J-A25045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    TELLY ROYSTER                              :
                                               :
                      Appellant                :   No. 1906 EDA 2016

                    Appeal from the PCRA Order May 13, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0903181-1999


BEFORE:      OTT, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED SEPTEMBER 19, 2017

        Appellant Telly Royster appeals pro se from the Order entered in the

Court of Common Pleas of Philadelphia County on May 13, 2016, denying as

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

(PCRA).1 We affirm.

        In the early morning hours of June 7, 1999, Appellant shot two men as

they sat in the stairwell of their apartment building. One of the victims died,

and the other survived a gunshot wound to his abdomen.

        On October 27, 2000, following a jury trial, Appellant was convicted of

first-degree murder, attempted murder, aggravated assault and various

weapons offenses.2        On October 30, 2000, Appellant was sentenced to life
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
2
    18 Pa.C.S.A. §§ 2502; 901; 907; and 6106, respectively.


____________________________________
*     Former Justice specially assigned to the Superior Court.
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imprisonment on the murder conviction, a consecutive term of five (5) years

to ten (10) years in prison for the attempted murder conviction and

concurrent terms of one (1) year to two (2) years in prison for each of the

weapons offenses.      Appellant filed a direct appeal, and this Court affirmed

his judgment of sentence on May 5, 2003.         Commonwealth v. Royster,

829 A.2d 364 (Pa.Super. 2003) (unpublished memorandum). Appellant did

not file a petition for allowance of appeal with the Pennsylvania Supreme

Court.

      Appellant filed his first PCRA petition pro se on September 5, 2003.

Appellate counsel was appointed and filed an amended petition on June 14,

2004. Therein, Appellant raised six, separate claims of ineffective assistance

of trial counsel.   After providing notice of its intent to dismiss the petition

without a hearing pursuant to Pa.R.Crim.P. 907, the PCRA court entered an

order doing so on February 7, 2005.         A timely appeal followed, and this

Court affirmed the order on March 7, 2006 Commonwealth v. Royster,

898 A.2d 1133 (Pa.Super. 2006) (unpublished memorandum).

      Appellant filed the instant PCRA petition on January 23, 2015.

Therein, he acknowledged the petition was filed untimely but claimed the

“after-discovered evidence” exception, 42 Pa.C.S.A. § 9545(b)(1)(ii), to the

PCRA time bar applied. See PCRA Petition, filed 1/23/15, at 1. Specifically,

Appellant alleged counsel’s struggle with mental illness about which

Appellant read in an article dated December 15, 2014, concerning counsel’s

suspension from the practice of law in The Legal Intelligencer resulted in

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counsel’s failure to investigate and raise a diminished capacity defense at

Appellant’s trial.   Id. at 1-2.

       PCRA     counsel     was    appointed     and   later     filed   two,   identical

Turner/Finley3 “no-merit letters on January 13, 2016, and March 24, 2016,

respectively. On April 8, 2016, the PCRA court provided notice of its intent

to dismiss the petition without a hearing. On May 13, 2016, the PCRA court

entered an order permitting counsel to withdraw, and on May 20, 2016, it

dismissed Appellant’s PCRA petition as untimely.               Appellant filed a timely

appeal on June 6, 2016.4

       In his brief, Appellant presents the following “Statement of the

Question Involved”:


              Under Pennsylvania’s Post Conviction Relief Act, 42 Pa.
       C.S.A. § 9545(b)(1)(ii), a person may petition for review of his
       or her conviction more than one year after the conviction
       becomes final if “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.”
              Here, did the Philadelphia County Court of Common Pleas
       commit reversible error when-
       1)     Judge Ransom in a rule 907 intent to dismiss ruled
       petitioners [sic] PCRA untimely without having a hearing on
       timeliness when the petition clearly states it invokes the

____________________________________________


3
  Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988).
4
  As the Honorable Lillian Ransom was no longer sitting as a judge in
Philadelphia County at the time the instant appeal was filed, the record was
forwarded to this Court without an opinion pursuant to Pa.R.A.P. 1925(a).



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      exception and is being filed within 60 days of the newly
      discovered evidence?
      2)    Counsel was permitted to withdraw without taking any
      actions on behalf of petitioner or his issues which have merit and
      were filed timely?

Brief for Appellant at 2.

      At the outset, we consider whether this appeal is properly before us.

The question of whether a petition is timely raises a question of law, and

where a petitioner raises questions of law, our standard of review is de novo

and our scope of review is plenary. Commonwealth v. Callahan, 101 A.3d

118, 121 (Pa.Super. 2014).

      All PCRA petitions must be filed within one year of the date upon which

the judgment of sentence became final, unless one of the statutory

exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The

petitioner bears the burden to plead and prove an applicable statutory

exception.   If the petition is untimely and the petitioner has not pled and

proven an exception, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits

of the petition.   Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super.

2013).

