J-S51013-17

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

v.

THOMAS PINCKNEY

Appellant No. 3631 EDA 2016

Appeal from the PCRA Order October 19, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0802161-1995

BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*

MEMORANDUM BY BOWES, J.: FILED AUGUST 17, 2017

Thomas Pinckney appeals from the order dismissing his third pro se

PCRA petition as untimely. We affirm. 

The PCRA court ably set forth the following: 

On September 13, 1995, following a jury trial presided 

over by the Honorable Eugene H. Clarke, Jr., [Appellant] was 

convicted of second-degree murder and criminal conspiracy. The 

trial court imposed the mandatory sentence of life imprisonment 

for the murder conviction and a lesser term of incarceration for 

the remaining conviction. On December 31, 1997, the Superior 

Court affirmed the judgment of sentence. [Commonwealth v. 

Pinckney, 706 A.2d 1256 (Pa.Super. 1997) (unpublished 

memorandum).] [Appellant] did not file a petition for allowance 

of appeal with the Pennsylvania Supreme Court.

 

On January 4, 1999, [Appellant] filed his first pro se PCRA 

petition. Counsel was appointed and subsequently filed a 

Turner/Finley no merit letter. On September 8, 1999, the 

PCRA court issued an order denying the petition and permitted 

counsel to withdraw. No appeal was pursued. 
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On June 3, 2003, [Appellant] filed his second PCRA 

petition. The PCRA court issued an order dismissing 

[Appellant’s] petition as untimely on November 19, 2003. The 

Superior Court affirmed the dismissal on August 5, 2004. 

[Commonwealth v. Pinckney, 860 A.2d 1133 (Pa.Super. 

2004) (unpublished memorandum).] 

On July 31, 2014, [Appellant] filed the instant pro se, 

hybrid PCRA/habeas corpus petition. [Appellant] filed a 

supplemental PCRA petition on February 19, 2016[,] that was 

reviewed jointly with his initial petition. Pursuant to 

Pennsylvania Rule of Criminal Procedure 907, [Appellant] was 

served notice of the PCRA court’s intention to dismiss his petition 

on July 19, 2016. On October 19, 2016, the PCRA court 

dismissed his PCRA petition as untimely. On November 14, 

2016, the instant notice of appeal was timely filed to the 

Superior Court. 

PCRA Court Opinion, 1/25/17, at 1-2 (internal footnotes omitted). This 

matter is now ready for our review. 

Appellant raises three claims for our consideration: 

(1) Did the Court Read and Review the Psychological and 

Medical Brief submitted in Miller v. Alabama[, 567 U.S. 

460 (2012).][?]

(2) Is [Appellant] part of the Protected Class under the 

Constitution and Law of Pennsylvania[?]

(3) Under the Juvenile Act should [Appellant’s] case [have] 

been submitted to Juvenile Court first[?]

Appellant’s brief at 2. 
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Before reaching the merits of this matter, we must first determine

whether it is properly before us.1 It is well-settled that all PCRA petitions, 

including subsequent petitions, must be filed within one year of the date that 

a defendant’s judgment becomes final, unless an exception to the one-year 

time restriction is applicable. 42 Pa.C.S. § 9545(b)(1). This time-bar is 

jurisdictional in nature. Thus, if a PCRA petition is untimely, “neither this 

Court nor the trial court has jurisdiction over the petition.” Commonwealth 

v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). Whether 

a petition is timely is a question of law. As such, our standard of review is 

de novo and our scope of review is plenary. Commonwealth v. Hudson, 

156 A.3d 1194, 1197 (Pa.Super. 2017). 

When a PCRA petition is untimely, the petitioner bears the burden of 

pleading and proving that one of the statutory exceptions applies. Id. If no 

exception applies, then the petition must be dismissed, as this Court cannot 

consider its merits. Id. The PCRA reads, in relevant part, as follows: 

(b) Time for filing petition.-

(1) Any petition under this subchapter, including a second 

or subsequent petition, shall be filed within one year of 

____________________________________________

1 Appellant styled the instant petition as a petition for habeas corpus relief 

pursuant to the PCRA. It is undisputed that the trial court properly 

considered this matter as arising under the PCRA. See Commonwealth v. 

