J-A05042-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LAMONT FULTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 80 EDA 2020

Appeal from the PCRA Order Entered December 13, 2019

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

No(s): CP-51-CR-0413241-2002

BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: Filed: April 22, 2021

Appellant, Lamont Fulton, appeals pro se from the order entered in the 

Court of Common Pleas of Philadelphia County dismissing as untimely his third

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A § 

9541-9545. He contends dismissal was erroneous because his petition 

satisfied both the “new constitutional right” and the “newly-discovered fact”

exceptions of the PCRA. We affirm.

A panel of this Court previously has set forth the relevant facts and 

procedural history of Appellant’s case, as follows:

Following a bench trial, which was held on March 8, 2006, 

Appellant was found guilty but mentally ill of first-degree murder 

and guilty of possession of an instrument of crime (“PIC”). On 

May 8, 2006, the trial court sentenced Appellant to a term of life 

imprisonment without the possibility of parole on the murder 

conviction and a concurrent term of two and one-half to five years 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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of incarceration for the PIC conviction. Appellant filed a direct 

appeal to this Court, and in a memorandum filed on November 16, 

2007, this Court affirmed Appellant's judgment of sentence 

Commonwealth v. Fulton, 1535 EDA 2006, 944 A.2d 791 (Pa. 

Super. November 16, 2007) (unpublished memorandum). 

Appellant did not pursue an appeal in the Pennsylvania Supreme 

Court.

On August 11, 2008, Appellant filed a PCRA petition seeking the 

reinstatement of his right to file a petition for allowance of appeal 

with the Pennsylvania Supreme Court. Counsel was appointed, 

and on December 18, 2009, the PCRA court reinstated Appellant's 

right to seek allowance of appeal in the Supreme Court. On 

August 11, 2010, the Supreme Court denied Appellant's petition. 

Commonwealth v. Fulton, 3 A.3d 670 (Pa. 2010).

On September 17, 2010, Appellant filed a pro se PCRA petition. 

The PCRA court appointed counsel, and Appellant filed an 

amended PCRA petition on May 9, 2012. On May 3, 2013, 

pursuant to Pa.R.Crim.P. 907, the PCRA [court] notified Appellant 

of its intent to dismiss the PCRA petition without a hearing. The 

PCRA court dismissed Appellant's PCRA petition in an order filed 

on July 11, 2013. On July 29, 2013, Appellant filed a timely 

appeal.

[ ] Appellant averred trial counsel had been ineffective for failing 

to pursue a claim of diminished capacity in light of his suffering 

from a serious mental illness at the time of the offense. In finding 

no merit to this claim and in affirming the PCRA court's Order, this 

Court noted that:

[t]he record reveals that trial counsel pursued a 

diminished capacity defense and provided supporting 

documentation in the form of Appellant's mental 

health evaluations, diagnoses, opinions, and medical 

records. N.T., Trial, 3/8/06, at 108–110. Moreover, 

trial counsel argued that, should the trial court find 

Appellant guilty, in light of Appellant's mental health 

issues which are supported by the aforementioned 

documents, the conviction should only be for thirddegree murder due to Appellant's mental health. Id. 

at 160–164.
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Commonwealth v. Fulton, No. 2168 EDA 2013, unpublished 

memorandum at 1–2, 5-6 (Pa.Super. filed July 30, 2014). The 

Pennsylvania Supreme Court denied Appellant's Petition for 

Allowance of Appeal on January 26, 2015. Commonwealth v. 

Fulton, 630 Pa. 740, 108 A.3d 34 (2015).

On February 3, 2015, Appellant filed [a] PCRA petition, his second, 

pro se. Appellant thereafter filed amended and/or supplemental 

petitions on February 15, 2015, August 26, 2015, September 15, 

2015, January 6, 2016, May 14, 2016, and October 26, 2016. 

After notifying Appellant of its intent to dismiss the PCRA petition 

without a hearing pursuant to Pa.R.Crim.P 907 on July 17, 2017,[] 

the PCRA court dismissed Appellant's petition in its Order filed on 

September 15, 2017.

