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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GREGORY SCOTT,
Appellant No. 1076 EDA 2014
Appeal from the PCRA Order March 7, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0827701-1986
BEFORE: DONOHUE, SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 05, 2015
Gregory Scott (“Appellant”) appeals from the order denying his second
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
A prior panel of this Court summarized the factual and procedural
history of this case as follows:
For several weeks prior to the murder, [A]ppellant and the
victim, Marlin Ware, engaged in several confrontations
culminating on July 7, 1986, with an argument over a crushed
cigarette pack. During the fight that followed, the victim pushed
[A]ppellant and [A]ppellant ran into his girlfriend’s house to arm
himself with a ten inch knife. Appellant ran to the victim’s house
but the victim was not at home. Appellant waved the knife
about and told the victim’s sister that he was going to kill her
brother. Approximately one half hour later, [Appellant,] still
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*
Retired Senior Judge assigned to the Superior Court.
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armed with a knife, confronted Ware, who put down the bottle
he was carrying, and implored [A]ppellant to fight without the
knife. Appellant responded by chasing the victim down the
street until the victim fell. Appellant landed on top of him and
stabbed him in the back. Appellant fled the scene and Ware died
soon after as a result of the stab wound to his lungs and liver.
Following his arrest, [A]ppellant was charged with one
count each of first degree murder, voluntary manslaughter, and
involuntary manslaughter; and two counts of possessing an
instrument of crime. The involuntary manslaughter charge was
nolle prossed. After a bench trial before the Honorable Juanita
Kidd Stout, [A]ppellant was found guilty of first degree murder
and two counts of possessing an instrument of crime. He was
found not guilty of voluntary manslaughter.
Sentence was deferred pending presentence investigation
reports and any post verdict motions. [A]ppellant filed a
boilerplate motion for a new trial and arrest of judgment within
10 days of being sentenced. The trial court denied this motion
and sentenced [A]ppellant to concurrent prison terms of life, for
murder, and two and a half to five years, for possessing an
instrument of crime. Appellant properly appealed the judgment
of sentence within 30 days. The trial court ordered a statement
of matters complained of on appeal in order to address the
issue, pursuant to Pa. R.A.P. 1295(b). The court denied
[A]ppellant’s insufficiency of evidence claim because his own
statements and conduct constituted ample evidence to prove his
guilt beyond a reasonable doubt. The court had noted that
“[Appellant’s] testimony did not rate high on the scale of
credibility and his version of events contradicted the testimony
of the other witnesses who were deemed to be more credible
than [Appellant].” Appellant [did] not properly preserve this
issue for appellate review because he filed boilerplate motions.
Commonwealth v. Taylor, 362 Pa. Super. 408, 642 A.2d 942
(1987). However, even if [A]ppellant’s claim had been properly
preserved for appellate review, we would find that it lacks merit.
Commonwealth v. Scott, 555 PHIL 1988, 560 A.2d 241 (Pa. Super. filed
February 2, 1989) (unpublished memorandum at 1–3) (footnotes omitted).
That panel affirmed Appellant’s judgment of sentence. Id. at 7. The
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Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal. Commonwealth v. Scott, 569 A.2d 1366 (Pa. 1989).
Appellant filed a counseled PCRA petition on September 30, 1992,
raising multiple claims of ineffective assistance of counsel. PCRA Petition,
9/30/92, at ¶¶ 8, 9, 11, 12. Without conducting an evidentiary hearing, the
PCRA court denied Appellant’s petition on April 5, 1995. We affirmed,
Commonwealth v. Scott, 1474 PHL 1995, 678 A.2d 834 (Pa. Super. filed
March 14, 1996), and the Pennsylvania Supreme Court denied Appellant’s
petition for allowance of appeal. Commonwealth v. Scott, 683 A.2d 880
(Pa. 1996).
After unsuccessfully pursuing a habeas corpus petition in the federal
trial and appellate courts, Appellant filed a second counseled PCRA petition
on December 21, 2012, raising claims of ineffective assistance of counsel.
The Commonwealth filed a motion to dismiss on September 17, 2013, to
which Appellant responded on October 15, 2013, and January 15, 2014.
After reviewing the pleadings, the PCRA court sent Appellant notice pursuant
to Pa.R.Crim.P. 907 of its intent to dismiss the petition without a hearing.
Appellant responded on February 27, 2014. The PCRA court dismissed the
petition as time-barred on March 7, 2014. This timely appeal followed.
Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
Appellant presents the following questions for our consideration:
I. Whether the PCRA court erred when it dismissed the PCRA
petition as “time barred” where the petition presented a
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claim that a constitutional violation led to the conviction of
an innocent person?
II. Whether the PCRA is unconstitutional as applied to a
gateway claim of actual innocence?
III. Whether the PCRA court erred in not finding exceptions to
the time bar as identified in the PCRA petition?
IV. Whether the PCRA petition must be considered as a habeas
corpus petition?
V. Whether trial counsel was constitutionally ineffective?
VI. Whether post conviction counsel provided ineffective
assistance?
VII. Whether the conviction was obtained and sentence
imposed in violation of the Fourteenth Amendment right to
due process of law where the facts of the case are
insufficient to prove all the elements of first degree
murder?
Appellant’s Brief at 2 (full capitalization omitted).1
Our standard of review of a trial court order granting or denying relief
under the PCRA requires us to determine whether the decision of the PCRA
court is supported by the evidence of record and is free of legal error.
Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014). “The
PCRA court’s findings will not be disturbed unless there is no support for the
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1
We note that the first two questions presented on appeal were
consolidated in Appellant’s Pa.R.A.P. 1925(b) statement of errors. Rule
1925(b) Statement, 5/1/14, at 1. Moreover, Appellant’s discussion of the
first two questions presented on appeal were consolidated in the argument
section of his brief to this Court. Appellant’s Brief at 8. Thus, we address
them in tandem.
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findings in the certified record.” Id. (quoting Commonwealth v. Lippert,
85 A.3d 1095, 1100 (Pa. Super. 2014)).
Preliminarily, we must determine if we have jurisdiction to entertain
this appeal. Effective January 16, 1996, the PCRA was amended to require a
petitioner to file any PCRA petition within one year of the date the judgment
of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time requirement
is mandatory and jurisdictional in nature, and the court may not ignore it in
order to reach the merits of the petition. Commonwealth v. Hernandez,
79 A.3d 649, 651–652 (Pa. Super. 2013) (citing Commonwealth v.
Murray, 753 A.2d 201, 203 (Pa. 2000)). “Where a petitioner’s judgment of
sentence became final on or before the effective date of the amendment, a
special grace proviso allowed first PCRA petitions to be filed by January 16,
1997.” Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014).
In the case sub judice, Appellant was sentenced on February 3, 1988.
This Court affirmed the judgment of sentence on February 2, 1989, and our
Supreme Court denied allocatur on November 15, 1989. Appellant did not
seek a writ of certiorari in the United States Supreme Court. Therefore,
Appellant’s judgment of sentence became final on January 15, 1990, when
the period for Appellant to file a petition for a writ of certiorari expired. See
42 Pa.C.S. § 9545(b)(3) (“[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
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time for seeking the review.”); former U.S. Sup.Ct.R. 20.1 (instructing that
petition for writ of certiorari is deemed timely when it is filed within 60 days
after denial of allocatur).2 Accordingly, Appellant’s judgment of sentence
became final prior to the effective date of the PCRA amendments.
Appellant’s instant PCRA petition, filed on December 21, 2012, does not
qualify for the grace proviso as it was neither Appellant’s first PCRA petition,
nor was it filed before January 16, 1997. Thus, the instant PCRA petition is
patently untimely.
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. § 9545(b)(1)(i), (ii),
and (iii), is met.3 A petition invoking one of these exceptions must be filed
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2
The sixtieth day after November 15, 1989, fell on Sunday, January 14,
1990. Pursuant to 1 Pa.C.S. § 1908, “[w]henever the last day . . . shall fall
on . . . Sunday . . ., such day shall be omitted from the computation.”
Therefore, Appellant’s judgment of sentence became final on Monday,
January 15, 1990.
3
The exceptions to the timeliness requirement are:
(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
(Footnote Continued Next Page)
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within sixty days of the date the claim could first have been presented. 42
Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
PCRA’s one-year filing deadline, “the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Hernandez, 79 A.3d at 651–652.
In the instant PCRA petition, Appellant purports to raise the third
exception to the PCRA timeliness requirements, i.e., “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. 9544(b)(1)(iii). In support of his petition, Appellant claims that the
decision of the United States Supreme Court in McQuiggin v. Perkins, ___
U.S. ___, 133 S.Ct. 1924 (2013), set forth a newly recognized constitutional
right as contemplated by section 9545(b)(1)(iii) of the PCRA, which would
allow him to seek PCRA relief despite his untimely petition. According to
Appellant, the constitutional right ensures that gateway claims of actual
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(Footnote Continued)
(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), (ii), and (iii).
