Com. v. Saxon, J. (memorandum)

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J.S43039/14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. JEAN SAXON, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 587 EDA 2014 Appeal from the PCRA Order January 14, 2014 In the Court of Common Pleas of Bucks County Criminal Division No(s).: CP-09-CR-0002168-2005 BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED JULY 09, 2014 Appellant, Jean Saxon, appeals pro se from the order entered in the Bucks County Court of Common Pleas dismissing her second Post Conviction Relief Act1 weight of her convictions, alleges a Brady2 violation, claims the court erred in admitting a dying declaration, and maintains prior counsel were ineffective regarding the aforementioned. We affirm. We adopt the facts and procedural history set forth by the PCRA See PCRA Ct. Op., 4/8/14, at 1-2 (unpaginated). Appellant * Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. 2 Brady v. Maryland, 373 U.S. 83 (1963). J. S43039/14 filed the instant, pro se second PCRA petition on November 12, 20133 while her appeal from the denial of her first PCRA petition was outstanding. 4 On January 14, 2014,5 the PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss. On January 27, 2014,6 Appellant filed a notice of appeal from 2014 notice of appeal be treated as if it was timely filed from the subsequent 7 See id. at 2. The order also instructed Appellant to comply with Pa.R.A.P. 1925(b) within twenty-one days. See id. Appellant did not comply. 3 The envelope was post-marked this date. See Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006) (discussing prisoner mailbox rule). 4 a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000). This Court PCRA petition on November 25, 2013. As discussed infra, however, the PCRA court lacked jurisdiction to entertain the instant petition because it was untimely. 5 6 The order was docketed on this date. The certificate of service stated this date. 7 The PCRA court docketed The docket reflects that an order was entered on February 28, 2014, but the order is not part of the certified record. -2- J. S43039/14 Appellant raises the following issues: Whether the government failed to meet its burden of proof . . . resulting in an irrational verdict . . . and resulting in a miscarriage of justice? Whether [Appellant] was denied exculpatory (Brady) testimony in violation of her constitutional right to obtain witnesses in her favor and in violation of the Commonwealth Rules of Evidence? Whether trial and post trial counsel through raising the above questions in part, totally failed to apprehend the magnitude of miscarriage of justice perpetrated on [Appellant] and were as a matter of law ineffective? has required this Court to examine whether we have jurisdiction to entertain the underlying PCRA petition. See Commonwealth v. Fahy, 737 A.2d 214, determinat Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc 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 Commonwealth v. Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (internal citations and footnote omitted). -3- J. S43039/14 nature and must be strictly construed; courts may not address the merits of the issues raised in a petition if it is prove that one of the [three] timeliness exceptions applies. Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267-68 (Pa. 2008) (internal citations omitted). The three timeliness exceptions 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, we examine whether the PCRA court erred by holding See 42 Pa.C.S. § 9545(b)(1), (2); Abu-Jamal, 941 A.2d at 1267-68. sentence became final on March 19, 2008, Pennsylvania Supreme Court denied allocatur. -4- With respect to her ninety days after the J. S43039/14 Appellant filed the instant petition on November 12, 2013, over five years later. Thus, this Court must discern whether the PCRA court erred in concluding Appellant did not plead and prove one of the three timeliness exceptions. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii); Copenhefer, 941 A.2d at 648. In this case, Appellant has not pleaded or proved any of the timeliness exceptions. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Accordingly, we agree rmination that Appellant has not proved one of the three timeliness exceptions. See Abu-Jamal, 941 A.2d at 1267-68; Copenhefer, 941 A.2d at 648. Thus, the PCRA court lacks jurisdiction to consider her petition. See Fahy, 737 A.2d at 223. Having discerned no error of law, we affirm the order below.8 See Wilson, 824 A.2d at 333. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/9/2014 8 Pa.R.A.P. 1925(b) statement. -5-

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