J-S11024-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PHILLIP A.THOMPSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1937 EDA 2018

Appeal from the PCRA Order Entered February 14, 2018

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0003788-2000

BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.: FILED APRIL 15, 2019

Phillip A. Thompson (Appellant) appeals from the order dismissing as 

untimely his third petition filed under the Post Conviction Relief Act (PCRA), 

42 Pa.C.S.A. §§ 9541-9546. Following careful review, we affirm.

The procedural history underlying this appeal has been summarized by 

this Court in prior appeals:

On December 11, 2001, Appellant was sentenced to life 

imprisonment after he was convicted of second-degree murder 

and related offenses [following a jury trial that took place after a 

previous declaration of a mistrial]. The convictions stemmed from 

an incident that took place on October 30, 2000, that claimed the 

life of Patrick Dougherty. Following sentencing, Appellant filed a 

timely direct appeal to this Court, and we affirmed Appellant’s 

judgment of sentence on February 5, 2003.[1] Appellant filed a 

petition for allowance of appeal with our Supreme Court, which 

the Court denied on June 4, 2003.

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1 See Commonwealth v. Thompson, 821 A.2d 137 (Pa. Super. 2003) 

(unpublished memorandum), appeal denied, 825 A.2d 638 (Pa. 2003).
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Appellant filed a timely PCRA petition [his first] on June 10, 2014. 

The PCRA court appointed counsel on Appellant’s behalf, and, after 

the granting of several extensions of time, appointed counsel filed 

an amended PCRA petition on September 21, 2005. The PCRA 

court conducted a hearing on Appellant’s amended petition on 

February 14, 2006, and, at the conclusion of the hearing, 

Appellant requested additional time to contact Appellant’s former 

appellate counsel. Thereafter, on June 15, 2006, Appellant 

advised the PCRA court that there was no need for additional 

testimony regarding Appellant’s petition. The PCRA court denied 

Appellant’s PCRA petition on June 20, 2006. See

Commonwealth v. Thompson, 953 A.2d 607 (Pa. Super. 2008) 

(unpublished memorandum, 2107 EDA 2006, pp. 1-2) (footnote 

omitted), appeal denied, 598 Pa. 758, 955 A.2d 358 (2008). This 

Court affirmed the decision of the trial court to deny Appellant’s 

first PCRA petition, and the Pennsylvania Supreme Court denied 

Appellant’s petition for allowance of appeal. Id.

Appellant, on November 5, 2008, filed a second PCRA petition pro 

se. The trial court, on November 18, 2008, summarily dismissed 

Appellant’s pro se petition.

See Commonwealth v. Thompson, 981 A.2d 324 (Pa. Super. 2009) 

(unpublished memorandum), appeal denied, 983 A.2d 1249 (Pa. 2009) 

(blockquote removed). Appellant appealed the denial of his second PCRA 

petition to this Court. Id. This Court affirmed, and the Pennsylvania Supreme 

Court denied his petition for allowance of appeal. Id.

Appellant filed the instant pro se PCRA petition, his third, on May 11, 

2015. Counsel was appointed and in May 2016, filed a motion seeking to 

withdraw because he had been appointed to represent a material witness who 

had testified against Appellant at trial. The court granted counsel’s motion to 

withdraw, and in July 2016, appointed new counsel. 
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In January 2018, PCRA counsel filed a Turner/Finley2letter and 

accompanying motion to withdraw as counsel. On January 16, 2018, the PCRA 

court granted counsel’s motion to withdraw and sent Appellant notice pursuant

to Pa.R.Crim.P. 907 that his petition would be dismissed without a hearing. 

Appellant filed a pro se response to the PCRA court’s notice. On February 14, 

2018, the court formally dismissed Appellant’s petition as untimely filed.

Appellant timely appealed

3 and filed a court-ordered statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA court 

issued a responsive opinion.

