J-S84011-16

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES JONES,

Appellant No. 1234 EDA 2016

Appeal from the PCRA Order of April 4, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0205431-2002

BEFORE: OLSON, SOLANO and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.: FILED JANUARY 19, 2017

Appellant, James Jones, appeals pro se from the order entered on April 

4, 2016, dismissing his petition pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

We briefly summarize the facts and procedural history of this case as 

follows. Following a non-jury trial on July 26, 2002, Appellant was 

convicted of robbery, burglary, theft, receiving stolen property, criminal 

mischief, criminal trespass, simple assault, and recklessly endangering 

another person (“REAP”) for the January 10, 2002 burglary of Joel Beamon’s 

residence in Philadelphia. On December 17, 2002, the trial court determined 

that Appellant’s robbery and burglary convictions required the imposition of 

mandatory minimum sentences for recidivists pursuant to 42 Pa.C.S.A. 

§ 9714(a)(2) (sentences for second and subsequent offenses). Thus, the 
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trial court imposed two concurrent terms of twenty-five to fifty years’ 

imprisonment for robbery and burglary. No further penalties were imposed 

on the remaining convictions. We affirmed Appellant’s judgment of 

sentence. See Commonwealth v. Jones, 844 A.2d 1282 (Pa. Super. 

2003) (unpublished memorandum). Our Supreme Court denied further 

review. See Commonwealth v. Jones, 853 A.2d 360 (Pa. 2004).

Appellant subsequently filed a timely PCRA petition that the PCRA 

court denied. On appeal, this Court vacated Appellant’s sentence as illegal 

under Commonwealth v. McClintic, 909 A.2d 1241 (Pa. 2006). 

Specifically, we held that because Appellant’s burglary and robbery 

convictions arose out of the same criminal transaction, a sentence 

enhancement was proper for one, but not both, crimes of violence. At a new 

sentencing hearing in October 2007, the trial court resentenced Appellant to 

a mandatory term of imprisonment for the robbery conviction only, and 

imposed a concurrent sentence of nine to eighteen years of incarceration for 

burglary. We affirmed Appellant’s judgment of sentence. See 

Commonwealth v. Jones, 974 A.2d 1184 (Pa. Super. 2009) (unpublished 

memorandum). Our Supreme Court denied further review. See 

Commonwealth v. Jones, 980 A.2d 606 (Pa. 2009).

Since then, Appellant has filed pro se PCRA petitions that the PCRA 

court denied as untimely, not subject to exception, and this Court has 

subsequently affirmed. See Commonwealth v. Jones, 24 A.3d 444 (Pa. 

Super. 2010); see also Commonwealth v. Jones, 81 A.3d 1001 (Pa. 
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Super. 2013). Currently, Appellant filed a pro se PCRA petition on July 8, 

2014. However, Appellant still had a prior PCRA petition that he was 

litigating on appeal. Appellant ultimately discontinued that prior appeal on 

July 24, 2014, so that he could litigate his July 8, 2014 PCRA petition. 

Furthermore, on September 11, 2014 and October 23, 2014, Appellant filed 

pro se amendments to his petitions. On March 17, 2015, the PCRA court 

sent Appellant notice pursuant to Pa.R.Crim.P. 907 of its intention to dismiss 

the July 8, 2014 PCRA petition, as amended, without an evidentiary hearing 

because it was untimely and not subject to exception. By order entered on 

April 4, 2016, the PCRA court denied Appellant relief. This timely pro se

appeal resulted. On appeal, Appellant claims the PCRA court erred by 

dismissing his twice amended PCRA petition as untimely without first 

reviewing the merits of his claims. See Appellant’s Brief at 5.

We previously determined:

It is well-established that the PCRA's timeliness 

requirements are jurisdictional in nature and must be 

strictly construed; courts may not address the merits of the 

issues raised in a petition if it is not timely filed. Generally, 

a PCRA petition must be filed within one year of the date 

the judgment of sentence becomes final unless the 

petitioner meets his burden to plead and prove one of the 

exceptions enumerated in 42 Pa.C.S.A. § 9545(b)(1)(i)–

(iii), which include: (1) the petitioner's inability to raise a 

claim as a result of governmental interference; (2) the 

discovery of previously unknown facts or evidence that 

would have supported a claim; or (3) a newly-recognized 

constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii). 

However, the PCRA limits the reach of the exceptions by 

providing that a petition invoking any of the exceptions 
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must be filed within 60 days of the date the claim first could 

have been presented. 

Commonwealth v. Walters, 135 A.3d 589, 591–592 (Pa. Super. 2016) 

(most citations omitted).

