J-S63039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROBERT MORRIS, SR.
Appellant No. 2436 EDA 2015
Appeal from the PCRA Order July 7, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0502931-2004
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.
JUDGMENT ORDER BY FITZGERALD, J.: FILED SEPTEMBER 21, 2016
Pro se Appellant, Robert Morris Sr., is appealing from the order
dismissing his second Post Conviction Relief Act1 (“PCRA”) petition.
Appellant appears to argue that because someone tampered with his mail,
his PCRA petition is timely. We affirm.
We adopt the facts and procedural history set forth in the PCRA court’s
decision.2 PCRA Ct. Op., 10/13/15, at 1-3. Appellant filed the instant, pro
se PCRA form petition on February 23, 2015. Appellant checked the box
next to the entry stating that his petition was timely because interference by
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
We acknowledge that an en banc Superior Court affirmed Appellant’s
convictions and mandatory life sentence on direct appeal. See
Commonwealth v. Morris, 958 A.2d 569, 572 (Pa. Super. 2008) (en
banc).
J-S63039-16
governmental officials prevented him from raising the claim earlier.
Appellant’s Pro Se PCRA Pet., 1/23/15, at 2. Appellant did not further
explain this alleged interference in his petition. On June 16, 2016, the PCRA
court issued a Pa.R.Crim.P. 907 notice. Appellant did not respond, and the
court dismissed the petition on July 7, 2015. Appellant timely appealed, and
the court did not order Appellant to comply with Pa.R.A.P. 1925(b).
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the evidence of record and free of legal error.” Commonwealth v.
Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).
As our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. We have also held
that even where the PCRA court does not address the
applicability of the PCRA timing mandate, th[e] Court will
consider the issue sua sponte, as it is a threshold question
implicating our subject matter jurisdiction and ability to
grant the requested relief.
Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations
omitted).
A PCRA petition “must normally be filed within one year of the date the
judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-
(iii) applies and the petition is filed within 60 days of the date the claim
could have been presented.” Commonwealth v. Copenhefer, 941 A.2d
-2-
J-S63039-16
646, 648 (Pa. 2007) (some citations and footnote omitted). The three
exceptions to the general one-year time limitation are:
(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. § 9545(b)(1)(i)-(iii).
Instantly, Appellant has failed to plead and prove any of the three
timeliness exceptions in his PCRA petition and therefore has not overcome
the one-year timebar. See id.; Whitney, 817 A.2d at 477-78. Appellant
has failed to identify and explain the governmental interference. To the
extent he appears to accuse the Commonwealth of withholding exculpatory
testimony in a preliminary hearing transcript, he raised that issue in his prior
PCRA petition. Appellant’s PCRA Pet., 3/4/11, at 3-4. Accordingly, having
discerned no abuse of discretion, we affirm the order below. See Wilson,
824 A.2d at 833.
Order affirmed.
-3-
J-S63039-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2016
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Circulated 08/24/2016 10:10 AM
I ( L
01/ '.·
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
v. CP51-CR-0502931-2004Cornm v. Morns. Sr, Robert CP-51-CR- 0502931-2004
Op{n:on
ROBERT MORRIS, SR.
PP# 815452 IIII Illlllll\ 111111111111 PCRA APPEAL
7356247311
FILED .,
DOCKET NO.: 2436 EDA 2015 OCT 13 2015
OPINION Criminal Appsa1s Unit
FirstJudicial Districtof PA
Appellant, Robert Appellant Sr., appeals the dismissal of his petition for
relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9542, et seq.
(PCRA). On July 7, 2015, following a thorough review, appellant's petition was
dismissed without a hearing. A summary of the procedural history follows.1
On March 6, 2006, after a jury found appellant guilty of two counts of
third degree murder arising from the death of his two children, appellant was
sentenced to 20 - 40 years, followed by a mandatory term of life imprisonment
pursuant to 42 Pa.C.S. § 971 S(a).2,3 Post sentence motions challenging the
weight of the evidence and requesting reconsideration of the mandatory life
1 The facts from appellant's trial can be found in the Superior Court opinion affirming the
judgment ofsenlencc. (1018 EDA 2006)
' 18 Pa.C.S. §2502(c].
3 42 Pa.C.S. § 971 S(a) ... any person convicted of murder of the third degree in this
Commonwealth who has previously been convicted at any time of murder or volu ntary
manslaughter in this Commonwealth or of the same or substantially equivalent crime in any
other jurisdiction shall be sentenced to lire imprisonment, notwithstanding any other provision
of this Litle or other statute to the contrary.
