J-S35044-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GREGORY SAMUELS,
Appellant No. 2619 EDA 2014
Appeal from the PCRA Order August 25, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0609081-2000
BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JUNE 23, 2015
Appellant, Gregory Samuels, 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.
This Court previously summarized the factual and procedural history of
this case as follows:
On September 6, 1999, Appellant attended a
Philadelphia neighborhood block party with his
girlfriend, Bathsheba Woodall (Woodall). After the
party, the couple began arguing about each person’s
relationships with former girlfriends and boyfriends.
The argument culminated in Appellant shooting
Woodall five times while she was seated in her car.
Appellant then pushed Woodall’s body from the
driver’s seat, made several telephone calls, and
drove Woodall’s car away. Appellant ultimately
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*
Retired Senior Judge assigned to the Superior Court.
J-S35044-15
drove to the Philadelphia airport where he moved
Woodall’s body to the trunk of her car and boarded a
flight to Jamaica. U.S. Marshalls apprehended
Appellant several months later. Following the denial
of Appellant’s suppression motion, Appellant was
tried before a jury in Philadelphia County . . . .
(Commonwealth v. Samuels, No. 1230 EDA 2001,
unpublished memorandum at *1-2 (Pa. Super. filed Nov. 14,
2002)). Following the jury [convictions of first-degree murder
and possession of an instrument of crime1] on March 23, 2001,
the trial court immediately sentenced Appellant to life
imprisonment on the first-degree murder conviction and a
consecutive term of [not less than] two and one half (2½) [nor
more than] five (5) years’ incarceration for possessing an
instrument of crime. On April 30, 2001, the trial court granted
Appellant leave to file a notice of appeal nunc pro tunc, which
Appellant filed on May 1, 2001. On November 14, 2002[,] this
Court affirmed the judgment of sentence[.] (See id.) [O]n
November 12, 2004, [our] Supreme Court denied allowance of
appeal. (See Commonwealth v. Samuels, 863 A.2d 1145 (Pa.
2004)).
While his petition for allowance of appeal was still pending
before [our] Supreme Court, Appellant filed a pro se PCRA
petition on November 7, 2003. On December 18, 2003, the
court appointed PCRA counsel. On September 23, 2004, PCRA
counsel petitioned the court for leave to withdraw and filed a
“no-merit” letter pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc). Following its independent
review, the PCRA court notified Appellant of its intent to dismiss
his PCRA petition without a hearing pursuant to Pa.R.Crim.P.
907. Appellant did not file a response. On November 23, 2004,
the PCRA court dismissed Appellant’s PCRA petition and granted
PCRA counsel leave to withdraw. . . .
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1
18 Pa.C.S.A. §§ 2502(a) and 907, respectively.
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(Commonwealth v. Samuels, No. 95 EDA 2005, unpublished
memorandum at *1-3 (Pa. Super. filed May. 3, 2006)) (footnotes omitted
and some citation formatting provided).
Appellant timely filed a pro se appeal on December 15, 2004. On May
3, 2006, this Court affirmed the PCRA court’s denial of relief. (See id. at
*15).2 Appellant did not file a petition for allowance of appeal with our
Supreme Court.
On April 23, 2012, Appellant filed a second pro se PCRA petition, an
amended petition on August 28, 2013, and a supplement on September 30,
2013. 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 March 28, 2014. See Pa.R.Crim.P. 907. Appellant filed a
pro se response on April 4, 2014. The PCRA court dismissed the petition as
untimely on August 25, 2014. Appellant timely appealed on September 9,
2014.3
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2
This Court acknowledged that Appellant’s PCRA petition was premature
because “it was filed while his petition for allowance of appeal was still
pending before [our] Supreme Court.” (Samuels, No. 95 EDA 2005, at *3,
n.3) (citation omitted). However, because “the PCRA court did not finally
rule on Appellant’s PCRA petition until after [our] Supreme Court denied his
petition for allowance of appeal . . . [his] PCRA petition [was deemed] as . . .
[being] filed . . . the day after [our] Supreme Court denied allowance of
appeal.” (Id.).
3
The PCRA court did not order Appellant to file a Rule 1925(b) statement. It
entered its Rule 1925(a) opinion on December 19, 2014. See Pa.R.A.P.
1925.
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Appellant raises the following issues for our review:
1). Did the (PCRA) court err, and commit reversible error
when it dismissed [Appellant’s] petition without the benefit of
[an] evidentiary hearing to develop the credibility of the
presented statement(s) that led to the filing of the immediate
petition, and therefore, being able to render a fully informed
opinion?
2). Was Appellant[] denied effective assistance of counsel at a
critical stage, that was pertinent to the fifth and sixth
amendment[s] with regard to the due process, fair trial,
therefore, being able to comply with the state’s procedures?
3). Does due diligence require Appellant[] to assumed [sic]
that a juror commit perjury/fraud, that the judge and [lawyers]
knew or should have known but failed to take remedy measures,
when it was presented at a criminal trial, therefore, impeding
justice and perpetrating a knowing fraud upon the judiciary to
procure a conviction?
4). Did the Commonwealth’s prosecuting attorney err, and
commit reversible error when he failed to expose perjury, when
it was presented at a criminal trial, resulted in a miscarriage of
justice, and unreliable verdict?
(Appellant’s Brief, at unnumbered page 9) (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
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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
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
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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.
(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 February 9,
2005 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 February 9, 2006. Because the underlying petition was
filed on April 23, 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 acknowledges that his second PCRA petition is untimely.
(See Appellant’s Brief, at 1-2, 19). However, he asserts that the PCRA court
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erred in dismissing his petition as untimely because his claims fell within the
governmental interference and newly discovered facts exceptions to the time
bar. (See id. at 1). Appellant baldly states that the “trial [j]udge . . .
prosecutor . . . and . . . defense attorney . . . either failed to uncover [the
jury foreperson’s] fraud/perjury when it had occur or turn a blind eye [sic].”
(Id. at 3). However, Appellant has failed to identify the alleged fraud or any
governmental interference with his ability to raise his claim in prior
proceedings; thus, this bald statement does not excuse his untimely second
PCRA petition. See Miller, supra at 992-93.
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
id.
Order affirmed.4
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2015
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4
Because we lack jurisdiction, Appellant’s Motion for Sanction and Failure to
File a Timely Response Brief filed 5/05/15 is dismissed.
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Com. v. Samuels, G.
Combined Opinion