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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. :

:

TERENCE BAXTER, : No. 465 WDA 2014 

:

 Appellant :

Appeal from the PCRA Order, January 21, 2014, 

in the Court of Common Pleas of Allegheny County 

Criminal Division at No. CP-02-CR-0006336-1989 

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 03, 2016 

 Terence Baxter appeals, pro se, from the order of January 21, 2014, 

dismissing his second PCRA1 petition on the basis of untimeliness. We 

affirm. 

 We summarized the history of this matter in a previous decision, 

affirming dismissal of appellant’s first PCRA petition: 

 On January 26, 1990, a jury convicted 

[appellant] of burglary, 18 Pa.C.S. § 3502. The 

charges arose from an incident that occurred in the

early morning hours of May 11, 1989. At that time 

[appellant] broke into the house of an off-duty 

Pittsburgh police officer. The victim awakened and

attacked [appellant], causing him to flee the scene. 

The victim later testified that he discovered that 

money was missing from his wallet. [Appellant] was

apprehended after the victim identified him from a 

 

1

 Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. 
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photo array. The victim also identified [appellant] at 

trial. 

 On June 29, 1990, the trial court denied 

post-trial motions and entered the judgment of 

sentence, imposing a term of 5 to 20 years’ 

imprisonment. [Appellant] filed a direct appeal, and 

this Court affirmed the judgment of sentence on 

August 28, 1991. The Supreme Court denied 

allocatur on April 9, 1992. [Appellant] filed the 

instant PCRA petition, his first, on December 18, 

1996. Counsel was appointed and filed an amended 

petition on August 20, 1997. As stated, this petition 

was denied on the merits October 27, 1997, and 

[appellant] now appeals. Since this is [appellant]’s 

first PCRA petition and it was filed by January 16,

1997, it is subject to the grace period of § 9545 and 

is timely. Therefore, we address the merits of his

petition. 

Commonwealth v. Baxter, No. 2296 PGH 1997, unpublished 

memorandum at 1-2 (Pa.Super. filed August 25, 1998). On August 25, 

1998, this court affirmed the dismissal of appellant’s first PCRA petition. Id. 

Appellant did not file a petition for allowance of appeal with the Pennsylvania 

Supreme Court. 

 On May 9, 2013, appellant filed a petition for writ of habeas corpus, 

which was properly treated as a serial PCRA petition.2 Therein, appellant 

alleged, inter alia, that he was entitled to a new trial due to 

after-discovered evidence in the form of a May 3, 2013 affidavit by 

 

2

 Appellant’s petition for writ of habeas corpus is properly treated as a 

serial PCRA petition, since the PCRA is the sole means by which a defendant 

may obtain collateral relief and subsumes the remedy of habeas corpus

with respect to remedies offered under the Post-Conviction Relief Act. 

42 Pa.C.S.A. § 9542. 
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Twanda Thomas (“Thomas”).3 Thomas averred that she was with appellant 

on the night of the burglary, in their home at 614 Village Road. (Docket 

#47.) Thomas stated that she was appellant’s fiancée and was pregnant 

with their child. (Id.) According to Thomas, she contacted appellant’s 

attorney and informed him of her availability to testify as an alibi witness at 

appellant’s trial, but she was never called as a witness. (Id.) 

 On October 3, 2013, the Commonwealth filed a motion to dismiss 

appellant’s PCRA petition as untimely. (Docket #48.) On October 30, 2013, 

the PCRA court issued Rule 9074 notice of its intention to dismiss the petition 

as time-barred within 30 days. (Docket #49.) Appellant filed a pro se

response on November 15, 2013, asserting that Thomas’ affidavit falls under 

the “after-discovered facts” exception to the PCRA’s one-year jurisdictional 

time bar. (Docket #50.) By order dated January 17, 2014, but not entered 

until January 21, 2014, the petition was dismissed. (Docket #51.) 

 Appellant filed a timely pro se notice of appeal on February 19, 2014. 

(Docket #52.)5 On July 3, 2014, the PCRA court filed an order directing 

 

3

 Most of appellant’s petition was devoted to the reliability of the victim’s 

identification. That issue, even if properly layered in terms of counsel 

ineffectiveness, would not be cognizable in an otherwise untimely PCRA 

petition. Commonwealth v. Breakiron, 781 A.2d 94, 97 (Pa. 2001) 

(allegations of ineffective assistance of counsel will not avoid the timeliness 

requirement of the PCRA). 

