Com. v. Brown, L.

J-S40028-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

LEROY BROWN, :

:

Appellant : No. 827 EDA 2023

Appeal from the PCRA Order Entered March 6, 2023

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0827351-1992

BEFORE: NICHOLS, J., SULLIVAN, J., and COLINS, J.*

MEMORANDUM BY SULLIVAN, J.: FILED FEBRUARY 12, 2024

Leroy Brown (“Brown”) appeals pro se from the order dismissing as

untimely his serial petition filed pursuant to the Post Conviction Relief Act

(PCRA).1 We affirm.

This Court previously summarized the procedural history of this case as

follows:

[Brown] was found guilty but mentally ill of first[-]degree murder

and possessing an instrument of crime at the conclusion of a

nonjury trial on May 13, 1993, and sentenced to concurrent terms

of life and [two and one-half to five years of] incarceration. His

direct appeal was dismissed for failure to file a brief and he was

subsequently granted the right to file a nunc pro tunc appeal in

his timely first PCRA proceeding, the court having found that his

counsel rendered ineffective assistance for that failure. In that

appeal, [the Superior] Court affirmed the judgment of sentence

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546.

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on December 31, 1997, holding that the verdict was supported by

the weight and sufficiency of the evidence and that [Brown]

knowingly and intelligently waived his right to a jury trial. [Brown]

did not seek further review. On February 17, 1999, he filed his

second PCRA petition pro se, reiterating the weight and sufficiency

and involuntary jury waiver claims, and claiming ineffective

assistance of counsel in failing to request an appeal with the

Supreme Court of Pennsylvania. Counsel was appointed who filed

a no-merit brief stating that all the underlying issues [Brown]

wished to raise were previously adjudicated and, in view of all []

the evidence and the trial and [the Superior] Courts’ opinions in

his nunc pro tunc appeal, any attempt to further appeal would

have been frivolous. . . . On October 16, 2000, [the PCRA] court

agreed and dismissed the petition as lacking merit. [Brown] did

not file an appeal, but instead, on December 14, 2000, filed a third

[pro se] PCRA petition alleging that his PCRA counsel rendered

ineffective assistance in filing the [no-merit letter], governmental

obstruction in that he was under the influence of medication

during his trial, and previous counsel’s failure to file a brief in his

direct appeal. . . . The [PCRA] court dismissed the petition as

untimely on January 3, 2001, and again no appeal was filed.

[Brown] subsequently filed additional PCRA petitions, and

filed [a] petition entitled, “Petition for Habeas Corpus Relief,” on

August 31, 2017.

Commonwealth v. Brown, 2018 WL 4844708, at *1 (Pa. Super. Oct. 5,

2018) (unpublished memorandum) (citation, indentations, and footnote

omitted). This Court affirmed the dismissal of Brown’s 2017 petition, and

Brown did not seek leave to appeal to the Pennsylvania Supreme Court. See

id.

On July 7, 2021, Brown filed the instant, serial PCRA petition. The PCRA

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

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without a hearing, to which Brown filed a pro se response. The court

subsequently dismissed the petition. Brown timely appealed.2

On appeal, Brown raises the following issues pro se:

Whether a court may reconsider a final order when the prior order

has been procured by fraud?

Brown’s Brief at 3 (unnecessary capitalization omitted).3

We review the dismissal of a PCRA petition to determine “whether the

PCRA court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most favorable

to the party who prevailed in the PCRA court proceeding.” Id.

PCRA petitions, including second and subsequent petitions, must be filed

within one year of the date an appellant’s judgment of sentence becomes final.

____________________________________________

2 The PCRA court did not order Brown to file a concise statement of errors

complained of on appeal. See Pa.R.A.P. 1925. The PCRA court issued an

opinion.

3 Confusingly, Brown titled his current petition as a petition to reconsider the

dismissal of his 2000 PCRA petition pursuant to 42 Pa.C.S.A. § 5505. 42

Pa.C.S.A. § 5505 provides, “[e]xcept as otherwise provided or prescribed by

law, a court upon notice to the parties may modify or rescind any order within

30 days after its entry, notwithstanding the prior termination of any term of

court, if no appeal from such order has been taken or allowed.” Even

assuming, arguendo, 42 Pa.C.S.A. § 5505 applies to PCRA petitions, the PCRA

court issued the order in question on October 16, 2000. Thus, the plain

language of the statute demonstrates it can no longer be modified or

rescinded.

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See 42 Pa.C.S.A. § 9545(b)(1). “[A] judgment becomes 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.A. § 9545(b)(3). The

timeliness of a PCRA petition is jurisdictional. If a PCRA petition is untimely,

a court lacks jurisdiction over it. See Commonwealth v. Wharton, 886 A.2d

1120, 1124 (Pa. 2005); see also Commonwealth v. Callahan, 101 A.3d

118, 121 (Pa. Super. 2014) (courts do not have jurisdiction over an untimely

PCRA petition). “Without jurisdiction, we simply do not have the legal

authority to address the substantive claims [in a PCRA petition].”

Commonwealth v. Lewis, 63 A.3d 1274, 1281 (Pa. Super. 2013).

Brown’s judgment of sentence became final on January 30, 1998, thirty

days after this Court affirmed the judgment of sentence and Brown failed to

file a timely petition for leave to appeal with the Pennsylvania Supreme Court.

See Pa.R.A.P. 1113(a); 42 Pa.C.S.A. § 9545(b)(3). He did not file the instant

petition until July 7, 2021. Thus, the petition is untimely. A petitioner may

overcome the time-bar if he pleads and proves one of the three statutory

exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1). See Commonwealth v.

Spotz, 171 A.3d 675, 678 (Pa. 2017). The three exceptions are: “(1)

interference by government officials in the presentation of the claim; (2) newly

discovered facts; and (3) an after-recognized constitutional right.”

Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012); see

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also 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition invoking an exception must

be filed within one year of the date the claim could have been presented. 42

Pa.C.S.A. § 9545(b)(2). If a petitioner fails to invoke a valid exception, the

court is without jurisdiction to review the petition or provide relief. See

Spotz, 171 A.3d at 676.

Critically, Brown has not pled or proven an exception to the PCRA’s

timeliness requirement. See 42 Pa.C.S.A. § 9545(b)(1). On appeal, he does

not acknowledge his petition is untimely, does not mention the timeliness

requirements, and does not argue he meets any of the exceptions. See

Brown’s Brief at 7-12.

The PCRA court held:

Instantly, [Brown] failed to acknowledge, let alone meaningfully

address the PCRA’s statutory time-bar. Instead, he ignored the

time-bar and solely discussed his substantive claims. This kind of

presentation fell woefully short of [Brown’s] obligation to explain

how one of the three, 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii)[] statutory

exceptions applied. This omission was fatal to [Brown’s] attempt

to invoke an exception.

PCRA Court Opinion, 3/8/23, at 2-3.

We agree with the PCRA court. Brown’s serial PCRA petition is untimely,

and like the PCRA court, we lack jurisdiction and “legal authority to address

[any] substantive claims.” Lewis, 63 A.3d at 1281.

Order affirmed.

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Date: 2/12/2024

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