J-S06025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

DONALD CAPERS

                            Appellant                        No. 384 EDA 2014


                Appeal from the PCRA Order December 17, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0807282-1997


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                           FILED FEBRUARY 20, 2015

        Donald Capers appeals, pro se, from the order of the Court of Common

Pleas of Philadelphia County that dismissed his petition brought pursuant to

the Post Conviction Relief Act.1 After careful review, we affirm.

        On January 7, 1999, Capers was convicted of murder in the second

degree and related offenses. The court sentenced him to life imprisonment

for    murder,   and    imposed     additional   sentences    of   2½   to   5   years’

incarceration for possessing an instrument of crime and 10 to 20 years’

incarceration for conspiracy. Capers did not file a direct appeal.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J-S06025-15



       After reinstatement of his appellate rights, Capers filed a direct appeal

on April 19, 2001. On January 14, 2003, based upon the failure of Capers’

counsel to file a brief, this Court quashed the appeal without prejudice to file

another petition requesting nunc pro tunc reinstatement of his right to a

direct appeal.

       On August 19, 2004, Capers filed a pro se PCRA petition. Appointed

counsel filed an amended petition on January 19, 2005, and a supplemental

amended petition on March 31, 2005. The PCRA court dismissed the petition

on timeliness grounds on December 20, 2005.                  This Court affirmed,

Commonwealth v. Capers, 913 A.2d 938 (Pa. Super. 2006) (unpublished

memorandum), and our Supreme Court denied allowance of appeal.

Commonwealth v. Capers, 919 A.2d 954 (Pa. 2007).

       Capers filed a habeas corpus petition on May 1, 2008, and an

amended petition on July 30, 2012.             On October 1, 2013, the court sent

Capers a notice of intent to dismiss the petition pursuant to Pennsylvania

Rule of Criminal Procedure 907.2          Capers failed to file a response, and on

December 17, 2013, the court dismissed the petition as untimely.

       This appeal followed, in which Capers raises the following issue for our

review:



____________________________________________


2
 The order further stated that the PCRA encompasses the remedy of habeas
corpus, citing Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998).



                                           -2-
J-S06025-15


        Whether the PCRA court erred in dismissing [Capers’] PCRA
        petition where, [Capers] demonstrated therein that a
        miscarriage of justice occurred during his 1999 state trial when
        the Commonwealth’s attorney knowingly presented the false
        testimony of co-defendant Aaron Moore; or, allowed such
        testimony to go uncorrected, in violation of [Capers’] Fourteenth
        Amendment right to due process and equal protection of law?

Appellant’s Brief, at 4.

        “Our standard of review regarding a PCRA court’s order is 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. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)

(citations omitted).

        Section 9545 of the PCRA provides 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


                                           -3-
J-S06025-15


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

          (4)   For purposes of this subchapter, “government
                officials” shall not include defense counsel, whether
                appointed or retained.

42 Pa.C.S. § 9545(b).

        Capers’ judgment of sentence became final on February 13, 2003,

when he failed to file a petition for allowance of appeal from this Court’s

order dismissing his direct appeal. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P.

1113.    He had one year from that date in which to file “any petition . . .

including a second or subsequent petition” seeking post-conviction relief.

See 42 Pa.C.S. § 9545(b)(1).      Capers filed the instant petition on May 1,

2008, which was more than four years after his judgment of sentence

became final.

        A court has no jurisdiction to consider an untimely PCRA petition.

Commonwealth        v.   Robinson,    837   A.2d   1157,   1161   (Pa.   2003).

Therefore, the PCRA court lacked jurisdiction to consider Capers’ petition




                                     -4-
J-S06025-15


unless he could meet one of the enumerated exceptions included in Section

9545(b)(1)(i)-(iii).

      Because Capers has not proven any of the exceptions to the statutory

time bar, the PCRA court did not err in concluding that it lacked jurisdiction

to address the issues raised in Capers’ petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2015




                                     -5-
