J-A27030-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TERRENCE FITZPATRICK, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1034 EDA 2019

Appeal from the PCRA Order Entered March 5, 2019

In the Court of Common Pleas of Northampton County Criminal Division 

at No(s): CP-48-CR-0000713-2007

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

MEMORANDUM BY SHOGAN, J.: FILED MARCH 06, 2020

Appellant, Terrence Fitzpatrick, appeals from the order denying his third 

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 

42 Pa.C.S. §§ 9541-9546. We affirm.

The PCRA court summarized the procedural history of this case as 

follows:

On March 13, 2008, [Appellant] was convicted by a jury of 

two counts of attempted murder,2two counts of aggravated 

assault,3 conspiracy to commit murder,4 conspiracy to commit

aggravated assault,5 and firearms not to be carried without a 

license.6 On June 9, 2008, [Appellant] was sentenced to twenty 

to forty years in prison on the first count of attempted murder and 

a concurrent term of nine to eighteen years on the second 

attempted murder count. [Appellant] was also sentenced to 

concurrent terms of nine to eighteen years for conspiracy to 

commit criminal homicide, four to eight years for conspiracy to 

commit aggravated assault, and four to eight years for carrying a 

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* Retired Senior Judge assigned to the Superior Court.
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firearm without a license, for an aggregate sentence of twenty to 

forty years in state prison.

2 18 Pa.C.S.A. § 901; 18 Pa.C.S.A. § 2502.

3 18 Pa.C.S.A. § 2702 (amended Oct. 24, 2012, 

effective Dec. 24, 2012, amended Dec. 18, 2013, 

effective Jan. 1, 2014).

4 18 Pa.C.S.A. § 903; 18 Pa.C.S.A. § 2502.

5 18 Pa.C.S.A. § 903; 18 Pa.C.S.A. § 2702 (amended 

Oct. 24, 2012, effective Dec. 24, 2012, amended Dec. 

18, 2013, effective Jan. 1, 2014).

6 18 Pa.C.S.A. § 6105 (amended Oct. 17, 2008, 

effective Dec. 16, 2008, amended Nov. 3, 2016, 

effective Jan. 3, 2017).

[Appellant] filed post-sentence motions, which the court 

denied in an order filed on October 16, 2008. [Appellant] filed an 

appeal to the Superior Court from that order, and, on March 8, 

2010, the Superior Court affirmed the sentence of this court. 

[Appellant] thereafter filed a petition for allowance of appeal to 

the Pennsylvania Supreme Court, which was denied on August 31, 

2010.

On October 31, 2011, [Appellant] filed a “Motion for PostConviction Collateral Relief” (“First PCRA Petition”). On 

November 9, 2011, the court entered an order appointing Brian M. 

Monahan, Esquire to represent [Appellant] with regard to his First 

PCRA Petition. On March 23, 2012, Attorney Monahan filed a nomerit letter, pursuant to the mandates of Commonwealth v. 

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

550 A.2d 213 (Pa. Super. 1988). That same day, the court filed 

a “Notice of Intention to Dismiss P.C.R.A. Petition without a 

Hearing and Grant Petition to Withdraw Appearance,” based upon 

Attorney Monahan’s no-merit letter. A copy of the notice was sent 

to [Appellant] by certified mail. When [Appellant] did not file a 

response to the notice within twenty days, on April 16, 2012, the 

court entered an order dismissing [Appellant’s] First PCRA 

Petition, pursuant to Rule of Criminal Procedure 907(1), and an 

additional order granting Attorney Monahan leave to withdraw his 

appearance.
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On May 8, 2012, [Appellant] filed an appeal to the Superior 

Court from the court’s order dismissing his First PCRA Petition. On 

February 1, 2013, the Superior Court affirmed the court’s order 

dismissing [Appellant’s] First PCRA Petition. [Appellant] then 

petitioned the Supreme Court of Pennsylvania for allowance of 

appeal, which was denied on July 2, 2013. 

On August 28, 2015, [Appellant] filed a “Petition for PostConviction Collateral Relief” (“Second PCRA Petition”). On 

November 3, 2016, the court filed an “Order of Court and Notice 

of Intention to Dismiss [Appellant’s] Petition without a Hearing.” 

On November 21, 2016, [Appellant] filed a “Brief in Opposition” to 

the court’s notice. On December 5, 2016, the court entered an 

order dismissing [Appellant’s] Second PCRA Petition pursuant to 

Rule of Criminal Procedure 907(1).

