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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
DENNIS PIFER,                               :
                                            :
                          Appellant         :     No. 3117 EDA 2013


                 Appeal from the PCRA Order December 2, 2013
                In the Court of Common Pleas of Chester County
               Criminal Division No(s).: CP-15-CR-0003424-2005
                                         CP-15-CR-0003468-2005
                                         CP-15-CR-0003494-2005

BEFORE: GANTMAN, P.J., JENKINS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 06, 2014

        Appellant, Dennis Pifer, appeals pro se from the order1 entered in the

Chester County Court of Common Pleas dismissing as untimely his petition

for relief filed pursuant to the Post Conviction Relief Act2 (“PCRA”).    We

affirm.




*
    Former Justice specially assigned to the Superior Court.
1
  Appellant purported to appeal from the October 4, 2013 notice of intent to
dismiss PCRA petition. The appeal properly lies from the order dismissing
the PCRA petition. We have amended the caption accordingly.
2
    42 Pa.C.S. §§ 9541-9546.
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      A prior panel of this Court summarized the facts and procedural history

of this case as follows:

         Appellant pled guilty to, inter alia, involuntary deviate
         sexual intercourse.      The trial court subsequently
         determined that Appellant should be classified as a
         Sexually Violent Predator [ ].      The court sentenced
         Appellant on September 19, 2006 [to five to ten years’
         imprisonment]. Appellant did not pursue a direct appeal.

             On August 24, 2012, Appellant, acting pro se, filed a
         PCRA petition.      The PCRA court appointed counsel to
         represent Appellant. . . . On November 30, 2012, the
         PCRA court formally dismissed Appellant’s petition and
         granted counsel’s petition to withdraw. Appellant timely
         filed a notice of appeal.

Commonwealth v. Pifer, 1 EDA 2013 (unpublished memorandum at 1-2)

(Pa. Super. July 31, 2013). This Court “conclude[d] that Appellant untimely

filed his PCRA petition. Consequently, the trial court properly dismissed the

petition.” Id. at 4.

      On August 9, 2013, Appellant filed the instant pro se PCRA petition.

The PCRA court refers to the August 9th PCRA petition as the third petition in

its order dismissing the petition:

         [Appellant’s] Motion filed on December 12, 2012 is
         deemed to be a PCRA petition, pursuant to 42 Pa.C.S. §
         9542 . . . . Although [Appellant] titled his filing “Motion to
         Dismiss Due to a Lack of Jurisdiction (Expiration of Statute
         of Limitations),” the [c]ourt is unpersuaded by this
         reference. . . . It is clear from the content of the motion
         that [Appellant] takes issue with this [c]ourt’s sentence on
         September 19, 2006.           Accordingly, for jurisdictional
         purposes, the motion filed prior to the instant PCRA
         petition is deemed a request for PCRA relief . . . .




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Order, 12/2/13, at 2 n.2. We note that the December 12th motion is not

part of the certified record on appeal in the case sub judice.

        On October 4, 2013, the Court issued a Pa.R.Crim.P. 907 notice of

intent to dismiss the PCRA petition as untimely.3 On November 12, 2013,

Appellant filed a notice of appeal from the Rule 907 notice. Subsequently,

on December 2, 2013, the court dismissed the PCRA petition. Appellant filed

a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal and the trial court filed a response pursuant to Pa.R.A.P. 1925(a).4


3
    In the October 4, 2013 order, the PCRA court concluded

           the claims alleged by [Appellant] do not fall under any of
           the enumerated exceptions to the one-year deadline for
           filing a PCRA Petition. Furthermore, all of the issues raised
           by [Appellant] were known to or could have been
           ascertained by the exercise of due diligence by [Appellant]
           at the time of his plea and sentencing or could have been
           raised in a direct appeal. [Appellant] failed to raise any
           exception that would excuse the late filing of his PCRA
           Petition. Thus, [Appellant] has no recourse under the
           exceptions of the PCRA.

