J-S42023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

GILES W. WITHERSPOON

                            Appellant                 No. 3568 EDA 2014


                   Appeal from the PCRA Order July 31, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000086-2000


BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                                FILED JULY 21, 2015

        Appellant, Giles W. Witherspoon, appeals from the July 31, 2014

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

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.          After careful

review, we affirm.

        We summarize the relevant procedural history of this case as follows.

On December 4, 2001, the trial court imposed an aggregate sentence of

13½ to 27 years’ imprisonment, to be followed by five years’ probation, after

a jury found Appellant guilty of one count each of rape, kidnapping,




____________________________________________
*
    Former Justice specially assigned to the Superior Court.
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aggravated assault, and simple assault.1            Appellant filed a timely notice of

appeal, and this Court affirmed the judgment of sentence on April 8, 2003.

Commonwealth v. Witherspoon, 828 A.2d 405 (Pa. Super. 2003)

(unpublished memorandum), appeal denied, 832 A.2d 436 (Pa. 2003)

(Witherspoon I).           Our Supreme Court denied Appellant’s petition for

allowance of appeal on September 30, 2003. Id. Appellant did not seek a

writ of certiorari from the Supreme Court of the United States.

        On April 14, 2005, Appellant filed a PCRA petition.             The PCRA court

appointed counsel, who filed a motion to withdraw as counsel pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny. On

February 5, 2006, the PCRA court entered an order notifying Appellant of its

intention to dismiss his PCRA petition without a hearing pursuant to

Pennsylvania Rule of Criminal Procedure 907, on the basis that the petition

was untimely.       The same order also granted PCRA counsel’s petition to

withdraw.     Appellant filed a timely response on February 21, 2006.              The

PCRA court entered its order dismissing Appellant’s PCRA petition on April 6,

2006.     Appellant filed a timely notice of appeal to this Court, which was

docketed at 1287 EDA 2006.



____________________________________________
1
   18 Pa.C.S.A.       §§    3121(a)(1),        2901(a)(1),   2702(a),    and   2701(a),
respectively.



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     On    May    14,   2007,    this   Court    vacated   and   remanded.

Commonwealth v. Witherspoon, 929 A.2d 250 (Pa. Super. 2007)

(unpublished memorandum at 1). We noted the certified record contained a

letter from Appellant to the PCRA court inquiring as to the status of a

previous PCRA petition he had mailed on June 2, 2004. Id. at 4. Attached

to said letter, Appellant included two dated cash slips from the Department

of Corrections. Id. We concluded the record supported Appellant’s position

that he filed a timely PCRA petition in 2004. Id. at 7. We also agreed with

Appellant that PCRA counsel failed to comply with the dictates of

Turner/Finley and directed the PCRA court to appoint new counsel on

remand for an evidentiary hearing. Id. at 6-7.

     On remand, Appellant subsequently made a motion to proceed pro se,

which the PCRA court granted.    The PCRA court conducted an evidentiary

hearing on October 26, 2010.     On December 30, 2010, the PCRA court

entered an order dismissing Appellant’s PCRA petition.     Appellant filed a

notice of appeal to this Court, which was docketed at 307 EDA 2011.

However, on March 17, 2011, Appellant filed a praecipe to discontinue said

appeal.

     Before the PCRA court ruled on his PCRA petition, Appellant filed an

application for leave to file original process and an application for

extraordinarily relief in our Supreme Court on December 20, 2010, which




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were docketed at 2 MM 2011.2               Appellant’s application for leave to file

original process essentially asked our Supreme Court for permission to file

his extraordinary relief application and have our Supreme Court consider the

same on its merits. Appellant’s application for extraordinary relief requested

our Supreme Court to exercise its extraordinary jurisdiction and grant him

certain relief.   Our Supreme Court granted the application for leave to file

original process, but denied the application for extraordinary relief on August

3, 2011.     Supreme Court Order, 2 MM 2011, 8/3/11, at 1, cert. denied,

Witherspoon v. Del. Cnty. Court of Common Pleas, 132 S. Ct. 1034

(2012). The Supreme Court of the United States denied Appellant’s petition

for a writ of certiorari on January 9, 2012. Id.

