J-S08007-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

PHU NGUYEN,

Appellant No. 1330 EDA 2018

Appeal from the PCRA Order EnteredApril 5, 2018

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0704102-1997

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 25, 2019

Appellant, Phu Nguyen, appeals pro se from the post-conviction court’s 

April 5, 2018 order dismissing, as untimely, his petition filed under the Post 

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

The PCRA court briefly summarized the facts of Appellant’s underlying 

convictions, as follows: 

In August [of] 1995, [Appellant], with four co-defendants, 

conspired to rob a massage parlor. [Appellant], acting as a “look 

out,” aided his co-conspirators in fatally shooting a security guard, 

and robbing several of the parlor’s employees and customers.

PCRA Court Opinion (PCO), 4/5/18, at 2. The court also provided a recitation 

of the procedural history of Appellant’s case, stating:

On May 2, 1997, [Appellant] ... was arrested and charged 

with Murder and related offenses. On March 1, 1999, a jury 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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convicted [Appellant] of Second-Degree Murder, Conspiracy, and 

four counts of Robbery. On the same date, the [trial court] 

sentenced [Appellant] to life imprisonment without the possibility 

of parole for Second-Degree Murder. Further sentencing was 

deferred until April 19, 1999, when [the court] imposed

concurrent terms of ten to twenty years for Conspiracy, and five 

to ten years for each count of Robbery.1

1 All other charges were nolle prossed.

[Appellant] appealed and on September 5, 2002, the Superior 

Court affirmed his judgment of sentence. [Commonwealth v. 

Nguyen, No. 3311 EDA 1999, unpublished memorandum (Pa. 

Super. filed Sept. 5, 2002).] On April 22, 2003, the Supreme 

Court denied [Appellant’s] [Petition] for Allowance of Appeal. On 

July 10, 2015, the [Appellant] filed a pro se [PCRA] ... petition, his 

first. On November 28, 2016, this matter was assigned to this 

[c]ourt. On December 15, 2016, PCRA counsel - finding the 

petition untimely - 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),] and a Motion to Withdraw.

On March 2, 2017, this [c]ourt dismissed the petition and 

permitted counsel to withdraw. [Appellant] did not file a Notice of 

Appeal to the Superior Court. On July 25, 2017, [Appellant] filed

an Amended Answer to [the] PCRA Court’s Motion to Dismiss.3

3

In his Answer, [Appellant] reiterated the claims raised in 

his July 10, 2015 Petition based on Alleyne v. United 

States, [570 U.S. 99] ... (2013)[,] while also making new 

claims based on Commonwealth v. Batts, 163 A.3d 410 

([Pa.] 2017). This was treated as an untimely response to 

the [c]ourt’s [Pa.R.Crim.P.] 907 Notice.

On February 23, 2018, [Appellant] filed the instant pro se PCRA 

petition, his second. On March 5, 2018, after determining that 

[Appellant] was not entitled to counsel, this [c]ourt found the 

petition meritless and filed a Notice of Intent to Dismiss under 

[Rule] 907. On March 15, 2018, [Appellant] filed a response to 

this [c]ourt’s [Rule] 907 Notice.4

4

In his [Rule] 907 response, [Appellant] reiterate[d] his 

argument that he received an illegal sentence and that his 

petition was timely, but [he] raise[d] no new issues.
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Id. at 1-2 (one footnote omitted).

On April 5, 2018, the PCRA court issued an order and accompanying 

opinion dismissing Appellant’s petition as being untimely filed. Appellant filed 

a timely, pro se notice of appeal on May 2, 2018. The court did not direct him 

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on 

appeal. Herein, Appellant states two issues for our review:

A. Whether [Appellant] is entitled to relief from his conviction and 

sentence because the Commonwealth failed to disclose[] 

relevant Brady[1] material in a manner depriving him of his 

rights under the Sixth and Fourteenth Amendments of the U.S. 

Constitution[?]

B. Whether [Appellant] is entitled to relief from his conviction and 

sentence because the trial court severed Pennsylvania’s 

minimum sentencing statute in a manner depriving him of his 

rights under the Eighth and Fourteenth Amendments of the 

Constitution and the corresponding provisions of the 

Pennsylvania Constitution[?]

Appellant’s Brief at 1 (unnecessary capitalization omitted).

This Court’s standard of review regarding an order denying a petition 

under the PCRA is whether the determination of the PCRA court is supported 

by the evidence of record and is free of legal error. Commonwealth v. 

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the 

timeliness of Appellant’s petition, because the PCRA time limitations implicate 

our jurisdiction and may not be altered or disregarded in order to address the 

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 

2007). Under the PCRA, any petition for post-conviction relief, including a 

____________________________________________

1 Brady v. Maryland, 373 U.S. 83 (1963).
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second or subsequent one, must be filed within one year of the date the 

judgment of sentence becomes final, unless one of the following exceptions 

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

(b) Time for filing petition.--

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

or subsequent petition, shall be filed within one year of the 

date the judgment 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 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 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)-(iii). Additionally, at the time Appellant’s petition 

was filed, section 9545(b)(2) required that any petition attempting to invoke 

one of these exceptions “be filed within sixty days of the date the claim could 

have been presented.” 42 Pa.C.S. § 9545(b)(2).2

____________________________________________

2 A recent amendment to section 9545(b)(2), which became effective on 

December 24, 2018, changed the language to require that a petition “be filed 

within one year of the date the claim could have been presented.” 42 Pa.C.S. 

