J-A05022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
RONALD WHEELER                           :
                                         :
                   Appellant             :    No. 1357 EDA 2017

                Appeal from the PCRA Order March 30, 2017
 In the Court of Common Pleas of Bucks County Criminal Division at No(s):
                          CP-09-CR-0004849-1982


BEFORE:    DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.:                            FILED MARCH 09, 2018

      Ronald Wheeler (Appellant) appeals pro se from the order dismissing

as untimely his eighth petition for post-conviction relief filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–46. We affirm.

      In affirming the denial of Appellant’s sixth PCRA petition, this Court

summarized:

            On April 28, 1983, Appellant was convicted of first-degree
      murder and sentenced to death. Upon review, our Supreme
      Court ultimately vacated the death sentence and remanded for
      the imposition of a sentence of life imprisonment. On July 6,
      1988, the trial court imposed a life sentence for the first-degree
      murder conviction. He did not appeal. Thus, his judgment of
      sentence became final on August 5, 1988.

Commonwealth v. Wheeler, No. 2824 EDA 2009 (Pa. Super. filed August

10, 2010) (unpublished memorandum at 2).




____________________________________
*Former Justice specially assigned to the Superior Court.
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       On October 15, 2015, Appellant filed his eighth PCRA petition pro se in

which Appellant challenged the competency of a witness, Jerome Gibson,

asserting that he was not aware of Mr. Gibson’s diminished mental capacity

at the time of trial.1 On February 2, 2016, the PCRA court issued a notice of

intent to dismiss the petition as untimely pursuant to Pennsylvania Rule of

Criminal Procedure 907. On March 30, 2017, the PCRA court dismissed the

petition without a hearing. This appeal followed.

       Appellant presents five issues for our review:

       1. MAY THIS COURT DETERMINE UNDER RULES OF STATUTORY
          CONSTRUCTION WHETHER INTERPRETATION OF PCRA TIME
          LIMITS AS JURISDICTIONAL IS CONTRARY TO PLAIN
          LANGUAGE OF PCRA WHEN PETERKIN ET AL., DID NOT
          AND, IF SO, IS THAT INTERPRETATION CONTRARY TO PLAIN
          LANGUAGE OF PCRA AND LEGISLATIVE INTENT?

       2. DID APPLICATION OF PRESUMPTION OF ACCESS TO PUBLIC
          RECORD TO FIND UNTIMELY OTHERWISE TIMELY 2007 PCRA
          PETITION FILED BY PRO SE PRISONER, AMOUNT TO
          GOVERNMENT INTERFERENCE UNDER §9545(b)(1)(i) AND
          ALLOW FOR FILING OF 2015 PETITION WITHIN SIXTY DAYS
          OF BURTON ELIMINATING PRESUMPTION OF PRO SE
          PRISONERS?

       3. WERE CLAIMS RAISED IN 2015 PCRA PETITION PREVIOUSLY
          LITIGATED WHERE COURT ON APPEAL OF 2007 PCRA
          PETITION DID NOT REACH MERITS OF CLAIMS?


____________________________________________


1  The PCRA Court has summarized the procedural posture attendant to each
of Appellant’s post-conviction filings, beginning with Appellant’s first petition
filed on August 2, 1988 under the Post Conviction Hearing Act (PCHA),
through the underlying PCRA petition filed on October 15, 2015. See PCRA
Court Opinion, 6/12/17, at 2-3.



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      4. DOES BURTON’S EXCEPTION TO PUBLIC RECORD RULE FOR
         PRO SE PRISONERS REPRESENT AN INTERVENING CHANGE
         IN CONTROLLING LAW OR A SUBSTANTIAL CHANGE IN
         DISPUTED FACTS THAT ALLOWS COURT ON SECOND APPEAL
         TO REVISIT TIMELINESS OF 2007 PCRA PETITION FILED BY
         PRO SE PRISONER, FOUND UNTIMELY ON FIRST APPEAL BY
         APPLICATION OF PRESUMPTION OF ACCESS TO PUBLIC
         RECORD?

      5. WAS 2007 PCRA PETITION TIMELY WHERE FILED BY PRO SE
         PRISONER WITHOUT ACCESS TO PUBLIC RECORD WITHIN
         SIXTY DAYS OF DATE FACTUAL PREDICATE FOR PETITION
         BECAME KNOWN TO PRISONER

Appellant’s Brief at 4.

