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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SUEJUAN MARIE MOSLEY
Appellant No. 1683 MDA 2015
Appeal from the PCRA Order Entered August 18, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at Nos: CP-38-CR-0001276-2009, CP-38-CR-0002025-
2009, and CP-38-CR-0000268-2010
BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 13, 2016
Suejuan Marie Mosley (“Appellant”) pro se appeals from the August
18, 2015 order of the Court of Common Pleas of Lebanon County (“PCRA
court”), which dismissed her request for collateral relief under the Post
Conviction Relief Act1 (“PCRA”). We affirm.
Although the present appeal does not require an exhaustive review of
the facts, some context is necessary. Following a jury trial on April 11,
2010, Appellant was found guilty of multiple offenses at action number CP-
38-CR-0001276-2009 including, inter alia, manufacture, delivery, or
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S.A. §§ 9541-46.
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possession with intent to deliver (“PWID”), criminal conspiracy, and
possession of a controlled substance.2 Later, on July 21, 2010, the lower
court sentenced Appellant to an aggregate term of forty months’ to eight
years’ incarceration.
The lower court subsequently held a bench trial for the charges levied
against Appellant at action numbers CP-38-CR-0002025-2009 and CP-38-
CR-0000267-2010.3 On July 23, 2010, the court convicted Appellant of all
charges and, on the same date, sentenced Appellant to three to ten years’
incarceration at CP-38-CR-0002025-2009 with an additional two to five
years’ incarceration to run consecutively at CP-38-CR-0000267-2010.
Appellant appealed the three judgments of sentence, but this Court
dismissed the appeal after Appellant’s appointed counsel failed to submit a
brief on her behalf.
Seeking reinstatement of her appellate rights, Appellant filed a PCRA
petition on September 16, 2011. After the PCRA court granted her relief on
November 22, 2011, Appellant again sought review in this Court. We
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2
35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903(a)(1), and 35 P.S. § 780-
113(a)(16), respectively.
3
As to CP-38-CR-0002025-2009, Appellant faced three counts of PWID and
two counts of criminal use of communication facility as proscribed at 18
Pa.C.S.A. § 7512(a). The charges at action number CP-38-CR-0000267-
2010 mirrored those found at CP-38-CR-0002025-2009 save for two counts
of criminal conspiracy and one count of driving while operating privilege is
suspended or revoked in violation of 75 Pa.C.S.A § 1543(a).
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affirmed the judgments of sentence on July 25, 2012. See Commonwealth
v. Mosley, 55 A.3d 147 (Pa. Super. 2012) (unpublished memorandum). On
April 30, 2013, our Supreme Court denied Appellant’s Petition for Allowance
of Appeal. See Commonwealth v. Mosley, 65 A.3d 413 (Pa. 2013).
Because Appellant did not seek an appeal to the Supreme Court of the
United States, her sentence became final on July 29, 2013. See 42
Pa.C.S.A. § 9545(b)(3); see also U.S. Sup. Ct. R. 13 (stating that a party
must “seek[] review of a judgment of a lower state court that is subject to
discretionary review by the state court of last resort . . . within [ninety] days
after entry of the order denying discretionary review).
On May 15, 2015, Appellant filed the instant PCRA petition – her fifth
at action numbers CP-38-CR-0002025-2009 and CP-38-CR-0000267-2010
and fourth at CP-38-CR-0001276-2009.4 On July 22, 2015, the PCRA court
issued an order indicating its intention to dismiss Appellant’s petition
pursuant to Pa.R.Crim.P. 907(1) and providing Appellant with twenty days to
respond to the proposed dismissal. After Appellant failed to respond within
the time allotted, the PCRA court dismissed Appellant’s petition as untimely.5
The present appeal then followed.
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4
The PCRA court dismissed each of Appellant’s prior PCRA petitions.
