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* Retired Senior Judge assi gned to the Superior Court. NON - PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA v. : : MIKE GERALD, A/K/A GERALD MIKE, : No. 906 WDA 2014 : Appellant :

Appe al from the PCRA Order, April 24, 2014, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP

- 02

- CR

- 0011398

- 2003

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVE MBER 06, 2015 Mike Gerald a/k/a Gerald Mike appeals pro se from the order filed in the Court of Common Pleas of Allegheny County which dismissed, without a hearing, his second petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. A. §§ 9541

- 9546. Because we agree with the PCRA court that appellant’s facially untimely petition failed to establish a statutory exception to the one

- year jurisdictional time limit for filing a petition under the PCRA, we affirm. Following a coroner’s i nquest on August 4, 2003, appellant was charged with one count of criminal homicide in connection with the shootingJ. S55004/15

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death of John Mitchell on March 15, 1998. 1 Mitchell was shot once in the chest at close range with a .40 caliber semi

- automatic handgun. A ppellant admitted to police officers that he shot the victim but claimed it was an accident. 2 On August 24, 2004, a jury convicted appellant of third

- degree murder. 3 On November 11, 2004, the court sentenced appellant to 20 to
40 years’ imprisonment. 4 O n December 15, 2004, appellant filed a notice of appeal. 5 The judgment of sentence was affirmed by this court on August 24, 2006. On September 22, 2006, appellant, through counsel, filed a petition

1 The facts of this case are set forth in Commonwea lth v. Gerald , No. 2165 WDA 2004, unpublished memorandum (Pa.Super. filed August 24, 2006).

2 Appellant claimed another individual, Jermaine Brown, was playing with the gun and that he became concerned and asked Brown for the firearm. Appellant stated th at Brown removed the magazine and handed the gun to appellant. Once appellant had possession of the gun, he pulled the slide back at which time the gun accidently discharged hitting the victim in the chest. Appellant also told the detectives that he fled the house and discarded the gun en route to his girlfriend’s house. (Notes of testimony, 8/19/04 (T.T.) at 277.) At trial, the Commonwealth’s expert criminalist, Robert Levine, Ph.D., testified that after a magazine is removed from a gun, if a person pu lls back on the slide with a cartridge still in the chamber, normally the gun would not fire and the live round would be ejected from the gun. (T.T. at 220

- 224.)

3 18 Pa.C.S.A. § 2502(c).

4 Appellant’s trial counsel was Robert Foreman, Esq., of the Offi ce of Public Defender.

5 Appellant’s direct appeal counsel was Scott Rudolf, Esq., also of the Office of Public Defender.J. S55004/15

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for allowance of appeal in the Pennsylvania Supreme Cou rt. On March 6, 2007, the petition was denied. On March 5, 2010, appellant, through his PCRA counsel, Scott Coffey, Esq., filed his first (amended) PCRA petition. 6 (Docket #56.) The post

conviction issues raised included: ineffective assistance of tri al counsel for failing to move to suppress appellant’s confession; ineffective assistance of trial counsel for failing to utilize appellant’s girlfriend, Lisa Fields, at trial to prove that appellant’s confession was coerced; ineffective assistance of tria l counsel for failing to request a corpus delicti jury instruction; and ineffective assistance of trial counsel for failing to cross

- examine Monte Nichols regarding his expectation of leniency for testifying against appellant. An evidentiary PCRA hearing was held on June 8, 2010. The PCRA court dismissed appellant’s PCRA petition on November 16, 2010, based on its determination that all claims raised therein were meritless. On November 22, 2011, the PCRA court appointed Christy Foreman, Esq., to represe nt appellant on appeal. Attorney Foreman filed a timely notice of appeal, and raised the same issues Attorney Coffey had raised in the PCRA petition. On August 21, 2012, this court affirmed the PCRA court’s

6 Appellant initially requested the court’s permission to represent himself. A hearing was held pursuant to Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998). After the trial court issued a notice of intention to dismiss appellant’s pro se PCRA petition, appellant agreed to counseled representation.J. S55004/15

