J-S63039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

ROBERT MORRIS, SR.

                             Appellant                No. 2436 EDA 2015


                    Appeal from the PCRA Order July 7, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0502931-2004

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.

JUDGMENT ORDER BY FITZGERALD, J.:               FILED SEPTEMBER 21, 2016

        Pro se Appellant, Robert Morris Sr., is appealing from the order

dismissing his second Post Conviction Relief Act1              (“PCRA”) petition.

Appellant appears to argue that because someone tampered with his mail,

his PCRA petition is timely. We affirm.

        We adopt the facts and procedural history set forth in the PCRA court’s

decision.2 PCRA Ct. Op., 10/13/15, at 1-3. Appellant filed the instant, pro

se PCRA form petition on February 23, 2015.         Appellant checked the box

next to the entry stating that his petition was timely because interference by

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
  We acknowledge that an en banc Superior Court affirmed Appellant’s
convictions and mandatory life sentence on direct appeal.       See
Commonwealth v. Morris, 958 A.2d 569, 572 (Pa. Super. 2008) (en
banc).
J-S63039-16


governmental officials prevented him from raising the claim earlier.

Appellant’s Pro Se PCRA Pet., 1/23/15, at 2.      Appellant did not further

explain this alleged interference in his petition. On June 16, 2016, the PCRA

court issued a Pa.R.Crim.P. 907 notice. Appellant did not respond, and the

court dismissed the petition on July 7, 2015. Appellant timely appealed, and

the court did not order Appellant to comply with Pa.R.A.P. 1925(b).

     “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”     Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

     As 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. We have also held
        that even where the PCRA court does not address the
        applicability of the PCRA timing mandate, th[e] Court will
        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, 477-78 (Pa. 2003) (citations

omitted).

     A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.”    Commonwealth v. Copenhefer, 941 A.2d




                                    -2-
J-S63039-16


646, 648 (Pa. 2007) (some citations and footnote omitted).           The three

exceptions to the general one-year time limitation 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. § 9545(b)(1)(i)-(iii).

      Instantly, Appellant has failed to plead and prove any of the three

timeliness exceptions in his PCRA petition and therefore has not overcome

the one-year timebar. See id.; Whitney, 817 A.2d at 477-78. Appellant

has failed to identify and explain the governmental interference.        To the

extent he appears to accuse the Commonwealth of withholding exculpatory

testimony in a preliminary hearing transcript, he raised that issue in his prior

PCRA petition. Appellant’s PCRA Pet., 3/4/11, at 3-4. Accordingly, having

discerned no abuse of discretion, we affirm the order below. See Wilson,

824 A.2d at 833.

      Order affirmed.




                                     -3-
J-S63039-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/21/2016




                          -4-
                                                                                                            Circulated 08/24/2016 10:10 AM
      I (   L
01/         '.·




                                            IN THE COURT OF COMMON PLEAS
                                       FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                                CRIMINAL TRIAL DIVISION



                  COMMONWEALTH OF PENNSYLVANIA

                         v.                    CP51-CR-0502931-2004Cornm v. Morns. Sr, Robert   CP-51-CR- 0502931-2004
                                                                  Op{n:on



                  ROBERT MORRIS, SR.
                  PP# 815452                        IIII Illlllll\ 111111111111                 PCRA APPEAL
                                                             7356247311
                                                                                                               FILED  .,
                  DOCKET NO.: 2436 EDA 2015                                                                     OCT 13 2015
                                                                    OPINION                                 Criminal Appsa1s Unit
                                                                                                          FirstJudicial Districtof PA
                         Appellant, Robert Appellant Sr., appeals the dismissal of his petition for

                  relief pursuant   to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9542, et seq.

                  (PCRA). On July 7, 2015, following a thorough review, appellant's petition was

                  dismissed without a hearing. A summary of the procedural history follows.1

                         On March 6, 2006, after a jury found appellant guilty of two counts of

                  third degree murder arising from the death of his two children, appellant was

                  sentenced to 20 - 40 years, followed by a mandatory term of life imprisonment

                  pursuant    to 42 Pa.C.S. § 971 S(a).2,3 Post sentence motions challenging the

                  weight of the evidence and requesting reconsideration                             of the mandatory life


                  1 The facts from appellant's trial can be found in the Superior Court opinion affirming the
                  judgment ofsenlencc. (1018 EDA 2006)
                  ' 18 Pa.C.S. §2502(c].
                  3 42 Pa.C.S. § 971 S(a) ... any person convicted of murder of the third degree in this

                  Commonwealth who has previously been convicted at any time of murder or volu ntary
                  manslaughter in this Commonwealth or of the same or substantially equivalent crime in any
                  other jurisdiction shall be sentenced to lire imprisonment, notwithstanding any other provision
                  of this Litle or other statute to the contrary.