      Before we review the merits of Appellant’s issues, we must determine

whether his PCRA petition was timely.      The timeliness of a post-conviction

petition is jurisdictional.   Commonwealth v. Albrecht, 994 A.2d 1091,

1093 (Pa. 2010) (citation omitted).     If a petition is untimely, neither an

appellate court nor the PCRA court has jurisdiction over the petition.    Id.

“Without jurisdiction, we simply do not have the legal authority to address

the substantive claims” raised in an untimely petition. Id.

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, the

applicability of one of the statutory exceptions to the time for filing the

petition.   Commonwealth v. Gamboa–Taylor, 753 A.2d 780, 783 (Pa.

2000); 42 Pa.C.S.A. § 9545(b)(1).     Under these exceptions, the petitioner

must plead and prove that: “(1) there has been interference by government


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officials in the presentation of the claim; or (2) there exists after-discovered

facts or evidence; or (3) a new constitutional right has been recognized.”

Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (citations

omitted). A PCRA petition invoking one of these statutory exceptions must

“be filed within sixty days of the date the claim first could have been

presented.” Gamboa–Taylor, 753 A.2d at 783. See also 42 Pa.C.S.A. §

9545(b)(2).

      It is undisputed that the instant PCRA petition, filed by Appellant in

2015 – decades after his judgment of sentence became final in 1988 – is

untimely unless he has satisfied his burden of pleading and proving that one

of the enumerated exceptions applies.      See Commonwealth v. Beasley,

741 A.2d 1258, 1261 (Pa. 1999). As noted by both the PCRA court and the

Commonwealth, Appellant alleges that he only recently became aware of Mr.

Gibson’s diminished mental capacity when it became a matter of public

record after Mr. Gibson was charged with murder.         PCRA Court Opinion,

6/12/17, at 7; Commonwealth Brief at 13-16, 32.         Additionally, Appellant

argues that his petition falls within the government interference exception to

the PCRA time-bar. Id.

      In arguing that his PCRA petition is timely, Appellant states:

            [The i]nstant petition alleged this Court’s application of
      public record rule on appeal to find the 2007 petition untimely,
      amounted to government interference under § 9545(b)(1)(i),
      and that instant petition was filed Oct. 15, 2015, within 60 days
      of Aug. 25, 2015 decision in Burton recognizing application of


                                     -4-
J-A05022-18


       rule to petitions filed by pro se prisoners was contrary to plain
       language of § 9545(b)(1)(ii).

Appellant’s Brief at 16.

       Appellant relies on Commonwealth v. Burton, 158 A.3d 618, 629

(Pa. 2017) in support of his assertion that his PCRA petition is not time-

barred.    In Burton our Supreme Court held that although, in general,

matters of public record cannot be deemed “unknown” for purposes the

newly-discovered facts exception to PCRA time limits, that public record

presumption does not apply to pro se incarcerated PCRA petitioners. Id. at

638.

       Here, the PCRA Court summarized:

              [Appellant] is apparently arguing that he only recently
       became aware of Mr. Gibson’s mental retardation as a result of
       Gibson’s subsequent murder trials, and that pursuant to Burton
       he is presumed as a pro se petitioner not to have had access to
       such public knowledge[.]        [However,] the issue of Gibson’s
       mental retardation had already been addressed and rejected by
       the Superior Court, which observed that [Appellant] was in fact
       aware of Gibson’s mental capacity but failed to address it at trial.
       In addition, [Appellant] has failed to introduce any evidence at
       all to substantiate his claim that “government officials” interfered
       with the presentation or acquisition of evidence of Gibson’s
       mental capacities.

               [Appellant] has failed to prove the elements necessary for
       relief in accordance with 42 Pa.C.S.A. § 9545, and has failed to
       prove the existence of any of the statutory exceptions to the
       filing time bar pursuant to 42 Pa.C.S.A. § 9545(b). Therefore, in
       addition to lacking any merit, [Appellant’s] eighth PCRA petition
       must be considered untimely[.]

PCRA Court Opinion, 6/12/17, at 7-8.




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     Upon review of Appellant’s claim and the record before us, we find that

the PCRA Court thoroughly addressed Appellant's arguments in its Opinion

denying the PCRA Petition, with citation to relevant statutory and case law,

as well as thoughtful analysis and reasoning.       Both here and in the

companion appeal filed by Appellant at 1422 EDA 2017, the trial court’s

comprehensive opinions properly disposed of Appellant’s issues, and the

certified record supports the court’s findings. We therefore adopt the trial

court’s opinion as our own for purposes of this appeal and affirm the denial

of relief. See PCRA Court Opinion, dated June 12, 2017. The parties shall

attach a copy of the June 12, 2017 opinion in the event of further

proceedings in this matter.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/18




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