       On December 9, 2013, Appellant filed what he purported to be an

“amended” PCRA petition.          On July 31, 2014, the PCRA court entered an

order treating the filing as Appellant’s second PCRA petition, and dismissing

the same as untimely filed.         On August 13, 2014, Appellant filed a timely

notice of appeal.3


____________________________________________
2
  Because these filings are entered on our Supreme Court’s docket as a
public record, which this Court may view and take notice, we deny as moot
Appellant’s application to amend his reply brief to include copies of these
applications.
3
  That same day, Appellant filed a concise statement of errors complained of
on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b),
although the PCRA court did not order him to do so. The PCRA court issued
its Rule 1925(a) opinion on December 23, 2014.



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      On appeal, Appellant raises two issues for our review.

            [1.] Should [Appellant]’s second pro se [PCRA
            p]etition, filed December 9, 2013 under the PCRA …
            have been construed as an amendment to the first
            as it was filed under 42 [Pa.C.S.A. §] 9545(b) due to
            the procedural irregularities with respect to the initial
            [p]etition which was still pending as held by the
            Pennsylvania Superior Court in Commonwealth v.
            Swartzfager, 59 A.3d 616 (Pa. [Super.] 2012)[?]

            [2.] Whether the [PCRA] court’s order dated
            December 30, 2010 is a nullity pursuant to Pa.R.A.P.
            1701 … because [Appellant]’s Application for Leave
            to File Original Process and/or [Appellant]’s Petition
            for [I]ssuance of Write of Extraordinary Relief were
            filed ten days prior[?]

Appellant’s Brief at iv.

      We elect to address both of Appellant’s issues together, and we begin

by noting our well-settled standard of review.      “In reviewing the denial of

PCRA relief, we examine whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Fears,

86 A.3d 795, 803 (Pa. 2014) (internal quotation marks and citation

omitted). “The scope of review is limited to the findings of the PCRA court

and the evidence of record, viewed in the light most favorable to the

prevailing party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294,

311 (Pa. 2014) (citation omitted).     “It is well-settled that a PCRA court’s

credibility determinations are binding upon an appellate court so long as

they are supported by the record.” Commonwealth v. Robinson, 82 A.3d

998, 1013 (Pa. 2013) (citation omitted).      However, this Court reviews the


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PCRA court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d

1080, 1084 (Pa. Super. 2014) (citation omitted).

      As Appellant correctly suggests, our threshold consideration must be

the timeliness of Appellant’s December 9, 2013 “amended” PCRA petition,

because it implicates the jurisdiction of this Court and the PCRA court.

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014) (citation

omitted).   Pennsylvania law makes clear that when “a PCRA petition is

untimely, neither this Court nor the trial court has jurisdiction over the

petition.” Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014)

(citation omitted), appeal denied, 101 A.3d 103 (Pa. 2014). The “period for

filing a PCRA petition is not subject to the doctrine of equitable tolling;

instead, the time for filing a PCRA petition can be extended only if the PCRA

permits it to be extended[.]” Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.

2014) (internal quotation marks and citation omitted), cert. denied, Ali v.

Pennsylvania, 135 S. Ct. 707 (2014).        This is to “accord finality to the

collateral review process.”   Commonwealth v. Watts, 23 A.3d 980, 983

(Pa. 2011) (citation omitted).      “However, an untimely petition may be

received when the petition alleges, and the petitioner proves, that any of the

three limited exceptions to the time for filing the petition, set forth at 42

Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.”    Commonwealth v.

Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation omitted).         The PCRA

provides, in relevant part, as follows.


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           § 9545. Jurisdiction and proceedings

                                      …

           (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.

                                      …

42 Pa.C.S.A. § 9545(b).




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      In the case sub judice, Appellant was sentenced on December 3, 2001,

this Court affirmed on April 8, 2003, and our Supreme Court denied allocatur

on September 30, 2003.         See Witherspoon I, supra.            As a result,

Appellant’s judgment of sentence became final on December 29, 2003, when

the period for Appellant to file a petition for a writ of certiorari with the

Supreme Court of the United States expired. See 42 Pa.C.S.A. § 9545(b)(3)

(stating, “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

the review[]”); U.S. S. Ct. R. 13(1) (stating “a petition for a writ of certiorari

to review a judgment in any case … is timely when it is filed with the Clerk of

this Court within 90 days after entry of the judgment[]”).             Therefore,

Appellant had until December 29, 2004 to timely file a PCRA petition.

Appellant filed the instant petition on December 9, 2013.        As a result, his

petition was patently untimely. Furthermore, Appellant does not argue that

any of the three enumerated time-bar exceptions applies.