. . .

[On appeal, Appellant] argued ineffective assistance of all prior 

counsel. His main contention, however, was that trial counsel was 

ineffective for advancing a diminished capacity defense that 

contradicted [Appellant's] own testimony that he was innocent. 

PCRA petition, 2/18/15 [sic] at 21–44; see also Amended PCRA 

petition, 9/18/15, Response to 907, 7/24/17, and Pro se

Correspondence, 7/26/17. [We concluded, however, that] in 

pleading his claim, [Appellant] utterly failed to invoke an 

exception to the timeliness exception, electing, instead, to 

address the alleged merits of his underlying claims. . . . 

Additionally, a careful review of the record reveal[ed] that his 

ineffectiveness claim regarding the diminished capacity defense 

was raised by Ms. Elayne Bryn, who was his counsel on his first 

PCRA petition.[] This claim was dismissed, the dismissal affirmed 

by the Superior Court, and allocator denied by the Pennsylvania 

Supreme Court. As this ineffectiveness claim was previously 

litigated, [Appellant] was not eligible for relief. 42 Pa.Cons. Stat. 

§ 9543(a)(3).

. . .

To the extent Appellant attempt[ed] to invoke the newly 

recognized constitutional right exception in his appellate brief, he 

[ ] waived any such argument, as an exception to the PCRA time 

bar must be pled in a PCRA petition and cannot be raised for the 

first time on appeal. Commonwealth v. Burton, 936 A.2d 521, 

525 (Pa. Super. 2007), appeal denied, 598 Pa. 786, 959 A.2d 927 
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(2008); see also, Pa.R.A.P. 302(a)(providing that issues not 

raised before the lower court are waived and cannot be raised for 

the first time on appeal). Moreover, [we observed that] the cases 

to which Appellant cite[d], McQuiggen v. Perkins, 569 U.S. 383, 

133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013) and Martinez v. Ryan, 

566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) pertain to 

federal habeas corpus law, not PCRA petitions; thus, they are not 

dispositive of Appellant's claims.

Commonwealth v. Fulton, No. 3275 EDA 2017, 2018 WL 2077855, at *1 

(Pa. Super. 2018).

On May 29, 2018, Appellant filed pro se the present PCRA petition, his 

third. As noted, it raises claims effectively asserting that his patently untimely 

petition qualifies for an exception to the time-bar under either the new

constitutional right exception or the newly-discovered fact exception. On 

December 13, 2019, the PCRA court dismissed the petition as untimely. This 

appeal followed.

When reviewing the denial of a PCRA petition, our standard of review is 

limited to examining whether the PCRA court's determination is supported by 

evidence of record and whether it is free of legal error. Commonwealth v. 

Smallwood, 155 A.3d 1054, 1059 (Pa. Super. 2017) (citations omitted).

At the outset, we consider whether this appeal is properly before us. 

The question of whether a petition is timely raises a question of law, and where 

a petitioner raises questions of law, our standard of review is de novo and our 

scope of review is plenary. Commonwealth v. Callahan, 101 A.3d 118, 121 

(Pa. Super. 2014).
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All PCRA petitions must be filed within one year of the date upon which 

the judgment of sentence became final, unless one of the statutory exceptions 

set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The petitioner bears the 

burden of pleading and proving an applicable statutory exception. If the 

petition is untimely and the petitioner has not pleaded and proven an 

exception, the court must dismiss the petition without a hearing for want of 

jurisdiction to consider the merits. Commonwealth v. Taylor, 65 A.3d 462, 

468 (Pa.Super. 2013). 

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:

(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 of sentence 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.A. § 9545(b)(1). In addition, any petition attempting to invoke one 

of these exceptions “shall be filed within one year of the date the claim could 
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have been presented.” 42 Pa.C.S.A. § 9545(b)(2) (effective January 16, 1996, 

to December 24, 2018).1

As indicated in the procedural history recited above, Appellant’s 

judgment of sentence became final on or about November 11, 2010. See 42 

Pa.C.S.A. § 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”). Therefore, Appellant had to file the present petition by 

November 11, 2011, for it to be considered timely. Because the instant PCRA 

petition was filed on May 29, 2018, it is patently untimely, and the burden fell 

upon Appellant to plead and prove that one of the enumerated exceptions to 

the one-year time-bar applied to his case. See 42 Pa.C.S.A. § 9545(b)(1); 

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to 

invoke a statutory exception to the PCRA time-bar, a petitioner must properly 

plead and prove all required elements of the exception).

