J-S32012-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

FREDERICK DEMON DEAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 575 WDA 2021

Appeal from the PCRA Order Entered April 16, 2021

In the Court of Common Pleas of Erie County Criminal Division at No(s): 

CP-25-CR-0003379-2014

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED: December 10, 2021

Frederick Demon Dean appeals pro se from the order, entered in the 

Court of Common Pleas of Erie County, denying as untimely his third petition 

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. Upon review, we affirm.

This Court previously summarized the facts of this case as follows:

The record reflects that shortly before 9:00 p.m. on August 26, 

2014, SWAT officers on a vehicle patrol detail observed 

[Dean] walking northbound on a sidewalk in the 1100 block 

of Wayne Street in Erie. The sidewalk runs alongside the parking 

lot of TJ’s bar. The officers observed [Dean] walking toward a 

house located next to that parking lot. Immediately after 

the patrol vehicle passed [Dean], officers heard a gunshot 

coming from the direction where they had just observed [Dean]. 

No other individuals were in the area. The officers stopped the 

cruiser, exited, and began looking for [Dean]. The officers then 

found a gun in the backyard of the house that they observed 

[Dean] walking toward. A grass strip measuring approximately 

10 to 15 feet separates the parking lot of TJ’s bar from that 

particular house. The officers then went into TJ’s bar to look 

for [Dean]. The bartender told the officers that [Dean] was 
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in the back of the kitchen hiding in a closet. The officers found 

[Dean] sitting in a utility closet. The utility closet contained 

a sink. [Dean] was completely wet. Officers instructed 

[Dean] to show them his hands. [Dean] refused and began 

kicking the officers. [Dean] was tased and then taken into 

custody. During this incident, [Dean], without provocation, 

stated, “I wasn’t shooting at you guys. If this goes away[,] I'll 

give you whatever you want. I know several drug dealers from 

Detroit.” Surveillance footage corroborated law enforcement’s 

version of events. It also revealed that [Dean] was wearing a hat 

when police officers initially observed him prior to the shot being 

fired. When he entered TJ’s bar, however, [Dean] was no longer 

wearing the hat. Surveillance footage established that prior to 

entering TJ’s bar, [Dean] walked into the area where the gun was 

found and made a “throwing motion” over a 6–foot stockade 

fence. Officers subsequently recovered the hat on the ground on 

the other side of the stockade fence from where officers observed 

[Dean] making the “throwing motion.” A baggie of heroin was 

tucked inside the hat. 

Commonwealth v. Dean, 159 A.3d 590, (Table) [2016 WL 6805459, at *1] 

(Pa. Super. filed Nov. 17, 2016) (unpublished memorandum).

On June 17, 2015, following a jury trial, Dean was convicted of persons 

not to possess firearms, carrying a firearm without a license, resisting arrest, 

possession of an instrument of crime (PIC), possession of controlled 

substances, and possession of drug paraphernalia.1 On August 17, 2015, the 

court sentenced Dean to a term of 60 to 120 months’ imprisonment for 

persons not to possess firearms, a consecutive term of 12 to 24 months’ 

imprisonment for possession of controlled substances, and a consecutive 

term of nine to 24 months’ imprisonment for resisting arrest. The court 

imposed concurrent sentences on the remaining charges. Dean subsequently 

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1 See 18 Pa.C.S.A. §§ 6105, 6106, 5102, and 907, and 35 P.S. §§ 780-

113(a)(16) and (a)(32), respectively.
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filed a pro se post-sentence motion on August 18, 2015, a waiver of counsel 

on August 31, 2015, and a pro se notice of appeal on September 10, 2015. 

Following Dean’s request for appointment of counsel on March 18, 2016, and 

a trial court colloquy on the same, trial counsel was permitted to withdraw,

and new counsel was appointed. On direct appeal, Dean challenged the 

sufficiency of the evidence for his firearms and PIC convictions. A panel of 

this Court affirmed, concluding the issue was waived for being undeveloped in 

Dean’s appellate brief. See Dean, supra. Two judges filed a concurring 

statement indicating that the issues, even if they were not waived, were 

meritless. See id. The Pennsylvania Supreme Court denied Dean’s petition 

for allowance of appeal on June 1, 2017.

On August 2, 2017, Dean, pro se, filed a timely PCRA petition. Following 

a Grazier2 hearing on August 28, 2017, the PCRA court issued notice of its 

intent to dismiss Dean’s petition without a hearing pursuant to Pa.R.Crim.P. 

907; Dean filed three pro se responses. On November 9, 2017, the PCRA 

court entered an order denying relief, and Dean timely appealed to this Court. 

