J-A28043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    REGINALD GREGG                             :
                                               :
                       Appellant               :   No. 857 EDA 2019

              Appeal from the PCRA Order Entered March 8, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-1203321-2001


BEFORE:      PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED DECEMBER 09, 2019

        Appellant Reginald Gregg appeals from the Order entered in the Court

of Common Pleas of Philadelphia County on March 8, 2019, denying as

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

(“PCRA”).1 We affirm.

        In 1996, Appellant shot his ex-girlfriend in her home, leaving her

permanently disabled from her injuries.        As Appellant left the home, he fired

shots at the victim’s brother. Appellant missed his intended target and hit

another woman who died before she reached the hospital. After learning the

next day that police were looking for him, Appellant fled to Washington, D.C.

where he remained a fugitive for the next four and one half years. Appellant

ultimately was apprehended, and on February 25, 2004, he entered a
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*   Former Justice specially assigned to the Superior Court.
1   42 Pa.C.S.A. §§ 9541-9546.
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negotiated guilty plea to murder; in exchange, the Commonwealth agreed not

to seek the death penalty.

     The trial court set forth the resultant procedural history as follows:

            On February 26, 2004, following a degree of guilt hearing1
     before this court, [Appellant] was convicted of murder of the first
     degree (H-1), two counts of aggravated assault (F-1), and
     possessing instruments of crime (PIC)(M-1).2 On that same date,
     this [c]ourt sentenced [Appellant] to the mandatory term3 of life
     imprisonment.4 On March 3, 2004, [Appellant] filed pro se post -
     sentence motions,5 which were denied on June 11, 2004. On June
     22, 2004, [Appellant] filed a timely notice of appeal. On March 16,
     2005, Superior Court affirmed [Appellant’s] judgment of sentence
     and, on July 26, 2005, our Supreme Court denied [Appellant’s]
     petition for allowance of appeal.6
            On July 18, 2006, [Appellant] filed a timely PCRA petition
     pro se. Counsel was appointed7 and, on April 17, 2007, filed a
     Finley8 letter. After reviewing the pleadings and conducting an
     independent review of the record, on May 2, 2007, this [c]ourt
     sent [Appellant] notice of its intent to deny and dismiss
     [Appellant’s] petition without a hearing pursuant to Pa.R.Crim.P.
     907 (907 Notice). On May 23, 2007, [Appellant] filed a response
     to this [c]ourt's 907 Notice. Nevertheless, consistent with its 907
     Notice, on July 13, 2007, this [c]ourt denied and dismissed
     [Appellant’s] PCRA petition and permitted Mr. Kauffman to
     withdraw as counsel. On August 18, 2008, Superior Court affirmed
     this [c]ourt's denial and dismissal of [Appellant’s] petition and, on
     April 28, 2009, our Supreme Court denied [Appellant’s] petition
     for allowance of appeal.9
            On August 20, 2012, [Appellant] filed a second PCRA
     petition, which was untimely. After reviewing the pleadings, on
     August 18, 2014, this [c]ourt sent [Appellant] a 907 Notice.10 On
     September 4, 2014, [Appellant] responded to this [c]ourt's 907
     Notice. However, as this response did not help [Appellant] satisfy
     the timeliness requirements of the PCRA, consistent with its 907
     Notice, on October 3, 2014, this [c]ourt denied and dismissed
     [Appellant’s] PCRA petition as untimely. [Appellant] did not file an
     appeal.
            [Appellant] filed a third, also untimely, PCRA petition on
     October 20, 2014. After reviewing the pleadings, this [c]ourt sent
     [Appellant] a 907 Notice on February 10, 2015. Consistent with


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     its 907 Notice, on March 13, 2015, this [c]ourt denied and
     dismissed [Appellant’s] PCRA petition as untimely. [Appellant] did
     not file an appeal.
            On March 20, 2015, [Appellant] filed his fourth PCRA
     petition, which was also untimely. On May 27, 2015, after
     reviewing the pleadings, this [c]ourt sent [Appellant] a 907
     Notice. On June 11, 2015, [Appellant] responded to this [c]ourt's
     907 Notice. Nevertheless, consistent with its 907 Notice, on July
     2, 2015, this [c]ourt denied and dismissed [Appellant’s] PCRA
     petition as untimely. Petitioner did not file an appeal.
            On June 15, 2018, [Appellant] filed the instant untimely
     PCRA petition. On December 6, 2018, the Commonwealth filed a
     motion to dismiss the instant petition as untimely. Having
     reviewed the pleadings, this [c]ourt sent [Appellant] a 907 Notice
     on January 18, 2019, indicating the [c]ourt's intention to dismiss
     [Appellant’s] petition as untimely. On January 31, 2019,
     [Appellant] filed a response to this [c]ourt's 907 Notice. However,
     as this response failed to help [Appellant] satisfy the timeliness
     requirements of the PCRA, this [c]ourt dismissed [Appellant’s]
     PCRA petition on February 8, 2019. This timely appeal followed.

