Com. v. Brown, J.

J-S65015-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JONATHAN BROWN,

Appellant No. 2559 EDA 2014

Appeal from the PCRA Order Entered August 6, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0206201-1992

BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 01, 2015

Appellant, Jonathan Brown, appeals pro se from the August 6, 2014

order denying, as untimely, his third petition for relief filed under the Post

Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. We affirm.

On June 29, 1992, Appellant pled guilty to first-degree murder and

possessing an instrument of crime. He was sentenced that same day to life

imprisonment without the possibility of parole. Appellant filed an appeal to

this Court, and we affirmed his judgment of sentence on February 7, 1994.

Commonwealth v. Brown, No. 2941 Philadelphia 1992, unpublished

memorandum (Pa. Super. filed February 7, 1994). The record does not

indicate that Appellant filed a petition for allowance of appeal with our

Supreme Court. Consequently, his judgment of sentence became final on

March 9, 1994. See 42 Pa.C.S. § 9545(b)(3) (directing that judgment of

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

the time for seeking the review); Pa.R.A.P. 1113(a) (stating, “a petition for

allowance of appeal shall be filed with the Prothonotary of the Supreme

Court within 30 days of the entry of the order of the Superior Court sought

to be reviewed”).

Between 1999 and 2003, Appellant filed two PCRA petitions, both of

which the PCRA court denied. Appellant did not appeal to this Court from

the denial of either of those petitions. On September 30, 2013, he filed the

pro se PCRA petition underlying the present appeal. On July 3, 2014, the

PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

Appellant’s petition as untimely. On July 18, 2014, Appellant filed a pro se

motion for an extension of time within which to respond to the court’s Rule

907 notice. The court did not expressly rule on that motion.1 On August 6,

2014, the PCRA court issued an order dismissing Appellant’s petition as

untimely.

Appellant filed a timely, pro se notice of appeal and the PCRA court

issued a Pa.R.A.P. 1925(a) opinion, despite not ordering Appellant to file a

Rule 1925(b) concise statement of errors complained of on appeal. Herein,

Appellant presents five issues for our review. In four of those issues, he

asserts that his plea counsel acted ineffectively, resulting in a violation of his

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1

Appellant does not challenge the court’s failure to rule on this motion on

appeal.

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constitutional rights, and causing him to enter an involuntary plea. See

Appellant’s Brief at 6. Appellant also avers that the evidence was insufficient

to convict him of first-degree murder or possessing an instrument of a crime

because he was acting in self-defense. Id.

This Court’s standard of review regarding an order denying 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.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). 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).

We must begin by addressing the timeliness of Appellant’s petition,

because the PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the merits of a petition. See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded to address the merits of the petition). Under the PCRA, any

petition for post-conviction relief, including a second or subsequent one,

must be filed within one year of the date the judgment of sentence becomes

final, unless one of the following exceptions set forth in 42 Pa.C.S. §

9545(b)(1)(i)-(iii) applies:

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second

or subsequent petition, shall be filed within one year of the

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date the judgment becomes final, unless the petition

alleges and the petitioner proves that:

(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;

(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). Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

Here, Appellant’s judgment of sentence became final on March 9,

1994.2 Consequently, his current PCRA petition, filed on September 30,

2013, is facially untimely and, for this Court to have jurisdiction to review

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2

We acknowledge that,

[i]n cases where the judgment of sentence was final prior to the

1995 enactment of the timeliness requirement, a first petition is

considered timely if filed within one year of the effective date of

the enactment. However, there is no grace period for filing

subsequent PCRA petitions.

Commonwealth v. Abu-Jamal, 833 A.2d 719, 724 (Pa. 2003) (citations

omitted; emphasis in original). Clearly, this exception to the timeliness

requirement of section 9545(b) does not apply to this, Appellant’s third,

PCRA petition, which was filed in 2013.

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the merits thereof, Appellant must prove that he meets one of the

exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b).

Appellant has failed to satisfy this burden, as he makes no attempt to

argue that any of the claims he raises satisfy an exception set forth in

section 9545(b)(1). Instead, Appellant simply contends that his plea

counsel acted ineffectively, and that the evidence was insufficient to sustain

his convictions. “It 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, 1127 (Pa. 2005)

(citations omitted). Additionally, a challenge to the sufficiency of the

evidence, in and of itself, does not satisfy any of the above-stated timeliness

exceptions.

Because Appellant has not proven the applicability of one of the

exceptions set forth in 42 Pa.C.S. § 9545(b)(1), we are without jurisdiction

to consider the merits of his petition. Therefore, we affirm the PCRA court’s

order denying his petition as untimely.3

Order affirmed.

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3

On September 18, 2015, Appellant filed with this Court a pro se document

entitled, “Motion for Evidentiary Hearing,” wherein he reiterates his claims of

plea counsel’s ineffectiveness, adds novel assertions in that same vein, and

requests a hearing to address these issues. For the reasons set forth infra,

we are without jurisdiction to consider the merits of Appellant’s

ineffectiveness claims. Accordingly, Appellant’s September 18, 2015 motion

is denied.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/1/2015

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