from the court’s order

denying his second petition filed pursuant to the Post Conviction Relief Act,

42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        On August 20, 2001, Appellant was convicted of criminal homicide, 18

Pa.C.S.A. § 2501, after a waiver trial.        The conviction resulted from

Appellant’s fatal stabbing of his estranged wife on April 14, 2000. On August

23, 2001, the trial court sentenced Appellant to a term of life imprisonment.

This Court affirmed the judgment of sentence on February 27, 2004, and the

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal on August 27, 2004. (See Commonwealth v. Aiello, 849 A.2d 601
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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(Pa. Super. 2004) (unpublished memorandum), appeal denied, 857 A.2d

676 (Pa. 2004)).

      On October 5, 2004, Appellant filed his first pro se PCRA petition. The

court appointed counsel, who filed an amended petition on April 3, 2006.

The PCRA court provided Appellant with notice of its intent to dismiss the

petition on November 13, 2006. See Pa.R.Crim.P. 907(1). On November

21, 2006, counsel filed a supplement to the amended PCRA petition, and the

PCRA court denied the petition on January 3, 2007, without addressing the

claims raised in the supplementary filing.   Appellant timely appealed, and,

on December 13, 2007, this Court vacated the PCRA court’s order and

remanded to allow the court the opportunity to address issues raised by

Appellant in the supplementary petition. (See Commonwealth v. Aiello,

No. 210 WDA 2007, unpublished memorandum, at *7 (Pa. Super. filed Dec.

3, 2007)). On February 27, 2008, the court issued an opinion, but did not

enter the order denying PCRA relief until January 5, 2009.      On March 3,

2009, due to its failure to file the order earlier, the PCRA court reinstated

Appellant’s right to appeal nunc pro tunc.

      On March 6, 2009, Appellant filed a counseled appeal of the PCRA

court’s January 5, 2009 order denying PCRA relief. On August 20, 2009, this

Court affirmed the PCRA court’s order, and the Pennsylvania Supreme Court

denied Appellant’s petition for allowance of appeal on March 10, 2010. (See




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Commonwealth v. Aiello, 984 A.2d 1005 (Pa. Super. 2009) (unpublished

memorandum), appeal denied, 990 A.2d 726 (Pa. 2010)).

       On May 27, 2015, Appellant filed a pro se application for leave to file

original process/petition for redress of grievance, which the court treated as

a PCRA petition. On June 25, 2015, the PCRA court issued a notice of its

intent to dismiss the petition without a hearing.      Appellant responded on

October 22, 2015 by filing a motion to withdraw the petition. However, the

court denied the petition on December 8, 2015. Appellant timely appealed.1

       Appellant raises two issues for this Court’s review:

       1.    Can the [PCRA] court of Allegheny County deny
       Appellant[’]s fundamental right to petition for redress of
       grievance done pursuant to Article I, Section 20, of the Pa.
       Constitution and the First Amendment of the U.S. Constitution[]
       [w]hen Article I, Section 26 and the First Amendment of the U.S.
       Constitution mandate[] that civil rights of citizens cannot be
       hindered along with Article I, Section 11, as well as the First
       Amendment of the U.S. Constitution mandate[] all courts shall
       remain open[]?

       2.     Can Appellant challenge subject-matter jurisdiction along
       with in personam jurisdiction by exercising said fundamental
       right after PCRA became final?

(Appellant’s Brief, at unnumbered page 8) (quotation marks omitted).

       Our standard of review for an order denying PCRA relief is well-settled:

            This Court’s standard of review regarding a PCRA court’s
       order is whether the determination of the PCRA court is
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1
  The PCRA court did not order Appellant to file a statement of errors
complained of on appeal, and the court did not file a Rule 1925(a) opinion.
See Pa.R.A.P. 1925.



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      supported by the evidence of record and is free of legal error.
      Great deference is granted to the findings of the PCRA court, and
      these findings will not be disturbed unless they have no support
      in the certified record. Moreover, a PCRA court may decline to
      hold a hearing on the petition if the PCRA court determines that
      a petitioner’s claim is patently frivolous and is without a trace of
      support in either the record or from other evidence.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted).