5
After the PCRA court dismissed Appellant’s instant petition, it received
evidence suggesting that Appellant had given her response to the court’s
intention to dismiss to prison authorities within the time specified in the July
22 order. The PCRA court thus requested in its 1925(a) opinion that we
(Footnote Continued Next Page)
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Appellant purports to raise eight issues on appeal. Appellant’s Brief at
4. However, an examination of Appellant’s brief reveals a narrow focus on
the PCRA petition’s underlying merits.6 Having dismissed Appellant’s
petition as untimely, the PCRA court never addressed the petition’s merits.
As a result, the single question for our review is whether the PCRA court
properly dismissed Appellant’s petition as untimely. See Commonwealth
v. Sattazahn, 869 A.2d 529, 532-33 (Pa. Super. 2005). For such an
inquiry, our standard of review is whether the PCRA court’s findings are free
of legal error and supported by the record. Commonwealth v. Martin, 5
A.3d 177, 182 (Pa. 2010) (citation omitted).
A court cannot entertain a PCRA petition unless the petitioner has first
satisfied the applicable filing deadline. Section 9545(b) of the PCRA specifies
the following requirements for a PCRA petition to be considered timely:
(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 date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
_______________________
(Footnote Continued)
remand this case for a determination whether Appellant had filed a timely
response under the “prisoner mailbox rule.” PCRA Court Opinion, 9/29/15,
at 3. Our disposition of the present appeal, however, obviates any need for
a remand.
6
We also note that all but one of the issues presented in Appellant’s brief do
not fall within the ambit of the PCRA.
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(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.
42 Pa.C.S.A. § 9545(b). The limitation established by Section 9545 is
jurisdictional in nature and “implicat[es] a court’s very power to adjudicate a
controversy.” Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014) (citing
Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999)). The time for filing can
only be extended by a petitioner satisfying one of the exceptions listed in
Section 9545(b)(1)(i)-(iii). Id. Accordingly, courts are without power to
“fashion ad hoc equitable exceptions to the PCRA time-bar.”
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
omitted).
As stated above, Appellant’s judgment of sentence became final on
July 29, 2013. Consequently, Appellant had until July 29, 2014 to file for
collateral relief. Because Appellant did not file her instant PCRA petition until
May 15, 2015, it is facially untimely.
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The one-year time limitation, however, can be overcome if a petitioner
alleges and proves one of the three exceptions set forth in Section
9545(b)(1)(i)-(iii) of the PCRA. Commonwealth v. Marshall, 947 A.2d
714, 719 (Pa. 2008) (citations omitted). In this case, Appellant alleges that
she was unaware of the facts underlying one of her claims and thereby calls
upon the exception located at Section 9545(b)(1)(ii). See Appellant’s Brief
at 13. Before Appellant may avail herself of this exception, she must first
establish that the facts upon which the claim is predicated were unknown
and that she could not have ascertained those facts by the exercise of due
diligence. Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007)
(internal citations and quotations omitted).
In the present case, Appellant merely asserts that “newly discovered
evidence,” in the form of an affidavit from an Angela Snipes, establishes that
Appellant was not in Lebanon County at the time of her offenses.
Appellant’s Brief at 13. However, Appellant does not claim that she was
ignorant of the facts to which Ms. Snipes has now attested. Appellant
likewise fails to indicate that she undertook any efforts to ascertain the
supposedly unknown facts. Cf. Bennett, 930 A.2d at 1272; see also
Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011) (“Due
diligence demands that the petitioner take reasonable steps to protect his
own interests.”). Accordingly, the record clearly supports the PCRA court’s
determination that Appellant has not satisfied the requirements to
circumvent the PCRA’s one-year time limitation.
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In sum, Appellant filed her present PCRA petition more than a year
after her sentence became final. She likewise has not proven an exception
to the PCRA’s timeliness requirements. The PCRA petition was therefore
untimely and the PCRA court properly dismissed it.
Order affirmed.
Judge Mundy did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2016
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