J-S08033-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHAWN JONES

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 786 MDA 2021

Appeal from the PCRA Order Entered May 19, 2021

In the Court of Common Pleas of Dauphin County Criminal Division at 

No(s): CP-22-CR-0005871-2016

BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED: JUNE 7, 2022

Shawn Jones (Appellant) appeals from the order entered in the Dauphin 

County Court of Common Pleas, dismissing his first, counseled Post Conviction 

Relief Act (PCRA) petition, as untimely filed 25 days beyond the general oneyear filing deadline.

1 On appeal, Appellant avers: (1) the date of the 

Pennsylvania Supreme Court’s denial of his petition for allowance of appeal, 

on direct appeal, should be construed as the date it was entered as received 

on the trial docket; (2) in the alternative, PCRA counsel provided ineffective 

assistance for filing an untimely PCRA petition; and (3) his untimely filing 

should be excused due to the 2020 COVID-19 pandemic statewide judicial 

emergency. We affirm.

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1 42 Pa.C.S. §§ 9541-9546 (PCRA). See 42 Pa.C.S. § 9545(b)(1).
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Appellant was found guilty by a jury of first-degree murder and firearms 

not to be carried without a license.2 On August 2, 2017, the trial court 

imposed an aggregate sentence of life imprisonment without parole. Appellant 

took a direct appeal, and this Court affirmed the judgment of sentence on 

November 1, 2018. On April 16, 2019, the Pennsylvania Supreme Court 

denied Appellant’s petition for allowance of appeal. Commonwealth v. 

Jones, 1679 MDA 2017 (Pa. Super. Nov. 1, 2018) (unpub. memo.), appeal 

denied, 786 MAL 2018 (Pa. Apr. 16, 2019).

For ease of review of this particular appeal, we first consider the PCRA 

court’s calculation of Appellant’s general one-year PCRA filing deadline. 

Following our Supreme Court’s denial of allowance of appeal, Appellant had 

90 days, or until July 15, 2019, to seek certiorari with the United States 

Supreme Court. See Sup.Ct.R. 13. When he did not, his judgment of 

sentence became final for PCRA purposes on that day. See 42 Pa.C.S. § 

9545(b)(3) (judgment becomes final at the conclusion of direct review, 

including discretionary review in the Supreme Court of the United States, or 

at the expiration of time for seeking the review). The PCRA court properly 

found Appellant then generally had one year, until July 15, 2020, to file a 

PCRA petition. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii) (PCRA petition shall be 

filed within one year of the date the judgment becomes final, unless petition 

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2 18 Pa.C.S. §§ 2501(a), 6106(a)(1).
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alleges one of three timeliness exceptions); Trial Ct. Mem. Op., 12/1/20, at 8 

(PCRA Ct. Op.).3 We further note any petition for habeas corpus relief is 

governed by the PCRA time requirements. 42 Pa.C.S.A. § 9542.

On August 7, 2020, Appellant’s current counsel, Ilon Fish, Esquire (PCRA 

Counsel), entered his appearance. Two days thereafter, on August 9th, PCRA 

Counsel filed a petition for habeas corpus, raising claims of trial counsel’s 

ineffectiveness, as well as a Brady4 violation. The petition claimed it was 

timely filed, where (1) the “Supreme Court affirmed the Lower Court[’]s

decision” on “May 8, 2019;” and (2) “the Superior Court affirmed the Lower 

Court[’]s rulings on May 13, 2019.”

5

 Appellant’s Petition for Habeas Corpus 

Relief, 8/9/20 at 2. These dates are not, in fact, the correct filing dates of the 

Superior Court’s and Supreme Court’s decisions, but rather the dates they 

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3 This December 1, 2020, opinion was issued in support of the PCRA court’s 

Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s petition without a 

hearing.

4 Brady v. Maryland, 373 U.S. 83 (1963). “To succeed on a Brady claim, 

the defendant must show: (1) evidence was suppressed by the prosecution; 

(2) the evidence, whether exculpatory or impeaching, was favorable to the 

defendant; and (3) prejudice resulted.” Commonwealth v. Hannibal, 156 

A.3d 197, 209 (Pa. 2016). But see 42 Pa.C.S. § 9543(a)(3) (PCRA petition

must plead and prove allegation of error has not been waived); Hannibal, 

156 A.3d at 209 (Brady claims were waived for PCRA review for failure to 

raise them at trial or on direct appeal).

