J. S27023/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                                            :
                    v.                      :
                                            :
EDGAR B. MURPHY, JR.,                       :
                                            :
                          Appellant         :     No. 1430 MDA 2015

                   Appeal from the PCRA Order August 4, 2015
                In the Court of Common Pleas of Dauphin County
                Criminal Division No(s): CP-22-CR-0004494-2006


BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                                FILED JUNE 06, 2016

        Appellant, Edgar B. Murphy, Jr., appeals from the August 4, 2015

Order entered in the Dauphin County Court of Common Pleas denying

Appellant leave to supplement a prior Post-Conviction Collateral Relief

Petition.    After careful review, we determine that the trial court properly

denied Appellant’s Application for Leave of Court to Supplement Post

Conviction Collateral Relief Petition where the Petition Appellant sought to

amend was no longer pending. We therefore affirm.

        Appellant was charged with various sexual offenses after his thirty-

three-year-old daughter awoke in the middle of the night to find Appellant



*
    Former Justice specially assigned to the Superior Court.
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pinning her to the bed and performing oral sex on her without her consent.

The relevant facts and procedural history of this case are as follows.

      Following trial, a jury convicted Appellant of three (3) counts of
      indecent assault, two (2) counts of involuntary deviate sexual
      intercourse, and one (1) count of sexual assault. On November
      8, 2007, the court sentenced Appellant to an aggregate term of
      seven (7) to twenty (20) years’ imprisonment.          This Court
      affirmed the judgment of sentence on December 2, 2008. On
      April 29, 2009, our Supreme Court denied Appellant’s petition for
      allowance of appeal. Commonwealth v. Murphy, 965 A.2d 299
      (Pa.Super. 2008), appeal denied, 601 Pa. 677, 970 A.2d 429
      (2009).

      On July 17, 2009, Appellant timely filed a pro se PCRA petition.
      The court appointed counsel, who filed an amended petition on
      October 5, 2009. In the amended petition, Appellant contended
      trial counsel was ineffective for failing to investigate or call
      certain witnesses at trial. On June 2, 2010, the court conducted
      an evidentiary hearing on the matter. At the conclusion of the
      hearing, the court announced its decision to deny PCRA relief.
      On June 11, 2010, PCRA counsel filed a petition to withdraw
      representation. On June 17, 2010, the court entered an order
      formally denying relief and granting PCRA counsel leave to
      withdraw.

      Appellant filed a pro se notice of appeal on August 5, 2010. On
      August 23, 2010, the court ordered Appellant to file a concise
      statement of matters complained of on appeal, pursuant to
      Pa.R.A.P. 1925(b). Appellant timely filed a pro se Rule 1925(b)
      statement on September 13, 2010.

Commonwealth        v.   Murphy,     No.   1282    MDA    2010,   unpublished

memorandum at 2-3 (Pa. Super. filed August 22, 2011).           Thereafter, on

August 22, 2011, this Court affirmed the denial of Appellant’s PCRA Petition

in an unpublished memorandum. Id.




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      Appellant did not file a Petition for Allowance of Appeal to our Supreme

Court, and in fact, took no further action on his PCRA Petition for almost four

years.

      On June 25, 2015, Appellant filed an Application for Leave of Court to

Supplement Post Conviction Collateral Relief Petition, seeking leave to

supplement the PCRA Petition upon which this Court had entered final

judgment four years earlier. The PCRA Court denied the Application in an

Order dated August 4, 2015, which stated:

      AND NOW, this 4th day of August, 2015, upon consideration of
      Defendant’s Application for Leave of Court to Supplement Post-
      Conviction Collateral Relief Petition, it is hereby ORDERED that
      such application is DENIED.

Order, filed 8/4/15.

      On August 20, 2015, Appellant filed a Notice of Appeal. In compliance

with the PCRA court’s order, Appellant then filed a Rule 1925(b) Statement

of Errors Complained of on Appeal alleging thirteen errors, including,

verbatim “Petitioner re-alleges all issues raised in original PCRA.”1     Rule

1925(b) Statement, filed 9/24/15, at 2-5 (unpaginated).       The PCRA Court

did not file a Rule 1925(a) Opinion.

      We begin by emphasizing the procedural posture of the instant appeal.

Although there is an abundance of case law addressing the timeliness

1
  In his seventy-page brief to this Court, Appellant raises an indecipherable
number of issues, with sixteen items listed in his Statement of Questions
Involved and four argument sections, none of which clearly correspond to
any one Question Involved.



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requirements for a second or subsequent PCRA petition, in the instant case

Appellant did not file a second or subsequent PCRA petition.             Instead,

Appellant sought leave to amend the PCRA petition upon which this Court

had entered final judgment four years earlier, something for which there is

no authority under the laws of this Commonwealth.

      In general, PCRA courts are granted “discretion to permit the

amendment        of    a   pending,   timely-filed   post-conviction   petition[.]”

Commonwealth v. Flanagan, 854 A.2d 489, 499 (Pa. 2004) (emphasis

added).      Our Supreme Court has counseled PCRA courts to “freely allow[]

[amendments] to achieve substantial justice.”              Id. at 500.       Such

amendments are only possible, however, “[i]n the absence of a final

ruling[.]”    See Commonwealth v. Swartzfager, 59 A.3d 616, 619 (Pa.

Super. 2012).         See also Commonwealth v. Rienzi, 827 A.2d 369, 371

(Pa. 2003) (rejecting an attempt to “circumvent the PCRA time-bar” by

treating a subsequent petition as an amendment to the first petition, and

noting that, because the first petition had been previously withdrawn, “there

was nothing pending before the PCRA court that [the petitioner] could

‘amend’”).

      In the instant case, there was no pending PCRA petition for Appellant

to amend. Appellant’s prior timely PCRA petition was disposed of four years

ago, and there is simply no legal authority for a PCRA court to grant a




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motion to amend or supplement a PCRA Petition that has long since reached

a final disposition.

      Therefore, we affirm the PCRA court’s denial of Appellant’s Application

for Leave of Court to Supplement Post Conviction Collateral Relief Petition.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/6/2016




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