4

 Pa.R.Crim.P. 907. 

5

 We note that because the trial court’s order was not docketed until 

January 21, 2014, the appeal is timely. In addition, as appellant is currently 
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appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b) within 21 days; appellant timely complied on 

July 22, 2014. (Docket #57.) In his Rule 1925(b) statement, appellant 

again raises the issue that Thomas’ affidavit constitutes after-discovered 

evidence necessitating a new trial. (Id.) On February 4, 2015, the PCRA 

court issued a Rule 1925(a) opinion. (Docket #58.)6

 

incarcerated, the notice of appeal could be considered filed on February 10, 

2014, the date he certified he deposited it with prison authorities for mailing. 

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (discussing the 

“prisoner mailbox rule”). We also note that appellant requested 

appointment of counsel to represent him on appeal; however, he is not 

entitled to appointment of counsel on a second or subsequent PCRA petition. 

Commonwealth v. Kubis, 808 A.2d 196, 200 (Pa.Super. 2002), appeal 

denied, 813 A.2d 839 (Pa. 2002). “[T]he Pennsylvania Rules of Criminal 

Procedure provide that the PCRA court shall appoint an attorney to represent 

a petitioner during his first PCRA petition when he demonstrates that he is 

‘unable to afford or otherwise procure counsel.’” Id., quoting 

Pa.R.Crim.P. 904(A) (emphasis in original). 

6

 The PCRA court also dismissed the petition on the basis that appellant’s 

sentence has expired. Our supreme court has held that, to be eligible for 

relief under the PCRA, the petitioner must be “currently serving a sentence 

of imprisonment, probation or parole for the crime.” 42 Pa.C.S.A. 

§ 9543(a)(1)(i). As soon as his sentence is completed, the petitioner 

becomes ineligible for relief, regardless of whether he was serving his 

sentence when he filed the petition. Commonwealth v. Ahlborn, 699 A.2d 

718, 720 (Pa. 1997); Commonwealth v. Matin, 832 A.2d 1141, 1143 

(Pa.Super. 2003), appeal denied, 843 A.2d 1237 (Pa. 2004). Instantly, 

appellant was sentenced on June 29, 1990 to 5 to 20 years’ incarceration. 

Therefore, his sentence should have expired in 2010. However, in his 

pro se response to Rule 907 notice, appellant alleged that the Pennsylvania 

Board of Probation and Parole issued a detainer due to his conviction of new 

federal drug charges. (Docket #50 at 3.) We need not address this issue 

because we determine that appellant’s petition is patently untimely and that 

no exception to the PCRA’s one-year jurisdictional time bar applies. 
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The standard of review for an order denying 

post-conviction relief is limited to whether the record 

supports the PCRA court’s determination, and 

whether that decision is free of legal error. The 

PCRA court’s findings will not be disturbed unless 

there is no support for the findings in the certified 

record. Furthermore, a petitioner is not entitled to a 

PCRA hearing as a matter of right; the PCRA court 

can decline to hold a hearing if there is no genuine 

issue concerning any material fact and the petitioner 

is not entitled to post-conviction collateral relief, and 

no purpose would be served by any further 

proceedings. 

Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008), 

appeal denied, 956 A.2d 433 (Pa. 2008), quoting Commonwealth v. 

Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007) (citations omitted). 

Pennsylvania law makes clear no court has 

jurisdiction to hear an untimely PCRA petition. 

Commonwealth v. Robinson, 575 Pa. 500, 508, 

837 A.2d 1157, 1161 (2003). The most recent 

amendments to the PCRA, effective January 16, 

1996, provide a PCRA petition, including a second or 

subsequent petition, shall be filed within one year of 

the date the underlying judgment becomes final. 

42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. 

Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003); 

Commonwealth v. Vega, 754 A.2d 714, 717 

(Pa.Super.2000). A judgment is deemed 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.” 42 Pa.C.S.A. § 9545(b)(3). 

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010). 