On August 28, 2019, this Court affirmed the denial of PCRA relief. Specifically, 

we concluded that Dean’s challenges to the sufficiency and weight of the 

evidence were previously litigated and waived, respectively, and that Dean’s 

bald assertion that trial counsel was ineffective for failing “to use . . . [gunshot 

residue] testing of his clothing” was insufficient to warrant relief where the 

record contained no support for his allegation that the police tested his 

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2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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clothing for gunshot residue. See Commonwealth v. Dean, 37 WDA 2018, 

at 8-9 (Pa. Super. filed Aug. 29, 2018) (unpublished memorandum) (Dean 

II). We further noted that, although Dean’s claim that counsel’s failure to cite 

any authority in the appellate brief, resulting in waiver of his sufficiency 

challenge, was of arguable merit, and counsel could have had no reasonable 

basis for his actions, Dean failed to demonstrate the third prong of the 

ineffectiveness test, prejudice, where two of the three judges on direct appeal 

concluded that even if Dean’s sufficiency claim were not waived, he would be 

entitled to no relief. Id. at 9-10.

On December 7, 2020, Dean filed a second, albeit untimely, PCRA 

petition pro se, alleging ineffective assistance of trial counsel and an illegal 

sentence. That same day, the PCRA court filed its Rule 907 notice of intent to 

dismiss the petition without a hearing, finding that Dean failed to plead and 

prove an exception to the PCRA’s time-bar. On January 15, 2021, the PCRA 

court issued a final order dismissing the petition. Dean timely filed an appeal 

to this Court, but discontinued the appeal on March 9, 2021. 

On March 17, 2021, Dean filed the instant petition, his third, pro se. 

Therein, Dean alleged eligibility for PCRA relief based on his innocence, afterdiscovered exculpatory evidence, ineffective assistance of counsel, an illegal 

sentence, and a Brady3 violation. On March 22, 2021, the PCRA court issued 

its Rule 907 notice of intent to dismiss the petition, and on April 16, 2021, the 

petition was dismissed. Dean filed a notice of appeal to this Court on May 6, 

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3 Brady v. Maryland, 373 U.S. 83 (1963).
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2021, followed by a Pa.R.A.P. 1925(b) concise statement of errors complained 

of on appeal raising the following issues for our review:

1. [Whether t]rial counsel was ineffective for stipulating to the 

forensic report prepared by forensic expert Corporal 

Burlingame without him being physically present to be 

effectively confronted and cross-examined as guaranteed in 

the 6th Amendment of the United States Constitution and also 

the Pennsylvania Constitution.

2. Did the Commonwealth fail[] to disclose evidence favorable to 

[Dean] [by] not submitting item TAG #55191 AG . . . as 

required by Brady?

3. Did the sentence[ing] court err[] in giv[ing Dean] an illegal 

sentence[ where] the sentence to count[s five] and [six] fell 

outside of [] legal parameters, [and] did the sentenc[ing] court 

err when it did not appl[y] merger/double jeopardy [to] counts 

[five through ten]?

Rule 1925(b) Statement, 5/18/21. In his appellate brief, however, Dean 

purports to raise the following issues:

1. The evidence in this case was insufficient to prove . . . [PIC]

and firearms to be carried without a license[.]

2. Whether the Commonwealth . . . committed a Brady violation 

in failing to disclose the very exculpatory scientific evidence 

that demonstrates his actual innocence?

3. Whether [counsel was ineffective for] fail[ing] to produce/present 

exculpatory scientific evidence [of] the DNA swab sample [and] touch 

DNA testing compared to the allege[d] handgun?

4. Whether the sentenc[ing] court erred when it handed down an illegal 

sentence and when it did not appl[y] merger/Double Jeopardy to 

counts [five through ten and] failed to appl[y] the Blockburger

Double Jeopardy analysis?

5. Whether [the PCRA court] err[ed] in failing to address the clams that 

were [] incorporated in [Dean’s pro se second PCRA petition].

Brief of Appellant, at 3-4.
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When reviewing the denial of a PCRA petition, we must determine 

whether the PCRA court’s order is supported by the record and free of legal 

error. Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa. Super. 2018). 

We are bound by a PCRA court’s credibility determinations, but with regard to 

a court’s legal conclusions, we apply a de novo standard. Id. Before reaching 

the issues that Dean raises in his appellate brief, however, we must first 

ascertain whether the PCRA court correctly determined that his PCRA petition 

was untimely filed. See Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 

2000) (PCRA time limit is jurisdictional; court may only review untimely 

petition if statutory exception applies).