      Instead, Appellant argues that because he sought relief in our

Supreme Court, the PCRA court was divested of jurisdiction under

Pennsylvania Rule of Appellate Procedure 1701, rendering the PCRA court’s

December 30, 2010 dismissal order a legal nullity. Appellant’s Brief at 7, 9.

Therefore, in Appellant’s view, the December 9, 2013 PCRA petition should




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have been construed as an amendment to his previous one since it was

never dismissed as a matter of law. Id. at 4.

      Rule 1701 provides that “after an appeal is taken … the trial court …

may no longer proceed further in the matter.” Pa.R.A.P. 1701(a). Appellant

argues that his applications filed in our Supreme Court were “appeals” within

the meaning of Rule 1701 and divested the trial court of jurisdiction.

Appellant’s Brief at 20.

      Generally, an appeal is effectuated by the filing of a timely notice of

appeal. See Pa.R.A.P. 902(a) (stating, “[a]n appeal permitted by law as of

right from a lower court to an appellate court shall be taken by filing a notice

of appeal with the clerk of the lower court within the time allowed by Rule

903); Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014) (stating,

“an appellant's failure to appeal timely an order generally divests the

appellate court of its jurisdiction to hear the appeal[]”).          The note

accompanying Rule 902 states that the notice of appeal is “self-perfecting.”

Pa.R.A.P. 902, Note.

      By contrast, Appellant’s filings in our Supreme Court requested that it

assume jurisdiction in his case through its exercise of extraordinary

jurisdiction. See generally 42 Pa.C.S.A. § 726 (stating, “[n]otwithstanding

any other provision of law, the Supreme Court may, on its own motion or

upon petition of any party, in any matter pending before any court or

magisterial district judge of this Commonwealth involving an issue of


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immediate public importance, assume plenary jurisdiction of such matter at

any stage thereof and enter a final order or otherwise cause right and justice

to be done[]”). Pennsylvania Rule of Appellate Procedure 3307(a) requires

the filing of an application for leave to file a request for relief concerning a

matter within the original jurisdiction of our Supreme Court. See generally

Pa.R.A.P. 3307.

      In this case, through his application for leave to file original process,

Appellant sought leave to file his application for extraordinary relief.

Appellant concedes that because our Supreme Court denied his application

for extraordinary relief, it did not assume jurisdiction over his case, and the

PCRA court was not thereby divested of the same. Appellant’s Brief at 19.

However, Appellant maintains that his preliminary application for leave to file

in original process, which our Supreme Court granted, is an “appeal.”              Id.

We disagree.

      As noted above, applications for leave to file original process are

governed by Rule 3307.         See Pa.R.A.P. 3307(b) (stating, “[t]he initial

pleading in any original action or proceeding shall be prefaced by an

application for leave to file such pleading[]”). In essence, the application for

such leave was a prerequisite for our Supreme Court to consider his request

to exercise extraordinary jurisdiction over his case under Rule 3309(a). See

id. The fact that our Supreme Court granted his application for leave to file

original   process,   thus   permitting   it   to   consider   his   application   for


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extraordinary jurisdiction on its merits, did not divest the PCRA of

jurisdiction   under   Rule   1701.     Only   if    Appellant’s   application   for

extraordinary jurisdiction were granted would this occur. See id. at 3309(d)

(stating, “[w]here action is taken under this rule which has the effect of

transferring jurisdiction of a matter to the Supreme Court, unless otherwise

ordered by the Supreme Court such action shall be deemed the taking of an

appeal as of right for the purposes of Chapter 17 (effect of appeals;

supersedeas and stays), except that the lower court shall not have the

power to grant reconsideration[]”).

      As noted above, Appellant acknowledges that our Supreme Court, by

denying his application for extraordinary relief, never assumed jurisdiction

over his case.    Appellant’s Brief at 19.     Therefore, it follows by logical

extension that granting a procedural prerequisite for our Supreme Court to

consider his request did not transfer jurisdiction to our Supreme Court

either. Based on these considerations, we conclude the PCRA court was not

divested of jurisdiction when it entered its December 30, 2010 order

dismissing Appellant’s first PCRA petition.         As a result, the PCRA court

properly refused to consider Appellant’s December 9, 2013 petition as an

amendment to his previous petition.

      Based on the foregoing, we conclude the PCRA court properly

dismissed Appellant’s second PCRA petition as untimely.            Accordingly, the

PCRA court’s July 31, 2014 order is affirmed.


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     Order affirmed. Petition for leave to add exhibits to reply brief denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2015




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