Commonwealth v. Pew
Decision Date | 04 June 2018 |
Docket Number | No. 2051 EDA 2017,2051 EDA 2017 |
Citation | 189 A.3d 486 |
Parties | COMMONWEALTH of Pennsylvania v. Alfonso Percy PEW, Appellant |
Court | Pennsylvania Superior Court |
Alfonso P. Pew, appellant, pro se.
Daniel P. Casullo, III, Assistant District Attorney, Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: PANELLA, J., MURRAY, J., and STEVENS* , P.J.E.
Appellant Alfonso Percy Pew appeals pro se from the Order entered in the Court of Common Pleas of Philadelphia County on June 8, 2017, denying as untimely his serial petition filed pursuant to the Post Conviction Relief Act.1 We affirm.
A panel of this Court previously set forth the relevant facts and procedural history on appeal from the Order entered on October 16, 1995, denying Appellant's first PCRA petition as follows:
Commonwealth v. Pew , No. 3676 Philadelphia 1995, unpublished memorandum at 1–2 (unnumbered) (Pa.Super. filed Oct. 28, 1996). On June 25, 1997, the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Pew , 548 Pa. 657, 698 A.2d 66 (1997).
Between 2001 and 2010, Appellant filed numerous PCRA petitions pro se , and each of them was denied. Appellant filed the instant petition, his fifth, on February 17, 2016, and additional supplemental filings followed. Following its consideration of Appellant's petition and ancillary documents, the PCRA court notified Appellant of its intent to dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P 907 on March 6, 2017. Appellant filed a response to the Rule 907 notice on March 20, 2017, and on June 8, 2017, the PCRA court dismissed Appellant's petition as untimely. This timely appeal followed on June 14, 2017.
In his brief, Appellant presents the following question for our review:
Whether fraud in sentencing under 42 Pa.C.S. § 5505 Commonwealth v. Holmes, 593 Pa. 601, 933 A.2d 57 (2007) gives the common pleas court jurisdiction to correct sentence that cannot legally reconcile?
Appellant's Brief at 2 (emphasis in original) (unnecessary capitalization omitted).
When reviewing the denial of a PCRA petition, our standard of review is limited to examining whether the PCRA court's determination is supported by evidence of record and whether it is free of legal error. Commonwealth v. Smallwood , 155 A.3d 1054, 1059 (Pa.Super. 2017) (citations omitted).
At the outset, we consider whether this appeal is properly before us. The question of whether a petition is timely raises a question of law, and where a petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Callahan , 101 A.3d 118, 121 (Pa.Super. 2014).
All PCRA petitions must be filed within one year of the date upon which the judgment of sentence became final, unless one of the statutory exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The petitioner bears the burden of pleading and proving an applicable statutory exception. If the petition is untimely and the petitioner has not pled and proven an exception, the petition must be dismissed without a hearing because Pennsylvania courts are without jurisdiction to consider the merits of the petition. Commonwealth v. Taylor , 65 A.3d 462, 468 (Pa.Super. 2013). This is true even where, as herein, the appellant challenges the legality of his sentence. Commonwealth v. Fahy , 558 Pa. 313, 331, 737 A.2d 214, 223 (1999) ( ).
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:
42 Pa.C.S.A. § 9545(b)(1). In addition, any petition attempting to invoke one of these exceptions "shall be filed within 60 days of the date the claim could have been presented." 42 Pa.C.S.A. § 9545(b)(2).
Herein, the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal on June 25, 1997. Thus, Appellant's judgment of sentence became final on or about September 25, 1997, at which time the ninety-day period in which he had to file a petition for certiorari with the United States Supreme Court expired. See U.S.Sup.Ct. Rule 13 ; 42 Pa.C.S.A. § 9545(b)(3) ().
A timely petition had to be filed by September 25, 1998; therefore, the instant PCRA petition filed on February 17, 2016, is patently untimely, and the burden fell upon Appellant to plead and prove that one of the enumerated exceptions to the one-year time-bar applied to his case. See 42 Pa.C.S.A. § 9545(b)(1) ; Commonwealth v. Perrin , 947 A.2d 1284, 1286 (Pa.Super. 2008) ( ).
At the outset, we note we could deem the issue Appellant presents for our review waived based on his defective appellate brief which is disorganized and comprised of rambling, repetitive and often incoherent statements. See Pa.R.A.P. 2101, 2111, 2118, 2119 ; Commonwealth v. Hardy , 918 A.2d 766, 771 (Pa.Super. 2007), appeal denied, 596 Pa. 703, 940 A.2d 362 (2008) ( ); Commonwealth v. Lyons , 833 A.2d 245, 251–52 (Pa.Super. 2003), appeal denied, 583 Pa. 695, 879 A.2d 782 (2005) .
Notwithstanding, to the extent Appellant purports to invoke the after-discovered evidence exception to the PCRA's time bar in the instant PCRA petition, see 42 Pa.C.S.A. § 9545(b)(1)(ii), he does not explain how the documents he attaches thereto, the DC–300B form, criminal complaint and sentencing orders, (collectively Exhibits 1–4) which he claimed he did not receive from the courthouse mail until March 25, 2016, were unavailable to him prior thereto. Moreover, he has not established why he did not seek to ascertain these materials in the decades following his conviction prior to the filing of one of his previously-filed PCRA petitions. Thus, Appellant's failure to establish that these documents were previously unavailable to him is fatal to his attempt to satisfy the requirements of Subsection 9545(b)(1)(ii). See Commonwealth v. Brown , 111 A.3d 171, 176 (Pa.Super. 2015) (...
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