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COMMONWEALTH OF PENNSYLVANIA

v.

LEON MOSLEY

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3122 EDA 2022

Appeal from the PCRA Order Entered November 18, 2022 In the Court of Common Pleas of Montgomery County

Criminal Division at CP

- 46

- CR

- 0002911

- 2001

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

MEMORANDUM BY MURRAY, J.: FILED AUGUST 15, 2023

Leon Mosley (Appellant) appeals pro se from the order dismissing as

untimely his fifth petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. A. §§ 9541

- 46. We affirm.

T his Court previously explained:

A jury convicted Appellant on May 31, 2002, of one count of each

of robbery of a motor vehicle, terroristic threats, recklessly endangering another person []

, simple assault, conspiracy to

commit robbery, and two counts o f theft. [ Appellant had been

convicted of escape in a separate case a month prior .] The court
sentenced Appellant [in both cases] on August 1, 2002, to an aggregate term of 281⁄2 to 60 years ’ imprisonment. The sentence
included a 25 to 50 year term under Pennsylvania ’ s three strikes law, 42 Pa.C.S.A § 9714(a)(2). Appellant did not file a direct appeal, so the judgment of sentence became final on or about September 1, 2002.

Commonwealth v. Mosley

, 1595 EDA 2017 (Pa. Super. 2020) (unpublished

memorandum at *1).J

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Between 2003 and 201 8

, Appellant filed four unsuccessful PCRA

petitions. In t wo of the petitions

, Appellant challenged the legality of his

sentence. See id. ; see also PCRA Court Opinion, 1/24/23, at 2

- 3

.

On August 18, 2020, Appellant filed the instant PCRA petition, his fifth.

Appellant again claim ed that his sentence i s illegal. PCRA Petition, 8/18/20,

at 5 (unnumbered). The PCRA court appointed counsel, who filed a no

- merit

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

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

. On

October 18, 2022, the PCRA cou rt granted counsel’s request to withdraw and

issued notice of intent to dismiss the petition pursuant to Pa.R.Crim.P. 907.

Appellant filed a response claiming ineffective assistance of PCRA

counsel. Response, 11/7/22, at 1

- 6. On November 18, 2022, the PCRA court

dismissed Appellant’s PCRA petition as untimely filed

. Appellant filed this

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

Appellant raises the following issue:

[Did the] PCRA court err[] in dismissing Appellant’s PCRA petition [and] failing to address Appellant’s illegal sentence[?]

Appellant’s Brief at 4 ( some capitalization modified).

We review the dismissal of Appellant’s petition to determine “whether

the PCRA court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet

,

54 A.3d 35, 45 (Pa. 2012 ). “Our scope of review is limited to the findings ofJ

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the PCRA court and the evidence of record, viewed in the light most favorable

to the party who prevailed in the PCRA court proceeding.” Id.

A PCRA petition must be filed within one year of the petitio ner’s

judgment of sentence becom ing final. 42 Pa.C.S.A. § 9545(b)(1). “A

judgment becomes final at the conclusion of direct review, including

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

Supreme Court of Pennsylvania, or at the expiration of the time for seeking

the review.” 42 Pa.C.S.A. § 9545(b)(3). T he timeliness of a PCRA petition is

jurisdictional. If a PCRA petition is untimely, a court lack s jurisdiction.

Commonwealth v. Wharton , 886 A.2d 1120, 1124 (Pa. 2005).

“ Witho ut jurisdiction

, we simply do not have the legal authority to address the

substantive claims.” Com monwealth v. Lewis , 63 A.3d 1274, 1281 (Pa.

Super. 2013).

Appellant concedes his PCRA petition is untimely. Appellant’s Brief at 5

.

Appellant’s judgment of sentence became final on September 1, 2002 , and he

did not file his petition until August 18 , 202 0

. A petitioner may overcome the

PCRA’s time

- bar if he ple ad s and proves one of the statutory exceptions set

forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v. Spotz , 171 A.3d 675,

678 (Pa. 2017). The exceptions are: “(1) interference by government officials

in the presentation of the claim; (2) newly discover ed facts; and (3) an after

recognized constitutional right.” Commonwealth v. Brandon , 51 A.3d 231,

233

- 34 (Pa. Super. 2012); see also 42 Pa.C.S.A. § 9545(b)(1)(i

- iii). AJ

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petition invoking an exception to the jurisdictional time

- bar must be filed

within o ne year of the date that the claim could have been presented. 42

Pa.C.S.A. § 9545(b)(2) (effective December 24, 2018). If a petitioner fails to

plead and prove an exception, the court lacks jurisdiction to review the petition

or provide relief. Spotz , 171 A.3d at 676.

Appellant argue s the Pennsylvania Supreme Court’s decision in

Commonwealth v. Bradley , 261 A.3d 381 (Pa. 2021) created an exception

to the PCRA time

- bar because it recognized a new constitutional right

.

Appellant’s Brief at 5

- 6

. We disagree

.