Not. of Int. to Dismiss PCRA Pet. Pursuant to Pa.R.Crim.P. 907(1), 10/4/13,
at 3-4 n.3.
4
   The PCRA court, in its December 31, 2013 Pa.R.A.P. 1925(a) order,
suggested that the instant appeal be dismissed because there was no appeal
taken from the December 2, 2013 order. Order, 1/2/14, at 1. We decline to
dismiss the appeal. Although Appellant filed his pro se notice of appeal prior
to the entry of the order dismissing the PCRA petition, we treat the notice of
appeal as timely pursuant to Pa.R.A.P. 905(a)(5), which provides: “A notice
of appeal filed after the announcement of a determination but before the
entry of an appealable order shall be treated as filed after such entry and on
the day thereof.” See Pa.R.A.P. 905(a)(5).




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     Appellant raises the following issues for our review, reproduced

verbatim:

        I Did the court error in dismissing the petitioner’s P.C.R.A.
        petition as being untimely? Even though there was
        sufficient evidence shown that the lower court lacked
        subject matter jurisdiction on all charges on docket #
        3494; and several others on docket #3468.Thus making
        its initial plea agreement ruling null and void and
        without force!

        II Did the lower court error in dismissing the petitioners
        P.C.R.A. petition? Stating it was “untimely”. even though
        the plea agreement and the judgement entered by the
        lower court, was null and void. Due to the lower courts
        lack of subject matter jurisdictionthus there being no
        time limit to challenge its decision.

        III Did the lower court error in denying the petitioners
        P.C.R.A. challeg-ing the lower courts lack of subject
        matter jurisdiction? Even though the Commonwealth
        never proved the lower court had subject matter
        jurisdiction on all charges in Docket #3494:and several
        others on Docket #3468.Nor did the Commonwealth ever
        deny that the lower court lacked subject matter
        jurisdiction.

        IV Did the lower court error in dismissing the petitioners
        P.C.R.A. petition. as being untimely. even though the
        challenge to lack of subject matter jurisdiction may be
        raised at any time. and it can never be waived

        V Did the court error in dismissing the petitioners P.C.R.A.
        petition as being untimely? Even though the petitioner was
        arrested in 1994 for the exact same incident as mentioned.
        By the alleged victims on docket #”s3494 and 3468.In
        which all charges were dismissed and expunged. Violating
        his civil rights and creating a double jeopardy claim.

        VI Did the lower court error in denying the petitioners
        P.C.R.A. petition? Even though the Commonwealth never
        filed a Rule 544, (a procedural prerequisite). thus
        divesting the lower court of subject matter jurisdiction


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            (for Docket #3494). thus violating the petitioners due
            process and civil rights.

            VII Did the lower court error in dismissing the petitioners
            P.C.R.A. petition? Even though many of the charges on
            docket number’s 3494 and 3468, had their statute of
            limitations expire. prior to the petitioners being arrested.
            Thus divesting the lower court of subject matter
            jurisdiction. and violating the petitioners due process and
            civil rights.

            VIII Did the lower court error in denying the petitioners
            P.C.R.A. petition? Even though evidence presented shows
            that the charges filed against the petitioner. (in Docket #’s
            3648 and 3494), were not in effect at the time of the
            alleged offenses. Thus divesting the lower court of subject
            matter jurisdiction. And violating the U.S. Constitution
            Art(1)§(10) and P.A. Constitution Art. (1)§(17). Which
            prohibits the ex post facto application of laws.

            IX Did the Commonwealth falsify government records, (or
            tamper with)? when it changed the incident dates on (4)of
            the charges on Docket #3424. (violating the rules of
            criminal procedure. Rule 564)which is a prerequisite to
            change information on an indictment). After the plea
            agreement, and without the approval of the lower court.
            Nor the knowledge of the petitioneror his attorney.
            Violating his due process and civil rights.

Appellant’s Brief at 2.

      Before examining the merits of Appellant’s claims, we consider

whether the PCRA court had jurisdiction to entertain the underlying PCRA

petition.

