Com. v. Scott, J. ( 2021 )

J-S36010-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH SCOTT :
:
Appellant : No. 1329 EDA 2021
Appeal from the PCRA Order Entered June 2, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1026751-1982
BEFORE: LAZARUS, J., KING, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 17, 2021
Joseph Scott appeals pro se from the order, entered in the Court of
Common Pleas of Philadelphia County, dismissing, as untimely, his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546.1 After careful review, we affirm.
In 1984, Scott was convicted of second-degree murder and related
offenses; he was sentenced to life imprisonment, a concurrent sentence of 5-
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Our standard of review of the court's denial of a PCRA petition is well-settled:
Our standard of review of a PCRA court’s dismissal of a PCRA
petition is limited to examining whether the PCRA court’s
determination is supported by the record evidence and free of
legal error. Before addressing the merits of Appellant’s claims,
we must first determine whether we have jurisdiction to entertain
the underlying PCRA petition.
Commonwealth v. Whitehawk, 146 A.3d 266, 269 (Pa. Super. 2016)
(citations omitted)
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10 years’ imprisonment, and a suspended sentence. Scott filed an
unsuccessful motion to modify sentence, which was denied on May 9, 1984.
Scott filed a direct appeal; our Court vacated his suspended sentence and
affirmed all remaining judgments of sentence. See Commonwealth v.
Scott, No. 01338 Philadelphia 1984 (Pa. Super. filed Nov. 1, 1985)
(unpublished memorandum decision). Scott filed a petition for allowance of
appeal with the Pennsylvania Supreme Court, which was denied on November
24, 1986. From 1988 through 2018, Scott filed serial PCRA petitions,
amended pro se PCRA petitions, and writs of habeas corpus. His latest PCRA
petition, filed on July 27, 2018, is his sixth. After issuing Pa.R.Crim.P. 907
notice of its intent to dismiss Scott’s petition without a hearing, the PCRA court
dismissed the petition on June 2, 2021. Scott filed a timely notice of appeal
and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal.
On appeal, Scott raises the following issues for our consideration:
(1) Whether the PCRA [c]ourt failed to hold an evidentiary
hearing on the timeliness that is required [for] a separate
evaluation?
(2) Whether permitting hearsay testimony alone to establish [a]
complaint against [Scott] was insufficient to establish a
prima facie case or any element of an offense [was error].
Appellant’s Brief, at 3.
In his latest petition, Scott claims he is eligible for collateral relief based
upon a constitutional violation that led to an illegal sentence. See PCRA
Petition, 7/27/18, at 3. Specifically, Scott asserts that he is “actually innocent
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of second[-]degree murder” where his vacated robbery sentence on direct
appeal “was the predicate” for his murder conviction. Id. at 3. In an amended
petition, filed after the PCRA court issued its Rule 907 notice of intent to
dismiss his petition without a hearing, Scott raised a claim that the
prosecutors in his case only presented hearsay testimony at his preliminary
hearing and, therefore, without any “physical scientifical evidence against
him,” his case should not have been bound over for trial. Amended PCRA
Petition, 11/18/20, at 1-2. See Commonwealth v. McClelland, 233 A.3d
717 (Pa. 2020) (holding hearsay evidence alone insufficient to establish prima
facie case at preliminary hearing).
Instantly, the PCRA court dismissed Scott’s latest petition as untimely
filed, noting that he failed to plead and prove any exception to the PCRA’s
time-bar. Specifically, the court found that “[Scott] failed to meaningfully
address the PCRA’s statutory time-bar[, but, rather,] solely discussed his
substance [of his] sentence-illegality claim. This kind of presentation fell
woefully short of his obligation to explain how one of the three statutory
exceptions applied.” Trial Court Opinion, 5/26/21. We agree.
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration of
the time for seeking such review. [Id. at] § 9545(b)(3). The
PCRA’s timeliness requirements are jurisdictional; therefore, a
court may not address the merits of the issues raised if the petition
was not timely filed. The timeliness requirements apply to all
PCRA petitions, regardless of the nature of the individual claims
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raised therein. The PCRA squarely places upon the petitioner the
burden of proving an untimely petition fits within one of the three
exceptions[.]
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and
footnote omitted).
Here, Scott’s judgment of sentence became final on February 24, 1987,
when the time expired for him to file a petition for writ of certiorari with the
United States Supreme Court. See 42 Pa.C.S.A. § 9545 (b)(3); Sup. Ct. R.
13. Thus, Scott had until February 24, 1988, to file a timely PCRA petition.
The current petition, filed more than thirty years later on July 27, 2018, is,
therefore, patently untimely. Thus, unless Scott pleads and proves a
timeliness exception to the PCRA time-bar, the PCRA court had no jurisdiction
to consider the merits of his petition. See Commonwealth v. Jackson, 30
A.3d 845 (Pa. 2012) (if PCRA petition deemed untimely and no exception pled
and proven, petition must be dismissed without hearing because court lacks
jurisdiction to consider merits of petition).
Because Scott’s petition and amended petition do not plead, let alone
prove, any PCRA timeliness exception, we agree with the trial court that his
petition is time-barred. See Commonwealth v. Brown, 111 A.3d 171 (Pa.
Super. 2015) (where petitioner neither acknowledged untimeliness of petition
nor alleged any exception to PCRA time-bar, petitioner failed to “plead and
prove” any section 9545(b)(1) exception); see also Commonwealth v.
Wharton, 886 A.2d 1120, 1126 (Pa. 2005) (“Exceptions [to the PCRA
jurisdictional time-bar] cannot be raised for the first time on appeal[.]”).
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Thus, the trial court properly dismissed Scott’s petition without a hearing.2
Whitehawk, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2021
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2 Even if Scott had pled an exception under section 9545(b)(1), he would not
be eligible for PCRA relief. Our Supreme Court has yet to hold that the
constitutional right recognized in McClelland applies retroactively. See
Commonwealth v. Leggett, 16 A.3d 1144, 1147 (Pa. Super. 2011) (in order
for section 9545(b)(1)(iii) timeliness exception to apply, “petitioner must
prove that there is a ‘new’ constitutional right and that the right ‘has been
held’ by that [C]ourt to apply retroactively . . . to cases on collateral appeal”).
Moreover, if he were to argue that the newly-discovered facts exception
applies, see 42 Pa.C.S. § 9545(b)(1)(ii), he would similarly be unsuccessful
as case law does not constitute a “fact” for purposes of this exception. See
Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011) (subsequent
decisional law does not amount to new “'fact” under section 9545(b)(1)(ii) of
PCRA).
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