J-A31027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY M. DAY :
:
Appellant : No. 815 EDA 2017
Appeal from the PCRA Order February 6, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0906051-2005
BEFORE: PANELLA, J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JANUARY 04, 2018
Appellant, Anthony Day, appeals from the order entered February 6,
2017, dismissing his second petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We briefly summarize the facts and procedural history of this case as
follows. On July 7, 2006, the trial court found Appellant guilty of rape by
forcible compulsion, and other related offenses, as well as criminal charges
with regard to Appellant’s subsequent plot from prison to kill the victim.1
This Court affirmed Appellant’s judgment of sentence on March 11, 2010 and
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1 In August 2005, police arrested Appellant and charged him with rape by
forcible compulsion and related offenses regarding an incident wherein
Appellant drugged and raped his fourteen-year-old half-sister. While
incarcerated, Appellant solicited a fellow inmate to kill the victim. The fellow
inmate was a confidential informant to police and recorded their
conversation.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A31027-17
our Supreme Court denied further review. See Commonwealth v. Day,
996 A.2d 540 (Pa. Super. 2010), appeal denied, 14 A.3d 823 (Pa. 2011).
On June 29, 2011, Appellant filed a pro se PCRA petition. Appointed
counsel subsequently filed an amended PCRA petition. In May 2013, the
PCRA court denied collateral relief, we affirmed that decision in March 2014,
and our Supreme Court denied further review in September 2014. See
Commonwealth v. Day, 100 A.3d 316 (Pa. Super. 2014), appeal denied,
99 A.3d 75 (Pa. 2014).
Instantly, Appellant filed his second pro se PCRA petition on December
19, 2014. The PCRA court appointed counsel who filed an amended PCRA
petition and supporting brief. The PCRA court denied relief by order entered
on February 6, 2017, after giving formal notice of its intent to dismiss
pursuant to Pa.R.Crim.P. 907. This timely appeal followed.
On appeal, Appellant claims that trial counsel was ineffective for failing
to: (1) challenge statements Appellant made to police while detoxing from
his oxycodone prescription; (2) contest the execution of a nighttime warrant,
and; (3) seek the exclusion of the recording between Appellant and the
confidential informant. Appellant’s Brief at 9-11.
Our standard of review is well-settled:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court's ruling if it
is supported by evidence of record and is free of legal error.
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[…A]ny PCRA petition “shall be filed within one year of the date
the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). A
judgment of sentence becomes final “at the conclusion of direct
review, including discretionary review in the Supreme Court of
the United States and the Supreme Court of Pennsylvania, or at
the expiration of time for seeking the review.” Id. § 9545(b)(3).
The PCRA's timeliness requirements are jurisdictional in nature
and a court may not address the merits of the issues raised if
the PCRA petition was not timely filed.
Commonwealth v. Chester, 163 A.3d 470, 472 (Pa. Super. 2017) (case
citation omitted). Allegations of ineffective assistance of counsel will
not overcome the jurisdictional timeliness requirements of the PCRA.
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005). “However,
Pennsylvania courts may consider an untimely petition if the appellant can
explicitly plead and prove one of three exceptions set forth under 42
Pa.C.S.A. § 9545(b)(1)(i–iii) [in a PCRA petition] filed within 60 days of the
date the claim could have been presented.” Chester, 163 A.3d at 473.
Here, our Supreme Court denied review of Appellant’s judgment of
sentence on March 11, 2010. Appellant’s judgment of sentence became final
on June 9, 2010, when the period for Appellant to file a petition for a writ of
certiorari with the United States Supreme Court expired. See 42 Pa.C.S.A.
§ 9545(b)(3); U.S. Sup.Ct. R. 13(1). Appellant filed his second pro se PCRA
petition on December 19, 2014, more than four years after his judgment of
sentence became final. Thus, this PCRA petition is patently untimely. On
appeal, Appellant does not invoke any of the three exceptions to the one-
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year timeliness requirement of the PCRA.2 As such, the PCRA properly
deemed Appellant’s second pro se PCRA petition untimely and dismissed it
for lack of jurisdiction. We discern no abuse of discretion or error of law.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2018
____________________________________________
2 Before the PCRA court, Appellant “assert[ed] that his claim of actual
innocence should [] equitably toll the [PCRA] one-year time limit and deem
the petition timely, relying on McQuiggin v. Perkins, 133 S.Ct. 1924
(2013) and Sclup v. Delo, 513 U.S. 298 (1995).” PCRA Court Opinion,
6/20/2017, at 3. Appellant does not currently advance that claim on
appeal. Failure to develop an argument with citation to legal authority
results in waiver under Pa.R.A.P. 2119. Regardless, our Supreme Court has
made clear that the “period for filing a PCRA petition is not subject to the
doctrine of equitable tolling; instead, the time for filing a PCRA petition can
be extended only by operation of one of the statutorily enumerated
exceptions to the PCRA time-bar.” Robinson, 139 A.3d 178, 185 (Pa.
2016).
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Com. v. Day, A.
Combined Opinion