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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CLIFTON PARKER,
Appellant No. 2432 EDA 2014
Appeal from the PCRA Order August 4, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0608821-2001
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 21, 2015
Appellant, Clifton Parker, appeals pro se from the order dismissing his
second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
We summarize the procedural history of this case as follows. On
March 11, 2004, a jury convicted Appellant of one count each of second-
degree murder, attempted murder, aggravated assault, robbery, and theft
by unlawful taking, and three counts of criminal conspiracy for his
participation in a crime spree in Philadelphia, Pennsylvania on April 8, 2001.1
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2502(b), 901, 2702, 3701, 3921, and 903, respectively.
Appellant was charged under three separate criminal actions that were
consolidated for trial.
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On May 3, 2004, the court sentenced Appellant to the mandatory term of life
imprisonment without parole followed by an aggregate term of not less than
twenty nor more than forty years’ incarceration.
Appellant timely filed a pro se direct appeal on May 6, 2004.
Appellant’s counsel filed a post-sentence motion on May 11, 2004, which the
sentencing court dismissed as moot on July 28, 2004 because of the pending
pro se appeal. The trial court appointed new counsel on May 21, 2004. On
May 5, 2005, this Court affirmed the judgment of sentence. (See
Commonwealth v. Parker, 880 A.2d 10 (Pa. Super. 2005) (unpublished
memorandum)). The Pennsylvania Supreme Court denied leave to appeal
on December 29, 2005. (See Commonwealth v. Parker, 892 A.2d 822
(Pa. 2005)).
On August 31, 2006, Appellant timely filed his first pro se PCRA
petition positing claims of ineffective assistance of counsel. The PCRA court
appointed counsel on November 21, 2006. Initially, on May 4, 2007, counsel
filed a Turner/Finley no merit letter.2 However, counsel filed an amended
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2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Counsel only
addressed the issue of the failure to call alleged alibi witnesses.
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PCRA petition on June 25, 2007.3 The PCRA court held a hearing and
ultimately denied relief on November 1, 2007.
Appellant timely appealed on November 5, 2007. On April 14, 2010,
this Court affirmed the PCRA court’s denial of relief. (See Commonwealth
v. Parker, No. 2925 EDA 2007 (Pa. Super. filed April 14, 2010)
(unpublished memorandum)). The Pennsylvania Supreme Court denied
Appellant’s pro se petition for allowance of appeal on October 5, 2010. (See
Commonwealth v. Parker, 8 A.3d 343 (Pa. 2010)).
On July 19, 2012, Appellant filed a second pro se PCRA petition and a
supplement on August 15, 2012.4 The PCRA court notified Appellant of its
intention to dismiss his PCRA petition without a hearing pursuant to
Pennsylvania Rule of Criminal Procedure 907 on July 7, 2014. See
Pa.R.Crim.P. 907. Appellant filed a pro se response on July 22, 2014. The
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3
Appellant’s counseled PCRA petition incorporated by reference the claims
made in his pro se petition and raised the issue of whether a new trial was
warranted based on newly discovered exculpatory evidence.
4
We note that Appellant titled these filings as a Writ of Habeas Corpus. The
PCRA court found that “[t]he [PCRA] is the exclusive vehicle for obtaining
post-conviction relief and this is true regardless of the manner in which the
petition is titled. Therefore, [the PCRA] court will treat the instant motion as
a PCRA [petition].” (PCRA Court Opinion, 8/04/14, at 1 n.1) (citation and
quotation marks omitted); see Commonwealth v. Taylor, 65 A.3d 462,
465 (Pa. Super. 2013). We agree and will treat the filings as Appellant’s
second pro se PCRA petition.
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PCRA court dismissed the petition as untimely on August 4, 2014 with an
accompanying opinion. Appellant timely appealed on August 20, 2014.5
Appellant raises the following issue for our review: “Whether Appellant
is entitled to a remand to the PCRA court for an evidentiary hearing as the
findings of the PCRA court are frought [sic] with error and have deviated
from the legal standard?” (Appellant’s Brief, at 3) (most capitalization
omitted).