5 PCRA Counsel further stated Appellant “had until August 11, 2020 to file a 

Petition to the Third Circuit Court of Appeals.” Appellant’s Petition for Habeas

Corpus Relief at 2. He provided no explanation for this deadline nor the 

relevance of any federal court filing to this matter. See id.
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were entered as received by the PCRA court on the trial docket. See Criminal 

Docket at 12-13. In any event, the correct filing dates were clearly set forth 

within the docket entries, as a part of the title of the filings. Id. (“Supreme 

Court Order 4/16/19 (786MAL2018);” “Superior Court Decision – 11/1/18 

(1679MDA2017)”). This habeas corpus petition did not plead any of the 

PCRA’s timeliness exceptions. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

Next, on September 3, 2020, PCRA Counsel filed a PCRA petition, which 

did not explicitly acknowledge the lateness of the habeas corpus filing, but 

nevertheless requested reinstatement of his “Appellate/Filing rights.” See 

Appellant’s PCRA Petition, 9/3/20, at 3. PCRA Counsel argued that

“[u]nbeknownst to all parties,” the trial docket entry dates were incorrect. Id.

at 2. This petition likewise did not mention any of the Section 9545(b)(1) 

timeliness exceptions, but instead vaguely averred, “Counsel files the within 

PCRA requesting that time limitations for filing. [sic].”

6

 Id. Finally, the 

petition stated the Commonwealth did not object to the requested relief.7 Id.

at 3.

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6 However, this same petition also continued to argue the request for PCRA 

relief was “timely filed,” based on the same incorrect dates of the Superior 

Court’s and Supreme Court’s decisions and the unexplained “August 11, 2020 

[deadline] to file a Petition to the Third Circuit Court of Appeals.” See 

Appellant’s PCRA Petition at 2.

7 On appeal, however, the Commonwealth argues the PCRA court properly 

dismissed the habeas corpus petition as untimely filed. Commonwealth’s Brief 

at 4.
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On December 1, 2020, the PCRA court issued Pa.R.Crim.P. 907 notice 

of intent to dismiss the petitions without a hearing. The court did not reach 

the merits of Appellant’s claims, but instead found the petitions were facially 

untimely and failed to plead any of the timeliness exceptions. PCRA Ct. Op. 

at 8-9.

Appellant did not file any response to the Rule 907 notice, and on May 

19, 2021, the PCRA court entered the underlying order dismissing the petition. 

Appellant filed a timely notice of appeal and the trial docket indicates he filed 

a timely court-ordered Pa.R.A.P. 1925(b) statement of errors complained of 

on appeal.8

Appellant presents six issues for our review:

1. Did the court err and abuse its discretion in failing to consider 

the PCRA petition as timely?

2. Did the court err and abuse its discretion in failing to approve 

the subsequent PCRA petition reinstating [Appellant’s] filing 

rights?

3. Did the court err and abuse its discretion in dismissing the 

PCRA petition where it was argued trial counsel was ineffective in 

failing to object to the trial court’s erroneous jury instructions?

4. Did the court err and abuse its discretion in dismissing the 

PCRA petition where it was argued that prosecutorial misconduct 

occurred due to a failure to turn over certain evidence?

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8 The court issued a Rule 1925(b) order on July 6, 2021, directing Appellant 

to file a concise statement within 21 days. The certified electronic record does 

not include the statement, but the trial docket indicates Appellant filed one, 

timely, on July 27th.
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5. Did the court err and abuse its discretion in dismissing the 

PCRA petition where it was argued that trial counsel was 

ineffective in failing to cross examine certain witnesses regarding 

previous convictions and pending charges?

6. Did the court err and abuse its discretion in dismissing the 

PCRA petition where it was argued that trial counsel was 

ineffective for failing to request a cautionary instruction regarding 

404(b) evidence?

Appellant’s Brief at 6-7.

“Our standard of review in PCRA appeals is limited to determining 

whether the findings of the PCRA court are supported by the record and free 

from legal error.” Commonwealth v. Spotz, 84 A.3d 294, 319 (Pa. 2014) 

(citation omitted). “If a PCRA petition is untimely, courts lack jurisdiction over 

the petition.” Commonwealth v. Woolstrum, 271 A.3d 512, 513 (Pa. 

2022).

