J-S86008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DANTE COCHISE CARTER                       :
                                               :
                      Appellant                :   No. 1964 WDA 2015

               Appeal from the PCRA Order November 10, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0005907-1997,
                            CP-02-CR-0006285-1997


BEFORE: GANTMAN, P.J., MOULTON, J., STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED DECEMBER 22, 2016

         Appellant Dante Cochise Carter appeals from the order of the Court

of Common Pleas of Allegheny County denying Appellant’s pro se “Petition

for Redress of Grievances,” which it deemed an untimely petition pursuant to

the Post Conviction Relief Act (“PCRA”).1 After careful review, we affirm the

PCRA court’s order.

        In October 1997, Appellant was convicted of First-Degree Murder,

Attempted Homicide, Aggravated Assault, Firearms Not to be Carried

Without a License, and Recklessly Endangering Another Person.                        On

December 15, 1997, the trial court sentenced Appellant to a mandatory life

sentence    for     the   First-Degree   Murder    conviction,   five   to   ten   years
____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.



*Former Justice specially assigned to the Superior Court.
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imprisonment on the Aggravated Assault conviction, and one to three years

imprisonment on the firearms conviction. This Court affirmed the judgment

of sentence on April 9, 1999 and our Supreme Court denied Appellant’s

petition for allowance of appeal on July 29, 1999.

      On October 20, 2000, Appellant filed his initial pro se PCRA petition

and attempted to amend the petition nearly two years later in June 2002.

On July 16, 2002, the PCRA court denied Appellant’s petition to amend and

dismissed the PCRA petition. Appellant filed a notice of appeal only

addressing his motion to amend.        On September 11, 2002, this Court

quashed the appeal as interlocutory.

      On November 22, 2002, Appellant filed a second PCRA petition

assisted by counsel, seeking the reinstatement of his collateral appellate

rights as to the dismissal of his PCRA petition.     On January 31, 2003, the

PCRA court reinstated Appellant’s collateral appellate rights.   On May 21,

2004, this Court remanded the case to determine whether Appellant’s

petition was timely filed. On September 30, 2004, the PCRA court issued an

order finding Appellant had filed an untimely pe tition.      On January 31,

2006, this Court affirmed the dismissal of Appellant’s PCRA petition. On July

6, 2006, our Supreme Court denied Appellant’s petition for allowance of

appeal.

      On January 19, 2012, Appellant filed the instant pro se “Petition for

Redress of Grievances.” The lower court appointed Scott A. Westcott, Esq.

to represent Appellant.   After learning that Atty. Westcott did not assist

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Appellant in filing an amended petition, the lower court appointed Patrick K.

Nightingale, Esq. as Appellant’s counsel on January 20, 2015.               Atty.

Nightingale filed a petition to withdraw on February 17, 2015, alleging that

Appellant’s petition had no merit.         On February 23, 2015, the lower court

permitted Atty. Nightingale to withdraw and notified Appellant of its intent to

dismiss his petition without a hearing pursuant to Pa.R.Crim.P. 907.          On

April 26, 2015, Appellant filed a pro se response to the Rule 907 notice.

       In an order entered on November 10, 2015, the lower court denied

Appellant’s petition, deeming it an untimely PCRA petition. This timely

appeal followed.2 Appellant complied with the PCRA court’s direction to file a

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

       As an initial matter, we review the lower court’s decision to

characterize Appellant’s filing as a PCRA petition.       As a general rule, the

PCRA “shall be the sole means of obtaining collateral relief and encompasses

all other common law and statutory remedies … including habeas corpus and

coram nobis.”      Commonwealth v. Descardes, ---Pa.---, 136 A.3d 493,

497–98 (2016) (citing 42 Pa.C.S. § 9542). Unless the PCRA cannot provide

____________________________________________


2
   Appellant filed a pro se notice of appeal that was docketed as filed
December 11, 2016. However, the record shows that Appellant’s notice of
appeal was mailed from prison in an envelope post-marked December 8,
2016. We thus conclude that this appeal is timely filed. Commonwealth v.
Whitehawk, 146 A.3d 266, 268 (Pa.Super. 2016) (providing that that
“under the ‘prisoner mailbox rule,’ a document is deemed filed when placed
in the hands of prison authorities for mailing”).



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the petitioner a potential remedy, the PCRA subsumes the writ of habeas

corpus.   Commonwealth v. Fahy, 558 Pa. 313, 331-32, 737 A.2d 214,

223-24 (1999).