     ____
     1 See Pa.R.Crim.P. 590(c). At his degree of guilt hearing,

     [Appellant] was represented by James S. Bruno, Esquire.
     2 18 Pa.C.S. §§ 2502(a), 2702, and 907(a), respectively.
     3 18 Pa.C.S. §§ 1102(a).
     4 As to [Appellant’s] conviction for the aggravated assault of Dawn

     Williams, this [c]ourt sentenced [Appellant] to a concurrent term
     of not less than five years nor more than ten years[’] confinement
     As to petitioner's conviction for the aggravated assault of Franklin
     Williams, this [c]ourt sentenced [Appellant] to a concurrent term
     of not less than two years nor more than ten years[’] confinement.
     As to [Appellant’s] conviction for PIC, this [c]ourt sentenced
     [Appellant] to a concurrent term of not less than one year nor
     more than five years[’] confinement. Notes of Testimony (N.T.)
     2/26/04 at 96-97.
     5 On March 29, 2019, J. Scott O'Keefe, Esquire, was appointed as

     counsel for [Appellant’s] post-sentence motions and appeal.
     6 Commonwealth v. Gregg, No. 1846 EDA 2004, slip, op.

     (Pa.Super., Mar. 16, 2005), allocatur denied No. 200 EAL 2005,
     slip op. (Pa., July 26, 2005).
     7 Earl Kauffman, Esquire, was appointed to represent [Appellant]

     in his first collateral attack.
     8 Commonwealth v. Finley, 550 A.2d 231 (Pa.Super. 1988).



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      9Commonwealth       v. Gregg, No. 1957 EDA 2007, slip op.
      (Pa.Super., Aug. 18, 2008), allocatur denied No. 630 EAL 2008,
      slip pol. (Pa., Apr. 28, 2009).
      10 [Appellant’s] second PCRA petition, filed on August 28, 2012,

      was not forwarded by the Post-Trial Unit of the First Judicial
      District to this Court until May 7, 2014.

Trial Court Opinion, filed 6/3/19, at 1-3.

      Instantly, Appellant presents the following “Statement of Questions

Involved,” which we set forth verbatim:

      1.)       Did the PCRA [c]ourt error denying Appellant’s “timely”
      [filed] PCRA Petition in light of the United States Supreme Court’s
      “NEW” ruling pursuant to SEE: [McCoy V. Louisiana; 138 S.Ct.
      1500 (2018)], where Appellant “HAD” met the PCRA Statute for
      [filing] a Subsequent PCRA Petition pursuant to, SEE: [42 Pa.C.S.
      § 9545(b)(1)(i) & (iii)][“meeting the exceptional requirements for
      [filing] a “timely” Subsequent PCRA within (60)-days of it’s
      discovery”]?

      2.)      Did the PCRA Court error where Appellant met the PCRA
      Statutory Provisions for [filing] a “timely” Subsequent PCRA
      Petition where Appellant presented “NEWLY/AFTER” discovered
      evidence, pursuant to, SEE: [McCoy V. Louisiana; 138 S.Ct. 1500
      (2018)], where the United States Supreme Court held as in Mr.
      Gregg’s case that, “[D]efence counsel may “NOT” concede “guilt”
      over the client unambigous objection---[t]he Court held that
      counsel’s decision to concede “guilt” was a “Structural error”
      warranting a “NEW” Trial---because such admission blocked
      Appellant’s right to make fundamental choices of his own accord”;
      thus, Appellant was entitled to an evidentiary hearing and thereof
      a “VACATION” of conviction where the “NEWLY/AFTER” discovered
      evidence had (est)ablished Appellant suffered Constitutional
      errors of his Sixth and Fourteenth Amendment right’s?


Appellant’s Brief at 4.

      Before we address Appellant’s issues, we first must consider whether

the PCRA court correctly determined that his instant PCRA petition was



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untimely. This Court’s standard of review regarding an order dismissing a

petition under the PCRA is to ascertain whether “the determination of the PCRA

court is supported by the evidence of record and is free of legal error. The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185,

191-92 (Pa.Super. 2013) (citations omitted) reargument denied October 1,

2013.

        Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date upon which the

judgment of sentence became final unless the petition alleges, and the

petitioner proves, that an exception to the time for filing the petition, set forth

at 42 Pa.C.S.A. Sections 9545(b)(1)(i), (ii), and (iii), is met.2 A PCRA petition

____________________________________________


2   The exceptions to the timeliness requirement are:

            (i) the failure to raise the claim previously was the result
            of interference of 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.



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invoking one of these statutory exceptions must be filed within sixty days of

the date upon which the claims could have been presented. 42 Pa.C.S.A. §

9545(b)(2)3 See also Commonwealth v. Hernandez, 79 A.3d 649, 651-

52 (Pa.Super. 2013). Asserted exceptions to the time restrictions for a PCRA

petition must be included in the petition and may not be raised for the first

time on appeal. Commonwealth v. Furgess, 149 A.3d 90, 93 (Pa.Super.

2016).

       This Court and the PCRA court have held that Appellant’s previous PCRA

petitions either lacked merit or were untimely. Clearly, the instant petition,

filed nearly thirteen years after Appellant’s judgment of sentence became

final, is facially untimely.4 Therefore, to be entitled to relief, he must have

pled and proven an exception to the PCRA time bar.