Appellant first avers the PCRA court abused its discretion in finding his 

PCRA petition was untimely filed. He reiterates that the trial docket dates, 

rather than the actual filing dates of the appellate courts’ decisions, should 

govern, and thus his petition was timely filed. See Appellant’s Brief at 16 

(“The final judg[ ]ment appearing on the Lower Court’s docket was a Superior 

Court decision that was not timestamped, accepted, and docketed by the Clerk 

of Courts until May 13th, 2019. . . . Therefore, judg[ ]ment in this matter 
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was not final until May 13th, 2019 and Appellant filed his first PCRA petition 

on August 9th, 2020 . . . within the one year and 90 days timeframe.”).9

Appellant then raises, for the first time, a claim of PCRA Counsel’s 

ineffectiveness:

As an alternative, if the Court were to determine that undersigned 

counsel was ineffective in failing to file on time, the Superior Court

recently held that defendants may bring new claims of ineffective 

PCRA counsel. Commonwealth v. Bradley, 261 A.3d 381 (Pa. 

2021).

* * *

Any mistake made by [A]ppellant or undersigned counsel was 

inadvertent and the Commonwealth suffered no prejudice as a 

result of the 18 month delay. In fact, the Commonwealth was 

granted several extensions to file response to the PCRA petitions. 

In addition, due to the emergency, no evidentiary hearing would 

have been able to occur regardless if the Court had granted an 

evidentiary hearing or the petition.[10]

Id. at 16-17. Finally, Appellant argues, similarly for the first time, that the 

COVID-19 pandemic statewide judicial emergency, declared in a Pennsylvania 

Supreme Court’s March 16, 2020, order, “lasted throughout the entirety of 

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9 This analysis is mistaken; even if the Superior Court decision were issued on 

May 13, 2019, the judgment of sentence would not, as PCRA Counsel believes, 

have become final that same day. Instead, the judgment of sentence would 

have become final when the 30-day appeal period to the Pennsylvania 

Supreme Court expired, or if applicable, the 90-day appeal period to the 

United States Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3).

10 It is not clear, and Appellant does not explain, to what this “18 month delay”

refers. See Appellant’s Brief at 16. Additionally, although Appellant provides 

no clarification of the term, “the emergency,” we surmise he is referring to 

the COVID-19 pandemic.
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the procedural history of this matter.” See id. at 13. We conclude no relief 

is due.

First, we reject Appellant’s continued insistence that we should construe 

the filing dates of the two direct appeal Courts’ decisions to be the dates they 

were entered as received on the trial docket. Appellant provides no authority 

to support this reasoning, and we have not discovered any. Furthermore, 

PCRA counsel has provided no explanation, in the PCRA pleadings or on 

appeal, why he was not able to review the Superior Court and Supreme Court 

dockets for the correct filing dates. Accordingly, we agree with the PCRA 

court’s finding that Appellant’s general one-year filing period ended on July 

15, 2020, and his habeas corpus petition, filed 25 days later on August 9th, 

was facially untimely. See PCRA Ct. Op. at 8. Furthermore, the habeas corpus

petition did not plead any timeliness exception.

We next review in detail Appellant’s September 3, 2020, PCRA petition. 

This pleading likewise did not invoke any timeliness exception, but 

nevertheless requested reinstatement of his “Appellate/Filing rights.” See 

Appellant’s PCRA Petition, 9/3/20, at 3. Our Supreme Court has held that an 

attorney’s untimely filing of a first PCRA petition, which results in the complete 

foreclosure of collateral review is ineffective assistance per se, and can 

support the pleading of the newly-discovered evidence exception. 

Commonwealth v. Peterson, 192 A.3d 1123, 1130-31 (Pa. 2018), citing 42 

Pa.C.S. § 9545(b)(1)(ii) (“the facts upon which the claim is predicated were 
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unknown to the petitioner and could not have been ascertained by the exercise 

of due diligence”). The PCRA court may accept the otherwise untimely petition 

if it makes a finding of fact that the petitioner was unaware their attorney filed 

an untimely petition, and could not have learned this information through the 

exercise of due diligence. Id.; see also id., citing 42 Pa.C.S. § 9545(b)(2) 

(petition invoking an exception shall be filed within one year of the date the 

claim could have been presented).

