J-S89025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ALFONZO SALLEY

                            Appellant                  No. 2750 EDA 2015


                   Appeal from the PCRA Order August 20, 2015
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0426541-1986
                                           CP-51-CR-0603761-1986
                                          CP-51-CR-0636611-1986
                                          CP-51-CR-0902241-1986


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

MEMORANDUM BY MOULTON, J.:                                FILED MAY 22, 2017

       Alfonzo Salley appeals pro se from the August 20, 2015 order entered

in the Philadelphia County Court of Common Pleas dismissing as untimely his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm the PCRA court’s order and deny Salley’s petition

for remand.

       The PCRA court summarized the factual and procedural history of this

matter as follows:

               In three separate jury trials, [Salley] was convicted of
            robbing several stores in 1986.        On March 4, 1987,
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       *
           Former Justice specially assigned to the Superior Court.
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            following a jury trial before the Honorable James D.
            McCrudden, [Salley] was convicted of robbery and
            possessing an instrument of crime.[1] [On October 13,
            1987,] [Salley] was sentenced to ten (10) to twenty (20)
            years imprisonment for robbery and a consecutive term of
            two and one-half (2.5) to five (5) years incarceration for
            possessing an instrument of a crime. [Salley] filed a
            timely direct appeal on October 29, 1987, and on
            December 19, 1988, the Superior Court affirmed the
            judgment of sentence. Petition for allowance of appeal
            was not sought.2
               2
                 The second trial was held in March 1988. Following
               a jury trial before the Honorable John A. Geisz,
               [Salley] was convicted of robbery and possessing an
               instrument of crime. On June 29, 1988, Salley was
               sentenced to a term of five (5) to ten (10) years
               imprisonment for robbery and a concurrent term of
               one (1) to two (2) years incarceration for possession
               an instrument of crime. No appeal was filed.

                     The third trial was held in January 1989.
               Following a jury trial before the Honorable Jane C.
               Greenspan, [Salley] was convicted of possessing an
               instrument of crime and two counts robbery. On
               August 17, 1989, [Salley] was sentenced to
               consecutive terms of six (6) to twenty (20) years
               imprisonment for the two robbery convictions and a
               concurrent term of one (1) to five (5) years
               incarceration for possessing an instrument of crime.
               [Salley] appealed and the judgment of sentence was
               affirmed on December 18, 1990. Allocatur to the
               Supreme Court was denied on September 17, 1991.

               On January 14, 1997, [Salley] filed a pro se PCRA
            petition. Thereafter, the PCRA court appointed counsel.
            Appointed counsel filed an amended petition. On January
            29, 1999, the petition was dismissed. Notice of Appeal
            was filed and on March 6, 2000 the Superior Court

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       1
           18 Pa.C.S. §§ 3701 and 907, respectively.



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           affirmed the dismissal. [Salley] did not seek an allowance
           of appeal to the Pennsylvania Supreme Court.

             On May 3, 2004, [Salley] filed a second PCRA petition.
           The PCRA court dismissed the petition on January 4, 2005.
           A Notice of Appeal was filed and on January 13, 2006,
           which was dismissed because [Salley] failed to file a brief.
           On November 13, 2007, [Salley] filed a third petition.

             The PCRA court dismissed the petition on May 8, 2009.
           On December 2, 2010 [Salley] filed another PCRA petition.
           The PCRA [court] dismissed the petition on January 5,
           2012. Following the dismissal of his [petition], [Salley]
           appealed to the Superior Court. This appeal was dismissed
           on March 21, 2012 for failure to comply with Pa.R.A.P.
           3517.

              [Salley] filed a Writ of Mandamus on April 15, 2014 and
           a Motion to Reinstate Appellate rights Nunc Pro Tunc on
           October 22, 2014. After conducting an extensive and
           exhaustive review of these filings, the record and
           applicable case law, this Court decided to treat the motion
           as a petition under the [PCRA]. Upon doing so, this Court
           concluded that it lacked jurisdiction to address the merits
           of [Salley’s] claims because [Salley’s] petition seeking post
           conviction collateral relief was untimely filed and none of
           the timeliness exception[s] applied.

Opinion, 10/28/15, at 1-2 (“1925(a) Op.”).

      On June 25, 2015, the PCRA court sent notice of intent to dismiss

Salley’s petition pursuant to Pennsylvania Rule of Criminal Procedure 907.

On July 6, 2015, Salley filed a response to the PCRA court’s Rule 907 notice.

On August 20, 2015, the PCRA court dismissed the petition.           Thereafter,

Salley filed a timely notice of appeal. Salley has also filed with this Court a

petition for remand, seeking remand to the PCRA court for an evidentiary

hearing.

      Salley raises the following issue on appeal:


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           DID    THE   PRO-SE    APPELLANT      SUFFER    DUAL
           ABANDONMENT OF COUNSELS FOR THE PURPOSE OF
           APPEAL,   AND  WHERE     NEITHER     WAS    PROPERLY
           ADDRESSED BY THE TRIAL COURT, AND NO RECORD
           ESTABLISHED? (both appeals were to the State Supreme
           Court)

Salley’s Br. at 3.

       Our standard of review from the denial of PCRA relief “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

       Before we reach the merits of Salley’s petition, 2 we must determine

whether it was timely filed. It is well settled that “the timeliness of a PCRA

petition is a jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d

171, 175 (Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015).          A PCRA

petition “including a second or subsequent petition, shall be filed within one
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       2
         Because Salley’s claim of counsel ineffectiveness could have been
brought under the PCRA, the PCRA court correctly treated his writ of
mandamus and motion to reinstate appellate rights nunc pro tunc as a PCRA
petition. See 42 Pa.C.S. § 9542 (“The action established in this subchapter
shall be the sole means of obtaining collateral relief and encompasses all
other common law and statutory remedies for the same purpose that exist
when this subchapter takes effect, including habeas corpus and coram
nobis.”); see also Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa.
2001) (“The plain language of the statute above demonstrates quite clearly
that the General Assembly intended that claims that could be brought under
the PCRA must be brought under that Act. No other statutory or common
law remedy ‘for the same purpose’ is intended to be available; instead, such
remedies are explicitly ‘encompassed’ within the PCRA.”).