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innocence “may not be denied based on state procedural rules including
filing deadlines.” Appellant’s Brief at 10. We are constrained to disagree.
As the PCRA court observed:
McQuigg[i]n has no bearing upon the Post-Conviction Relief Act
....
In McQuigg[i]n, the Supreme Court interpreted the Anti-
Terrorism and Effective Death Penalty Act (AEDPA), codified at
28 U.S.C. §§ 2241-2255, not the Constitution of the United
States. The McQuigg[i]n Court held that the AEDPA’s statute of
limitations — set forth in § 2244 — does not bar recovery for a
federal habeas corpus petitioner who presents new evidence
demonstrating that “it is more likely than not that ‘no reasonable
juror’ would have convicted the petitioner.” McQuigg[i]n, 133
S.Ct. at 1926–[19]27. In other words, claims of actual, factual
innocence are not automatically rejected when they fail to satisfy
the AEDPA’s statute of limitations. McQuigg[i]n’s
interpretation of the AEDPA applies to individuals who file
challenges pursuant to the AEDPA — a statute wholly
inapplicable here.
The PCRA is the “exclusive vehicle for obtaining post-
conviction collateral relief.” Commonwealth v. Kutnyak, 781
A.2d 1259, 1261 (Pa.Super. 2001). The PCRA statute itself
establishes that post-conviction relief in the Commonwealth of
Pennsylvania can be achieved only by satisfying the language of
the statute: “The action established in this subchapter shall be
the sole means of obtaining collateral relief and encompasses all
other common law and statutory remedies for the same purpose
that exist when this subchapter takes effect, including habeas
corpus and coram nobis.” 42 Pa.C.S. § 9542. “There is no
alternative basis for relief outside the framework of the PCRA.”
Kutnyak, 781 A.2d at 1261; see also Commonwealth v. Watts,
23 A.3d 980, 983 (Pa. 2011) (“Futhermore, we have observed
that the statute ‘confers no authority upon this Court to fashion
ad hoc equitable exceptions to the PCRA time-bar in addition to
those exceptions expressly delineated in the Act.[’]”).
* * *
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As [Appellant’s] first claim is devoid of an attempt to plead
or prove at least one of the statutory exceptions articulated in §
9545(b)(1), this [c]ourt properly denied this claim without a
hearing.
PCRA Court Opinion, 8/8/14, at 3–4 (emphasis in original).
Upon review, we agree with the PCRA court’s analysis and conclusion
that McQuiggin is inapposite and, therefore, does not afford Appellant relief
under the PCRA. On federal habeas review, the McQuiggin Court did not
create a constitutional right and deem it retroactive. Rather, it applied an
equitable exception to the statute of limitations set forth in the Anti-
Terrorism and Effective Death Penalty Act (“AEDPA”), allowing the petitioner
to overcome the procedural bar by a convincing showing that she committed
no crime. McQuiggin, ___ U.S. at ___, 133 S.Ct. at 1928. Contrarily,
Appellant has filed a petition raising claims that are cognizable exclusively
under the PCRA. Thus, neither habeas review nor an equitable exception to
the jurisdictional time bar is available to Appellant. 42 Pa.C.S. § 9542;
Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011).
In addition to his gateway-claim-of-actual-innocence argument,
Appellant asserts, “There are at least four good reasons for finding
exceptions to the PCRA’s time bar.” Appellant’s Brief at 13. First, Appellant
contends, he is entitled to relief from the time-bar because he filed his
second “PCRA petition within sixty (60) days of the landmark decision of the
United States Supreme Court in McQuiggin v. Perkins,” which is
retroactive. Id. We reject this claim for several reasons. First, we have
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already determined that McQuiggin is inapplicable. Second, McQuiggin
was decided on May 28, 2013, more than sixty days after Appellant filed his
second PCRA petition on December 21, 2012. Third, as the PCRA court
observed, “McQuigg[i]n did not articulate a constitutional right.
Furthermore, the Supreme Court of the United States has never stated that
a constitutional right articulated in McQuigg[i]n applies retroactively.” PCRA
Court Opinion, 8/8/14, at 6 (emphasis in original).
Appellant’s second reason for finding an exception to the PCRA’s time-
bar is “that he was actively misled into waiving the right to a jury trial by the
State’s boilerplate form which falsely indicates he would have the same
rights at a bench trial as he would have had at a jury trial.” Appellant’s Brief
at 14. The PCRA court disposed of this claim as follows:
[Appellant] states that he found out “during the course of
litigating his first PCRA petition” that he did not have the same
rights afforded to him during the course of his bench trial as
would have been afforded had he been tried by a jury. As the
litigation of [Appellant’s] first PCRA petition concluded in 199[6],
[Appellant] failed to raise this claim within 60 days of the date
that the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2). Accordingly, this claim fails.
