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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALEX LEROY LOVEJOY,
Appellant No. 1356 MDA 2014
Appeal from the PCRA Order Entered June 16, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003389-2001
BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 25, 2015
Appellant, Alex Leroy Lovejoy, appeals pro se from the post-conviction
court’s June 16, 2014 order denying as untimely his petition for relief filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9451-9546.
We affirm.
The PCRA court set forth the history of Appellant’s case as follows:
On October 9, 2002, a jury found [A]ppellant guilty of
Third-degree Murder, Aggravated Assault, Criminal Conspiracy,
and Recklessly Endangering Another Person. The charges
stem[med] from a shooting on August 17, 2001, which resulted
in the death of Marques Phelps. On December 13, 2002, this
court sentenced Appellant to an aggregate term of incarceration
of not less than twenty-three (23) years nor more than forty-six
(46) years in a state correctional institution. Upon appeal,
Appellant’s conviction was affirmed by the Superior Court on
June 3, 2004. [Commonwealth v. Lovejoy, 858 A.2d 1277
(Pa. Super. 2004) (unpublished memorandum). Appellant did
not file a petition for allowance of appeal with our Supreme
Court.]
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Subsequently, Appellant filed a petition under the …
[]PCRA[] in 2004 for which counsel was appointed. After an
appeal of this [c]ourt’s dismissal of the petition without a hearing
and remand by the Superior Court for further proceedings,
[Appellant’s] PCRA petition was dismissed and the dismissal was
affirmed by the Superior Court on May 2, 2008.
[Commonwealth v. Lovejoy, 953 A.2d 833 (Pa. Super. 2008)
(unpublished memorandum).] The Pennsylvania Supreme Court
denied his petition for allowance of appeal on December 31,
2008. [Commonwealth v. Lovejoy, 962 A.2d 1196 (Pa.
2008).]
On April 28, 2014, Appellant filed another [pro se] PCRA
petition which is the subject of the instant appeal. Upon
consideration of Appellant’s petition and the Commonwealth’s
response thereto, and after conducting an independent review of
the record, this [c]ourt determined that it is without jurisdiction
to consider [] Appellant’s claims[,] as they have been untimely
presented. Therefore, Appellant’s successive PCRA petition was
dismissed without a hearing.
PCRA Court Opinion (PCO), 9/5/14, at 1-2.
Appellant filed a timely pro se notice of appeal, as well as a timely,
court ordered Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. Herein, Appellant raises the following four issues for our review,
which we reproduce verbatim:
I. WHETHER THE PCRA COURT ERRED IN DISMISSING THE PCRA
PETITION WITHOUT A HEARING TO DETERMINE WHETHER OR
NOT PETITIONER’S CONVICTION WAS OBTAINED SOLELY ON
THE PROSECUTOR’S INFRINGEMENT OF PETITIONER’S FIFTH
AMENDMENT RIGHT IN WHICH VIOLATED PETITIONER’S DUE
PROCESS, THE FOURTEENTH AMENDMENT’S EQUAL
PROTECTION, AND PETITIONER’S SIXTH AMENDMENT?
II. WHETHER THE PCRA COURT’S DISMISSAL OF PCRA PETITION
VIOLATED THE PETITIONER’S SIXTH AMENDMENT RIGHT,
FOURTEENTH AMENDMENT RIGHT AND FIFTH AMENDMENT
RIGHT, DEPRIVING PETITIONER OF LIFE AND LIBERTY WITHOUT
DUE PROCESS OF LAW?
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III. WHETHER THE PCRA COURT ERRED IN DENYING
PETITIONER A HEARING WHEN THE IMPOSITION OF SENTENCE
GREATER THAN THE LAWFUL MAXIMUM IS IN QUESTION AND
WHETHER THE PCRA COURT’S DISMISSAL VIOLATED THE
CONSTITUTION OF THIS COMMONWEALTH OR THE
CONSTITUTION OF THE UNITED STATES WHICH, IN THE
CIRCUMSTANCES OF THE PARTICULAR CASE, SO UNDERMINED
THE TRUTH-DETERMINING PROCESS THAT NO RELIABLE
ADJUDICATION OF GUILT OR INNOCENCE COULD HAVE TAKEN
PLACE?
IV. WHETHER THE PCRA COURT ERRED IN DISMISSING
PETITIONER’S PCRA PETITION WITHOUT A HEARING, DENYING
THE PETITIONER OF HIS FIFTH AMENDMENT RIGHT NOT TO BE
DEPRIVED OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE
PROCESS, HIS FOURTEENTH AMENDMENT RIGHT NOT TO BE
DEPRIVED OF LIFE, LIBERTY OR PROPERTY, WITHOUT DUE
PROCESS OF LAW: NOR BE DENIED THE EQUAL PROTECTION OF
THE LAW?