This Court recently explained:

Reliance on Bradley for purposes of overcoming the untimeliness of the underlying PCRA petition is misplaced. In Bradley , our Supreme Court extended the op portunity for a PCRA petitioner to raise claims of PCRA counsel’s ineffectiveness. Previously, “the sole method by which a petitioner c[ould] challenge the ineffectiveness of his PCRA counsel [wa]s through the filing of a response to the PCRA court’s Rule 907 dismissal

notice.” Bradley , 261 A.3d at 386. The Bradley Court abandoned that approach, holding “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 ineffecti veness at the first opportunity to do so, even if on appeal.” Id. at 401.

Bradley , however, did not announce a new constitutional right , much less one applicable retroactively. See

, e.g. , Commonwealth v. Johnson , 2023 WL 2379233 (Pa. Super. 2023) (unpublished memorandum) (noting “[a]lthough [ Bradley ] did not specifically address the timeliness exception upon which [a]ppellant relies, it is clear Bradley did not recognize a new constitutional right,” id. at *4); Commonwealth v. Dixon , [290 A.3d 702] (Pa. Super. 2022) (unpublished memorandum) (holding Bradley does not trigger the timeliness exception of Section 9545(b)(1)(iii)); Commonwealth v. Parkinson , 2022 WLJ

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5237927 (Pa. Super. 2022) (holding “ Bradley did not create a

new, non

- statutory exception to the PCRA time bar,” id. at *3).

Furthermore, this Court has continually declined to extend the holding of Bradley to cases involving untimely petitions, like

the instant one. See

, e.g. , Commonwealth v. Stahl , [292 A.3d 1130] (Pa. Super. 2023) (conclu ding that “[n]othing in Bradley creates a right to file a second PCRA petition outside the PCRA’s

one

- year time limit as a method of raising ineffectiveness of PCRA counsel,” id. at [1136]); Commonwealth v. Mead , [277 A.3d 1111] (Pa. Super. 2022) (unpublis hed memorandum), appeal

denied , 284 A.3d 118 (Pa. 2022) (emphasizing that Bradley involved a timely first PCRA petition and did not apply to appellant’s appeal from order denying his untimely petition);

Commonwealth v. Morton , [292 A.3d 1075] (Pa. Super. 2 023) (unpublished memorandum) (holding that appellant’s reliance on Bradley does not afford relief in his appeal from the denial of his untimely second PCRA petition); Commonwealth v. Gurdine

, [273 A.3d 1076] (Pa. Super. 2022) (same)[, appeal denied , 286

A .3d 707 (Pa. 2022)].

Commonwealth v. Ruiz

- Figueroa

, 1531 EDA 2022 (Pa. Super. Jun. 22,

2023) (unpublished memorandum at *2) (footnote omitted , emphasis

added ). 1

As explained above, Bradley did not announce a new constitutional

rights . Thus, Appellant has not satisfied an exception to the PCRA’s time

- bar. 2

_________________ __________ ______ ____ _______

1 See Pa.R.A.P. 126(b) (unpublished non

- precedential decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value).

2 Further, Appellant first raised his claim of PCRA counsel’s ineffectiveness in his response to the Rule 90 7(a) notice . Response, 11/7/22, at 1

- 6. Appellant

cites Bradley in his brief, but do es otherwise argue that P CRA counsel was ineffective ; Appellant argues only that his sentence is illegal. Appellant’s Brief

at 6

- 8 ; see also C

ommonwealth v. Kane

, 10 A.3d 327 , 331 (Pa. Super. 2010) (“ This Court will not act as counsel and will not develop arguments on
(Footnote Continued Next Page)J

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In addition , Appellant may not circumvent the PCRA’s timeliness

requirements by c halleng ing the legality of his sentence. The Pennsylvania

Supreme Court has explained: “Although legality of sentence is always subject

to review within the PCRA, claims must still first satisfy the PCRA’s time limits

or one of the exceptions thereto.” Commonwealth v. Fahy , 737 A.2d 214

,

223 (Pa. 1999) (citation omitted). Appellant cannot elude the PCRA’s

timeliness requirements based on a claim of an illegal sentence. 3 See id.

Appellant’s fifth PCRA petition is untimely. B ecause he failed to plead

and prove an exception to the PCRA’s time

- bar, we affirm the order dismissing

his PCRA petition

.

Order affirmed.

_________________ __________ ______ ____ _______

behalf of an appellant. ” (citation omitted) ) ; Commonwealth v. Lewis

, 63 A.3d 1274, 1278 (Pa. Super. 2013) (“ A lthough this Court is willing to construe liberally materials filed by a pro se litigant, pro se status generally confers no special benefit

... .”)

.

3 Appellant’s legality of sentence claim s in the underlying petition are the same

as the claims he raised in his third and fourth PCRA petition s

. See PCRA Court Opinion, 1/24/23, at 3

- 4; PCRA Petition, 8/18/20, at 5 (unnumbered). Eve n if the petition w as timely, the claim s would be barred as previously litigated. 42 Pa.C.S.A. § 9543(a)(3).J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/15/2023