                We . . . turn to the time limits imposed by the PCRA, as
            they implicate our jurisdiction to address any and all of
            Appellant’s claims. To be timely, a PCRA petition must be
            filed within one year of the date that the petitioner’s
            judgment of sentence became final, unless the petition
            alleges and the petitioner proves one or more of the
            following statutory exceptions:


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            (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.

         42 Pa.C.S. § 9545(b)(1).

            We emphasize that it is the petitioner who bears the
         burden to allege and prove that one of the timeliness
         exceptions applies. In addition, a petition invoking any of
         the timeliness exceptions must be filed within 60 days of
         the date the claim first could have been presented. 42
         Pa.C.S. § 9545(b)(2). . . .

Commonwealth v. Marshall, 947 A.2d 714, 719-20 (Pa. 2008) (some

citations omitted).

      Our Supreme Court has stated:

         This Court has repeatedly stated that the PCRA timeliness
         requirements are jurisdictional in nature and, accordingly,
         a PCRA court cannot hear untimely PCRA petitions. In
         addition, we have noted that the PCRA confers no
         authority upon this Court to fashion ad hoc equitable
         exceptions to the PCRA time-bar in addition to those
         exceptions expressly delineated in the Act. We have also
         recognized     that    the PCRA’s    time   restriction  is
         constitutionally valid.




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

and quotation marks omitted).

      In Commonwealth v. Dickerson, 900 A.2d 407 (Pa. Super. 2006),

the defendant filed a patently untimely PCRA petition.        Id. at 410.    He

contended, inter alia, that “the trial court at the time of trial lacked

subject matter jurisdiction because it allegedly accepted an unknowing

and unintelligent waiver of Appellant's right to a jury trial.” Id. at 412. This

Court found “that such a claim does not overcome the PCRA’s one year

jurisdictional time-bar as it does not fall within one of the statutory

exceptions.” Id.

         “A sentence is illegal where a statute bars the court from
         imposing that sentence” or where the sentence subjects a
         defendant to double jeopardy. “[A]lthough legality of
         sentence is always subject to review within the PCRA,
         claims must still first satisfy the PCRA’s time limits or one
         of the exceptions thereto.”

Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 2007) (citations

omitted).

      Our Supreme Court noted that a substantive due process challenge to

the validity of a defendant’s judgment of sentence after the passage of nine

years is not cognizable under the PCRA. Commonwealth v. Hackett, 956

A.2d 978, 986 (Pa. 2008) (citing Commonwealth v. West, 938 A.2d 1034

(Pa. 2007)), with approval.

      In the instant case, Appellant was sentenced on September 19, 2006.

His judgment of sentence became final on October 19, 2006, the date by


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which he had to file a direct appeal. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P.

903(a).     Thus, he generally had until October 19, 2007, to file a PCRA

petition.    See 42 Pa.C.S. § 9545(b)(1); Marshall, 947 A.2d at 719.

Appellant filed the instant petition on August 9, 2013; therefore, it is

patently untimely.    We thus review whether Appellant properly pleaded and

proved any of the the PCRA timeliness exceptions.

      Appellant     contends   that   the   trial   court   lacked   subject   matter

jurisdiction over his criminal charges, and thus the PCRA court erred in

dismissing his PCRA petition as untimely. He further avers the petition was

timely because of violations of due process, civil rights, and the double

jeopardy clause.5

      In this case, Appellant has not established any of the timeliness

exceptions to the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii); Hackett, 956

A.2d at 956; Marshall, 947 A.2d at 719-20; Fowler, 930 A.2d at 592;

Dickerson, 900 A.2d at 412. Thus, his PCRA petition is untimely, divesting

the PCRA court of jurisdiction.         See Robinson, 837 A.2d at 1161.

Accordingly, we affirm the order below dismissing the PCRA petition.

      Order affirmed.


5
   Although Appellant raises nine questions presented, the argument section
of his brief is not divided accordingly and his analysis of each issue is not
clearly delineated, in contravention of Pennsylvania Rule of Appellate
Procedure 2119(a). See Pa.R.A.P. 2119(a) (“The argument shall be divided
into as many parts as there are questions to be argued.”)




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/6/2014




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