Appellant’s September 3, 2020, PCRA petition, however, neither alleged 

PCRA Counsel’s ineffective assistance nor invoked any of the timeliness 

exceptions. Although we have not discovered published decisional authority 

addressing this factual pattern, this Court has issued non-precedential 

decisions11 consistently declining to extend Peterson to PCRA petitions that

did not plead the newly-discovered evidence exception. See

Commonwealth v. Baker, 1424 WDA 2019 (Pa. Super. Aug. 13, 2021) 

(unpub. memo. at 6) (“[N]owhere did the Peterson Court excuse PCRA 

petitioners from pleading and proving that counsel’s ineffectiveness was 

unknown [and] could not have been discovered with the exercise of due 

diligence.”); Commonwealth v. Lilly, 887 MDA 2020 (Pa. Super. Mar. 2, 

2021) (unpub. memo. at 5) (judicial review of petitioner’s claim, that prior 

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11 See Pa.R.A.P. 126(b)(1)-(2) (non-precedential Superior Court decisions, 

filed after May 1, 2019, may be cited for their persuasive value).
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PCRA counsel was ineffective for failing to file appeal, was precluded because 

petitioner did not invoke any PCRA timeliness exception). We thus conclude 

the September 3rd PCRA petition was likewise untimely filed.12

We next address Appellant’s claim, raised for the first time on appeal, 

that PCRA Counsel was ineffective for failing to file a timely PCRA petition. 

Bradley held “that a PCRA petitioner may, after a PCRA court denies relief, 

and after obtaining new counsel or acting pro se, raise claims of PCRA 

counsel’s ineffectiveness at the first opportunity to do so, even if on appeal.” 

Bradley, 261 A.3d at 401. However, we note, the PCRA petition in Bradley 

was timely filed. Id. at 384. Justice Dougherty’s concurring opinion pointed 

out the Court was not “creat[ing] an exception to the PCRA’s jurisdictional 

time-bar.” Id. at 406, Dougherty, J., concurring (“The majority’s holding, like 

any holding, must be read against the facts of the case.”). As discussed 

above, Appellant’s habeas corpus and PCRA petitions were untimely filed and 

failed to plead any timeliness exception. Thus, Bradley is not applicable, and 

no relief is due. In any event, Appellant has not, consistent with the holding 

in Bradley, “obtain[ed] new counsel or act[ed] pro se.” See id. at 401. See 

also id. at 398 (“counsel cannot argue [their] own ineffectiveness” as they 

would have to “evaluate [their] own ineffectiveness, threatening [their] 

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12 We note Appellant is not precluded from filing a second PCRA petition, after 

conclusion of this appeal, seeking relief from Peterson.
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livelihood and professional reputation”); Commonwealth v. Koehler, 36 

A.3d 121, 132 (Pa. 2012) (counsel cannot raise their own ineffectiveness).

Finally, we reject Appellant’s reliance on the statewide judicial 

emergency as a basis for relief. First, this claim is waived, as it was not raised 

before the PCRA court, and instead raised for the first time on appeal. See 

Commonwealth v. Bedell, 954 A.2d 1209, 1216 (Pa. Super. 2008) (claims 

not raised in PCRA court are waived and cannot be raised for first time on 

appeal).

Moreover, this Court recently rejected a similar claim in Woolstrum, 

271 A.3d 512. In that case, the defendant had until May 14, 2020, to file a 

timely PCRA petition, but he did not file one until June 16, 2020. Id. at 514. 

He claimed the judicial emergency applied as an exception to the PCRA’s time 

constraints. Id. at 515. On appeal, this Court explained:

Our Supreme Court filed an emergency order on March 16, 2020, 

which specified that “legal papers or pleadings . . . which are 

required to be filed between March 19, 2020, and May 8, 2020, 

generally shall be deemed to have been filed timely if they are 

filed by the close of business on May 11, 2020.

Id. at 514 (emphasis added). While the Supreme Court extended the 

statewide judicial emergency on April 28, 2020, the Court specified its prior 

time-for-filing provision remained in effect, with no corresponding extension 

for later pleadings. See id. at 515. This Court reasoned that because the 

defendant’s PCRA deadline fell after the extended May 11, 2020, deadline for 

pleadings, the emergency order did not apply. Id. Accordingly, this Court 
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concluded the defendant’s PCRA petition, which did not plead any timeliness 

exceptions, was untimely. Id.

Analogously, here, Appellant generally had until July 15, 2020 — a date 

even later than the one-year deadline in Woolstrum — to file a PCRA petition. 

See Woolstrum, 271 A.3d 514. Accordingly, the Supreme Court’s COVID19 orders, which provided a filing extension to pleadings due by May 8th, did

not lend relief to Appellant. See id.at 515

For the foregoing reasons, we are constrained to agree with the PCRA 

court that Appellant’s PCRA petition was untimely filed. The court thus lacked 

jurisdiction to review the merits of his claims. See Woolstrum, 271 A.3d at 

513. We reiterate that Appellant is not foreclosed from filing a second PCRA 

petition, pro se or with new counsel, seeking relief under Peterson.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/07/2022

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13 We offer no opinion on the merits of any such petition.