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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KEVIN S. MINES
Appellant No. 399 EDA 2016
Appeal from the PCRA Order January 14, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0330991-1983
BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED NOVEMBER 03, 2016
Kevin S. Mines appeals pro se from the order entered January 14,
2016, dismissing as untimely his petition for relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
We adopt the following statement of facts:
In the early morning hours of February 6, 1983, [A]ppellant
entered a scheme to commit a robbery with Gregory Lowe and
Joseph Roberts. In pursuance of this scheme, the three co-
conspirators proceeded to Tinker’s Café on Maplewood Avenue in
Philadelphia. The three were denied admittance to the bar
because a private party was being held inside. While outside the
bar, the three men observed Samuel Dash about to enter the
bar. Lowe grabbed Dash and pushed him against a wall.
Appellant Mines began to draw a knife but was shot in the
abdomen by Dash, who was an insurance adjuster and was
licensed to carry a gun. Lowe thereupon stepped behind Dash
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*
Former Justice specially assigned to the Superior Court.
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and shot him in the head, causing death. Lowe, Roberts, and
Mines then fled. When later questioned by police about his being
shot, [A]ppellant made a statement in which he claimed that he
had been shot from a passing car while standing on the corner of
17th Street and Erie Avenue. At [A]ppellant’s trial, Roberts a co-
conspirator, was given immunity from prosecution and
implicated [A]ppellant in the shooting of Dash. Ballistic evidence
was introduced which established that the bullet removed from
[A]ppellant had been fired from Dash’s gun. A bouncer and the
manager also testified that [A]ppellant had been present at
Tinker’s Café near the time of the shooting. Appellant’s
statement to police about how he had been shot was also
introduced into evidence by the Commonwealth through the
testimony of a detective.
Commonwealth v. Mines, 560 A.2d 828, at *2-3 (Pa. Super. 1989)
(unpublished memorandum).
In December 1983, at the conclusion of the jury trial Appellant was
found guilty of first-degree murder, criminal conspiracy, robbery, and
possession of an instrument of crime. Appellant was sentenced to life
imprisonment for first-degree murder, and to concurrent terms of two to
four years for conspiracy, three to six years for robbery, and one to two
years for possession of an instrument of crime.1 This Court affirmed the
judgment of sentence on direct appeal. Id.
In March 1990, Appellant filed his first PCRA petition, 2 which was
dismissed. This Court affirmed the dismissal, and the Supreme Court of
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1
Respectively, 18 PA.C.S. §§ 2502, 903, 3701, 907
2
This first petition was filed under the Post-Conviction Hearing Act, which
was later amended and renamed the Post-Conviction Relief Act.
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Pennsylvania denied Appellant’s petition for allowance of appeal.
Commonwealth v. Mines, 640 A.2d 743 (Pa. Super. 1994) (unpublished
memorandum), appeal denied, 646 A.2d 1177 (Pa. 1994). In 1995,
Appellant filed a Right to Know Petition.3 In January 1996, while the Right
to Know Act Petition was pending, Appellant filed his second PCRA petition.
This PCRA petition was dismissed in October 1996, because Appellant’s Right
to Know Act petition was pending on appeal before our Supreme Court.4
In June 1997, Appellant filed his third PCRA petition. This Court
affirmed the decision, and the Supreme Court of Pennsylvania denied
Appellant’s petition for allowance of appeal. Commonwealth v. Mines,
742 A.2d 1148 (Pa. Super. 1999) (unpublished memorandum),5 appeal
denied, 749 A.2d 468 (Pa. 2000).
In April 2000, Appellant filed a federal habeas petition pursuant to 28
U.S.C. § 2254 in the United States District Court. The District Court
dismissed the habeas petition as time-barred. In March 2004, the Third
Circuit Court of Appeals affirmed the district court’s order dismissing the
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3
65 P.S. §§ 66.1-66.4 (repealed 2008).
4
The Right to Know Act petition was denied and appeal concluded on April
21, 1997, when the United States Supreme Court denied certiorari.
Commonwealth v. Mines, 680 A.2d 1227 (Pa. Cmwlth. 1996), appeal
denied, 690 A.2d 238 (1997), cert. denied, Mines v. Pennsylvania, 520
U.S. 1190 (1997).
5
In September 1999, Appellant’s petition for reargument was denied.
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habeas petition. Mines v. Vaughn, 96 F. App’x 802 (3d Cir. 2004). In May
2004, Appellant filed his fourth PCRA petition, which was dismissed as
untimely. This Court affirmed the dismissal. Commonwealth v. Mines,
903 A.2d 48 (Pa. Super. 2006) (unpublished memorandum).
Appellant filed his fifth PCRA in September 2009, which was dismissed
by the PCRA court in April 2010. In May 2011, Appellant filed his sixth
PCRA, which he discontinued in January 2012.
