J-S42022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BERNARD FIELDING
Appellant No. 3462 EDA 2014
Appeal from the PCRA Order October 29, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1036801-1992
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 28, 2015
Appellant, Bernard Fielding, appeals pro se from the October 29, 2014
order, dismissing, without a hearing, his fifth petition filed pursuant to the
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. After careful
consideration, we affirm.
The PCRA court summarized the procedural history of this case as
follows.
On April 18, 1994, following a jury trial …
[Appellant] was found guilty of [s]econd[-d]egree
[m]urder, [b]urglary, [r]obbery, [c]riminal
[c]onspiracy, and [p]ossession of an [i]nstrument of
[c]rime.[1] [Appellant] was sentenced to an
aggregate term of life imprisonment. [Appellant]
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2502(b), 3502, 3701, 903, and 907, respectively.
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appealed, and on December 26, 1995, the Superior
Court affirmed the judgment of sentence.
[Commonwealth v. Fielding, 676 A.2d 280 (Pa.
Super. 1995) (unpublished memorandum), appeal
denied, 681 A.2d 1341 (Pa. 1996).] On August 9,
1996, the Pennsylvania Supreme Court denied
allocatur. [No further direct appeal was pursued.]
On September 2, 1997, [Appellant] filed his
first petition pursuant to the [PCRA]. Court-
appointed counsel subsequently 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), and the
petition was dismissed. No appeal followed.
[Appellant] filed his second PCRA petition on
December 19, 2001, and it was subsequently
dismissed. The Superior Court affirmed the
dismissal on May 23, 2003, and no appeal followed.
[Commonwealth v. Fielding, 829 A.2d 356 (Pa.
Super. 2003) (unpublished memorandum).]
[Appellant] filed his third PCRA petition on May
26, 2004, and it was subsequently dismissed. The
Superior Court affirmed the dismissal on July 13,
2006, and no appeal followed. [Commonwealth v.
Fielding, 907 A.2d 1132 (Pa. Super. 2006)
(unpublished memorandum).]
[Appellant] filed his fourth PCRA petition on
July 12, 2010, and it was dismissed [as untimely]
February 17, 1012. The Superior Court affirmed the
dismissal on March 5, 2013. [Commonwealth v.
Fielding, 69 A.3d 1282 (Pa. Super. 2013)
(unpublished memorandum).]
[Appellant] filed the instant petition, his fifth,
on April 15, 2014. After conducting an extensive
and exhaustive review of these filings, the record,
and applicable case law, [the PCRA] court
determined that the instant petition was untimely
filed and that none of the timeliness exceptions
applied. On August 14, 2014, [the PCRA court]
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provided [Appellant] with notice of its intent to
dismiss his petition without a hearing pursuant to
Pa.R.Crim.P. 907, and [Appellant] filed a response
on August 28, 2014. [The PCRA court] subsequently
dismissed the petition on October 29, 2014.
[Appellant] filed a [timely] notice of appeal from that
order [on November 25, 2014].
PCRA Court’s Opinion, 1/22/15, at 1-2.2
Appellant has neglected to state any questions presented for review as
required by Pa.R.A.P. 2116(a). Such an omission may be grounds for
dismissal of an appeal. See generally Pa.R.A.P. 2101. Appellant does
state that, “Appellant submits the PCRA court erred by summarily denying
the claim presented … without a hearing” in a section captioned “Summary.”
Appellant’s Brief at 6. Because this deficiency does not impede our review of
the timeliness of Appellant’s PCRA petition, we decline to dismiss the appeal.
See Commonwealth v. Dupre, 866 A.2d 1089, 1096 (Pa. Super. 2005),
appeal denied, 879 A.2d 781 (Pa. 2005) (declining to dismiss appeal where
appellate brief’s deficient questions presented on appeal did not impede
review).
We briefly note our standard of review in this matter.
Our standard of review of the denial of a PCRA
petition is limited to examining whether the court’s
rulings are supported by the evidence of record and
____________________________________________
2
The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The PCRA court issued its Rule 1925(a) opinion on
January 22, 2015.
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free of legal error. This Court treats the findings of
the PCRA court with deference if the record supports
those findings. It is an appellant’s burden to
persuade this Court that the PCRA court erred and
that relief is due.
Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)
(citation omitted).