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1 We note that effective December 24, 2018, the time period in which to file 

a petition invoking one of the three exceptions was extended from 60 days to 

one year. 42 Pa.C.S.A. § 9545(b)(2) (current version). This amendment 

applies to claims arising one year prior to the effective date of the amendment, 

i.e., on December 24, 2017, or later. Act 2018, Oct. 24, P.L. 894, No. 146, § 

3. Because Appellant filed the instant PCRA petition on May 29, 2018, the

amendment applies.
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Though Appellant’s pro se brief lacks a clear statement of the questions

presented, a generous reading allows this panel to discern the briefing of two 

discrete issues, each claiming an applicable exception to the PCRA time-bar.2 

First, Appellant argues that he meets the new constitutional right exception 

based on McQuiggen.

3

 It is apparent, however, that more than five years 

have lapsed between the filing of the 2013 decision and the instant petition 

raising this claim, and Appellant has failed to plead, let alone prove, a plausible 

explanation as to how his presentation of this claim satisfies Section 

9545(b)(2).

By Appellant’s own admission, he possessed sufficient clarity of mind by 

2013 to recognize he suffered from a mental illness, and the record otherwise 

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2 Subsequent to the filing of his brief, Appellant filed with this Court two pro 

se applications for relief on February 3, 2021 and February 16, 2021, 

respectively. Because we deem each application largely incoherent and, thus, 

incapable of meaningful review, we deny the requested relief. 

3

In McQuiggen, the United States Supreme Court held that in federal habeas 

corpus proceedings, strict compliance with the one-year statute of limitations 

imposed by 28 U.S.C. § 2244(d) will not be required when the petitioner 

advances a convincing claim of actual innocence. McQuiggen, 133 S.Ct. at 

1928. Instead, under McQuiggen, petitioners who assert a convincing actual 

innocence claim may invoke the miscarriage of justice exception to overcome 

the federal habeas corpus statute of limitations. Id. However, in 

Commonwealth v. Brown, 143 A.3d 418, 420-21 (Pa. Super. 2016) this 

Court addressed the applicability of McQuiggen to the timeliness provisions 

set forth in the PCRA and found the decision “irrelevant to the time restrictions 

of our PCRA.”
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reflects his active participation in his collateral appeals starting in 2008. Even 

if we were to credit Appellant’s initial attempt to raise the McQuiggen issue 

in his appeal from the 2017 order dismissing his second PCRA petition,4that 

still occurred more than four years after McQuiggen was filed. Given this 

record, Appellant’s claim raising a new constitutional right exception fails to 

satisfy Section 9545(b)(2), as we discern no reason why Appellant could not 

have presented this claim within one year of the 2013 McQuiggen decision 

Second, Appellant posits that his alleged first-time realization in 

February of 2013 that he suffered from a mental illness qualifies the present 

petition for the newly discovered fact exception to the one-year filing 

requirement. See Appellant’s brief, at 5. Again, even if we accept this 

unsubstantiated timeline as true, it does not qualify his petition for the newlydiscovered fact exception because, inter alia, Appellant failed to meet his 

obligation under Section 9545(b)(2) to file a petition raising this exception 

within one year of his discovery of the new fact.

For the foregoing reasons, we conclude that the PCRA court properly 

dismissed Appellant’s patently untimely third PCRA petition, as Appellant failed 

to plead and prove the applicability of an exception to the time-bar.

Order affirmed.

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4 Appellant raised this very issue in his 2015 PCRA appeal, and this Court 

reasoned that McQuiggen was inapposite to Appellant’s PCRA case even if he 

had preserved the issue by raising it in his petition.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/22/21