____________________________________________




42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).

3Section 9545(b)(2) has since been amended to enlarge this period from sixty
days to one year. See Act of 2018, October 24, P.L. 894, No. 146, §§ 2 and
3. The sixty-day time period applies in this appeal.
4 Appellant’s judgment of sentence became final on or about October 26,
2005, ninety days after the Pennsylvania Supreme Court denied his petition
for allowance of appeal and the time for filing a petition for a writ of certiorari
with the United States Supreme Court expired.             See 42 Pa.C.S.A. §
9545(b))(3); Commonwealth v. Feliciano, 69 A.3d 1270, 1275 (Pa.Super.
2013) (stating that where a defendant does not seek review in the United
States Supreme Court, his or her judgment of sentence is final ninety days
after the Pennsylvania Supreme Court denied his or her petition for allowance
of appeal).

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      Initially, we could deem the issues Appellant presents for our review

waived based upon his defective appellate brief which is comprised of rambling

and often incoherent statements. See Commonwealth v. Pew, 189 A.3d

486, 489 (Pa.Super. 2018), appeal denied, stay denied, 200 A.3d 939 (Pa.

2019).    Notwithstanding, he essentially attempts to invoke the newly

recognized constitutional right exception to the PCRA time-bar set forth in

Section 9545(b)(1)(iii). Specifically, Appellant claims that he is entitled to

relief in light of the United States Supreme Court’s ruling in McCoy v.

Louisiana. 130 S.Ct. 1500, 200 L.Ed.2d 821 (2018).

      In McCoy, counsel for the defendant conceded during the guilt phase of

a capital trial that his client had committed three murders, despite the

defendant's strong objection to any admission of guilt. Id. at 1505. The

McCoy Court held that criminal defendants have a Sixth Amendment right “to

insist that counsel refrain from admitting guilt, even when counsel's

experienced-based view is that confessing guilt offers the defendant the best

chance to avoid the death penalty.” Id. The Supreme Court further explained

that counsel's admission of a client's guilt over the client's express objection

is a structural error requiring a new trial. Id. at 1512.

   Herein, as the PCRA court stated:

      “[Appellant’s] counsel did not admit [Appellant’s] guilt to the fact
      finder at any time. [Appellant], not his counsel, chose to enter
      a plea of guilty generally and to then proceed to a degree of guilt
      hearing. N.T. 2/25/04 at 4-24. It was [Appellant], not his
      counsel, with whom this [c]ourt conducted a colloquy to
      determine if [Appellant’s] waiver of a trial was knowing,

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        intelligent, and voluntary. Id. It was [Appellant] who testified
        that he, not his counsel, made the decision to enter a general
        plea of guilt. Id. at 20-21. It was [Appellant], not his counsel,
        whose colloquy this [c]ourt determined to be a knowing,
        intelligent, and voluntary waiver of his rights. As McCoy does not
        apply to the facts of [Appellant’s] case, and is not retroactive,
        [Appellant] did not set forth a proper claim pursuant to §
        9545(b)(1)(iii), and his claim failed.

Trial Court Opinion, filed 6/3/19, at 5-6.

        As the trial court referenced, even assuming that McCoy announced a

newly recognized constitutional right, Appellant has failed to establish that the

McCoy      decision    applies     retroactively   on    postconviction    review.     The

Pennsylvania Supreme Court expressly has stated “that the language ‘has

been held’ in 42 Pa.C.S. § 9545(b)(1)(iii) means that a retroactivity

determination      must    exist    at   the   time     that   the   petition   is   filed.”

Commonwealth v. Abdul-Salaam, 812 A.2d 497, 502 (Pa. 2002).5

Moreover, as this Court has explained:

        The seminal test in determining whether a constitutional rule
        warrants retroactive application during collateral review was
        delineated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060,
        103 L.Ed.2d 334 (1989) (plurality), which was subsequently
        adopted by a majority of the Supreme Court. See
        Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345, 363
        (2011) (citing Butler v. McKellar, 494 U.S. 407, 110 S.Ct.
        1212, 108 L.Ed.2d 347 (1990)). “Under the Teague framework,
        an old rule applies both on direct and collateral review, but a new
        rule is generally applicable only to cases that are still on direct
        review. A new rule applies retroactively in a collateral proceeding
        only if (1) the rule is substantive or (2) the rule is a ‘watershed
        rule of criminal procedure’ implicating the fundamental fairness
        and accuracy of the criminal proceeding.” Whorton v.
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5   The Supreme Court of the United States has made no such determination.

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      Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1
      (2007) (internal citations omitted).
            While state courts are free to adopt more liberal standards
      in determining whether a decision is to be accorded full
      retroactivity, our Supreme Court has utilized the Teague test in
      examining retroactivity issues during state collateral review. . . .

Commonwealth v. Riggle, 119 A.3d 1058, 1065 (Pa.Super. 2015) (some

citations omitted).

      Accordingly, for all the foregoing reasons, we find the PCRA court

properly dismissed Appellant’s PCRA petition as untimely, and no relief is due.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/19




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