On September 25, 2017, [Appellant] filed an appeal to the 

Superior Court from the court’s order dismissing his Second PCRA 

Petition. On May 25, 2018, the Superior Court affirmed the court’s 

order dismissing [Appellant’s] Second PCRA Petition. [Appellant] 

did not petition the Supreme Court of Pennsylvania for allowance 

of appeal.

On December 27, 2018, [Appellant] filed his Third PCRA 

Petition, in which he raises three issues. First, he argues that he 

received ineffective assistance of counsel during the trial and postconviction stages of his case. Second, [Appellant] argues that his 

co-defendant’s Sixth Amendment rights were violated when the 

Commonwealth obtained a search warrant to remove a bullet from 

the victim’s body while the co-defendant remained in prison 

without counsel. Thus, [Appellant] argues that his conviction was 

based on an unconstitutional search, since that bullet was 

ultimately used to implicate [Appellant’s] guilt. Lastly, [Appellant] 

argues that his trial and his co-defendant’s trial should have been 

severed. He further asserts that these arguments are timely in 

light of Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007).

PCRA Court Opinion, 2/1/19, at 2-5.

On February 1, 2019, the PCRA court issued a notice of intent to dismiss 

the petition without a hearing. Appellant filed a response, and on March 5,

2019, the PCRA court dismissed Appellant’s petition. Appellant filed a notice 
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of appeal on April 1, 2019. Appellant and the trial court complied with 

Pa.R.A.P. 1925.1 

On appeal, Appellant presents the following issues for our review:

I. Whether the underlying trial and post conviction

proceedings were so fundamentally unfair that it deprived 

Appellant of due process?

II. Whether the facts surrounding the violation of codefendant’s, Brandon Fleming, Sixth Amendment rights were 

unknown to Appellant, and, as a consequence, interfered with 

Appellant’s ability to timely raise his claims for relief under the 

PCRA?

III. Whether the underlying judges and detectives interfered 

with Appellant’s ability to timely raise his claims for relief under 

the PCRA?

IV. Whether the trial court failed to protect Appellant from a 

prejudicial joinder trial after the discovery of the second bullet?

V. Whether Appellant received layered ineffective assistance of 

counsel?

Appellant’s Brief at 5.

When reviewing the propriety of an order denying PCRA relief, we 

consider the record “in the light most favorable to the prevailing party at the 

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) 

(en banc)). This Court is limited to determining whether the evidence of 

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1 The PCRA court filed a “Statement” pursuant to Pa.R.A.P. 1925(a), and in it 

relied on the reasoning for the dismissal in its Notice of Intention to Dismiss 

filed February 1, 2019. 
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record supports the conclusions of the PCRA court and whether the ruling is 

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 

2016). The PCRA court’s findings will not be disturbed unless there is no 

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d 

1095, 1100 (Pa. Super. 2014).

A PCRA petition must be filed within one year of the date that the 

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This 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). 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 Court of 

Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S. 

§ 9545(b)(3).

However, an untimely petition may be received when the petition 

alleges, and the petitioner proves, that any of the three limited exceptions to 

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and 

(iii), is met.2 A petition invoking one of these exceptions must be filed within 

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2

 The exceptions to the timeliness requirement are:

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

interference by government officials with the presentation of the 
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one year of the date the claim could first have been presented.3 42 Pa.C.S. 

§ 9545(b)(2). 

Our review of the record reflects that Appellant was sentenced on June 

9, 2008. Appellant’s judgment of sentence was affirmed on March 8, 2010, 

Commonwealth v. Fitzpatrick, 996 A.2d 540, 3259 EDA 2008, (Pa. Super. 

filed March 8, 2010), and his petition for allowance of appeal to the 

Pennsylvania Supreme Court was denied on August 31, 2010. 

Commonwealth v. Fitzpatrick, 4 A.3d 157, 246 MAL 2010 (Pa. filed August 

31, 2010). Appellant did not seek review with the U.S. Supreme Court. As 

such, Appellant’s judgment of sentence became final for PCRA purposes on 

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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 of Pennsylvania after the time period provided in 

this section and has been held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).