PCRA Court Opinion, 8/8/14, at 5 n.10.
We agree. Having filed the instant petition on December 21, 2012,
Appellant waited sixteen years after resolution of his first PCRA petition to
raise this issue. Thus, he failed to plead and prove one of the time-bar
exceptions within sixty days of the date the claim could first have been
presented. 42 Pa.C.S. § 9545(b)(2).
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In support of his third reason for applying a time-bar exception to his
PCRA petition, Appellant proffers Martinez v. Ryan, ___ U.S. ___, 132
S.Ct. 1309 (2012). According to Appellant, Martinez “held for the first time
that a prisoner has the equitable right to effective assistance of counsel in
post conviction proceedings.” Appellant’s Brief at 15. The PCRA court
rejected this claim as follows:
Although [Appellant’s] counsel fails to specifically state that the
Martinez decision is a new retroactive constitutional right
satisfying § 9545(b)(1)(iii), that is the only provision which could
conceivably apply. Martinez does not articulate a constitutional
right; it only concerns the AEDPA. Martinez, 132 S.Ct. at 1319
(“This is but one of the differences between a constitutional
ruling and the equitable ruling of this case. A constitutional
ruling would provide defendants a freestanding constitutional
claim to raise.”). As this claim does not meet the requirements
of §[] 9545(b)(1)(i)-(iii), it also fails.
PCRA Court Opinion, 8/8/14, at 5 n.10. We agree, albeit on a slightly
different basis.
The Martinez Court acknowledged that the initial-review collateral
proceeding is a prisoner’s “one and only appeal” as to an ineffective-
assistance claim. Martinez, ___ U.S. ___, 132 S.Ct. at 1315 (citing
Coleman v. Thompson, 501 U.S. 722, 753–754 (1991)). According to the
Supreme Court, that fact “may justify an exception to the constitutional rule
that there is no right to counsel in collateral proceedings.” Id. However,
the Martinez Court expressly declined to address this constitutional issue:
“This is not the case, however, to resolve whether that exception exists as a
constitutional matter.” Id. Rather, the Martinez Court examined the
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precise issue of “whether ineffective assistance in an initial-review collateral
proceeding on a claim of ineffective assistance at trial may provide cause for
a procedural default in a federal habeas proceeding.” Id. Ultimately, the
Martinez Court did not create a constitutional right; it handed down an
equitable ruling, “permit[ting] States a variety of systems for appointing
counsel in initial-review collateral proceedings.” Id. at 1319.
Appellant’s final reason for applying a time-bar exception is because
Pennsylvania “does not follow the Strickland[4] standard for claims of
ineffective assistance of counsel.” Appellant’s Brief at 16. Again, we rely on
the PCRA court’s cogent analysis in disposing of this claim:
[Appellant] bases his argument that our courts do not follow the
Strickland standard on language from Commonwealth v.
Feliciano, 69 A.3d 1270 (Pa.Super. 2013). In Feliciano, the
Superior Court stated, “Our Supreme Court has added one
additional component to the Strickland test, requiring the
defendant also prove that the underlying claim has arguable
merit.” Id. at 1276 n.3.
Whereas Strickland explained the ineffective assistance of
counsel test using two prongs, our Commonwealth uses three
prongs to apply the “identical rule of law.” Commonwealth v.
Kimball, 724 A.2d 326, 332 (Pa. 1999); Commonwealth v.
Washington, 927 A.2d 586, 594 n.8 (Pa. 2007) (“The Third
Circuit has likewise recognized that Pennsylvania’s standard for
assessing claims of counsel ineffectiveness is materially identical
to Strickland. Although the Pennsylvania test for ineffectiveness
is the same as Strickland’s two-part performance and prejudice
standard, in application this Court has characterized the test as
tripartite, by dividing the performance element into two distinct
parts, i.e. arguable merit and lack of reasonable basis.”);
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4
Strickland v. Washington, 466 U.S. 668 (1984).
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Commonwealth v. Paddy, 15 A.3d 431, 468 n.23 (Pa. 2011)
(“The Strickland test is materially identical to Pennsylvania’s
tripartite test for ineffective assistance of counsel.”). As our
Commonwealth’s standard for ineffective assistance of counsel is
the same as the standard articulated in Strickland, the
underlying basis of [Appellant’s] claim is spurious.