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ruling. Commonwealth v. Gerald , No. 1911 WDA 2010, unpublished memorandum (Pa.Super. filed August 21, 2012). A petition for allowance of appeal was filed, and denied by our supreme court o n March 13, 2013. On February 3, 2014, appellant, pro se , filed his second PCRA petition which is at issue here . (Docket #79.) On March 25, 2014, the court issued a notice, pursuant to Pa.R.Crim.P. 907, of its intention to dismiss the petition without a hearing on the grounds that all issues were time

- barred. (Docket #80.) Appellant responded and on April 24, 2 014, the PCRA court dismissed his PCRA petition. Appellant raises the following issues on appeal: (A) DID BRIAN WIESMANTLE[] CAUSE A MISCARRIAGE OF JUSTICE WHEN HE INTENTIONOLLY [SIC] CHOSE TO LIE AND FALSIFY EVIDENCE IN ORDER FOR THE GRAND JURY TO PURSUE CRIMINOL [SIC] CHARGES. (1) WAS COURT APPOINTED COUNSEL CHRIST [SIC] P. FOREMAN ESQUIRE INEFFECTIVE FOR FAILING TO DEMONSTRATE MEANINGFULL [SIC] PARTICIPATIN [SIC] EFFECTIVELY LEAVEING [SIC] APPEALANT [SIC] UNCOUNSELED ON ISSUES (1

- 6). AND EFFECTIVELY M ISLEADING APPEALANT [SIC] IN REGAURD [SIC] TO HIS NEXT STAGE OF APPEAL[?] (2) WAS MS. FOREMAN ESQUIRE INEFFECTIVE FOR FAILING TO REFUTE THE EVIDENTIARY HEARING TRANSCRIPTS AS INACURATE [SIC][?]J. S55004/15

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- (3) WAS MS. FOREMAN, ESQUIRE INEFFECTIVE IN HER FAILURE TO A DDRESS PETITIONER[’]S ISSUES OF INEFFECTIVE WITH PRIOR PCRA COUNSEL SCOTT COFFY [SIC], ESQUIRE[?] (4) WAS MS. FOREMAN, ESQUIRE INEFFECTIVE FOR FAILING TO ARGUE, LITIGATE OR SUPPORT PETITIONER[’]S ISSUES BY THE RECORD IN REGAURD [SIC] TO WHETHER TRIAL COUN SEL WAS INEFFECTIVE FOR FAILING TO CROSS EXAMINE MONTEE [SIC] NICHOLS REGAURDING [SIC] THE SENTENCE AND FINES HE FACED LEAVEING [SIC] PETITIONER EFFECTIVELY UNCOUNSELED[?] (5) WAS MS. FOREMAN, ESQUIRE WAS [SIC] INEFFECTIVE FOR FAILING TO ARGUE, LITIGATE O R SUPPORT PETITIONER[’]S ISSUES BY THE RECORD IN REGAURD [SIC] TO TRIAL COUNSEL FAILING TO SUPPRESS INVOLUNTARY STATEMENT TO POLICE, FAILING TO FILE A HABEAS CORPUS PITITION [SIC] AFTER NO CORPUS DELECTI INSTRUCTION WAS PROVIDED MS[.] FOREMAN FAILING TO SH OW HOW PETITIONER WAS PREJUDICED BY THE ABSENCE OF THE JURY INSTRUCTION FOR FAILING TO ASSERT TRIAL COUNSEL[’]S INEFFECTIVENESS THROUGH THE RECORD LEAVEING [SIC] PETITIONER EFFECTIVELY UNCOUNSELED[?]J. S55004/15

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- (6) WAS MS. FOREMAN, ESQUIRE INEFFECTIVE FOR FAILING TO ARGUE, LITIGATE OR SUPPORT PETITIONER[’]S ISSUE BY THE RECORD IN REGAURD [SIC] TO DETECTIVE DALE CONOFARI[’]S TESTIMONY AT EVIDENTIARY HEARING LEAVEING [SIC] PETITIONER EFFECTIVELY UNCOUSELED [SIC] DUE TO HIS FALSIFICATION OF EVIDENCE[?] (B) DID DR. LEVI NE FOR THE PROSECUTION CREATE A MISCARRIAGE OF JUSTICE WHEN HIS TESTIMONY BLIND SIDED [SIC] THE DEFENSE WITH DESCOVERY [SIC] VIOLATION TESTIMONY TO PROVE CASATION [SIC][?] (C) WAS IT TRIAL COURT ERROR PROSECUTOR MISCONDUCT INEFFECTIVE ASSISTENCE [SIC] OF COUNSEL WHEN THE COMMEN WEALTH [SIC] WITH HELD [SIC] THE PRE[