      In his lengthy pro se “Petition for Redress of Grievances,” Appellant

sets forth hundreds of disjointed citations without providing any context to

show why this authority applies to his case. His numerous arguments do not

clearly set forth any claim for relief.    In his final page of the petition,

Appellant baldly asserts that he “is the aggrieved party and that he was

imprisoned without probable cause, and without cause of action by an

authority of law of competent jurisdiction.”         Petition for Redress of

Grievances, at 40. He also attempted to amend his petition to assert that he

had newly discovered evidence that eyewitnesses Maurice Lindsay and

Morris Taylor had recanted their accounts of the relevant crimes.

      Appellant is eligible for PCRA relief pursuant to the requirements set

forth in Section 9543(a)(1) in that he has been convicted of a crime under

the laws of Pennsylvania and is currently serving the sentence imposed on

those convictions. 42 Pa.C.S. § 9543(a)(1). Moreover, his claims regarding

the trial court's jurisdiction and newly discovered exculpatory evidence are

cognizable issues under the PCRA.     See 42 Pa.C.S. § 9543(a)(2)(viii) (the

tribunal conducting proceeding lacked jurisdiction); § 9543(a)(2)(vi) (“[t]he

unavailability at the time of trial of exculpatory evidence that has

subsequently become available and would have changed the outcome of the

trial if it had been introduced”). As appellant is eligible for PCRA relief and

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his claims are cognizable under the Act, his petition is subsumed by the

PCRA and its statutory time-bar.

      When reviewing the denial of a PCRA petition, we are guided by the

following standard:

      The standard of review for an order denying post-conviction
      relief is limited to whether the record supports the PCRA court's
      determination, and whether that decision is free of legal error.
      The PCRA court's findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Allen, 48 A.3d 1283, 1285 (Pa.Super. 2012) (citations

omitted).

      It is well-established that “the PCRA's timeliness requirements are

jurisdictional in nature and must be strictly construed; courts may not

address the merits of the issues raised in a petition if it is not timely filed.”

Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011)

(citations omitted). Generally, a PCRA petition must be filed within one year

of the date the judgment of sentence becomes final unless the petitioner

meets his burden to plead and prove one of the exceptions enumerated in

42 Pa.C.S. § 9545(b)(1)(i)-(iii), which include: (1) the petitioner’s inability

to raise a claim as a result of governmental interference; (2) the discovery

of previously unknown facts or evidence that would have supported a claim;

or (3) a newly-recognized constitutional right. 42 Pa.C.S. § 9545(b)(1)(i)-

(iii). However, the PCRA limits the reach of the exceptions by providing that

a petition invoking any of the exceptions must be filed within 60 days of the



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date the claim first could have been presented. Leggett, 16 A.3d at 1146

(citing 42 Pa.C.S. § 9545(b)(2)).

      As noted above, the trial court sentenced Appellant on December 15,

1997. This Court affirmed Appellant’s judgment of sentence on April 9, 1999

and our Supreme Court denied Appellant’s petition for allowance of appeal

on July 29, 1999. Appellant did not seek a writ of certiorari in the Supreme

Court of the United States. Section 9545(b)(3) of the PCRA provides that a

judgment of sentence becomes final at the conclusion of direct review or the

expiration of the time for seeking the review. 42 Pa.C.S. § 9543(b)(3). As a

result, Appellant’s judgment of sentence became final after the 90-day

period in which he was allowed to seek review in the Supreme Court of the

United States. See U.S. Sup.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”). Thus,

Appellant’s sentence became final on October 27, 1999. As Appellant filed

the instant PCRA petition on January 19, 2012, over twelve years after his

sentence became final, his petition is facially untimely.

      To the extent that Appellant claims that his petition falls under the

newly discovered fact PCRA timeliness exception, his argument fails.

Appellant seeks to present the alleged “recantation” testimony of Maurice

Lindsay and Morris Taylor. However, Appellant’s alleged new evidence that

these men did not see Appellant fire a weapon on the day in question is

entirely consistent with their trial testimony. Moreover, it is uncertain how

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this evidence would be exculpatory as Appellant testified in his own behalf

that he had shot the victim in self-defense. As Appellant failed to plead and

prove an applicable exception to the PCRA time-bar, we conclude that the

PCRA court properly dismissed Appellant’s petition as untimely filed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2016




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