J-S21045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

WADE ANTHONY MASON,

                            Appellant                       No. 2483 EDA 2015


                   Appeal from the PCRA Order June 22, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006304-2009

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

MEMORANDUM BY STEVENS, P.J.E.:                              FILED March 14, 2016

        This is a pro se appeal from the order dismissing Appellant’s second

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

§§ 9541-9546. The PCRA court dismissed the petition on the basis that it

was untimely filed. We affirm.

        The relevant facts and procedural history are as follows: On January

20, 2011, a jury convicted Appellant of rape, sexual assault and simple

assault. Thereafter, on April 11, 2011, the PCRA court sentenced Appellant

to an aggregate term of seven to fourteen years of imprisonment, and a

consecutive two-year probationary term. Following the denial of Appellant’s

timely post-sentence motion, Appellant filed an appeal to this Court, in

which    he   raised    a   claim      of   prosecutorial   misconduct   during   the

Commonwealth’s closing argument.             In an unpublished memorandum filed

on April 14, 2012, we rejected Appellant’s claim and affirmed his judgment

*Former Justice specially assigned to the Superior Court.
J-S21045-16



of sentence, and on September 19, 2012, our Supreme Court denied

Appellant’s petition for allowance of appeal. Commonwealth v. Mason, 48

A.3d 484 (Pa.Super. 2012), appeal denied, 53 A.3d 757 (Pa. 2012).

      Appellant filed a timely pro se PCRA petition, and the PCRA court

appointed counsel.    After reviewing the record and Appellant’s proposed

issues, PCRA counsel filed a petition to withdraw and “no-merit” letter

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

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

Thereafter, the PCRA court issued Pa.R.A.P. 907 notice of intent to dismiss

Appellant’s pro se petition without a hearing.         Appellant filed a pro se

response.     By order entered March 26, 2014, the PCRA court dismissed

Appellant’s   PCRA   petition   and   granted   PCRA   counsel’s   to   withdraw.

Appellant filed a timely pro se appeal to this Court.        In an unpublished

memorandum filed on January 16, 2015, we affirmed the order denying

post-conviction relief. Commonwealth v. Mason, 118 A.3d 448 (Pa.Super.

2015). Appellant did not file a timely motion for allowance of appeal.

      Appellant filed the instant pro se PCRA petition, his second, on March

20, 2015. Within this petition, Appellant reiterated his claim of prosecutorial

misconduct that he unsuccessfully litigated during his direct appeal.        See

supra.   The PCRA court issued Pa.R.A.P. 907 notice of intent to dismiss

Appellant’s second PCRA petition as untimely filed. Appellant filed a pro se

response on May 18, 2015. By order entered June 22, 2015, the PCRA court




                                      -2-
J-S21045-16



dismissed Appellant’s PCRA petition.        This pro se appeal follows.   Both

Appellant and the trial court have complied with Pa.R.A.P. 1925.

      Appellant raises the following issue:

            (1)    WHETHER THE [PCRA] COURT [ERRED] WHEN IT
                   REFUSED TO GRANT [APPELLANT] A MISTRIAL
                   AFTER THE COMMONWEALTH STATED IN ITS
                   CLOSING REMARKS TO THE JURY THAT HE
                   STALKED THE STREET[S] OF CHESTER.

Appellant’s Brief at 3.

      Our scope and standard of review is well-settled:

        In PCRA appeals, our scope of review is limited to the
        findings of the PCRA court and the evidence on the record of
        the PCRA court's hearing, viewed in the light most favorable
        to the prevailing party. Because most PCRA appeals involve
        questions of fact and law, we employ a mixed standard of
        review. We defer to the PCRA court's factual findings and
        credibility determinations supported by the record. In
        contrast, we review the PCRA court's legal conclusions de
        novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa.Super.

2015) (internal citations and quotations omitted).

      In order to address Appellant’s issue, we must first determine whether

the PCRA court correctly determined that Appellant’s second PCRA petition

was untimely filed.       This Court’s standard of review regarding an order

dismissing a petition under the PCRA is whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

                                      -3-
J-S21045-16


findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa.Super. 2001).

        The   timeliness     of   a   post-conviction     petition   is   jurisdictional.

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). 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 is final unless the

petition alleges, and the petitioner proves, that an exception to the time for

filing the petition, set forth at 42 Pa.C.S.A. sections 9545(b)(1)(i), (ii), and

(iii), is met.1 See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783

(Pa. 2000); 42 Pa.C.S.A. § 9545.               A PCRA petition invoking one of these

statutory exceptions must “be filed within 60 days of the date the claims

____________________________________________


1
    The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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.A. §§ 9545(b)(1)(i), (ii), and (iii).




                                           -4-
J-S21045-16


could have been presented.” Gamboa-Taylor, 753 A.2d at 783; see also

42 Pa.C.S.A. § 9545(b)(2).

       Appellant’s judgment of sentence became final on December 18, 2012,

when the ninety-day time period for filing a writ of certiorari with the United

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

U.S.Sup.Ct.R. 13. Therefore, Appellant needed to file the PCRA petition at

issue by December 18, 2013, in order for it to be timely. As Appellant filed

the instant petition on March 20, 2015, it 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).

       Within his brief, Appellant has neither acknowledged the PCRA’s time

bar nor attempted to prove any exception thereto. Thus, the PCRA court

correctly concluded that it lacked jurisdiction to consider Appellant’s second

PCRA petition. We therefore affirm the PCRA court’s order denying Appellant

post-conviction relief.2

       Order affirmed.

____________________________________________


2
  In doing so, we echo the PCRA court’s conclusion that, even if his latest
PCRA petition was timely, Appellant would not be entitled to relief because
the petition at issue “mirrors the allegations of his first PCRA petition and
therefore represents another desperate attempt to re-litigate issues already
rejected by this Court, Superior Court, and the Pennsylvania Supreme
Court.” PCRA Court Opinion, 9/15/15, at 4.




                                           -5-
J-S21045-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/2016




                          -6-