      Before considering Appellant’s challenge, we first must determine

whether his petition was timely, thus conferring us with jurisdiction to

consider his claim on its merits.

      It is well-settled that:

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence became 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) (case citations

and footnote omitted).




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       In the case sub judice, Appellant’s judgment of sentence became final

on November 27, 2004, which was ninety days2 after our Supreme Court

denied his petition for allowance of appeal. See 42 Pa.C.S.A. § 9545(b)(3).

Therefore, he had one year from that date to file a petition for collateral

relief unless he pleaded and proved that a timing exception applied. See 42

Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). Hence, Appellant’s current petition, filed on

May 27, 2015, is untimely on its face unless he pleads and proves one of the

statutory exceptions to the time-bar.

       Section 9545 of the PCRA provides only three exceptions that allow for

review of an untimely PCRA petition: (1) the petitioner’s inability to raise a

claim because of governmental interference; (2) the discovery of previously

unknown facts that would have supported a claim; and (3) a newly-

recognized constitutional right.        See id.      A PCRA petition invoking one of

these statutory exceptions must “be filed within [sixty days of the date the

claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

       Here, Appellant utterly fails to allege the applicability of a timeliness

exception, and he does not provide either pertinent citation to authority or

argument regarding the time-bar.               (See Appellant’s Brief, at unnumbered

pages 11-16); see also Pa.R.A.P. 2119(a)-(b).                 Instead, his argument

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2
 An appellant has ninety days to file a petition for writ of certiorari with the
United States Supreme Court from the date of our Supreme Court’s decision.
See U.S. Sup. Ct. R. 13(1).



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appears to be that, because he is challenging the subject matter and in

personam jurisdiction of the trial court, and he is constitutionally entitled to

raise any grievances, the PCRA court erred in dismissing his issues as

untimely.     (See Appellant’s Brief, at unnumbered pages 9-15).3          This

argument fails because “[t]he timeliness requirements of the PCRA do not

vary based on the nature of the constitutional violations alleged therein.”

Commonwealth v. Howard, 788 A.2d 351, 356 (Pa. 2002) (citation

omitted); see also Jones, supra at 17 (“The [PCRA’s] timeliness

requirements apply to all PCRA petitions, regardless of the nature of the

individual claims raised therein.”) (citation omitted).

       Accordingly, because Appellant utterly fails to plead and prove that his

claims fall within a PCRA timeliness exception, he has failed to save his

untimely petition for review on the merits.         (See Appellant’s Brief, at


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3
   Moreover, to the extent that Appellant attempts to argue that the court
erred in treating his request for relief as a PCRA petition, (see Appellant’s
Brief, at 11, 13-14), his argument fails. It is well-settled that “the PCRA
provides the sole means for obtaining collateral review, and that any petition
filed after the judgment of sentence becomes final will be treated as a PCRA
petition.” Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super.
2007), appeal denied, 944 A.2d 756 (Pa. 2008) (citation omitted). Here, in
his petition for redress of grievance, Appellant appears to challenge the
legality of his sentence on the bases that the statutes under which he was
convicted “may or [may] not be Constitutional,” and the trial court lacked
subject matter jurisdiction to impose a sentence. (Petition for Redress of
Grievance, 5/27/15, at 5; see id. at 6). The PCRA provides a remedy for
legality of sentence challenges. See 42 Pa.C.S.A. § 9542. Therefore, the
court properly treated Appellant’s request for relief as a PCRA petition.



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unnumbered pages 11-16). Hence, the PCRA court did not err in denying his

petition.4 See Jones, supra at 17; Carter, supra at 682.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




____________________________________________


4
  Although our reasoning may differ slightly with that of the PCRA court,
(see Notice of Intention to Dismiss, 6/25/15, at 1), we observe that “[t]his
Court is not bound by the rationale of the [PCRA] court, and we may affirm
the [PCRA] court on any basis.” Commonwealth v. Williams, 73 A.3d
609, 617 n.4 (Pa. Super. 2013), appeal denied, 87 A.3d 320 (Pa. 2014)
(citation omitted).



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