J-S66015-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

EUGENE HOWARD RAINEY,

                         Appellant                No. 915 MDA 2014


            Appeal from the PCRA Order Entered May 1, 2014
              In the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0001994-2008


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

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

     Appellant, Eugene Howard Rainey, appeals from the court’s May 1,

2014 order denying his petition for relief filed pursuant to the Post

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

     In March of 2009, Appellant was convicted by a jury of third-degree

murder and conspiracy to commit aggravated assault with a deadly weapon

based on his shooting and killing of Dion Williams.    On April 13, 2009,

Appellant was sentenced to 20 to 40 years’ incarceration. He filed a timely

notice of appeal and this Court affirmed his judgment of sentence on

October 19, 2010.    Commonwealth v. Rainey, 15 A.3d 533 (Pa. Super.

2010) (unpublished memorandum).       Appellant did not file a petition for

allowance of appeal with our Supreme Court and, therefore, his judgment of

sentence became final on November 19, 2010.
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     Appellant filed a timely pro se PCRA petition on March 18, 2011, and

counsel was appointed.    A hearing was conducted on May 16, 2011, after

which the court denied Appellant’s petition. Appellant timely appealed and

we   affirmed   the   order   denying   his   petition   on    April   9,   2012.

Commonwealth v. Rainey, 48 A.3d 471 (Pa. Super. 2012) (unpublished

memorandum).     During the pendency of that appeal, however, Appellant

filed with this Court a petition for remand, alleging that he discovered new

evidence in his case. While this Court denied his petition for remand, we did

so without prejudice to Appellant’s ability to raise that newly-discovered

evidence claim in a subsequent petition.

     Appellant filed such a petition on November 12, 2012, raising his claim

of new evidence. Specifically, Appellant alleged that three eyewitnesses to

the shooting were willing to testify that they saw the shooter and it was not

Appellant. Counsel was appointed and a PCRA hearing was held on February

28, 2013, before the Honorable John H. Chronister.            Appellant’s three

eyewitnesses testified at that hearing. On April 17, 2013, Judge Chronister

issued an order denying Appellant’s petition, concluding that none of the

three witnesses were credible. Appellant filed a timely notice of appeal, and

was represented on appeal by George Margetas, Esq.            On December 24,

2013, this Court affirmed.    Commonwealth v. Rainey, 93 A.3d 519 (Pa.

Super. 2013) (unpublished memorandum).

     Appellant filed a third pro se PCRA petition on January 15, 2014.

Therein, Appellant argued that Attorney Margetas acted ineffectively in

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representing him on appeal from the denial of his November 12, 2012

petition. Specifically, Appellant alleged that Attorney Margetas erred by only

challenging Judge Chronister’s credibility determination regarding one of the

three eyewitnesses produced by Appellant. On May 1, 2014, the PCRA court

denied Appellant’s petition. 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 one question for our review:

      I. Did the PCRA court err in dismissing [] Appellant’s request for
      Post Conviction Collateral Relief wherein [] Appellant’s prior
      counsel failed to file all relevant issues on appeal?

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).

      After careful review of the record, we conclude that we are without

jurisdiction to address the merits of Appellant’s ineffectiveness claim. While

neither Appellant, the Commonwealth, or the PCRA court acknowledge the

untimeliness of Appellant’s petition, the PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded in order to address the




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merits of a petition.1     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 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
____________________________________________


1
  The parties’ and court’s failure to acknowledge the untimeliness of the
present petition may have stemmed from this Court’s consideration of
Appellant’s appeal from the denial of his facially untimely November 12,
2012 petition. It appears that the PCRA court and this Court essentially
treated that petition as an extension of Appellant’s timely-filed March 18,
2011 PCRA petition, and did not require Appellant to prove the applicability
of a section 9545(b)(1) exception.        However, our decision to handle
Appellant’s November 12, 2012 petition in this fashion did not alter the date
on which Appellant’s judgment of sentence became final. Thus, it has no
impact on the timeliness of the instant, separately filed PCRA petition.




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            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 October 19,

2010, and thus, he had until October 19, 2011, to file a timely petition.

Consequently, his January 15, 2014 petition is patently untimely.     In that

document, Appellant did not assert the applicability of any of the above-

stated exceptions to the PCRA’s timeliness requirement.      Instead, he only

argued that Attorney Margetas acted ineffectively in representing him on

appeal from the denial of his November 12, 2012 PCRA petition. Appellant

reiterates that sole argument on appeal to this Court.          However, our

Supreme Court has stated that “a claim of ineffective assistance of counsel

does not save an otherwise untimely petition for review on the merits.”

Commonwealth v. Morris, 822 A.2d 684, 694-95 (Pa. 2003) (citation

omitted).

     Because Appellant did not plead and prove that his current petition

satisfies an exception to the PCRA’s one-year time-bar, we are without

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jurisdiction to address the merits of his ineffectiveness claim. Accordingly,

the PCRA court did not err in denying Appellant’s petition.2

       Order affirmed.

       Judge Musmanno joins the memorandum.

       Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2014




____________________________________________


2
   While the PCRA court assessed the underlying merits of Appellant’s
ineffectiveness claim and denied his petition on that basis, “[i]t is well-
settled … that we may affirm the PCRA court's decision on any basis.”
Commonwealth v. Williams, 977 A.2d 1174, 1177 (Pa. Super. 2009)
(citing Commonwealth v. McCulligan, 905 A.2d 983, 988 (Pa. Super.
2006)).



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