On appeal, Appellant raises a single issue for our review:

I. [Whether] Appellant was denied his constitutional Fourteenth 

Amendment right to effective counsel when each failed to raise 

the issue of a defective affidavit of probable cause?4

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

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

3 On November 21, 2018, this Court issued a rule to show cause why 

Appellant’s appeal should not be quashed as untimely filed. See Rule to Show 

Cause, 11/21/18, at 1. Appellant filed a response, averring that his appeal 

should be considered timely due to the prisoner mailbox rule. See Response 

to Order, 12/6/18, at 1-2. The rule to show cause was discharged on 

December 26, 2018, and the issue referred to the merits panel. Here, 

Appellant’s notice of appeal and certificate of service are hand-dated March 

15, 2018. See, e.g., Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 

(Pa. Super. 2006) (noting that pursuant to the prisoner mailbox rule, a 

document is deemed filed when placed in the hands of prison authorities for 

mailing). Accordingly, we accept Appellant’s notice of appeal as timely filed.

4 We note that Appellant did not properly preserve this issue in his Pa.R.A.P. 

1925(b) statement of errors complained of on appeal. See Commonwealth 
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Appellant’s Brief at 2 (unnecessary capitalization and suggested answer 

omitted).

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

whether the determination of the PCRA court is supported by the evidence of 

record and is free of legal error. See Commonwealth v. Ragan, 923 A.2d 

1169, 1170 (Pa. 2007). On appeal, we examine the issues raised in light of 

the record “to determine whether the PCRA court erred in concluding that 

there were no genuine issues of material fact and denying relief without an 

evidentiary hearing.” See Commonwealth v. Springer, 961 A.2d 1262, 

1264 (Pa. Super. 2008). 

We begin by addressing the timeliness of Appellant’s petition, as the 

PCRA time limitations implicate our jurisdiction and may not be altered or 

disregarded in order to address the merits of Appellant’s claims. See 

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the 

PCRA, any petition for relief, including second and subsequent petitions, must 

be filed within one year of the date on which the judgment of sentence 

becomes final. Id. There are three exceptions:

(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;

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v. Wanner, 158 A.3d 714, 717 (Pa. Super. 2017). However, as our 

jurisdiction is implicated by the PCRA’s timeliness requirements, we need not 

reach the merits of Appellant’s issue or its preservation. 
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(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.A. § 9545(b)(1)(i)-(iii). Previously – and for Appellant’s purposes 

– a petition attempting to invoke the exceptions had to be “filed within 60 

days of the date the claim could have been presented.” 42 Pa.C.S.A § 

9545(b)(2); see Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 

(Pa. 2000).5

Our review confirms that Appellant’s petition is untimely. Appellant’s 

judgment of sentence became final on September 2, 2003, at the expiration 

of the 90-day time period for seeking review with the United States Supreme 

Court. See 42 Pa.C.S. § 9545(b)(3) (a judgment of sentence becomes final 

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

review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998) 

(noting that U.S. S. Ct. R. 13 grants an appellant 90 days to seek review with 

the United States Supreme Court). Accordingly, Appellant had until 

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5 Act 146 of 2018 amended 42 Pa.C.S.A. §9545(b)(2), effective December 

2017, and 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. As noted, a petitioner previously had 60 days from when the claim 

could have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, §2 and 

§3. As Appellant filed his petition in May 2015, this change does not affect 

Appellant or our analysis.
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September 2004 to file a timely PCRA petition. Appellant filed the underlying 

petition in May 2015, almost eleven years too late. Therefore, we are without 

jurisdiction to consider Appellant’s appeal unless he has pled and proved one 

of the three timeliness exceptions. See Bennett, 930 A.2d at 1267.

In his petition, Appellant argues that he was the victim of judicial and 

prosecutorial misconduct during trial, ineffective assistance of counsel for 

failing to raise those issues at trial and on appeal, double jeopardy, and that 

his conviction was based upon defective bills of criminal information. See

PCRA Petition, 5/11/15, at 2-3. Likewise, in his appellate brief, Appellant fails 

to mention or argue that his petition qualifies for an exception to the PCRA’s 

timeliness requirement. Appellant does not reference the PCRA’s time 

restrictions or address the PCRA court’s finding that his petition is untimely. 

See Appellant’s Brief at 5-8. Accordingly, because Appellant’s petition is 

untimely and he has not pled an exception to the time bar, the PCRA court did 

not err in dismissing his petition. See 42 Pa.C.S. § 9545(b); Bennett, 930 

A.2d at 1267; Ragan, 923 A.2d at 1170.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/15/19