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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JEVON A. EVERETT :
:
Appellant : No. 1103 WDA 2019
Appeal from the PCRA Order Entered July 16, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0012952-2006
BEFORE: BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 15, 2020
Appellant, Jevon A. Everett, appeals pro se from the post-conviction
court’s July 16, 2019 order denying, as untimely, his petition filed under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The facts underlying Appellant’s conviction are not pertinent to his
present appeal. We only briefly summarize the procedural history of his case,
as follows. In 2008, Appellant was convicted by a jury of first-degree murder.
He was sentenced on December 11, 2008, to a term of life imprisonment
without the possibility of parole. He filed a timely direct appeal, and after we
affirmed, our Supreme Court denied Appellant’s petition for permission to
appeal. Commonwealth v. Everett, 26 A.3d 1202 (Pa. Super. Mar. 24,
2011), appeal denied, 32 A.3d 1275 (Pa. Oct. 31, 2011).
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* Former Justice specially assigned to the Superior Court.
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Appellant thereafter filed a timely, pro se PCRA petition, and counsel
was appointed. Ultimately, that petition was denied, and this Court affirmed
on appeal. Commonwealth v. Everett, No. 35 WDA 2014, unpublished
memorandum (Pa. Super. Feb. 10, 2015). Appellant did not file a petition for
permission to appeal to our Supreme Court.
On February 11, 2019, Appellant filed the pro se PCRA petition
underlying the present appeal. On May 14, 2019, the court issued a
Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition without a
hearing. He filed a pro se response, but on July 16, 2019, the court issued an
order dismissing his petition as being untimely filed.
Appellant filed a timely, pro se notice of appeal, and he complied with
the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The court filed a Rule 1925(a) opinion on October
28, 2019. Herein, Appellant raises six issues for our review, which we
reproduce verbatim:
(1) Whether there was insufficient evidence to support the
evidence on the basis that the evidence was insufficient to show
Defendant committed the crime?
(2) Whether ineffective assistance of counsel occurred when
District Attorney to the courtroom, to stand directly behind the
defense table where Defendant sat and watched in shock and awe!
Defense Counsel failed to call a mistrial. Judge watched as jury
was detained from outside the courtroom as children were
escorted from courtroom, crying in front of jury.
(3) Whether Defendant’s conviction was based of evidence known
to be false and failed to correct false testimony that the key
witness (coconspirator) had received no promises of
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nonprosecution in exchange for his testimony, as well as other
false statements?
(4) WHETHER COUNSEL WAS INEFFECTIVE IN SEEKING EXPERT
HELP ASSESSING JAIL-HOUSE INFORMANTS AND INCENTIVE
WITNESSES. Informants are highly motivated to lie. But jurors
don’t always have the information or skills to discern the truth?
(5) Whether Defendant made out a prima facie case of juror
tampering, juror bias and denied a hearing, voir dire or
opportunity to prove actual bias and other outside issues effecting
trial. The bias of a single juror is enough to violate the Sixth
Amendment? The outside influences on (Travon Wheeler) Juror
#12 raises a presumption of prejudice that imposes a heavy
burden on the State to overcome by showing that influences were
harmless, as counsel rendered ineffective counsel, failure to raise
issue of voir dire?
(6) Whether counsel has a duty to fully inform client of the risks
of not accepting a plea offer of 10 to 20 years or face life imprison
if found guilty. Counsel’s advice must be a reasonable assessment
of the facts and law, but for bad advice, bald assertions and naked
declarations that trial would end in hung jury as in first trial.
Defendant would not have risk going to trial on such bad advice,
alternatively risking his life?
Appellant’s Brief at 5.
This Court’s 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 record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.
2007) (stating PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded to address the merits of the petition). Under the PCRA,
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any petition for post-conviction relief, including a second or subsequent one,
must be filed within one year of the date the judgment of sentence becomes
final, unless one of the following exceptions set forth in 42 Pa.C.S. §
9545(b)(1)(i)-(iii) applies:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, as we discuss infra, at the time
Appellant’s claim arose in this case, section 9545(b)(2) required that any
petition attempting to invoke one of these exceptions “be filed within sixty
days of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).1
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1An amendment to section 9545(b)(2), which became effective on December
24, 2018, changed the language to require that a petition “be filed within one
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Here, Appellant’s judgment of sentence became final on January 31,
2012, ninety days after our Supreme Court denied his petition for permission
to appeal from his judgment of sentence. See 42 Pa.C.S. § 9545(b)(3)
(stating that a judgment of sentence becomes final at the conclusion of direct
review or the expiration of the time for seeking the review); Commonwealth
v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the
PCRA, petitioner’s judgment of sentence becomes final ninety days after our
Supreme Court rejects his or her petition for allowance of appeal since
petitioner had ninety additional days to seek review with the United States
Supreme Court). Thus, Appellant’s present petition, filed in 2019, is patently
untimely. For this Court to have jurisdiction to review the merits thereof,
Appellant must prove that he meets one of the exceptions to the timeliness
requirements set forth in 42 Pa.C.S. § 9545(b).
Our review of whether Appellant has pled and proven a timeliness
exception in this case has been impeded by the nearly incomprehensible
nature of his lengthy, pro se brief. From what we can discern, Appellant’s only
claim relating to a timeliness exception is that he has obtained new evidence
in the form of an affidavit by one of the Commonwealth’s witnesses in this
case, Taj McBride. According to Appellant, in the affidavit, McBride states that
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year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2). That amendment applies to any claims arising on or after
December 24, 2017.
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“detectives threatened and intimidated [] [him] into incriminating [Appellant]
in this case.” Appellant’s Brief at 64.
Notably, Appellant admits that he received McBride’s affidavit in
November of 2017. Id. This fact makes his petition filed in February of 2019
untimely under the 60-day requirement of section 9545(b)(2) that was in
effect when Appellant’s claim arose. Nevertheless, Appellant seems to argue
that his petition is timely because he filed it within 60 days of the denial of a
petition for writ of habeas corpus that Appellant filed in federal court, which
was also based on McBride’s affidavit. See id. Unfortunately for Appellant,
the fact that he had litigation pending in federal court did not preclude him
from filing his state post-conviction petition, nor toll the 60-day filing deadline.
See Commonwealth v. Fahy, 737 A.2d 214, 222, 223 (Pa. 1999) (holding
“that the period for filing a PCRA petition is not subject to the doctrine of
equitable tolling, save to the extent the doctrine is embraced by [section]
9545(b)(1)(i)-(iii)[,]” and “[t]o allow tolling of the PCRA’s time limitations
where a writ for federal habeas relief has been filed would undermine the
federal policy of initial state review, and in fact, would encourage initial review
in the federal system”).
Accordingly, because Appellant obtained McBride’s affidavit in
November of 2017, his petition filed over one year later is untimely under
section 9545(b)(2). Because neither this claim, nor any other issue Appellant
states herein, meets a timeliness exception, the PCRA court did not err in
denying Appellant’s untimely petition.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2020
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