Appellant’s Brief at 4.
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.
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); Commonwealth v.
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Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding the Superior
Court lacks jurisdiction to reach merits of an appeal from an untimely PCRA
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 exceptions set forth
in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant
part:
(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
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 July 3, 2004,
at the expiration of the thirty-day period for seeking review with the
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Pennsylvania Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (directing that
judgment of 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
that “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”). Therefore, Appellant had until July 3, 2005,
to file a timely petition. Consequently, his April 28, 2014 pro se petition is
facially untimely and, for this Court to have jurisdiction to review the merits
thereof, Appellant must prove that he meets one of the exceptions to the
timeliness requirements set forth in section 9545(b)(1)(i)-(iii).
The arguments Appellant presents in his first three issues can be
summarized as follows. First, Appellant contends that his “conviction is
unlawful” because, during trial, the prosecutor improperly commented on his
Fifth Amendment right to remain silent. Appellant’s Brief at 14. Second,
Appellant contends that his trial counsel was ineffective for failing “to
present impeachment evidence that would have acquitted [Appellant] of this
crime.” Id. at 15. Third, Appellant maintains that his sentence is illegal in
several regards.
Initially, Appellant does not attempt to allege, let alone prove, that any
of these claims meets one of the above-stated exceptions to the PCRA’s
timeliness requirement. Moreover, it is apparent that his first claim is
waived because it could have been raised on direct appeal. See 42 Pa.C.S.
§ 9543(a)(3) (mandating that, to be eligible for PCRA relief, the petitioner
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must prove “[t]hat the allegation of error has not been previously litigated or
waived”); 42 Pa.C.S. § 9544(b) (directing that “an issue is waived if the
petitioner could have raised it but failed to do so before trial, at trial, during
unitary review, on appeal or in a prior state post[-]conviction proceeding”).
Appellant’s second and third issues, involving claims of ineffective assistance
of counsel and an illegal sentence, also do not satisfy - in and of themselves
- any exception to the PCRA time-bar. See Commonwealth v. Wharton,
886 A.2d 1120, 1127 (Pa. 2005) (“It is well settled that allegations of
ineffective assistance of counsel will not overcome the jurisdictional
timeliness requirements of the PCRA.”) (citations omitted); Commonwealth
v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (holding that claims challenging the
legality of sentence are subject to review within PCRA, but must first satisfy
the PCRA’s time limits).
In Appellant’s fourth issue, he alleges “[t]he improper obstruction by
government officials of [his] right of appeal where a meritorious appealable
issues exist[s]….” Appellant’s Brief at 24. From what we can ascertain from
Appellant’s confusing argument, he essentially contends that he, and his
prior attorneys, have consistently been denied access to the record and
transcripts in this case. Our review of Appellant’s pro se petition reveals
that he did not assert this claim therein. Consequently, it is waived. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”); Commonwealth v. Rainey,
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928 A.2d 215, 226 (Pa. 2007) (holding that claims not raised in the PCRA
petition are waived).
However, Appellant also argues in his fourth issue “that the PCRA
court has violated [his] constitutional right to due process of law, and equal
protection of the laws” by denying Appellant’s request for certain
documents. Appellant’s Brief at 24. Specifically, in his pro se PCRA petition,
Appellant sought “[a]ny and all legal documents in the [Commonwealth’s]
possession, such as, all statements that were made before, during and after
trial concerning [Appellant’s] case…[,] [t]he complete copy of the
preliminary hearing transcript, complete copy of the testimonies given at the
grand jury [proceeding], and for the production of any and all finger print
[sic] analysis performed on the bullet casings.” PCRA Petition, 4/28/14, at
6.
Essentially, this portion of Appellant’s PCRA petition constituted a
discovery request. Because we agree with the PCRA court that Appellant’s
petition is untimely and he has failed to satisfy any exception set forth in
section 9545(b)(1)(i)-(iii), the PCRA court lacked jurisdiction to issue a
discovery order in this case. See Commonwealth v. Frey, 41 A.3d 605,
610 (Pa. Super. 2012) (holding that if a PCRA petition is untimely, the court
lacks jurisdiction to issue a discovery order). Nevertheless, we also note
that Pennsylvania Rule of Criminal Procedure 902(E)(1) states that “no
discovery shall be permitted at any stage of the [PCRA] proceedings, except
upon leave of court after a showing of exceptional circumstances.”
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Pa.R.Crim.P. 902(E)(1) (emphasis added). Appellant did not state in his
PCRA petition what ‘exceptional circumstances’ necessitated discovery of the
requested documents. Therefore, even if the PCRA court had had
jurisdiction to grant Appellant’s discovery request, we would conclude that it
did not err by declining to do so.
Order affirmed.
Judge Ott joins this memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2015
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