Instantly, the PCRA court dismissed Appellant’s fifth PCRA petition as
untimely. “[I]t is well-settled that … a question of timeliness implicates the
jurisdiction of our Court.” Commonwealth v. Gandy, 38 A.3d 899,
902 (Pa. Super. 2012) (internal quotation marks and citation omitted),
appeal denied, 49 A.3d 442 (Pa. 2012). “Because these timeliness
requirements are mandatory and jurisdictional in nature, no court may
properly disregard or alter them in order to reach the merits of the claims
raised in a PCRA petition that is filed in an untimely manner.”
Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa. 2012) (internal quotation
marks and citation omitted). The PCRA “confers no authority upon this
Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]”
Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted).
This is to “accord finality to the collateral review process.” Id. (citation
omitted). “It is well settled that [a]ny and all PCRA petitions must be filed
[in a timely manner] unless one of three statutory exceptions applies.”
Commonwealth v. Garcia, 23 A.3d 1059, 1061-1062 (Pa. Super. 2011)
(internal quotation marks and citations omitted), appeal denied, 38 A.3d 823
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(Pa. 2012). “We have repeatedly stated it is the appellant’s burden to allege
and prove that one of the timeliness exceptions applies. Whether [the
a]ppellant has carried his burden is a threshold inquiry prior to considering
the merits of any claim.” Commonwealth v. Edmiston, 65 A.3d 339,
346 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania,
134 S. Ct. 639 (2013).
The Act provides for the following possible exceptions to the timeliness
requirement.
§ 9545. Jurisdiction and proceedings
…
(b) Time for filing petition.—
(1) Any petition under this subchapter,
including a second or subsequent petition, shall be
[timely] filed … 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
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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).
Instantly, Appellant’s fifth PCRA petition is facially untimely. His
judgment of sentence became final on November 7, 1996, ninety days after
our Supreme Court denied Appellant’s petition for allowance of appeal, when
the time to file for a writ of certiorari to the United States Supreme Court
expired. See generally U.S.Sup.Ct.R. 13(1). Therefore, Appellant had until
November 7, 1997, one year from that date, to file a timely first or
subsequent PCRA petition. See generally 42 Pa.C.S.A. § 9545(b)(3). As
noted, it is required that Appellant pleads and proves one of the statutory
exceptions to the PCRA’s time limits to invoke the PCRA or this Court’s
jurisdiction to consider his petition. See Edmiston, supra.
In neither his PCRA petition, his response to the PCRA court’s Rule 907
notice, nor his Appellate brief, does Appellant allege the applicability of any
of the enumerated statutory exceptions to the PCRA’s timeliness
requirements. Rather, Appellant avers “[c]laims of Actual Innocence are
never time barred.” Appellant’s Brief at 7A. Appellant asserts he has made
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out a strong prima facie case for innocence and manifest injustice such that
it “will equitably toll limitations period.” Id.
Such arguments have been clearly rejected as misconstruing the
jurisdictional nature of the PCRA’s timeliness provisions. See Lopez, supra.
This court has determined that in reviewing claims
for relief in a second or subsequent collateral attack
on a conviction and judgment of sentence, the
request will not be entertained unless a strong prima
facie showing is demonstrated that that[sic] a
miscarriage of justice occurred. Commonwealth v.
Lawson, 519 Pa. 504, 549 A.2d 107 (1988). “An
appellant makes such a prima facie case only if he
demonstrates that either the proceedings which
resulted in his conviction were so unfair that a
miscarriage of justice occurred which no civilized
society could tolerate, or that he was innocent of the
crimes charged.” Commonwealth v. Morales, 549
Pa. 400, 701 A.2d 516 (1997). However, the
Lawson miscarriage of justice standard affords
Appellant no relief in this case.
Again, Appellant fails to understand that this court …
clearly noted that the time requirements under the
amendments to the PCRA are jurisdictional. Thus,
while the court would consider a timely petition
under the Lawson standard, the court has no
jurisdiction to address an untimely petition….
Commonwealth v. Fahy, 737 A.2d 214, 223, (Pa. 1999).
As noted, Appellant’s petition is facially untimely. Appellant has failed
to plead or prove any exception to the one-year time limit for filing a PCRA
petition. We therefore conclude the PCRA court and this Court lack
jurisdiction to review the merits of Appellant’s claims. See id. Accordingly,
we affirm the PCRA court’s October 29, 2014 dismissal order.
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Order affirmed.
Judge Shogan joins the memorandum.
Justice Fitzgerald did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2015
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Com. v. Fielding, B.
Combined Opinion