The three statutory exceptions to the timeliness 

provisions in the PCRA allow for very limited 

circumstances under which the late filing of a 

petition will be excused. 42 Pa.C.S.A. § 9545(b)(1). 
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To invoke an exception, a petition must allege and 

prove: 

(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.A. § 9545(b)(1)(i)-(iii). “As such, when a 

PCRA petition is not filed within one year of the 

expiration of direct review, or not eligible for one of 

the three limited exceptions, or entitled to one of the 

exceptions, but not filed within 60 days of the date 

that the claim could have been first brought, the trial 

court has no power to address the substantive merits 

of a petitioner’s PCRA claims.” Commonwealth v. 

Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 

(2000); 42 Pa.C.S.A. § 9545(b)(2). 

Id. at 1079-1080. 

The timeliness exception set forth in 

Section 9545(b)(1)(ii) requires a petitioner to 

demonstrate he did not know the facts upon which 

he based his petition and could not have learned 

those facts earlier by the exercise of due diligence. 

Commonwealth v. Bennett, 593 Pa. 382, 395, 930 
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A.2d 1264, 1271 (2007). Due diligence demands 

that the petitioner take reasonable steps to protect 

his own interests. Commonwealth v. Carr, 768 

A.2d 1164, 1168 (Pa.Super.2001). A petitioner must

explain why he could not have obtained the new 

fact(s) earlier with the exercise of due diligence. 

Commonwealth v. Breakiron, 566 Pa. 323, 

330-31, 781 A.2d 94, 98 (2001); Commonwealth 

v. Yarris, 557 Pa. 12, 29, 731 A.2d 581, 590 

(1999). This rule is strictly enforced. See Vega, 

supra at 718. 

Id. at 1080. 

 Instantly, the Supreme Court of Pennsylvania denied appellant’s 

allocatur petition on April 9, 1992. Therefore, appellant’s judgment of 

sentence became final for PCRA purposes on or about July 8, 1992, upon 

expiration of the time to file a petition for writ of certiorari with the United 

States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); former 

U.S. Supreme Court Rule 22.1 (petition for writ of certiorari is deemed 

timely when it is filed within 90 days after denial of allocatur). Appellant 

filed the current petition, his second, on May 9, 2013, 21 years later. 

Therefore, appellant’s current PCRA petition is manifestly untimely on its 

face.7

 

7

 “There exists a proviso to the 1995 amendments to the PCRA which 

provides a grace period for petitioners whose judgments have become final 

on or before the effective date of the amendments. However, the proviso is 

not applicable to second or subsequent PCRA petitions.” Johnson, 945 A.2d 

at 188 n.2, citing Commonwealth v. Thomas, 718 A.2d 326 (Pa.Super. 

1998) (en banc). 
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 However, as previously stated, there are three exceptions under which 

a facially untimely PCRA petition may still be considered. Appellant attempts 

to invoke the after-discovered evidence exception8 to the time restrictions of 

the PCRA, enumerated in Subsection 9545(b)(1)(ii). Appellant relies on 

Thomas’ May 3, 2013 affidavit, in which she claims she and appellant were 

together at their house at the time of the burglary. Clearly, appellant was 

aware of the existence of this possible alibi witness prior to trial. According 

to Thomas’ affidavit, she and appellant were engaged to be married and she 

was carrying his child. In fact, Thomas avers that she contacted appellant’s 

attorney prior to trial and advised him of her willingness to testify on 

appellant’s behalf. Thomas’ affidavit does not constitute after-discovered 

evidence under Subsection 9545(b)(1)(ii). As appellant’s petition was 

untimely and no exception applied, the PCRA court was without jurisdiction 

to consider the merits of it and did not err in dismissing the petition without 

a hearing. 

 Order affirmed. 

 

8

 We recognize that Subsection 9545(b)(1)(ii) refers to previously unknown 

“facts,” which, under certain circumstances, can include counsel 

ineffectiveness. Bennett, supra (allegation that appointed counsel had 

abandoned the appellant by failing to file an appellate 

brief, resulting in dismissal of the appeal, brought the appellant’s claim 

within the ambit of Subsection 9545(b)(1)(ii)). However, for purposes of the 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 2/3/2016 

 

matter sub judice, use of the phrase “after-discovered evidence” to 

describe the nature of appellant’s claim is apt.