J-S59033-14

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee 

 v.

DELBERT MAURICE FRANKLIN, 

 Appellant 

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 

 No. 879 EDA 2014 

Appeal from the PCRA Order entered February 27, 2014, 

in the Court of Common Pleas of Chester County, 

Criminal Division, at No: CP-15-CR-003189-1997 

BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.* 

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 23, 2014 

 Delbert Maurice Franklin (Appellant) appeals from the February 27, 

2014 order which denied his petition for relief filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm. 

 On December 10, 1997, Appellant was convicted by a jury of 44 

offenses arising from a series of assaults and robberies committed while 

Appellant was a member of a gang. He was sentenced to an aggregate term 

of 30 to 60 years’ incarceration followed by 11 years of probation. Appellant 

did not file a direct appeal. 

 On December 10, 1998, Appellant filed a PCRA petition. The PCRA 

court granted Appellant a new trial. The Commonwealth appealed, and on 

review, a panel of this Court reversed the order granting a new trial and 

remanded the case to permit Appellant to appeal his judgment of sentence 

nunc pro tunc. Commonwealth v. Franklin, 759 A.2d 19 (Pa. Super. 
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2000). Appellant filed his direct appeal, and this Court affirmed Appellant’s 

judgment of sentence. Commonwealth v. Franklin, 777 A.2d 501 (Pa. 

Super. 2001), appeal denied, 788 A.2d 373 (Pa. 2001). 

 In April of 2002, Appellant filed another PCRA petition. Counsel was 

appointed, and was subsequently permitted to withdraw pursuant to 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The 

PCRA court denied relief; Appellant appealed pro se; and, a panel of this 

Court affirmed the order of the PCRA court. Commonwealth v. Franklin, 

788 A.2d 373 (Pa. Super. 2006). 

 On July 29, 2013, Appellant, represented by counsel, filed the PCRA 

petition at issue in this appeal. An amended petition was filed on September 

11, 2013. The Commonwealth filed a response and motion to dismiss. On 

February 27, 2014, the PCRA court issued an order and opinion denying 

Appellant relief. Appellant timely filed a notice of appeal. Both Appellant 

and the PCRA court complied with Pa.R.A.P. 1925. 

We set forth our well-settled standard of review. 

On appeal from the denial of PCRA relief, our standard of review 

calls for us to determine whether the ruling of the PCRA court is 

supported by the record and 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. The PCRA court's factual 

determinations are entitled to deference, but its legal 

determinations are subject to our plenary review. 
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Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (quotations 

and citations omitted). 

 The timeliness of a post-conviction petition is jurisdictional. 

Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super. 2011). 

Generally, a petition for relief under the PCRA, including a second or 

subsequent petition, must be filed within one year of the date the judgment 

of sentence became final unless the petition alleges, and the petitioner 

proves, that an exception to the time for filing the petition is met. 42 Pa.C.S. 

§ 9545. 

Applying this law to the case at hand, Appellant’s petition is facially 

untimely. Instantly, Appellant’s judgment of sentence became final in 

January 2002, when the 90 day period expired in which Appellant had to file 

a writ of certiorari to the United States Supreme Court after our Supreme 

Court denied his petition for allowance of appeal. Thus, Appellant had one 

year from that date, until January 2003, to file timely a PCRA petition. This 

petition was filed in July 2013, over 11 years late. 

Appellant argues that his claim of actual innocence is ripe for review in 

light of the United States Supreme Court’s decision in McQuiggin v. 

Perkins, 133 S.Ct. 1924 (2013). Appellant’s Brief at 20; PCRA Petition, 

7/29/2013, at ¶ 6. Appellant contends that this case meets the requirements 

under the timeliness exception set forth in 42 Pa.C.S. § 9545(b)(1)(iii) 
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(“[T]he 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.”).1

 

In McQuiggin, the Supreme Court of the United States held that a

claim of actual innocence, if proved, can serve as a gateway through which a 

petitioner may pass the one-year time-bar for filing an otherwise untimely 

first federal habeas corpus petition when the claim of actual innocence is 

supported by newly-discovered evidence. See McQuiggin, supra. This 

ruling concerns time limitations of federal habeas corpus petitions and is 

inapplicable to Appellant’s instant state PCRA petition. Further, the Supreme 

Court of the United States did not expressly pronounce that McQuiggin 

applies retroactively.2 Finally, McQuiggin involved a claim of actual 

 

1 The PCRA also requires that “[a]ny 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)(2). McQuiggin was filed on 

May 28, 2013, and the instant PCRA petition was filed on the final day of the 

60-day period, on July 29, 2013. 

2

 Our Supreme Court has set forth the requirements for subsection (iii). 

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 this 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 
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innocence based on newly-discovered evidence. Here, Appellant does not 

predicate his innocence claim on new evidence; rather, he argues that his 

conviction under the Pennsylvania Corrupt Organizations Act (PACOA), 18 

Pa.C.S. § 911 et seq., was unconstitutional pursuant to Commonwealth v. 

Besch, 674 A.2d 655 (Pa. 1996).3

 

For the foregoing reasons, Appellant has failed to satisfy the exception 

set forth is subsection 9545(b)(1)(iii), and we affirm the order of the PCRA 

court denying relief. 

 Order affirmed. 

 

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)(citing 

Commonwealth v. Abdul–Salaam, 812 A.2d 497, 501 (Pa. 2002)). 

3

 The PACOA has a tortured history with respect to whether it applied to 

wholly illegitimate enterprises, such as gang activity. See Commonwealth 

v. Shaffer, 734 A.2d 840 (Pa. 1999). However, we need not address this 

issue further, because it clearly does not fall under a claim of new evidence 

of actual innocence as required by McQuiggin. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/23/2014