Generally, a petition for relief under the PCRA must be filed within one 

year of the date the judgment of sentence becomes final unless the petitioner 

alleges, and proves, an exception to the time for filing the petition, set forth 

at 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii).4 A PCRA petition invoking one of these 

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4

 The exceptions to the timeliness requirement are:

(i) the failure to raise the claim previously was the result of 

interference of 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 

(Footnote Continued Next Page)
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statutory exceptions must be filed within sixty days from the date the claim 

arises. See id. at § 9545(b)(2).5 Under the PCRA, a judgment of sentence 

becomes final “at the conclusion of direct review, including discretionary 

review in the Supreme Court of the United States and the Supreme of 

Pennsylvania, or at the expiration of time for seeking the review.” Id. at § 

9545(b)(3). “When a PCRA [petition] is not filed within one year of the 

expiration of direct review, or not eligible for one of the exceptions, the [PCRA] 

court has no power to address the substantive merits of a petitioner’s PCRA 

claims.” Commonwealth v. Shiloh, 170 A.3d 553, 557 (Pa. Super. 2017).

Here, Dean’s judgment of sentence became final upon the expiration of 

the 90-day period following the Pennsylvania Supreme Court’s denial of his 

petition for allowance of appeal on June 1, 2017, when the time for seeking 

discretionary review with the United States Supreme Court expired. See U.S. 

Sup. Ct. R. 13.6 Therefore, Dean had until August 30, 2018, to file a timely 

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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).

5 On October 24, 2018, the General Assembly amended subsection 9545(b)(2) 

to enlarge the time in which a petitioner may invoke a PCRA time-bar 

exception from 60 days to one year from the date the claim arises. See Act 

2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018]. 

However, the amendment applies only to claims arising on December 24, 

2017, or thereafter. Id. at § 3. Here, Dean raises claims stemming from his 

2015 jury trial and sentencing. Therefore, the 60-day deadline applies.

6 See also 42 Pa.C.S.A. § 9545(b)(3) (judgment is deemed final “at the 

conclusion of direct review . . . or at the expiration of time for seeking 

review.”); Commonwealth v. Feliciano, 69 A.3d 1270, 1275 (judgment is 

(Footnote Continued Next Page)
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PCRA petition. The instant petition, filed over two years later, is patently 

untimely. Accordingly, Dean must plead and prove that one of the statutory 

timeliness exceptions applies, and he must have filed the instant petition 

within sixty days of the date the claim could have been brought. 42 Pa.C.S.A. 

§§ 9545(b)(1)-(2).

Instantly, we note, as we did upon review of Dean’s second pro se PCRA 

petition, that Dean’s pro se brief contains a “rambling and disjointed 

argument.” See Dean II, supra at 6; see also Brief of Appellant, at 9-21. 

We previously cautioned Dean that:

“[A]lthough this Court is willing to construe liberally materials filed 

by a pro se litigant, pro se status generally confers no special 

benefit upon an appellant.” Commonwealth v. Lyons, 833 A.2d 

245, 252 (Pa. Super. 2003)[.] “[A]ny layperson choosing to 

represent himself in a legal proceeding must, to some reasonable 

extent, assume the risk that his lack of expertise and legal training 

will prove his undoing.” Commonwealth v. Gray, 608 A.2d 

534, 550 (Pa. Super. 1992), quoting Vann v. Commonwealth 

Unemployment Compensation Bd. of Review, 494 A.2d 1081, 

1086 (Pa. 1985). We cannot serve as Dean’s counsel, and will 

not litigate claims for him.

Dean II, supra at 6-7. 

In both his pro se PCRA petition and appellate brief, Dean fails to plead 

and prove an exception to the PCRA’s time-bar under section 9545(b). His 

sole argument relating to the timeliness of his petition is that “[Dean] has an 

actual innocence claim of arguable merit [and there] is no time bar on a[n] 

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deemed final ninety days after Pennsylvania Supreme Court denies petition 

for allowance of appeal, since defendants have ninety days to seek review 

with United States Supreme Court).
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actual innocence claim.” Brief of Appellant, at 21. We disagree. See 42 

Pa.C.S.A. §§ 9545(b).

It is well-settled that “[the PCRA’s] time requirement is mandatory 

and jurisdictional in nature, and the court may not ignore it in order to reach 

the merits of the petition.” Commonwealth v. Hernandez, 79 A.3d 649, 

651 (Pa. Super. 2013). Because Dean has failed to plead and prove an 

exception to the PCRA’s time-bar under section 9545(b), the PCRA court 

properly dismissed his serial petition as untimely. Id.; see also Murray,

supra.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/10/2021