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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WADE ANTHONY MASON,
Appellant No. 2483 EDA 2015
Appeal from the PCRA Order June 22, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006304-2009
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED March 14, 2016
This is a pro se appeal from the order dismissing Appellant’s second
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. The PCRA court dismissed the petition on the basis that it
was untimely filed. We affirm.
The relevant facts and procedural history are as follows: On January
20, 2011, a jury convicted Appellant of rape, sexual assault and simple
assault. Thereafter, on April 11, 2011, the PCRA court sentenced Appellant
to an aggregate term of seven to fourteen years of imprisonment, and a
consecutive two-year probationary term. Following the denial of Appellant’s
timely post-sentence motion, Appellant filed an appeal to this Court, in
which he raised a claim of prosecutorial misconduct during the
Commonwealth’s closing argument. In an unpublished memorandum filed
on April 14, 2012, we rejected Appellant’s claim and affirmed his judgment
*Former Justice specially assigned to the Superior Court.
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of sentence, and on September 19, 2012, our Supreme Court denied
Appellant’s petition for allowance of appeal. Commonwealth v. Mason, 48
A.3d 484 (Pa.Super. 2012), appeal denied, 53 A.3d 757 (Pa. 2012).
Appellant filed a timely pro se PCRA petition, and the PCRA court
appointed counsel. After reviewing the record and Appellant’s proposed
issues, PCRA counsel filed a petition to withdraw and “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).
Thereafter, the PCRA court issued Pa.R.A.P. 907 notice of intent to dismiss
Appellant’s pro se petition without a hearing. Appellant filed a pro se
response. By order entered March 26, 2014, the PCRA court dismissed
Appellant’s PCRA petition and granted PCRA counsel’s to withdraw.
Appellant filed a timely pro se appeal to this Court. In an unpublished
memorandum filed on January 16, 2015, we affirmed the order denying
post-conviction relief. Commonwealth v. Mason, 118 A.3d 448 (Pa.Super.
2015). Appellant did not file a timely motion for allowance of appeal.
Appellant filed the instant pro se PCRA petition, his second, on March
20, 2015. Within this petition, Appellant reiterated his claim of prosecutorial
misconduct that he unsuccessfully litigated during his direct appeal. See
supra. The PCRA court issued Pa.R.A.P. 907 notice of intent to dismiss
Appellant’s second PCRA petition as untimely filed. Appellant filed a pro se
response on May 18, 2015. By order entered June 22, 2015, the PCRA court
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dismissed Appellant’s PCRA petition. This pro se appeal follows. Both
Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant raises the following issue:
(1) WHETHER THE [PCRA] COURT [ERRED] WHEN IT
REFUSED TO GRANT [APPELLANT] A MISTRIAL
AFTER THE COMMONWEALTH STATED IN ITS
CLOSING REMARKS TO THE JURY THAT HE
STALKED THE STREET[S] OF CHESTER.
Appellant’s Brief at 3.
Our scope and standard of review is well-settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record of
the PCRA court's hearing, viewed in the light most favorable
to the prevailing party. Because most PCRA appeals involve
questions of fact and law, we employ a mixed standard of
review. We defer to the PCRA court's factual findings and
credibility determinations supported by the record. In
contrast, we review the PCRA court's legal conclusions de
novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa.Super.
2015) (internal citations and quotations omitted).
In order to address Appellant’s issue, we must first determine whether
the PCRA court correctly determined that Appellant’s second PCRA petition
was untimely filed. This Court’s standard of review regarding an order
dismissing 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. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
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findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa.Super. 2001).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). Generally, a
petition for relief under the PCRA, including a second or subsequent petition,
must be filed within one year of the date the judgment is final unless the
petition alleges, and the petitioner proves, that an exception to the time for
filing the petition, set forth at 42 Pa.C.S.A. sections 9545(b)(1)(i), (ii), and
(iii), is met.1 See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783
(Pa. 2000); 42 Pa.C.S.A. § 9545. A PCRA petition invoking one of these
statutory exceptions must “be filed within 60 days of the date the claims
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1
The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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.A. §§ 9545(b)(1)(i), (ii), and (iii).
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could have been presented.” Gamboa-Taylor, 753 A.2d at 783; see also
42 Pa.C.S.A. § 9545(b)(2).
Appellant’s judgment of sentence became final on December 18, 2012,
when the ninety-day time period for filing a writ of certiorari with the United
States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3);
U.S.Sup.Ct.R. 13. Therefore, Appellant needed to file the PCRA petition at
issue by December 18, 2013, in order for it to be timely. As Appellant filed
the instant petition on March 20, 2015, it is untimely unless he has satisfied
his burden of pleading and proving that one of the enumerated exceptions
applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa.
1999).
Within his brief, Appellant has neither acknowledged the PCRA’s time
bar nor attempted to prove any exception thereto. Thus, the PCRA court
correctly concluded that it lacked jurisdiction to consider Appellant’s second
PCRA petition. We therefore affirm the PCRA court’s order denying Appellant
post-conviction relief.2
Order affirmed.
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2
In doing so, we echo the PCRA court’s conclusion that, even if his latest
PCRA petition was timely, Appellant would not be entitled to relief because
the petition at issue “mirrors the allegations of his first PCRA petition and
therefore represents another desperate attempt to re-litigate issues already
rejected by this Court, Superior Court, and the Pennsylvania Supreme
Court.” PCRA Court Opinion, 9/15/15, at 4.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/14/2016
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