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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MUWSA GREEN
Appellant No. 2255 EDA 2015
Appeal from the PCRA Order June 19, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002785-2008
CP-51-CR-0014817-2007
BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED JULY 21, 2016
Appellant, Muwsa Green, appeals pro se from the PCRA order entered
June 19, 2015, in the Court of Common Pleas of Philadelphia County, which
denied his second Post Conviction Relief Act Petition.1 We affirm.
On July 28, 2008, Appellant entered guilty pleas at docket number CP-
51-CR-0014817-2007 to Robbery, Rape, Simple Assault, and Carrying a
Firearm without a License and at number CP-51-CR-0002785-2008 to one
count of Simple Assault and two counts each of Involuntary Deviate Sexual
Intercourse and Terroristic Threats. The trial court sentenced Appellant on
December 5, 2008. Appellant did not file a direct appeal.
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*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S.A. §§ 9541-9546.
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On April 13, 2009, Appellant filed a pro se PCRA petition and the PCRA
court appointed counsel. Appellant then filed an amended PCRA petition.
Appointed counsel later filed a Turner/Finley2 no-merit letter and
requested permission to withdraw. The PCRA court issued notice of its intent
to dismiss Appellant’s petition without a hearing. The PCRA court dismissed
appellant’s petition on September 16, 2010.
Appellant filed a second pro se PCRA petition on October 15, 2013. An
Amended petition followed on February 26, 2014. The PCRA court again
issued notice of its intent to dismiss without a hearing. The court dismissed
the petition on June 19, 2015. This timely appeal followed.
As a threshold matter, we note that the timeliness of a PCRA petition
is a jurisdictional requisite. See Commonwealth v. Hackett, 956 A.2d 978,
983 (Pa. 2008). A court cannot hear an untimely petition. Commonwealth
v. Flanagan, 854 A.2d 489, 509 (Pa. 2004). Therefore, a PCRA petition
must be filed within one year of the date the underlying judgment becomes
final. See 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final at the
conclusion of direct review or at the expiration of time for seeking review.
See 42 Pa.C.S.A. § 9545(b)(3).
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2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Three statutory exceptions to the PCRA’s timeliness provisions allow
for very limited circumstances under which the late filing of a petition will be
excused. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner asserting a
timeliness exception must file a petition within 60 days of the date the claim
could have been presented. See 42 Pa.C.S.A. § 9545(b)(2).
Appellant’s judgment of sentence became final on January 5, 2009,3
30 days following the imposition of sentence when the time for filing a direct
appeal expired. See Pa.R.A.P. 903. Thus, Appellant’s petition filed on
October 15, 2013, is patently untimely.
The PCRA court did not conduct a timeliness inquiry, but rather
dismissed Appellant’s petition on the merits. We will address the timeliness
issue based on the two exceptions cited in the amended PCRA petition. See
also Commonwealth v. Wilson, 824 A.2d 331, 335 (Pa. Super. 2003) (en
banc) (“Since Appellant’s PCRA petition is untimely, our review focuses on
whether Appellant has pled and proven that one of the three limited
exceptions to the timeliness requirements of the PCRA apply.”).
In his amended petition, Appellant purports to invoke the
governmental interference and newly discovered evidence exceptions to the
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3
The thirty-day deadline actually ended on January 4, 2009. But January 4
was a Sunday. See 1 Pa.C.S.A. § 1908.
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PCRA’s jurisdictional time bar.4 Our Supreme Court has repeatedly stated it
is the petitioner’s burden to allege and prove that one of the timeliness
exceptions applies. See, e.g., Commonwealth v. Hawkins, 953 A.2d
1248, 1253 (Pa. 2008).
Regarding his claim of governmental obstruction, Appellant fails to
assert in his petition or on appeal in what manner his failure to timely file
the petition “was the result of interference by government officials with the
presentation of the claim[.]” 42 Pa.C.S.A. § 9545(b)(1)(i). Further, to the
extent Appellant’s claim can be interpreted to suggest his trial counsel and
appointed PCRA counsel in some way prevented the timely filing of his PCRA
petition, we note that the PCRA specifically excludes “defense counsel” from
the definition of governmental officials for the purposes of invoking the
exception. See 42 Pa.C.S.A. § 9545(b)(4) (“For purposes of this subchapter,
“government officials” shall not include defense counsel, whether appointed
or retained.”). As such, Appellant’s bald allegation of governmental
interference fails.
Appellant also fails to properly invoke the newly discovered evidence
exception under § 9545(b)(1)(ii). Although Appellant argues he was
incompetent due to depression and the use of drugs during the time in which
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4
Appellant does not address the applicability of the timeliness exceptions in
his appellate brief. However, because Appellant invoked the exceptions in his
amended PCRA petition, we will proceed to address their applicability herein.
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his right to file a timely PCRA petition had lapsed,5 he offers no evidence in
support of his claim of incompetence. As there simply is no evidence to
substantiate Appellant’s claim of incompetency, or that the incompetency
caused Appellant to be unable to timely file a PCRA petition, this claim
cannot qualify as a fact which was previously unknown and could not have
been ascertained by the exercise of due diligence. Cf. Commonwealth v.
Cruz, 852 A.2d 287 (Pa. 2003). More egregiously, Appellant fails to assert
that he filed his second PCRA petition within 60 days of becoming sufficiently
competent to ascertain the facts upon which his underlying PCRA claims are
predicated. Accordingly, Appellant also cannot satisfy the newly discovered
evidence exception to the one-year filing period.
Appellant lastly alleges that the PCRA court failed to give adequate
notice of its intent to dismiss, see Pa.R.Crim.P. 907, his first PCRA petition
without a hearing, such that he was deprived of the opportunity of filing a
timely appeal. This claim fails for multiple reasons. The record belies
Appellant’s assertion. It is not even an exception to the timeliness
requirement. And “[t]he failure to challenge the absence of a Rule 907 notice
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5
Our interpretation of Appellant’s argument is generous. Appellant actually
argues in his brief that he “was incompetent during the state appellate
process preventing compliance with state procedural rules.” Appellant’s Brief
at 8. Appellant additionally argues that he was incompetent at the time he
entered his guilty plea, but he raises this argument in the context of
ineffective assistance of counsel, not in support of a PCRA timeliness
exception.
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constitutes waiver.” Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.
Super. 2013) (citation omitted).
Appellant has failed to establish that his claims fall within any of the
three exceptions to the PCRA’s timeliness requirements. Accordingly, we
affirm the dismissal of his second PCRA petition.6
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2016
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6
“[W]e may affirm a PCRA court’s decision on any grounds if the record
supports it.” Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super.
2014) (citation omitted).
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Com. v. Green, M.
Combined Opinion