                                                                            1
sentence were denied. On October 1, 2008, the Superior Court affirmed the

judgment of sentence. Appellant's petition for allowance of appeal was denied

on March 17, 2010. On March 4, 201 l, appellant filed a timely pro se PCRA

petition claiming that he was entitled to relief because of a violation     of the

Constitution   of this Commonwealth     or the Constitution   or laws of the United

States which, in the circumstances of the particular case, so undermined the

truth determining process that no reliable adjudication of guilt or innocence

could have taken place; 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, and because of the imposition         of

a sentence greater than the lawful maximum.        PCRA counsel was appointed

and, on January 28, 2013,     filed a letter pursuant   to Commonwealth     v. Pinley,

379 PA Super 390, 550 A.2d 213 (1988), indicating that she had reviewed the

file, the notes of testimony, had communicated with appellant,       and determined

that the issues raised in appellant's prose petition were meritless       and her

review revealed no other meritorious    issues. On February 7, 2013, following the

Court's independent   review of appellant's claims and after determining       that

PCRA counsel's   rinley letter was adequate, a Rule 907 Notice of Intent to

Dismiss was filed and served on appellant along with counsel's       rinley letter. On

March 22, 2013, appellant's    petition for PCRA relief was formally dismissed,

and counsel was permitted to withdraw. On November 25, 2013, the Superior

Court dismissed appellant's appeal of the dismissal for failure Lo file a brief.




                                          2
        On February       23, 2015, appellant filed this, his second petition for PCRA

relief, claiming that he was entitled to relief because of a violation of the

Constitution of this Commonwealth or the Constitution or laws of the United

States which, in the circumstances                  of the particular case, so undermined the

truth determining process that no reliable adjudication of guilt or innocence

could have taken place; the improper obstruction by government officials of his

right of appeal where a meritorious appealable issue existed and was properly

preserved in the trial court; 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, and because of the imposition of

a sentence greater than the lawful maximum.                       Specifically, appellant alleged

that Dr. Ian Hood was unfit to be an expert witness; that his constitutional

right to a fair trial was violated because the District Attorney sought to keep

the "preliminary transcripts" evidence from the jury; and that the Court's

decision not to sequester the jury was error. After reviewing appellant's

complaints, the record and the controlling law, the Court determined that

appellant's petition for relief was untimely. Following proper notice, appellant's

PCRA petition was formally dismissed on .July 7, 2015. This appeal followed.

       On an appeal from the denial of PCRA relief, the standard of review is

limited to examining whether the ruling or the PCRA court is supported                               by the

record and free of legal error. Commonwealth v. Pitt, 603 Pa. 1, 7, 981 A.2d

875, 878 (Pa. 2009). The pct ii ion musr be t.imclv, as the PCl~f\'s ti mel iue s s

restrictions   arc _ju1·isclic1i1rnal   i11   uat   u n: a nd arc ro he strict iv c.o n st rur-d .


                                                        3
Commonwealth       v. Abu-darnal,   596 Pa. 219,    941 A.2cl    1263,   1267-68   (2008).

An otherwise untimely PCRA petition may be reviewed, when a petitioner

invokes and pleads one of the exceptions provided in section 9545(b)( 1), which

provides in relevant   part:

       (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 becomes final,
unless the petition alleges and the petitioner proves that:
                (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.

       (2) Any petition invoking an exception provided in paragraph ( 1) shall be
filed within 60 days of the date the claim could have been presented.

42 Pa.C.S.A.   § 9545(b)(l) and (2). fl is the petitioner's burden to plead and

prove an exception lo the PCRA-timelincss          rule. Commomvcalth       v. Blackwell,

2007 PA Super 314, 936 A.2d 497, 500 (Pa. Super. Ct. 2007). Appellant asserts

that he overcomes the one year PCRA Lime limitation             because the failure lo

raise these claims previously was the result of government interference.

However, review of the record reveals that appellant raised these same claims



                                           4
 on appeal and in his first petition       for PCRA relicf.4 Therefore, appellant's

 allegation of government interference with the presentation of his claims is

 meritless. The PCRA petition is untimely and appellant has failed to

demonstrate      that his petition meets any of the timeliness exceptions.

Accordingly, the Court has no jurisdiction lo address appellant's claims.

         For the foregoing reasons, appellant's petition for post conviction relief

was properly denied without a hearing.



                                    BY THE COURT:




                                   SHEILA WOODS-SKIPPER, J.




~ See 1018   EDA 2006 and 1203 EDA 2013.

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