J-S79003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellee

                    v.

ALFONSO P. PEW,

                          Appellant                      No. 537 EDA 2013


         Appeal from the PCRA Order entered September 19, 2012,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0729371-1991


BEFORE: ALLEN, OLSON, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                            FILED DECEMBER 16, 2014

      Alfonso P. Pew (“Appellant”) appeals pro se from the order denying his

latest untimely petition for post-conviction relief filed pursuant to the Post

Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The   pertinent    facts   and   partial   procedural   history   have   been

summarized as follows:

            Appellant participated in a plot with Darrin Wilder and
         Sean Simpson to rob William Robinson, a drug dealer who
         was undercutting Wilder’s drug sales. On March 16, 1991,
         [Appellant] picked up Wilder at his apartment, and both
         met Simpson in the area.        Wilder told Simpson they
         planned to rob and, if necessary, kill Robinson; Simpson
         agreed to assist them.

             Later that afternoon, Simpson lured Robinson into an
         alley near the house of Simpson’s girlfriend, Geraldine
         Oakes.     Appellant and Wilder, who was masked and



*Retired Senior Judge assigned to the Superior Court.
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         brandishing a gun, appeared in the alley and demanded
         money from Robinson. Appellant grabbed Robinson and
         held him, while Wilder hit him with the gun.         When
         Robinson struggled free and jumped onto the porch of the
         Oakes’ house, [Appellant] and Wilder followed. Robinson
         tried to open the door but Ms. Oakes and Belinda Franklin
         held it shut. Wilder shot Robinson in the back, and as
         Robinson stumbled into the house, staggered up the stairs,
         collapsed and died, [Appellant] and Wilder pushed their
         way inside. Wilder demanded money of the occupants,
         struck Ms. Franklin on the head with his gun, and fled with
         [Appellant].

             Appellant and Simpson were brought to trial together;
         Darrin Wilder remained a fugitive. During jury selection,
         Simpson pled guilty to third degree murder and robbery.
         A new jury panel was seated and, at [Appellant’s] separate
         trial, Simpson testified as a Commonwealth witness. After
         the jury convicted [Appellant] of second degree murder,
         robbery, burglary, possession of an instrument of crime,
         and violations of the Uniform Firearms Act, the court
         imposed a sentence of life imprisonment for the murder
         conviction. The Court denied [Appellant’s] post-verdict
         motions and imposed a concurrent five to ten year prison
         sentence for robbery. This Court affirmed the judgment of
         sentence on August 20, 1993.

            On September 16, 1993, [Appellant] filed a pro se PCRA
         petition.  [PCRA] counsel was appointed to represent
         [Appellant] and filed an amended petition.      After two
         hearings, the court denied PCRA relief on October 16,
         1995.

Commonwealth v. Pew, 687 A.2d 860 (Pa. Super. 1996), unpublished

memorandum at 1-2. On October 28, 1996, this Court affirmed the PCRA

court’s denial of post-conviction relief.   See id.        On June 25, 1997, our

Supreme    Court   denied   Appellant’s   petition   for    allowance   of   appeal.

Commonwealth v. Pew, 698 A.2d 66 (Pa. 1997).




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       In 2001 and 2004, Appellant filed second and third pro se PCRA

petitions.   The PCRA court dismissed both petitions as untimely filed, and

Appellant did not file an appeal to this Court from either dismissal.      On

November 24, 2010, Appellant filed the PCRA petition at issue. After issuing

Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s latest PCRA petition

without a hearing, the PCRA court, by order entered September 19, 2012,

dismissed Appellant’s fourth petition as untimely.       This pro se appeal

follows.1 The PCRA court did not require Pa.R.A.P. 1925 compliance.

     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 findings in the certified

record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

Moreover, a PCRA court may decline to hold a hearing on the petition if the

PCRA court determines that the petitioner’s claim is patently frivolous and is



____________________________________________


1
  Appellant’s filed his pro se notice of appeal approximately four months
after the PCRA court’s September 19, 2012 order denying his latest PCRA
petition. By order dated June 20, 2013, we directed Appellant to show
cause why his appeal should not quashed as untimely. Within his July 3,
2013, handwritten response, Appellant asserts that he did not timely receive
the PCRA court’s order, and refers to previous letters, which appear in the
certified record, wherein he informed the PCRA court of this fact. Given
these circumstances, we decline to quash Appellant’s appeal as untimely.



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without a trace of support in either the record or from other evidence.

Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001).

      Before addressing the issues Appellant presents in his brief, we must

first consider whether the PCRA court properly determined that Appellant’s

petition was untimely.       The timeliness of a post-conviction petition is

jurisdictional.   Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010) (citation omitted). Thus, 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, an

exception 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 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). Moreover, exceptions to

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the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.          Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

       Appellant’s judgment of sentence became final on September 20,

1993, after the thirty-day period for filing an allowance of appeal to the

Pennsylvania Supreme Court had expired.              42 Pa.C.S.A. § 9545(b)(3).

Therefore, Appellant had to file his latest petition by January 16, 1997, in

order for it to be timely.2           As Appellant filed the instant petition on

November 24, 2010, it is patently 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).
      Appellant failed to plead any exception to the PCRA’s time bar in his

latest PCRA petition. Although he raises certain arguments with regard to

one or more of the exceptions in his pro se brief, Appellant’s claims are

waived. Burton, supra. Moreover, any such exception raised by Appellant
____________________________________________


2
  Because Appellant’s judgment of sentence became final prior to the
January 1, 1996 effective date of the 1995 amendments to the PCRA, he had
one year from that date to file a timely first PCRA petition. However,
because the petition at issue is Appellant’s fourth petition, he does not
qualify for this grace period. See generally, Commonwealth v. Crawley,
739 A.2d 108 (Pa. 1999).




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in an “unauthorized” amendment to his petition, that is, one filed without

first   seeking   permission   from   the    PCRA   court,   likewise   is   waived.

Commonwealth v. Reid, 99 A.3d 470, 484 (Pa. 2014). Accordingly, the

PCRA court correctly determined that it lacked jurisdiction to consider

Appellant’s latest PCRA petition.     We thus affirm the PCRA court’s order

denying Appellant post-conviction relief.

        Order affirmed.

        Judge Strassburger joins the memorandum.

        Judge Olson concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2014




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