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year of the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A

judgment is 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.”        42

Pa.C.S. § 9545(b)(3).

      On September 17, 1991, the Supreme Court denied Salley’s petition

for allowance of appeal.   Salley therefore had until January 16, 1997, one

year after the effective date of the 1995 amendments to the PCRA, to file a

timely first PCRA petition. See Commonwealth v. Alcorn, 703 A.2d 1054,

1056-57 (Pa.Super. 1997) (where a petitioner’s judgment of sentence

became final before the effective date of the 1995 amendments to the PCRA,

which included a grace proviso allowing a petitioner to file a timely first

PCRA petition by January 16, 1997, the petitioner’s second PCRA petition

was untimely because it was not filed within one year of the date his

judgment of sentence became final). Salley’s current petition, filed on April

15, 2014, is therefore facially untimely.

      Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner alleges and proves

one of the following three statutory exceptions:

         (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;


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          (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)(i)-(iii); see Brown, 111 A.3d at 175. In addition,

when invoking an exception to the PCRA time bar, the petition must “be filed

within 60 days of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2).

      Salley attempts to invoke the “new facts” exception to the one-year

time bar. 42 Pa.C.S. § 9545(b)(1)(ii). Under this exception, the petitioner

may overcome an untimely filed petition if the petitioner alleges and proves

that “(1) the facts upon which the claim was predicted were unknown and

(2) they could not have been ascertained by the exercise of due diligence.”

Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016); 42 Pa.C.S. §

9545(b)(1)(ii).   “Due diligence ‘does not require perfect vigilance and

punctilious care, but merely a showing the party has put forth reasonable

effort’ to obtain the information upon which a claim is based.”     Cox, 146

A.2d at 230 (quoting Commonwealth v. Edmiston, 65 A.3d 339, 348 (Pa.

2013)).

      In support of his claim, Salley relies in part on our Supreme Court’s

decision in Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007).            In

Bennett, the Court held that the appellant had made sufficient allegations


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to invoke section 9545(b)(1)(ii) and remanded to the PCRA court for further

proceedings to determine whether the appellant had proven his claims. 930

A.2d at 1274-75.         Specifically, the appellant alleged that counsel had

abandoned him for purposes of his first PCRA appeal by not filing a brief.

Id. The appellant alleged that he did not know that PCRA appellate counsel

had failed to file a brief until he received a letter from the Superior Court

informing him that his appeal had been dismissed for counsel’s failure to file

a brief. Id. The appellant in Bennett also included the steps he took to

ascertain the status of his case, which included writing to the PCRA court

and the Superior Court, thereby alleging he exercised due diligence. Id. at

1272.

        In the case before us, Salley alleges that he “had no idea that counsel

failed to appeal to the State Supreme court” on both direct appeal and his

first PCRA proceeding.3 Salley’s Br. at 9, 12. Accordingly, he alleges that he

suffered “dual abandonment” by counsel. Id. at 18. Salley alleges that he

was diligent because he “filed multiple filings, [i]ncluding to address his

appeal rights issue, which as of this date has not been addressed by the trial

court.” Id. at 14. He also avers that his attempts to contact counsel were

“useless,” that counsel failed to respond to communications from Salley, and
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        3
        Salley’s claim regarding counsel’s alleged ineffectiveness on direct
appeal arises from the matter docketed at CP-51-CR-0426541-1986, in
which judgment of sentence was imposed on October 13, 1987. In his first
PCRA petition, Salley challenged all three judgments of sentence.



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that “[c]ounsel never took any steps to confer with [Salley] regarding any

appeal.”    Id.   Salley also attaches a number of exhibits that purportedly

demonstrate his due diligence. Id. at 17-18.

       This Court affirmed Salley’s judgment of sentence on December 19,

1988, and affirmed the dismissal of Salley’s first PCRA petition on March 6,

2000. Salley makes only a bare assertion that he did not know that counsel

in both instances did not appeal to the Pennsylvania Supreme Court. Salley

does not explain why he could not have learned this information earlier,

despite the lengthy time period before the filing of the instant PCRA.

Moreover, Salley does not allege the date he learned that counsel had not

appealed to the Supreme Court or how he came to learn of these facts. Nor

do the exhibits attached to Salley’s brief establish when he learned these

facts. Accordingly, he has failed to establish that he could not have learned

these facts through the exercise of due diligence.

       Because Salley has failed to establish any of the time-bar exceptions,4

we conclude the PCRA court did not err in dismissing Salley’s petition as

untimely.



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       4
        To the extent Salley       alleges a time-bar exception due to ineffective
assistance of counsel, “[i]t       is well settled that allegations of ineffective
assistance of counsel will          not overcome the jurisdictional timeliness
requirements of the PCRA.”         Commonwealth v. Wharton, 886 A.2d 1120,
1126 (Pa. 2005).




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     Next, we consider Salley’s petition for remand. In the petition, Salley

seeks remand to the PCRA court for an evidentiary hearing on his claim that

counsel failed to communicate with him regarding his appellate rights. Pet.

for Remand at 3. Because we have concluded that Salley is not entitled to

relief, and no purpose would be served by further proceedings, we deny his

petition for remand for an evidentiary hearing. See Pa.R.Crim.P. 907(1).

     Order affirmed. Petition for remand denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2017




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