Com. v. Dawson, B. (memorandum)

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J-S43026-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. BABE RUTH DAWSON, JR., Appellant No. 3238 EDA 2013 Appeal from the PCRA Order entered November 22, 2013, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-631411-1991 BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD*, JJ. MEMORANDUM BY ALLEN, J.: FILED JULY 07, 2014 pro se from the order denying his latest petition for relief under the Post Conviction Relief Act -46. We affirm. The pertinent facts and protracted procedural history are as follows: On March 12, 1992, at the conclusion of a two-day bench trial, Appellant was convicted of first-degree murder and related charges. On December 14, 1993, the trial court sentenced Appellant to life in prison for his murder conviction, and a concurrent one to two-year sentence for the remaining convictions. Appellant filed a timely appeal to this Court. In an unpublished judgment of sentence. Commonwealth v. Dawson, 667 A.2d 418 (Pa. Super. *Former Justice specially assigned to the Superior Court. J-S43026-14 allocatur petition. Commonwealth v. Dawson, 674 A.2d 1066 (Pa. 1996). Appellant filed a pro se PCRA petition on December 31, 1996. However, after learning that his counsel had filed a writ of habeas corpus in federal court, Appellant withdrew this petition on April 18, 1997. The federal habeas corpus petition on November 3, 1997. See Dawson v. Kyler, F.Supp.2d, 2005 WL 182723 (E.D.Pa. 2005). Appellant filed another pro se PCRA petition on January 5, 1998. PCRA counsel filed an amended petition, and the PCRA court subsequently issued notice of its intent to dismiss. By order entered November 22, 2000, o restored. In an unpublished memorandum filed on November 27, 2001, this Court affirmed the denial of post-conviction relief. Commonwealth v. Dawson, 792 A.2d 611 (Pa. Super. 2001). On May 20, 2002, our Supreme allocatur petition. Commonwealth v. Dawson, 798 A.2d 1287 (Pa. 2002). On June 3, 2002, Appellant again filed a PCRA petition. On November 25, 2002, after proper notice, the PCRA court dismissed this petition as untimely filed. Appellant filed a timely appeal to this Court. In a judgment order on September 17, 2003, this Court affirmed the denial of post-2- J-S43026-14 conviction relief. Commonwealth v. Dawson, 835 A.2d 829 (Pa. Super. 2003). On March 23, 2004, our S allocatur petition. Commonwealth v. Dawson, 847 A.2d 1278 (Pa. 2004). On June 16, 2011, Appellant filed the PCRA petition at issue. On October 19, 2011, the PCRA court filed Pa.R.Crim.P. 907 notice of intent to dismiss 2, 2011. By order entered October 22, 2013, the PCRA court dismissed not require Pa.R.A.P. 1295 compliance. 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. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a hearing on the petition i claim is patently frivolous and is without a trace of support in either the record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001). Finally, because this is a serial petition for post- or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a -3- J-S43026-14 miscarriage of justic Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa. Super. 2003) (en banc petitioner makes a prima facie showing if he demonstrates that either the proceedings which resulted in his conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or Id. Before addressing the issues raised on appeal, we must first determine on was timely. The timeliness of a post- conviction petition is jurisdictional. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation omitted). Thus, if a petition is untimely, neither an appellate court nor the PCRA court has jurisdiction over the petition. Id Id. Generally, a petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final unless the petition alleges, and the petitioner proves, an exception to the time for filing the petition. Commonwealth v. GamboaTaylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under been interference by government officials in the presentation of the claim; or (2) there exists after-discovered facts constitutional right h or evidence; or (3) a new Commonwealth v. Fowler, 930 -4- J-S43026-14 A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition Gamboa-Taylor, 753 A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to the time restrictions of the PCRA must be pled in the petition, and may not be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also raised before the lower court are waived and cannot be raised for the first Appellant did not file a petition for certiorari affirmance of his judgment of sentence on or about June 17, 1996, after the ninety-day period for requesting such relief expired. 9543(b)(3); U.S.Sup.Ct.R. 13. See 42 Pa.C.S.A. Appellant had to file this petition on or about June 17 1997, in order for it to be timely. As Appellant filed the instant petition almost fourteen years later, it is patently untimely unless he has satisfied his burden of pleading and proving that one of the enumerated exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999). Within his brief, Appellant first claims that he has met the timeliness Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), as well as this -5- J-S43026-14 Commonwealth v. Barton-Martin, 5 A.3d 363 (Pa. Super. 2010), and Commonwealth v. Dyarman, 73 A.3d 565 (Pa. 2013). because Appellant did no See 42 Pa.C.S.A. section 9545(b)(2), supra. In addition, the PCRA court explained: Even if this claim were not time-barred, the Pennsylvania Superior Court has held that neither [the] decision of the Superior Court in [Barton-Martin], applying the United Melendez-Diaz], nor [the] decision in Melendez Diaz itself, nor [the] decision in Crawford v. Washington, [ U.S. (20 )], upon which Melendez-Diaz relied, applied retroactively to bring untimely petitions within an exception to the statutory time bar. Commonwealth v. Brandon, 51 A.3d 231, 235-36 (Pa. Super. 2012). Id. at 3, n.5. Our review of the above c that Appellant did not timely raise his claim regarding a newly recognized constitutional right, and, even if he had, he did not meet his burden under subsection 9545(b)(1)(iii). See generally, Brandon, supra. decision in Dyarman, supra, to support his claim. In Dyarman, our Supreme Court applied the reasoning of Melendez-Diaz and Crawford to determine, in a driving under the influence case, that t Amendment confrontation rights were not violated by the admission into -6- J-S43026-14 evidence of the pertinent calibration and accuracy certificates for breath test machines. Dyarman, 73 A.2d at 569. Appellant fails to explain how this decision supports him in establishing the recognition of a new constitutional right that is to be applied retroactively. Appellant also asserts that his latest petition is not time-barred given Martinez v. Ryan, 132 S.Ct. 1309 (2012). We disagree. Initially, we note that because Appellant did not raise a claim based upon Martinez before the PCRA court, it inappropriately is being raised for the first time on appeal. See generally, Pa.R.A.P. 302(a). Absent waiver, Martinez is inapposite. Martinez represents a significant development in federal habeas corpus law, it is of no moment with respect to the way Pennsylvania courts apply the plain language of the time bar set Commonwealth v. Saunders, 60 A.3d. 162, 165 (Pa. Super. 2013). time bar. The PCRA court correctly determined that it lacked jurisdiction to address the substantive claims raised by Appellant. Beasley, supra. We -conviction relief. -7- J-S43026-14 Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/7/2014 -8-

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