- ]SENTENCE REPORT FROM PETITIONER SENTENCE COURT ERROR TO NOT SENTENCE DEFENDANT UNDER GUIDELINES AT THE TIME OF THE CRIME. [D] TRIAL COURT ERROR, INEFFECTIVE COUNSEL TO NOT FILE MODIFICATION OF SENTENCE Appellant’s brief at 2. All PCRA petitions, including second and subsequent petitions, must be filed within one year of when a defendant’s judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment becomes final at the conclus ion 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). The Pennsylvania Supreme Court has held that the PCRA’s time restriction isJ. S55004/15

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constitutionally sound. Commonwealth v. Cruz , 852 A.2d 287 (Pa. 2004). In addition, our supreme court has instructed that the timeliness of a PCRA petition is jurisdictional. If a PCRA petition is untimely, a cou rt lacks jurisdiction over the petition. Commonwealth v. Callahan , 101 A.3d 118 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely PCRA); Commonwealth v. Wharton , 886 A.2d 1120 (Pa. 2005). In this case, we affirmed the appellant’s judgmen t of sentence on August 24, 2006. Appellant timely petitioned for allowance of appeal which was denied on March 6, 2007. United States Supreme Court Rule 13 provides that “[a] petition for writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when filed with the Clerk within 90 days after entry of the order denying discretionary review.” U.S. Sup.Ct. Rule 13;
28 U.S.C.A. Under this rule, appellant had 90 days ( i.e. , until June 4, 2007) to file a petition for certiorari in the United States Supreme Court with respect to the Pennsylvania Supreme Court’s order. Thus, appellant’s judgment became final on June 4, 2007. 42 Pa.C.S.A. § 9545(b)(3). See also Co mmonwealth v. Owens , 718 A.2d 330 (Pa.Super. 1998). Under
42 Pa.C.S.A. § 9545(b)(1), appellant had one year from this date, until
June 4, 2008, to file his PCRA petition. The instant petition, which the trial court dismissed as time

- barred, was filed on February 3, 2014, nearly seven years after appellant’s judgment of sentence became final.J. S55004/15

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T here are three narrow exceptions to the one

- year time bar: when the government has interfered with the defendant’s ability to present the claim, when the defendant has recently discovered facts upon which his PCRA claim is predicated, or when either the Pennsylvania Supreme Court or the United States Supreme Court has recognized a new constitutional right and made that right retroactive. 42 Pa.C.S.A. § 9545(b)(1)(i

- iii); Commonwealth v. Brandon , 51 A.3d 231, 233

- 234 (Pa.Super. 2012). The defendant has the burden of pleading and proving the applicability of any exception.
42 Pa.C.S.A. § 9545(b)(1). If an appellant fails to invoke a valid exception to the time bar of the PCRA, this court may not review the petition. See
42 Pa.C.S.A. § 9545(b)(1)(i

- iii). Appellant has failed to specifically invoke any valid exception to what is a facially untimely PCRA petition. He does not aver or demonstrate that his various al legations of error were either caused by the interference by government officials, or that it was unknown or not discoverable by him by due diligence or that there are any newly recognized constitutional rights that must be considered. “If the petition is determined to be untimely, and no exception has been pled and proven, the petition must be dismissed without a hearing because Pennsylvania courts are without jurisdiction to consider the merits of the petition.” Commonwealth v. Perrin , 947 A.2d 1284, 12 85 (Pa.Super. 2008).J. S55004/15

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As appellant’s second PCRA petition is clearly untimely and appellant has failed to plead and prove the applicability of any exception to the PCRA’s
time

- of

- filing requirements, the PCRA court lacked jurisdiction to consider the mer its of appellant’s issues and did not err in dismissing appellant’s petition without an evidentiary hearing. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 11/6/2015