J-S76029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    FRED WILSON

                             Appellant                 No. 1373 EDA 2017


               Appeal from the PCRA Order entered April 9, 2014
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0108842-1997


BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                        FILED FEBRUARY 12, 2018

        Appellant, Fred Wilson, appeals pro se from the April 9, 2014 order

entered in the Court of Common Pleas of Philadelphia County, denying as

untimely Appellant’s second petition for collateral relief pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Following review,

we affirm.

        The PCRA court provided the following procedural history:

        Following a jury trial, before the Honorable Judge Darnell C. Jones
        II, [Appellant] was found guilty of first degree murder, robbery,
        and criminal conspiracy. On October 6, 1997, [Appellant] was
        sentenced to life in prison for the murder charge, ten to twenty
        years for the robbery charge, and five to ten years for the charge
        of criminal conspiracy. [Appellant] filed a direct appeal. The

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      Superior Court affirmed the judgment of sentence on December
      16, 1999, and the Pennsylvania Supreme Court denied allocatur
      on May 15, 2001.

      [Appellant] filed his first timely PCRA petition on March 14, 2002.
      Counsel was appointed and an amended PCRA petition was filed
      on April 18, 2005. After a further pro se filing by [] Appellant,
      appointed counsel filed a supplemental PCRA petition on February
      28, 2007. The court ultimately denied his petition on September
      18, 2007. The Superior Court affirmed the denial of his petition
      on January 26, 2009 and the Supreme Court denied a petition for
      allowance of appeal on August 19, 2009.

      [Appellant] filed his current post conviction petition of August 2,
      2012.

PCRA Court Opinion, 4/9/14, at 1. The court explained that it conducted “a

diligent and exhaustive review of the record and applicable case law,” and

determined Appellant’s petition was “patently untimely.” Id. Therefore, the

court lacked jurisdiction to consider the petition and dismissed it. Id.

      By order entered on April 10, 2017, the PCRA court granted Appellant’s

request for nunc pro tunc reinstatement of his rights to appeal the April 9,

2014 dismissal of his petition. This timely appeal followed. The PCRA court

did not direct Appellant to file a Rule 1925(b) statement of errors complained

of on appeal and the PCRA court did not issue an opinion supplementing its

April 9, 2014 opinion.

      Appellant presents one issue for our consideration:

      Whether Appellant suffered actual prejudice resulting from
      trial/appellate/PCRA counsel ineffectiveness, and, if so, whether
      the PCRA court’s refusal to consider Appellant’s request for nunc
      pro tunc reinstatement of his right to direct appeal based on the
      determination that his claim relating to ineffective assistance for
      failing to protect Appellant’s right on direct appeal to challenge

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      the trial court’s error in admitting the videotaped confession that
      his non-testifying codefendant gave to police was previously
      litigated or waived, is supported by de facto findings in the
      certified record and is free of legal error?

Appellant’s Brief at 4.

      As a threshold matter, we must determine whether the PCRA court erred

in dismissing Appellant’s PCRA petition as untimely. The PCRA contains the

following provisions governing the timeliness of any PCRA petition:

      (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.

      (3) For purposes of this subchapter, a judgment becomes final at
      the conclusion of direct review, including discretionary review in
      the Supreme Court of the United States and the Supreme Court


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      of Pennsylvania, or at the expiration of time for seeking the
      review.

42 Pa.C.S.A. § 9545(b). The PCRA’s timeliness provisions are jurisdictional.

Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).

      The record reflects that our Supreme Court denied Appellant’s petition

for allowance of appeal on May 15, 2001. Appellant did not seek a writ of

certiorari to the United States Supreme Court.          As a result, Appellant’s

judgment of sentence became final on August 13, 2001, when the time for

Appellant to file a petition for a writ of certiorari expired. See 42 Pa.C.S.A.

§ 9545(b)(3); U.S. Sup.Ct. R. 13(1). Therefore, to be timely, Appellant was

required to file his petition by August 13, 2002. Because Appellant filed the

instant petition on August 2, 2012, it was patently untimely because it was

filed nearly ten years past the deadline.

      Appellant   contends    that   the    §   9545(b)(1)(iii)   after-recognized

constitutional right exception applies in this case. Specifically, Appellant avers

that the United States Supreme Court’s decision in Melendez-Diaz v.

Massachusetts, 557 U.S. 305 (2009) and this Court’s analogous case of

Commonwealth v. Barton-Martin, 5 A.3d 363 (Pa. Super. 2010), apply

retroactively and save his case from the PCRA’s time bar.

      Appellant’s contention fails. First, as the PCRA court correctly observed,

a petitioner raising the after-recognized constitutional right exception has

sixty days to raise the issue. 42 Pa.C.S.A. § 9545(b)(2). PCRA Court Opinion,

4/9/14, at 3 (unnumbered). However, Appellant’s petition was filed more than

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sixty days after both decisions. Therefore, Appellant’s attempt to invoke the

after-recognized constitutional right exception fails. See Commonwealth v.

Boyd, 923 A.2d 513, 517 (Pa. Super. 2007).

      Further, as the PCRA court recognized, Melendez-Diaz does not apply

to Appellant’s case. While Melendez-Diaz applies retroactively to cases on

direct appeal, this Court determined that the case does not apply retroactively

to cases on collateral review. Id. (citing Commonwealth v. Brandon, 51

A.3d 231, 236 (Pa. Super. 2012) and Commonwealth v. Leggett, 16 A.3d

1144, 1147 n.8 (Pa. Super. 2011)).        Therefore, even if Appellant filed his

petition within 60 days of Melendez-Diaz or Barton-Martin, those cases

would not save his petition from the PCRA’s time bar because their retroactive

application is limited to cases on direct appeal.

      We agree with the PCRA court that Appellant’s petition was untimely

filed and that the PCRA court did not have jurisdiction to entertain its merits.

Likewise, this Court is without jurisdiction to consider the merits, if any, of the

petition. Therefore, we shall affirm the April 9, 2014 order dismissing the

August 2012 petition as untimely.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/18




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