The opinion
J-S16012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALLEN BROWN, JR.
Appellant No. 679 WDA 2016
Appeal from the Order February 5, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008971-2005
BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY MOULTON, J.: FILED SEPTEMBER 1, 2017
Allen Brown, Jr. appeals, pro se, from the February 5, 2016 order
entered in the Allegheny County Court of Common Pleas dismissing as
untimely his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546.1 We affirm.
The PCRA court summarized the history of this matter as follows:
[Brown] was charged with Rape, Incest, Statutory
Sexual Assault, Endangering the Welfare of a Child and
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*
Retired Senior Judge assigned to the Superior Court.
1
The record contains two notices of appeal, one dated February 21,
2016 and taken from the February 5, 2016 order, and one dated May 1,
2016, filed May 11, 2016, and taken from an April 14, 2016 order denying
Brown’s petition for habeas corpus. Brown’s brief, however, discusses only
the PCRA court’s February 5, 2016 order dismissing his PCRA petition. The
Commonwealth’s brief likewise addresses only the February 5, 2016 order.
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Corruption of Minors[2] in relation to an incident between
[Brown] and his 16 year-old daughter [K]. Following a
jury trial, [Brown] was found guilty of all counts. He
appeared before this Court on August 16, 2007 and was
sentenced to consecutive terms of imprisonment of seven
(7) to 14 years at the Rape count and one (1) to two (2)
years at the Incest charge for an aggregate sentence of
eight (8) to 16 years at this information. Timely Post-
Sentence Motions were filed and were denied on January
7, 2008. The judgment of sentence was affirmed by the
Superior Court on January 12, 2009 and [Brown]’s
subsequent Petition for Allowance of Appeal was denied by
our Supreme Court on July 7, 2009.
On March 25, 2010, [Brown] filed a pro se [PCRA]
Petition. Counsel was appointed to represent [Brown], but
after being unable to find any meritorious issues to raise
on appeal, filed a Turner “No-Merit” letter and sought
permission to withdraw. After granting counsel’s request
to withdraw and giving the appropriate notice of its intent
to do so, this Court dismissed the pro se PCRA Petition
without a hearing on July 19, 2010.
No further action was taken until August 19, 2015,
when [Brown] filed his second [PCRA] Petition. Suzanne
Swan, Esquire was appointed to represent [Brown] and,
upon determining that the Petition was untimely, she filed
a Turner “No-Merit” letter and sought permission to
withdraw. Again, after granting counsel’s request to
withdraw and giving the appropriate notice of its intent to
do so, this Court dismissed the pro se PCRA Petition
without a hearing on February 5, 2016.
No direct appeal was taken from this Court’s Order of
February 5, 2016.[3] Rather, on February 2[6], 2016,
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2
18 Pa.C.S. §§ 3121, 4302, 3122.1, 4304(a), and 6301, respectively.
3
Contrary to the PCRA court’s belief, Brown did submit a notice of
appeal from the February 5, 2016 order. See Notice of Appeal, dated
2/21/16. For reasons that do not appear in the record, however, this notice
of appeal was not docketed with the PCRA court. “Generally, an appellate
court cannot extend the time for filing an appeal. Nonetheless, this general
(Footnote Continued Next Page)
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[Brown] filed a “Petition for Writ of Habeas Corpus (Motion
for Copies of Relevant Trial records to File Response to
‘NO-Merit’ Letter[])” wherein he sought to have this Court
compel attorney Swan to obtain various legal documents
for him. That Petition was denied on April 14, 2016.
Opinion, 7/14/16, at 1-3 (original footnotes omitted).
On May 11, 2016, Brown filed a notice of appeal from the PCRA court’s
April 14, 2016 order. Brown raises the following issues on appeal:
1. Did trial court err[], in failing to conduct an evidentiary
hearing of all prior counsel[’]s ineffectiveness?
2. Did trial court err[], in running charges consec[u]tive
when [Brown] was found guilty by a jury of his peers[?]
3. Did trial court err[], in finding that the petition for PCRA
relief, did in fact meet the exception to the time bar rule,
and whether, [Brown’s] issues support the Lawson
standards, of a nunc pro tunc review, [see
Commonwealth v. Story, 383 A.2d 155 (Pa. 1978)?]