§ 9545(b)(2).
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Here, Appellant’s judgment of sentence became final in 2003 and, thus, 

his present petition, filed in 2018, is facially untimely. For this Court to have 

jurisdiction to review the merits thereof, Appellant must prove that he meets 

one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 

9545(b). 

Initially, we note that Appellant’s brief has two separate Argument 

sections. See Appellant’s Brief at 2, 6. Additionally, he separates his brief 

into seven sections and sub-sections, which obviously does not align with the 

two issues he set forth in his Statement of the Questions Involved, quoted 

supra. Notwithstanding these briefing defects, we can discern the basic 

arguments Appellant raises herein; thus, we will not consider his issues waived 

or dismiss his appeal entirely. See Commonwealth v. Hardy, 918 A.2d 766, 

771 (Pa. Super. 2007) (“[W]hen defects in a brief impede our ability to 

conduct meaningful appellate review, we may dismiss the appeal entirely or 

find certain issues to be waived.”) (citations omitted).

Appellant first contends that he meets the governmental-interference 

exception of section 9545(b)(1)(i) based on the Commonwealth’s allegedly 

withholding information related to misconduct by multiple Philadelphia Police 

Officers. Not only does Appellant fail to develop this argument in any 

meaningful regard,3 but we also deem this claim waived based on his failure 

to raise it before the PCRA court. See Pa.R.A.P. 302(a) (“Issues not raised in 

____________________________________________

3 For instance, Appellant does not specify whether any officer involved in the 

investigation of his case was accused of misconduct. 
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the lower court are waived and cannot be raised for the first time on appeal.”). 

As the PCRA court points out in a supplemental opinion filed on April 18, 2018, 

Appellant did not raise this governmental-interference claim in his initial 

petition; instead, he asserted it for the first time in an amended petition that 

he mailed on April 5, 2018 - the same date that the court issued its order 

dismissing his petition. As the court stresses, “[a] PCRA petitioner may not 

raise new claims by merely supplementing a pending PCRA [petition] without 

court authorization; failure to obtain leave of the PCRA court waives such 

claims.” PCRA Court Supplemental Opinion, 4/18/18, at 1 (citing 

Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015) (“[I]t is wellsettled that claims raised outside of a court-authorized PCRA petition are 

subject to waiver....”)). In light of Appellant’s failure to raise this claim in his 

initial petition or in a court-approved amendment thereto, and given his 

wholly undeveloped argument in his appellate brief, we deem this issue 

waived.

Appellant next avers that he meets the governmental-interference 

exception based on our Supreme Court’s decisions in Commonwealth v. 

Batts, 163 A.3d 410 (Pa. 2017), and Commonwealth v. Wolfe, 140 A.3d 

651 (Pa. 2016). However, Appellant’s argument as to how our Supreme 

Court’s decisions in these cases amounted to governmental interference is 

confusing, at best. For instance, he contends, “that interference by 

government officials prevented him from discovering the unlawful severance 

of the statutes in this case....” Appellant’s Brief at 8. Appellant further asserts 
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that his “sentence is unconstitutional, because the creation of two classes of 

offenders, one eligible for relief under Wolfe and one ineligible, based solely 

on the date their convictions became final, violates the Pennsylvania 

Constitution’s guarantee of due process, equal protection, and prohibition on 

cruel punishments.” Id. 

Appellant’s virtually incoherent arguments do not demonstrate the 

applicability of the governmental interference exception. Notwithstanding, we 

also note that Batts involved sentencing issues pertaining to individuals 

convicted of murder committed when they were under the age of 18, in the 

wake of the United States Supreme Court’s decision in Miller v. Alabama, 

567 U.S. 460 (2012) (holding that mandatory sentences of life without parole 

cannot be constitutionally applied to individuals who were under 18 when they 

committed their crimes). Here, Appellant was 24 years old when he 

committed murder and, thus, Batts clearly would not apply to his case. 

Likewise, we would also deem our Supreme Court’s decision in Wolfe

wholly inapplicable to the case sub judice. In Wolfe, our Supreme Court

struck down the mandatory-minimum sentencing statute set forth in 42 

Pa.C.S. § 9718 (Sentences for offenses against infant persons), as it violated 

the rule announced in Alleyne v. United States, 570 U.S. 99, 106 (2013) 

(holding that “facts that increase mandatory minimum sentences must be 

submitted to the jury” and found beyond a reasonable doubt). Appellant was 

not sentenced under section 9718; instead, he received a mandatory lifewithout-parole sentence under 18 Pa.C.S. 1102(b). That statute does not 
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require fact-finding by the trial court and, therefore, it is not unconstitutional 

under Alleyne.

In sum, Appellant’s waived and/or confusing arguments do not 

demonstrate the applicability of any exception to the PCRA’s timeliness 

requirement. Consequently, we discern no error in the court’s dismissing his 

untimely petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/25/19