3 Until recently, a petition invoking an exception was required to be filed 

within sixty days of the date the claim could have been presented. However, 

Act 146 of 2018 amended 42 Pa.C.S. § 9545(b)(2), and Section 9545(b)(2) 

now provides that a PCRA petition invoking a timeliness exception must be 

filed within one year of the date the claim could have been presented. See

2018 Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018, 

§ 2 and § 3 (“[T]he amendment ... shall apply to claims arising on Dec. 24, 

2017 or thereafter.”). Although applicable to Appellant’s instant petition, the 

change in the law from sixty days to one year does not impact our analysis.
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November 29, 2010, ninety days after the Pennsylvania Supreme Court denied 

allocatur and time expired for Appellant to file an appeal with the United States 

Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (“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 time for seeking the review.”); U.S. Sup. Ct. R. 13. 

Therefore, Appellant had to file the current PCRA petition by November 29, 

2011, in order for it to be timely. See 42 Pa.C.S. § 9545(b)(1) (a PCRA 

petition must be filed within one year of the date that the judgment of 

sentence becomes final). Appellant did not file the instant PCRA petition until 

December 27, 2018. Thus, Appellant’s instant PCRA petition is patently 

untimely. 

As previously stated, if a petitioner does not file a timely PCRA petition, 

his petition may nevertheless be received under any of the three limited 

exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. 

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his 

petition within one year of the date that the exception could be asserted. 42 

Pa.C.S. § 9545(b)(2). It is the petitioner’s burden to allege and prove that 

one of the exceptions exists. Commonwealth v. Whitehawk, 146 A.3d 266, 

269–270 (Pa. Super. 2016).

In an effort to establish an exception to the PCRA time-bar, Appellant 

argues that 
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the first two exceptions to the timely filing requirements of the 

PCRA have been satisfied: (1) the surreptitious actions of the 

judges and detectives involved in the deprivation of [codefendant’s] Sixth Amendment rights and the surgically removed 

bullet not only interfered with Appellant’s ability to properly 

defend himself at trial, but also precluded him from timely raising 

such claims when seeking collateral relief under the PCRA; and (2) 

the facts surrounding the surgically removed bullet, specifically

the deprivation of [co-defendant’s] Sixth Amendment rights, were 

unknown to Appellant because he was not present during [codefendant’s] arraignment proceedings.

Appellant’s Brief at 11. Appellant further avers that in addition to establishing 

these two exceptions, he is also able to “demonstrate that the underlying 

proceedings were so fundamentally unfair, that the entire process itself should 

be rendered ‘presumptively unreliable under the Sixth Amendment. Bennett, 

supra.[’]” Id. at 12. Appellant maintains that 

there is no difference between the court appointed PCRA attorney 

at issue in Bennett who failed to timely submit an appellate brief, 

and the court appointed PCRA attorney at issue in this matter who 

provides a timely brief with a blatantly erroneous opinion. This is 

because the result of such attorneys’ actions is the same – i.e., 

their representation results in the functional equivalent of a 

complete denial of counsel.

 

Id. at 13 (verbatim). 

Appellant first argues that he has established the exception to the PCRA 

time-bar under subsection 9545(b)(1)(i). Appellant’s Brief at 28-29. 

Appellant argues that government officials involved in his case interfered with 

his claims under the PCRA, as follows:

(1) the magistrate judge who failed to advise co-defendant 

Fleming of his right to counsel; (2) the judge who issued the 

warrant to allow the search of victim Dowe while co-defendant 

Fleming (a primary suspect of the shooting victim) remained in 
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prison without an attorney; and (3) the detectives who obtained 

the warrant, oversaw the search of victim Dowe, and sent the 

purported bullet to the Pennsylvania State Police for forensics 

testing.

Id. at 29. Appellant further states that 

[i]n light of Appellant being unaware of such government officials 

being involved in the deprivation of his claims involving violation 

of the Constitution, and also not having the ability to learn (or 

appreciate the legal significance) of such facts, Appellant submits 

that the first exception to the timely filing requirements under 

§ 9545(b)(1)(i) is . . . satisfied in this instance. 

Id. at 29-30. 

In order to meet the statutory requirements of the “governmental 

interference” exception to the PCRA’s one year jurisdictional time-bar, 

Appellant was required to plead and prove that his “failure to raise the claim 

[or claims] previously was the result of interference by government officials 

with the presentation of the claim [or claims] in violation of the Constitution 

or laws of this Commonwealth or the Constitution or laws of the United States

....” Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006) (emphasis

in original)(quoting 42 Pa.C.S. § 9545(b)(1)(i)). 