Appellant filed the instant PCRA petition, his seventh, in May 2012. In
November 2015, the PCRA court issued a Pa.R.Crim.P. 907 notice of its
intent to dismiss Appellant’s petition. In January 2016, the PCRA court
dismissed Appellant’s petition, and Appellant filed the instant appeal. 6
Appellant raises the following issue:
[Whether] the Post Conviction Relief Act court err in summarily
dismissing the pro se PCRA petition without an evidentiary
hearing on Appellant’s claim under Lafler v. Cooper __U.S.__,
132 S. Ct. 1376, 182 L.Ed. 2nd 398 (US 2012); and Missouri v.
Frye, __ U.S. __, 132 S. Ct. 1399, 182 L.Ed 2d 379 (US 2012)[.]
Appellant’s Brief at 4.
The standard of review regarding an order denying a petition under
the PCRA is whether the determination of the PCRA court is supported by the
evidence of the record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We afford the court’s factual
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6
The PCRA court did not direct Appellant to file a 1925(b) statement.
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findings deference unless there is no support for them in the certified record.
Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).
Appellant asserts the PCRA court erred in denying his petition without
a hearing. There is no absolute right to an evidentiary hearing. See
Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On
appeal:
A reviewing court must examine the issues raised in the PCRA
petition in light of the record in order to determine whether the
PCRA court erred in concluding that there were no genuine
issues of material fact and in denying relief without an
evidentiary hearing.
Id.
Appellant presented a legal argument solely based on his assertion
that he is entitled to relief due to a newly-recognized constitutional right.
Thus, as Appellant raised no issues of material fact, the PCRA court did not
err when it denied Appellant’s petition without an evidentiary hearing. Id.
We must next address the PCRA timeliness requirements. The
timeliness of Appellant’s petition implicates our jurisdiction and may not be
altered or disregarded in order to address the merits of his claim.
Commonwealth v. Abu-Jamal, 833 A.2d 719, 723-724 (Pa. 2003). Under
the PCRA, all petitions seeking collateral relief must be filed within one year
of the date the judgment of sentence becomes final. Id. Appellant filed a
direct appeal, which was resolved on March 23, 1989, thus his judgment of
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sentence became final on April 24, 1989, as he did not petition the
Pennsylvania Supreme Court for allowance of appeal. See 42 Pa.C.S.§
9543(b)(3); Pa. R.A.P. § 1113(a).
The instant petition was filed in May 2012, almost thirty years after
the judgment of sentence became final. Thus, Appellant’s petition is
patently untimely, and for this Court to have jurisdiction to review the merits
of Appellant’s claims he must prove the applicability of one of the exceptions
to the timeliness requirement.
There are three statutory exceptions:
(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). To invoke one of these exceptions, the petitioner
must plead it and satisfy the burden of proof. Commonwealth v. Beasley,
741 A.2d 1258, 1261 (Pa. 1999). In addition, a petition seeking relief
pursuant to a statutory exception must adhere to the additional requirement
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of filing the claim within 60 days of the date the claim could have been first
presented. 42 Pa.C.S. § 9545(b)(2).
Appellant asserts that his petition meets the timeliness exception
found in 42 Pa.C.S. § 9545(b)(1)(iii). According to Appellant, two recent
cases, Lafler v. Cooper, 132 S. Ct. 1376, (2012),7 and Missouri v. Frye,
132 S. Ct. 1399 (2012),8 granted him a new constitutional right. Appellant
is incorrect. This Court has stated previously that neither Frye nor Lafler
created a new constitutional right and, as such, do not provide Appellant
with an exception to the timeliness requirements of the PCRA.
Commonwealth v. Feliciano, 69 A.3d 1270, 1277 (Pa. Super. 2013)
(recognizing that these cases merely applied the Sixth Amendment right to
counsel in the plea-bargaining context); Commonwealth v. Hernandez,
79 A.3d 649, 654 (Pa. Super 2013) (same).
Accordingly, there is no basis for a time-bar exception under
§9545(b)(1)(iii), and we have no jurisdiction to entertain Appellant’s
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7
In Lafler, the Supreme Court of the United States held that a defendant
must receive post-conviction relief “when inadequate assistance of counsel
caused nonacceptance of a plea offer and further proceedings led to a less
than favorable outcome” Lafler, 132 S. Ct. at 1382-85.
8
In Frye, the Supreme Court of the United States held that “defense
counsel has the duty to communicate formal offers from the prosecution and
to accept a plea on terms and conditions that may be favorable to the
accused.” Frye, 132 S. Ct. at 1408.
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underlying claim. The trial court properly dismissed Appellant’s PCRA
petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/3/2016
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