4. Did the trial court along with the clerk of courts and also
all prior counsel[] refuse to hand over all criminal records
and discovery to [Brown] involved in this case[?] The
record supports [Brown’s] claim[.]
Brown’s Br. at 4 (suggested answers and some capitalization omitted).
Our standard of review from the denial of PCRA relief “is limited to
examining whether the PCRA court’s determination is supported by the
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(Footnote Continued)
rule does not affect the power of the courts to grant relief in the case of
fraud or breakdown in the processes of the court.” Commonwealth v.
Patterson, 940 A.2d 493, 498 (Pa.Super. 2007) (citations omitted).
Because the notice of appeal from the February 5, 2016 order was timely
filed, and because Brown’s brief does not address the April 14, 2016 denial
of his habeas corpus petition, see supra note 1, we treat Brown’s appeal as
an appeal from the February 5, 2016 order.
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evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
Further, “[t]he right to an evidentiary hearing on a post-conviction
petition is not absolute.” Commonwealth v. Jordan, 772 A.2d 1011, 1014
(Pa.Super. 2001). If a claim is “patently frivolous and is without a trace of
support in either the record or from other evidence[,]” a PCRA court may
decline to hold an evidentiary hearing. Id. “[O]n appeal[, this Court] must
examine each of the issues raised in the PCRA petition in light of the record
in order to determine whether the PCRA court erred in concluding that there
were no genuine issues of material fact and denying relief without an
evidentiary hearing.” Id.
Before we reach the merits of Brown’s appeal, we must determine
whether his PCRA petition was timely filed.
It is well settled that “the timeliness of a PCRA petition is a
jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d 171, 175
(Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition
“including a second or subsequent petition, shall be filed within one year of
the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A
judgment is final “at the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review.” 42
Pa.C.S. § 9545(b)(3).
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Brown’s judgment of sentence became final on October 5, 2009 when
the time to seek review in the Supreme Court of the United States expired. 4
He had one year from that date, that is, until October 5, 2010, to file a
timely PCRA petition. Therefore, his current petition, filed on August 19,
2015 is facially untimely.
Brown’s petition remains untimely unless it alleges and proves a PCRA
time-bar exception.
Courts may consider a PCRA petition filed more than one year after a
judgment of sentence became final only if the petitioner alleges and proves
one of the following three statutory exceptions:
(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.
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4
Brown had 90 days from the date the Supreme Court of Pennsylvania
denied his petition for allowance of appeal to file a petition for a writ of
certiorari with the Supreme Court of the United States. See U.S. S. Ct. R.
13.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii); see Brown, 111 A.3d at 175-76. In
addition, when invoking an exception to the PCRA time bar, the petition
must “be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
Brown attempts to invoke the time-bar exceptions in 42 Pa.C.S. §
9545(b)(1)(i) and (ii), known as the “governmental interference” and “new
facts” exceptions, respectively. However, Brown does not develop any
arguments regarding his invocation of the governmental interference
exception, resulting in waiver of this claim. See Commonwealth v.
Freeman, 128 A.3d 1231, 1249 (Pa.Super. 2015). Moreover, Brown
concedes that he cannot satisfy the new facts exception. See Brown’s Br. at
16 (“As [Brown]’s supplemental Petition failed to satisfy the exception to the
PCRA’s jurisdictional time limitation, the PCRA court was without jurisdiction
to consider it[]s merits.”).
Accordingly, because Brown failed to establish any of the PCRA time-
bar exceptions, we conclude the PCRA court properly dismissed his PCRA
petition. Moreover, because there were no genuine issues of material fact,
we conclude that the PCRA court properly dismissed Brown’s petition without
an evidentiary hearing.
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Order5 affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/1/2017
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5
We do not address Brown’s appeal from the April 14, 2016 order
denying his petition for habeas corpus because the trial court lacked
jurisdiction to entertain the appeal given Brown’s timely filed but not
docketed notice of appeal from the PCRA court’s February 5, 2016 order.
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