Appellant’s argument under this exception is unclear. To the extent 

Appellant claims any alleged interference by the magistrate judge, the judge 

who issued the warrant, and the detective who obtained the warrant, we find 

no merit to these claims. All of these government officials were involved in 

Appellant’s case pretrial. As such, Appellant was aware of these alleged 

interferences at the time of trial, and could have raised them at trial, on direct 
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appeal, or in his first two PCRA petitions. Thus, Appellant failed to prove that 

his failure to raise these claims previously was as a result of interference by 

government officials. Chester, 895 A.2d at 523-524. 

We next address Appellant’s assertions that he has established the 

exception under subsection 9545(b)(1)(ii). Appellant’s Brief at 16-28. 

Appellant argues that his 

conviction was made and upheld on appeal as a result of codefendant Fleming being denied counsel following his preliminary 

arraignment as required under the Sixth Amendment and 

Pa.R.Crim.P. 540(H). While co-defendant Fleming was held 

captive in the Northampton County prison, the Palmer Twp. police 

conducted a search of the victim co-defendant Fleming was 

charged with attempting to murder, Marvin Dowe. The bullet 

purportedly recovered from Mr. Dowe would then be used to arrest 

and convict Appellant.

Id. at 16-17. Appellant further argues that neither his trial nor his PCRA 

counsel questioned “the blatant violation of co-defendant Fleming’s 6th

Amendment rights as a result of Fleming being unrepresented for over a 

month after his preliminary arraignment nor did Appellant’s prior counsel 

question whether such a violation impacted the constitutionality of the search 

of Mr. Dowe.” Id. at 17. Appellant continues: “Most importantly, neither 

counsel questioned whether Appellant was afforded due process under the 5th

and 14th Amendments of the Constitution when he was convicted to a sentence 

of twenty (20) to forty (40) years in prison on evidence produced from an 

unconstitutional search.” Id. 
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This Court has stated the following in outlining the exception under 

Section 9545(b)(1)(ii):

The timeliness exception set forth in Section 9545(b)(1)(ii) 

requires a petitioner to demonstrate he did not know the facts 

upon which he based his petition and could not have learned those 

facts earlier by the exercise of due diligence. Due diligence 

demands that the petitioner take reasonable steps to protect his 

own interests. A petitioner must explain why he could not have 

learned the new fact(s) earlier with the exercise of due diligence. 

This rule is strictly enforced. Additionally, the focus of this 

exception “is on the newly discovered facts, not on a newly 

discovered or newly willing source for previously known facts.”

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (internal 

citations omitted).

Furthermore, Appellant’s claims constitute assertions of trial and PCRA 

counsel ineffectiveness. Generally, a claim of ineffectiveness does not 

constitute a “fact” for purposes of the timeliness exception allowed by 42 

Pa.C.S.A. § 9545(b)(1)(ii). See Commonwealth v. Gamboa-Taylor, 753 

A.2d 780, 785 (Pa. 2000) (“a claim for ineffective assistance of counsel does 

not save an otherwise untimely petition for review on the merits.”) (citing 

Commonwealth v. Lark, 746 A.2d 585, 589–590 (Pa. 2000)) (holding that 

couching argument in terms of ineffectiveness cannot save a petition that does 

not fall into an exception to the jurisdictional time-bar). Accordingly, these 

claims of ineffectiveness do not constitute an exception to the PCRA time-bar.

In an effort to circumvent this line of cases, Appellant relies on Bennett, 

930 A.2d at 1268, and asserts “that the entire process itself should be 

rendered ‘presumptively unreliable under the Sixth Amendment.’” Appellant’s 
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Brief at 12. Appellant maintains that PCRA counsel’s conclusion that 

introduction at trial of a second bullet removed from the victim’s car did not 

put Appellant’s interests at direct odds with his co-defendant’s defense was 

erroneous. Id. at 12-13. He posits that counsel was therefore ineffective and

submits herein that there is no difference between the court 

appointed PCRA attorney at issue in Bennett who failed to timely 

submit an appellate brief, and the court appointed PCRA attorney 

at issue in this matter who provides a timely brief with a blatantly 

erroneous opinion. This is because the result of such attorneys’

actions is the same – i.e., their representation results in the 

functional equivalent of a complete denial of counsel. As 

recognized under Bennett, a denial of counsel mandates the 

presumption of prejudice because the process itself has been 

rendered presumptively unreliable under the Sixth Amendment. 

When the process is rendered presumptively unreliable, a 

petitioner-defendant such as Appellant is to be afforded leeway in 

the preservation of his PCRA claims.

Id. at 13-14 (internal quotation marks and citations omitted). 