In this case, Appellant’s judgment of sentence became final on 

September 27, 2004, when the time to seek certiorari with the United States 

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

Court Rule 13(a). As Appellant filed his PCRA petition on July 8, 2014, 

almost ten years after his sentence became final, his petition is facially 

untimely.

To meet the PCRA’s jurisdictional timeliness requirement, Appellant 

claims a newly recognized constitutional right under Section 9545(b)(1)(iii). 

In particular, Appellant cites Commonwealth v. Walker, 92 A.3d 766 (Pa. 

2014) in which our Supreme Court examined whether expert testimony 

regarding eyewitness testimony was admissible under Pennsylvania’s rules 

of evidence. Appellant filed his PCRA petition within 60 days of the Walker

decision.1 However, in considering whether Appellant has advanced a valid 

____________________________________________

1

 Walker was decided on May 28, 2014. Appellant filed his PCRA petition 

on July 8, 2014, within 60 days of the decision. We note that the PCRA 

court should not have accepted the filing because a prior PCRA petition was 

still pending. “[A] PCRA trial court cannot entertain a new PCRA petition 

when a prior petition is still under review on appeal.” Commonwealth v. 

Porter, 35 A.3d 4, 14 (Pa. 2012), citing Commonwealth v. Lark, 746 A.2d 

585, 588 (Pa. 2000). However, Appellant discontinued his prior PCRA appeal 

on July 24, 2014. He filed his next PCRA petition on September 11, 2014, 

within 60 days of the discontinuance of the prior PCRA appeal. The PCRA 

provides that any exception set forth in subsection (b)(1)(ii) must be pled 

(Footnote Continued Next Page)
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claim asserting a newly-recognized constitutional right, as that phrase is 

used in Section 9545(b)(1)(iii), our Supreme Court has noted:

Subsection (iii) of Section 9545 [(b)(1)] has two 

requirements. First, it provides that the right asserted is a 

constitutional right that was recognized by the Supreme 

Court of the United States or [the Pennsylvania Supreme 

Court] after the time provided in this section. Second, it 

provides that the right “has been held” by “that court” to 

apply retroactively.

Thus, a petitioner must prove that there is a “new” 

constitutional right and that the right “has been held” by 

that court to apply retroactively. The language “has been 

held” is in the past tense. These words mean that the action 

has already occurred, i.e., “that court” has already held the 

new constitutional right to be retroactive to cases on 

collateral review. By employing the past tense in writing this 

provision, the legislature clearly intended that the right was 

already recognized at the time the petition was filed.

Commonwealth v. Copenhefer, 941 A.2d 646, 649-50 (Pa. 2007).

Walker did not recognize a new constitutional right within the 

meaning of Section 9545(b)(1)(iii). In Walker, our Supreme Court granted 

allocatur to determine “whether a trial court may, in its discretion, permit 

expert testimony in the area of eyewitness identification, and [to] reconsider 

(Footnote Continued) _______________________

within 60 days of when it “could have been presented.” 42 Pa.C.S.A. 

§ 9545(b)(2). In this instance, even if we overlook Appellant’s July 8, 2014 

PCRA petition because it was filed during the pendency of a prior petition, 

we conclude that Appellant’s September 11, 2014 petition (which included a 

Walker-based timeliness claim) was filed within 60 days of the date it first 

could have been presented, i.e., following Appellant’s discontinuance of his 

prior appeal. Regardless, as discussed at length below, Walker does not 

provide Appellant relief. 
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[Pennsylvania’s] decisional law which absolutely bans such expert 

testimony.” Walker, 92 A.3d 766, 769 (Pa. 2014). The Walker majority 

“reject[ed] reliance upon cross-examination and closing arguments as 

sufficient to convey to the jury the possible factors impacting eyewitness 

identification and as justification for an absolute bar of such expert 

testimony, and recognize[d] the potential advantages of expert testimony as 

a means to assist the jury where mistaken identity is a possibility.” Id. at 

786. Thus, our Supreme Court held that “in Pennsylvania, the admission of 

expert testimony regarding eyewitness identification is no longer per se

impermissible, and [it] join[ed] the vast majority of jurisdictions which leave 

the admissibility of such expert testimony to the discretion of the trial court.” 

Id. at 769. The Walker Court, however, declined to hold that the decision 

was to be applied retroactively. Id. at 793 n.12. Thus, the Walker decision 

created a new evidentiary rule, not a constitutional right, and it was not held 

to be retroactive.

In sum, Appellant’s various amended PCRA petitions were patently 

untimely and he has not established an exception to the jurisdictional time 

bar. Hence, we agree with the PCRA court that it lacked jurisdiction to 

address Appellant’s claims and discern no abuse of discretion or error of law. 

Accordingly, we affirm the PCRA court’s determination.

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/19/2017