J-S66005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

ANDRE M. GALE,

                        Appellant                  No. 995 MDA 2014


            Appeal from the PCRA Order Entered June 5, 2014
            In the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0002716-1995


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED OCTOBER 22, 2014

     Appellant, Andre M. Gale, appeals pro se from the court’s June 5, 2014

order denying as untimely his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     On March 11, 1996, Appellant was convicted by a jury of first-degree

murder and conspiracy.     He was sentenced to an aggregate term of life

imprisonment.   This Court affirmed his judgment of sentence on June 11,

1997, and, on October 28, 1997, our Supreme Court denied his petition for

allowance of appeal. Commonwealth v. Gale, 700 A.2d 1024 (Pa. Super.

1997) (unpublished memorandum), appeal denied, 702 A.2d 1059 (Pa.

1997).

     Appellant filed his first PCRA petition on November 24, 1997.     That

petition was ultimately denied by the PCRA court, and this Court affirmed on
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appeal.     Commonwealth v. Gale, 1520 HBG 1998 (Pa. Super 1999)

(unpublished memorandum).        Appellant filed a second PCRA petition on

March 25, 2002, which was again denied by the PCRA court.           This Court

subsequently dismissed Appellant’s appeal based on his failure to file a brief.

Gale v. Sobina, 1146 MDA 2003 (Pa. Super. 2003) (per curiam order). On

October 2, 2007, Appellant filed a third PCRA petition. After the PCRA court

denied it on January 30, 2008, this Court affirmed on December 1, 2008.

Commonwealth v. Gale, 965 A.2d 293 (Pa. Super. 2008) (unpublished

memorandum). On May 17, 2012, Appellant filed a fourth petition for post-

conviction relief. Again, the PCRA court denied that petition and this Court

affirmed. Commonwealth v. Gale, 82 A.3d 456 (Pa. Super. 2013).

      On March 19, 2014, Appellant filed a pro se PCRA petition – his fifth –

which underlies the instant appeal. On May 14, 2014, the PCRA court issued

a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition as

untimely.    Appellant filed a response, but ultimately the court issued an

order denying his petition on June 5, 2014.     Appellant filed a timely notice

of appeal, as well as a timely concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Herein, he raises the following five

questions for our review:

      1. Whether jurisdiction over the person or subject matter was
      established on the record prior to the proceedings, absent a
      showing of probable cause, evidence nor judicial authorization?

      2. Whether the petitioner was denied the right to due process of
      law when he was illegally seized [and] handcuffed to the floor,


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      not under arrest or Mirandized, subsequent [to] his refusal to
      give a signed statement?

      3. Whether an abuse of discretion occurred when the state court
      allowed the Commonwealth to proceed against the petitioner
      with no showing on the record that an out of court identification
      of the petitioner by key witnesses was established prior to this
      arrest?

      4. Whether the petitioner received ineffective assistance of
      counsel when counsel[]failed to challenge the defective fact[-]
      finding process and procedures[,] e.g. illegal seizure, lack of
      jurisdiction over the person or subject matter, on the record,
      prior to the proceedings, lack of evidence nor probable cause to
      implicate the petitioner?

      5. Whether the denial of a full and fair evidentiary hearing of the
      petitioner’s claims, herein, was prejudicial?

Appellant’s Brief at 4.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

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

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified

record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

      We must begin by addressing the timeliness of Appellant’s petition,

because the PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the merits of a petition.

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded to address the merits of the petition); Commonwealth v.

Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding the Superior


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Court lacks jurisdiction to reach merits of an appeal from an untimely PCRA

petition). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the exceptions set forth

in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, 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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).   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. § 9545(b)(2).

        Here, Appellant’s judgment of sentence became final on January 26,

1998, which was 90 days after the Pennsylvania Supreme Court denied his



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petition for allowance of appeal and Appellant’s time for filing a petition for

writ of certiorari with the United States Supreme Court expired.         See 42

Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes final at

the conclusion of direct review or the expiration of the time for seeking the

review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998)

(directing that under the PCRA, petitioner’s judgment of sentence becomes

final 90 days after our Supreme Court rejects his or her petition for

allowance of appeal since petitioner had 90 additional days to seek review

with the United States Supreme Court).           Consequently, it is clear that

Appellant’s March 19, 2014 PCRA petition was patently untimely.

       We need not address the specifics of the five issues Appellant raises on

appeal because he makes no attempt to argue the applicability of any

timeliness exception set forth in section 9545(b)(1). Accordingly, Appellant

has failed to demonstrate that the PCRA court erred in denying his petition

as untimely.1

____________________________________________


1
  We also note that Appellant fails to explain why he could not have raised
the claims asserted herein on direct appeal or in one/any of his four prior
PCRA petitions. Accordingly, aside from the timeliness issue, Appellant’s
claims are also waived. See 42 Pa.C.S. § 9543(a)(3) (directing that to be
eligible for PCRA relief, the petitioner must plead and prove “[t]hat the
allegation of error has not been previously litigated or waived”); 42 Pa.C.S.
§ 9544(b) (stating an issue is waived “if the petitioner could have raised it
but failed to do so before trial, at trial, during unitary review, on appeal or in
a prior state post[-]conviction proceeding”).




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     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2014




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