Our standard of review is well-settled:
[A]n appellate court reviews the PCRA court’s findings of
fact to determine whether they are supported by the record, and
reviews its conclusions of law to determine whether they are free
from legal error. The 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 prevailing party at the trial level.
Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)
(citation omitted).
We also note that a PCRA petitioner is not automatically
entitled to an evidentiary hearing. We review the PCRA court’s
decision dismissing a petition without a hearing for an abuse of
discretion.
[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
PCRA court’s discretion to decline to hold a hearing if
the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is
the responsibility of the reviewing court on appeal to
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5
The PCRA court did not order Appellant to file a Rule 1925(b) statement. It
entered its Rule 1925(a) opinion on September 8, 2014 incorporating its
August 4, 2014 opinion. See Pa.R.A.P. 1925.
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examine each issue raised in the PCRA petition in
light of the record certified before it in order to
determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
* * *
Before we may address the merits of Appellant’s
arguments, we must first consider the timeliness of Appellant’s
PCRA petition because it implicates the jurisdiction of this Court
and the PCRA court. Pennsylvania law makes clear that when a
PCRA petition is untimely, neither this Court nor the trial court
has jurisdiction over the petition. The period for filing a PCRA
petition is not subject to the doctrine of equitable tolling;
instead, the time for filing a PCRA petition can be extended only
if the PCRA permits it to be extended[.] This is to accord finality
to the collateral review process. However, an untimely petition
may be received when the petition alleges, and the petitioner
proves, that any of the three limited exceptions to the time for
filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii),
and (iii), are met.
Commonwealth v. Miller, 102 A.3d 988, 992-93 (Pa. Super. 2014)
(citations and quotation marks omitted).
Section 9545 of the PCRA 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;
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(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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the
claim could have been presented.
42 Pa.C.S.A. § 9545(b)(1) and (2).
Here, Appellant’s judgment of sentence became final on March 29,
2006 when the time to seek discretionary review in the United States
Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Therefore, in
order to comply with the filing requirements of the PCRA, Appellant’s petition
had to be filed by March 29, 2007. Because the underlying petition was filed
on July 19, 2012, it is facially untimely and the PCRA court lacked
jurisdiction to review it unless Appellant pleaded and proved one of the
statutory exceptions to the time bar under 42 Pa.C.S.A. § 9545(b)(1).
Appellant asserts that the PCRA court erred in dismissing his petition
as untimely because his claim fell within the newly discovered facts
exception to the time bar. Specifically, he argues that “[i]t was only after
this [s]cience [of brain development not being complete until a person is in
his or her mid-twenties] was revealed [in Miller v. Alabama, 132 S.Ct.
2455 (2012),] did Appellant learn its relavance [sic] to him.” (Appellant’s
Brief, at 9). He further argues that this new science “could have been
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utilized to support mitigation and/or . . . undermine [his] responsibility . . .
[and the counsel’s failure to advance the claim was] [in]effective assistance
of counsel . . . .” (Id. at 11). We disagree.
Our Supreme Court has held that “subsequent decisional
law does not amount to a new ‘fact’ under section 9545(b)(1)(ii)
of the PCRA.” As the Court noted:
Law is a principle; fact is an event. Law is
conceived; fact is actual. Law is a rule of duty; fact
is that which has been according to or in
contravention of the rule. Put another way, a “fact,”
as distinguished from the “law,” is that which is to be
presumed or proved to be or not to be for the
purpose of applying or refusing to apply a rule of
law. Consistent with these definitions, an in-court
ruling or published judicial opinion is law, for it is
simply the embodiment of abstract principles applied
to actual events. The events that prompted the
analysis, which must be established by presumption
or evidence, are regarded as fact.
Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. 2012) (quoting
Commonwealth v. Watts, 23 A.3d 980, 986-87 (Pa. 2011)). Accordingly,
Miller v. Alabama does not provide Appellant relief because the science
mentioned in subsequent decisional law is not a new fact under the PCRA.
See id.
Accordingly, Appellant has failed to plead and prove an exception to
the PCRA time bar; the PCRA court properly dismissed Appellant’s petition as
untimely and we lack jurisdiction to consider the merits of his petition. See
Miller, supra at 992-93.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2015
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