      42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:

      (b) Time for filing petition.--

      (1)    Any petition under this subchapter, including a second or
             subsequent petition, shall be filed within one year of the
             date the judgment of sentence becomes final, unless the
             petition alleges and the petitioner proves that:

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           (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).   In addition, any petition attempting to

invoke one of these exceptions “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 previously, Appellant was sentenced on October 30, 2000,

and this Court affirmed the judgment of sentence on May 5, 2003. Appellant

did not file a petition for allowance of appeal with the Pennsylvania Supreme

Court; therefore Appellant’s judgment of sentence became final thirty days

thereafter on June 5, 2003. See 42 Pa.C.S.A. § 9545(b)(3) (stating, “a

judgment becomes final at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

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

review[ ]”). Since Appellant filed the instant petition on January 23, 2015,

almost twelve years thereafter, it is patently untimely and the burden fell

upon Appellant to plead and prove that one of the enumerated exceptions to

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the one-year time-bar is applicable. See 42 Pa.C.S.A. § 9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa.Super. 2008) (to

invoke a statutory exception to the PCRA time-bar, a petitioner must

properly plead and prove all required elements of the exception).              In

addition, an Appellant must comply with 42 Pa.C.S.A. § 9545(b)(2) (stating

“Any petition invoking an exception provided in paragraph (1) shall be filed

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

      Appellant claims the “new fact” of trial counsel’s diagnosis with

Attention Deficit Hyperactivity Disorder (ADHD) in 2011 was unavailable to

him until he discovered the article in The Legal Intelligencer in December of

2014. Appellant asserts that counsel’s “undiagnosed list of psychiatric

disorders   that   caused   or   rather   impacted    his   lack   of   competent

representation pre-trial and during trial” entitles him to relief and, thus, the

PCRA court erred in permitting PCRA counsel to withdraw “without having

performed any duties on behalf of Appellant.”        Brief for Appellant at 5-6.

Appellant avers that because he filed the instant PCRA petition within sixty

days of the date of the article, it was timely filed under an exception to the

PCRA time-bar. Brief for Appellant at 4-5; Reply Brief for Appellant at 3.

      Assuming, arguendo, Appellant filed the instant petition within sixty

days of the article’s publication, Appellant’s bald claims that counsel’s

medical diagnosis affected his representation of Appellant in 2000 do not

entitle him to relief. The exception set forth in Subsection (b)(1)(ii) requires


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a petitioner to allege and prove that there were facts that were unknown to

him or her and could not have been ascertained by the exercise of due

diligence. Commonwealth v. Bennett, 593 Pa. 382, 393, 930 A.2d 1264,

1270 (2007). “The focus of the exception is ‘on [the] newly discovered facts,

not on a newly discovered or newly willing source for previously known

facts.’” Commonwealth v. Marshall, 596 Pa. 587, 596–97, 947 A.2d 714,

720 (2008) (citation omitted) (emphasis in original). Also, it is well-settled

that allegations of ineffective assistance of counsel will not overcome the

jurisdictional timeliness requirements of the PCRA. Commonwealth v.

Wharton, 584 Pa. 576, 588, 886 A.2d 1120, 1127 (2005) See also

Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 589 (2000) (holding

an allegation of ineffectiveness is not sufficient justification to overcome

otherwise untimely PCRA claims); Commonwealth v. Gamboa-Taylor,

562 Pa. 70, 753 A.2d 780, 785-86 (2000) (finding the “fact” that current

counsel discovered prior PCRA counsel had failed to develop issue of trial

counsel's ineffectiveness was not after-discovered evidence exception to

time-bar).

      Herein, the basis of Appellant’s claim is the alleged fact that trial

counsel had been ineffective in failing to investigate or present a diminished

capacity defense at trial; however, this allegation is not dependent upon any

subsequent medical diagnosis affecting trial counsel about which Appellant

may have read in 2014, as Appellant clearly would have been aware that


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counsel did not present a diminished capacity defense at trial in 2000.

Appellant had the opportunity to present this claim in his first PCRA petition

along with the other allegations of trial counsel’s ineffectiveness that he
                                     5
raised, but he failed to do so.          As stated previously, a panel of this Court

thoroughly     considered      the    numerous     allegations   of   trial   counsel’s

ineffectiveness that Appellant raised in his first PCRA petition and found each

to be meritless. Thus, “Appellant's attempt to interweave concepts of

ineffective assistance of counsel and after-discovered evidence as a means

of establishing jurisdiction is unconvincing.” Commonwealth v. Gamboa-

Taylor, 562 Pa. 70, 79–80, 753 A.2d 780, 785 (2000).

       While Appellant also seeks reversal of the trial court’s order permitting

PCRA counsel to withdraw, it is well-settled that one has no automatic right

to counsel upon filing a second PCRA petition. See Pa.R.Crim.P. 904(b). As

Appellant has not raised a cognizable claim under the PCRA time-bar, the

PCRA court did not err in permitting counsel to withdraw. For the foregoing

reasons, Appellant's second PCRA petition is untimely, and he has failed to

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5
  The copy of the Report and Recommendations of the Disciplinary Board of
the Supreme Court of Pennsylvania Appellant which attaches to his appellate
brief states the contrary: “[a]ll of [counsel’s] clients but one had been
convicted of homicide and were serving lengthy prison sentence. None of
the clients suffered irreparable harm, because all were ultimately permitted
to pursue their appellate and PCRA claims despite [counsel’s] failure to file
them on time.” See “Exhibit B” to Brief of Appellant titled “Report and
Recommendations of the Disciplinary Board of the Supreme Court of
Pennsylvania” at 9. (footnote omitted).



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plead and prove an exception to the statutory time-bar. The PCRA court

properly dismissed it, and we discern no other basis on which to disturb the

PCRA court's dismissal of Appellant's petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2017




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