In Bennett, our Supreme Court acknowledged the line of cases holding 

that an allegation of PCRA counsel’s ineffectiveness could not be invoked as a 

newly discovered “fact” for purposes of subsection 9545(b)(1)(ii). Bennett, 

930 A.2d at 1272 (citing Gamboa–Taylor, 753 A.2d at 785; 

Commonwealth v. Pursell, 749 A.2d 911, 916 (Pa. 2000)). The Bennett 

Court distinguished those cases from the procedural scenario before it, 

explaining that “[t]hose cases, however, have no relevance when the claim 

emanates from the complete denial of counsel.” Bennett, 930 A.2d at 1273. 

The Court further explained:

Consistent with this jurisprudence, this Court has recognized a 

distinction between situations in which counsel has narrowed the 
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ambit of appellate review by the claims he has raised or foregone 

versus those instances, as here, in which counsel has failed to file 

an appeal at all. . . . Accordingly, following our prior case law, 

we hold that the analysis set forth in Gamboa–Taylor and 

subsequent case law does not apply to situations when counsel 

abandons his client for purposes of appeal.

Bennett, 930 A.2d at 1273 (emphasis added). As a result, the Court held 

that “[the a]ppellant ha[d] made sufficient allegations that counsel abandoned 

him for purposes of his first PCRA appeal by failing to file an appellate brief 

and that [the a]ppellant’s relief under subsection (b)(1)(ii) is not controlled 

by the Gamboa–Taylor line of case law.” Id. Furthermore, the Court stated 

that having concluded that the appellant’s allegations bring his claim within 

the ambit of subsection (b)(1)(ii), he must still prove that the facts were 

“unknown” to him and that he could not have uncovered them by exercising 

“due diligence.” Id. at 1274. Concluding that such questions required further 

fact-finding and the PCRA court, acting as fact-finder, should determine 

whether Appellant met the “proof” requirement under 42 Pa.C.S. 

§ 9545(b)(1)(ii), the Court remanded the matter to the Superior Court for 

remand to the PCRA court for further consideration. Id. at 1275.

Thus, we disagree with Appellant’s assertion that Bennett supports his 

claim that his PCRA petition meets the exception to the PCRA time-bar under 

subsection 9545(b)(1)(ii). In the case sub judice, there is no evidence that 

Appellant’s trial or PCRA counsel abandoned him. Thus, Bennett does not 

apply on that basis. 
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Additionally, our Supreme Court subsequently clarified Bennett, 

explaining that:

The Bennett Court emphasized that any petitioner requesting a 

nunc pro tunc appeal based on an abandonment theory had to 

show due diligence and establish that the petition was filed in 

accordance with subsection (b)(2). We did not authorize courts 

to grant post-conviction relief in every instance where a petitioner 

has been abandoned by appellate counsel, and we neither stated 

nor implied that petitioners could circumvent the statutory filing 

deadline by citing Bennett as an independent basis for a new 

claim of ineffectiveness.

Commonwealth v. Watt, 23 A.3d 980, 986 (Pa. 2011). Accordingly, even 

if Appellant could establish that counsel had abandoned him, he would also 

have to prove that these facts were unknown to him and that he could not 

have discovered these facts earlier exercising due diligence. Watt, 23 A.3d 

at 986; Bennett, 930 A.2d at 1274. Moreover, he would have to establish a 

timely filing of that petition pursuant to subsection 9545(b)(2). Id. 

In the case herein, Appellant neither argues nor proves when he first 

learned of these newly discovered facts, why these facts could not have been 

discovered earlier by exercising due diligence, or that he timely filed the 

petition in relation to those newly discovered facts. Furthermore, we note that 

Appellant would have been aware of what arguments his trial and previous 

PCRA counsel had made or failed to make at the time of their respective filings. 

Moreover, any alleged actions regarding co-defendant Fleming and his 

representation or lack thereof occurred in 2006-2007. Appellant’s Brief at 18-

23. Appellant has failed to establish why he could not have uncovered those 
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facts earlier by the exercise of due diligence. Accordingly, Appellant is unable

to invoke an exception on the basis of Bennett.

Accordingly, Appellant’s claims amount to nothing more than assertions 

of trial and PCRA counsel ineffectiveness. As a result, Appellant’s claims fail 

to establish an exception to the PCRA time-bar. Gamboa-Taylor, 753 A.2d 

at 785; Lark, 746 A.2d at 589–590. 

Consequently, because the instant PCRA petition was untimely and no 

exceptions apply, the PCRA court lacked jurisdiction to address the claims 

presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396, 

398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear 

untimely petition). 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/6/20