1
sentence were denied. On October 1, 2008, the Superior Court affirmed the
judgment of sentence. Appellant's petition for allowance of appeal was denied
on March 17, 2010. On March 4, 201 l, appellant filed a timely pro se PCRA
petition claiming that he was entitled to relief because of a violation of the
Constitution of this Commonwealth or the Constitution or laws of the United
States which, in the circumstances of the particular case, so undermined the
truth determining process that no reliable adjudication of guilt or innocence
could have taken place; the unavailability at the time of trial of exculpatory
evidence that has subsequently become available and would have changed the
outcome of the trial if it had been introduced, and because of the imposition of
a sentence greater than the lawful maximum. PCRA counsel was appointed
and, on January 28, 2013, filed a letter pursuant to Commonwealth v. Pinley,
379 PA Super 390, 550 A.2d 213 (1988), indicating that she had reviewed the
file, the notes of testimony, had communicated with appellant, and determined
that the issues raised in appellant's prose petition were meritless and her
review revealed no other meritorious issues. On February 7, 2013, following the
Court's independent review of appellant's claims and after determining that
PCRA counsel's rinley letter was adequate, a Rule 907 Notice of Intent to
Dismiss was filed and served on appellant along with counsel's rinley letter. On
March 22, 2013, appellant's petition for PCRA relief was formally dismissed,
and counsel was permitted to withdraw. On November 25, 2013, the Superior
Court dismissed appellant's appeal of the dismissal for failure Lo file a brief.
2
On February 23, 2015, appellant filed this, his second petition for PCRA
relief, claiming that he was entitled to relief because of a violation of the
Constitution of this Commonwealth or the Constitution or laws of the United
States which, in the circumstances of the particular case, so undermined the
truth determining process that no reliable adjudication of guilt or innocence
could have taken place; the improper obstruction by government officials of his
right of appeal where a meritorious appealable issue existed and was properly
preserved in the trial court; the unavailability at the time of trial of exculpatory
evidence that has subsequently become available and would have changed the
outcome of the trial if it had been introduced, and because of the imposition of
a sentence greater than the lawful maximum. Specifically, appellant alleged
that Dr. Ian Hood was unfit to be an expert witness; that his constitutional
right to a fair trial was violated because the District Attorney sought to keep
the "preliminary transcripts" evidence from the jury; and that the Court's
decision not to sequester the jury was error. After reviewing appellant's
complaints, the record and the controlling law, the Court determined that
appellant's petition for relief was untimely. Following proper notice, appellant's
PCRA petition was formally dismissed on .July 7, 2015. This appeal followed.
On an appeal from the denial of PCRA relief, the standard of review is
limited to examining whether the ruling or the PCRA court is supported by the
record and free of legal error. Commonwealth v. Pitt, 603 Pa. 1, 7, 981 A.2d
875, 878 (Pa. 2009). The pct ii ion musr be t.imclv, as the PCl~f\'s ti mel iue s s
restrictions arc _ju1·isclic1i1rnal i11 uat u n: a nd arc ro he strict iv c.o n st rur-d .
3
Commonwealth v. Abu-darnal, 596 Pa. 219, 941 A.2cl 1263, 1267-68 (2008).
An otherwise untimely PCRA petition may be reviewed, when a petitioner
invokes and pleads one of the exceptions provided in section 9545(b)( 1), which
provides 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 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)(l) and (2). fl is the petitioner's burden to plead and
prove an exception lo the PCRA-timelincss rule. Commomvcalth v. Blackwell,
2007 PA Super 314, 936 A.2d 497, 500 (Pa. Super. Ct. 2007). Appellant asserts
that he overcomes the one year PCRA Lime limitation because the failure lo
raise these claims previously was the result of government interference.
However, review of the record reveals that appellant raised these same claims
4
on appeal and in his first petition for PCRA relicf.4 Therefore, appellant's
allegation of government interference with the presentation of his claims is
meritless. The PCRA petition is untimely and appellant has failed to
demonstrate that his petition meets any of the timeliness exceptions.
Accordingly, the Court has no jurisdiction lo address appellant's claims.
For the foregoing reasons, appellant's petition for post conviction relief
was properly denied without a hearing.
BY THE COURT:
SHEILA WOODS-SKIPPER, J.
~ See 1018 EDA 2006 and 1203 EDA 2013.
5