PCRA Court Opinion, 8/8/14, at 5 n.10. We agree, concluding no further
analysis is required.
Appellant’s fourth question presented attempts to circumvent the PCRA
time-bar by claiming, “If the PCRA does not provide a remedy that is the
functional equivalent of habeas corpus, then the PCRA court was required by
federal constitutional law to apply the equitable remedy of habeas corpus.”
Appellant’s Brief at 17.5 The trial court disagreed:
[Appellant] provided no citation for that proposition. . . .
As discussed supra, the action established by the PCRA is
“the sole means of obtaining collateral relief and encompasses all
other common law and statutory remedies for the same purpose
that exist when this subchapter takes effect, including habeas
corpus and coram nobis.” 42 Pa.C.S. § 9542. Per the plain
language of the PCRA, habeas corpus provides an independent
basis for relief only when there is no remedy available under the
PCRA. Commonwealth v. Fahy, 737 A.3d 214, 223–[2]24 (Pa.
1999). If a claim could be advanced under the PCRA, the writ of
habeas corpus will not lie: “The PCRA provides a remedy for
certain types of claims. 42 Pa.C.S. § 9543(a). Simply because a
petition is not considered because of previous litigation or waiver
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5
Additionally, Appellant asserts “there is new, reliable evidence of actual
innocence,” which required the PCRA court “to hold a hearing, determine the
facts, and make a decision whether to grant or deny habeas corpus.”
Appellant’s Brief at 17. Notably, however, Appellant fails to identify any
new, reliable evidence of actual innocence.
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does not alter the PCRA’s coverage of such claims or make
habeas corpus an alternate basis for relief.” Id. at 224.
The PCRA provides a remedy for claims alleging counsel’s
ineffectiveness. 42 Pa.C.S §[] 9543 (a)(2)(i)-(ii). Section 9542
requires that allegations of counsel’s ineffectiveness must be
“considered exclusively within the context of the PCRA.”
Commonwealth v. Chester, 733 A.2d 1242, 1251 (Pa. 1999),
abrogated on other grounds by Commonwealth v. Grant, 813
A.2d 726 (Pa. 2002). Whether an allegation of counsel’s
ineffectiveness fails because it was previously litigated under
§ 9544(a), waived under § 9544(b), or untimely under §
9545(b) is immaterial; “the writ of habeas corpus will not lie
when other avenues of relief are available.” Id. at 1250, citing
Commonwealth ex rel. Adams v. Banmiller, 137 A.2d 508 (Pa.
1958).
[Appellant’s] underlying claims all concerned counsel’s
ineffectiveness. As the PCRA offers an avenue of relief for claims
concerning counsel’s ineffectiveness, the writ of habeas corpus is
not available to [Appellant]. Thus, this claim fails.
PCRA Court Opinion, 8/8/14, at 6–7 (emphases in original). Again, we agree
with the PCRA court’s analysis and disposition of this issue and conclude no
further comment is necessary.
Appellant’s fifth issue raises allegations of trial counsel’s ineffective
assistance in: (1) failing to file a Rule 600 motion for dismissal; (2) failing to
provide reasonable advice about the consequences of waiving one’s right to
a jury trial; and (3) failing to conduct a reasonable investigation. Appellant’s
Brief at 17–21. Similarly, Appellant’s sixth issue raises allegations of PCRA
counsel’s ineffectiveness in “failing to conduct a reasonable investigation,
and present the issues contained in the PCRA petition that is the subject of
this appeal.” Appellant’s Brief at 22.
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Having determined that it lacked jurisdiction because Appellant’s
petition was untimely, the PCRA court declined to address the substantive
allegations of these ineffective-assistance-of-counsel claims. PCRA Court
Opinion, 8/8/14, at 2. Because Appellant’s petition was untimely, we lack
the authority to address the merits of its substantive claims. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007)
(“[J]urisdictional time limits go to a court’s right or competency to adjudicate
a controversy.”).
Appellant’s seventh and final question challenges the sufficiency of the
evidence supporting his conviction of murder of the first degree. Appellant’s
Brief at 22. As determined above, we do not have authority to review the
merits of this issue. Bennett, 930 A.2d at 1267. Even if we did, we would
not address this claim because it was previously litigated and decided
against Appellant on direct appeal. Scott, 555 PHIL 1988 (unpublished
memorandum at 3–5); 42 Pa.C.S. § 9544(a).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2015
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