Turner, 65 A.3d 462, 465-466 (Pa.Super. 2013) (observing, “[u]nless the 

PCRA could not provide for a potential remedy, the PCRA subsumes the writ 

of habeas corpus.”). 
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the date the judgment of sentence becomes final, 

unless the petition alleges and the petitioner proves 

that:

i. the failure to raise the claim previously was the 

result of interference by the government officials 

with the presentation of the claim in violation of the 

Constitution or law of the United States; 

ii. the facts upon which the claim is predicated were 

unknown to the petition 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. 

(2) Any petition invoking an exception provided in 

paragraph (1) shall be filed within 60 days of the date 

the claim could have been presented. 

42 Pa.C.S. § 9545(b)(1) and (2). 

Here, Appellant’s judgment of sentence became final on January 30, 

1998, thirty days after this Court affirmed the judgment of sentence and the 

time for filing a petition for allowance of appeal with our Supreme Court 

expired. See Commonwealth v. Pinckney, 860 A.2d 1133 (Pa.Super. 

2004) (unpublished memorandum at *4). Therefore, Appellant had until 

January 30, 1999, to file a timely PCRA petition. However, he filed the 

instant petition on July 31, 2014, rendering this petition facially untimely. In 

order for this Court to exercise its jurisdiction, Appellant must plead and 

prove one of the three statutory exceptions detailed above. 
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Appellant alleges that his petition was timely pursuant to 42 Pa.C.S. § 

9545(b)(1)(ii) and (iii). In Commonwealth v. Bennett, 930 A.2d 1264 

(Pa. 2007), our Supreme Court explained that subsection (b)(1)(ii) is 

triggered “when 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.” Id. at 1270 (quoting 42 Pa.C.S. § 9545 (b)(1)(ii)). Hence, it 

concluded that where a petitioner pleads and proves both elements of the 

exception, the PCRA court has jurisdiction over the claim. Appellant also 

argues that his petition is based on a newly-recognized constitutional right. 

That exception to the PCRA’s time-bar provides that a PCRA petition is 

considered timely if it asserts a constitutional right recognized by our High 

Court or the United States Supreme Court as applying retroactively. 42 

Pa.C.S. § 9545(b)(1)(iii). 

In order to meet the timeliness exceptions, Appellant relies on 

Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014), which held that 

expert testimony regarding eyewitness identification was not per se

impermissible. He maintains that, since the Walker decision had not been 

decided at the time of his trial, its holding represents a fact unknown to him. 

In addition, he contends that Walker created a new constitutional right to 

expert testimony concerning eyewitness identification. Finally, since Walker

was decided on May 28, 2014, and Appellant filed his PCRA petition on July 
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31, 2014, he avers that he invoked his exceptions within the timeframe 

dictated by 42 Pa.C.S. § 9545(b)(2). 

Instantly, this Court has recognized that judicial decisions cannot be 

considered newly-discovered facts for the purposes of overcoming the PCRA 

statutory time-bar. Commonwealth v. Cintora, 69 A.3d 759, 763 

(Pa.Super. 2013) (noting, “Our Courts have expressly rejected the notion 

that judicial decisions can be considered newly-discovered facts which would 

invoke the protections afforded by section 9545(b)(1)(ii).”). Moreover, the 

High Court in Walker, supra, did not purport to establish a constitutional 

right to expert testimony regarding eyewitness identification, but rather, it 

found that, in light of increases in scientific understanding on the topic and 

developments in case law, a per se ban on such testimony was “too extreme 

an approach in determining whether relevant testimony should be admitted 

in this area.” Walker, supra at 791. Instead, the High Court left the 

admission of such evidence to the discretion of the trial court. As Appellant 

has not pled and proven an exception to the PCRA’s statutory time-bar, the 

PCRA court properly concluded that his petition was untimely.2

____________________________________________

2

In his supplemental PCRA petition, Appellant raises a claim that his 

sentence of life imprisonment without parole violates the Supreme Court’s 

ruling in Miller v. Alabama, 567 U.S. 460 (2012). We have previously held 

that Miller does not satisfy the exception provided in 42 Pa.C.S. § 

9545(b)(1)(iii) when applied to persons who were eighteen years of age or 

older when the committed their crimes. Commonwealth v. Cintora, 69 

(Footnote Continued Next Page)
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Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/17/2017

(Footnote Continued) _______________________

A.3d 759, 764 (Pa.Super. 2013). Although, Appellant did not present his 

claim pursuant to Miller as an exception to the statutory time bar, such a 

claim would fail since he was nineteen at the time he committed his crimes.