J-S75010-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

OLIVER LAFONZO FREEMAN

Appellant No. 374 EDA 2016

Appeal from the PCRA Order October 14, 2015

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0001317-1992

BEFORE: BOWES, MOULTON AND MUSMANNO JJ.

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 08, 2017

Oliver Freeman appeals from the order dismissing his PCRA petition as 

untimely. We affirm.

We set forth the factual history of this case in an April 27, 2014 

memorandum affirming the dismissal of Appellant’s second, counseled PCRA 

and adopt it herein:

[Freeman] was charged on February 3, 1992 with Murder in the 

First Degree, Murder in the Second Degree, Murder in the Third 

Degree, Robbery, Aggravated Assault, Recklessly Endangering 

Another Person, Theft by Unlawful Taking, Possessing an 

Instrument of Crime, and Possession of Firearms. These charges 

arose from the February 2, 1992 shooting of George Schroeder 

in Chester, PA. On that day Mr. Schroeder traveled to 10th and 

Booth Streets expecting to buy drugs. Instead he was ambushed 

and robbed. [Freeman] admitted to shooting Mr. Schroeder and 

led detectives to the location of the .38 caliber handgun that he 

used when he robbed and shot the victim. On February 3, 1992 

Mr. Schroeder died as a result of the gunshot wounds that 
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[Freeman] inflicted. On July 7, 1992 the Commonwealth filed a 

Notice of Aggravating Circumstances, indicating its intent to seek 

the imposition of a sentence of . . . death. However, on 

November 4, 1992 [Freeman] entered a negotiated guilty plea to 

second[-]degree Murder. The negotiated plea was accepted by 

the Trial Court and a mandatory life sentence was imposed. 

[Freeman] did not file a direct appeal from judgment of 

sentence.

Commonwealth v. Freeman, 2014 WL 10965718 at *1 (Pa.Super. 2014) 

(citing PCRA Court Opinion) (all alterations in original). 

As our prior memorandum noted, Appellant did not file a direct appeal. 

Instead, he filed a pro se PCRA petition on June 29, 1993. The court 

ultimately dismissed the petition on May 3, 1994. Appellant appealed, which 

was dismissed due to the failure to file a brief.

No further action occurred until August 2, 2012, when Appellant filed a 

second petition for PCRA relief.1 He alleged that appointed counsel 

ineffectively failed to file an appellate brief in 1994, and attempted to raise a 

claim of plea counsel ineffectiveness. The PCRA court appointed counsel, 

who filed an amended petition, which was dismissed on September 4, 2013. 

____________________________________________

1

 The PCRA was enacted in 1988, replacing the Post Conviction Hearing Act. 

See Commonwealth v. Descardes, 136 A.3d 493, 497 (Pa. 2016). 

Appellant sought PCRA relief in 1994, which was denied. In 1995, the 

statute was amended, effective January 16, 1996, and provided a one-year 

grace period from the time constraints of filing a PCRA petition, expiring 

January 16, 1997, for petitioners whose judgment of sentence became final 

prior to the effective date of the amendments and if that petition was the 

first under the PCRA. Commonwealth v. Alcorn, 703 A.2d 1054 (Pa. 

1997). 
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We affirmed, finding that the petition was untimely and that Appellant failed 

to plead and prove any exception to the time-bar. Id. Appellant sought 

discretionary review with our Supreme Court, which was denied on 

September 18, 2014. Commonwealth v. Freeman, 99 A.3d 924 (Pa. 

2014). 

On August 6, 2015, Appellant filed the instant petition, maintaining 

that “It wasn’t until the last few years (i.e. 2011-12) that I finally got well 

enough to pursue some type of relief from my wrongful conviction . . . . it 

was at that moment that I filed my 2nd PCRA petition in August 2012[.]” 

Exhibit B to pro se PCRA petition, 8/6/15, at 4 (unnumbered).

On September 5, 2015, the PCRA court issued a notice of intent to 

dismiss the petition, to which Appellant responded on September 28, 2015. 

The PCRA court dismissed the petition on October 14, 2015. This appeal 

followed.2 Appellant poses one claim for our consideration:

____________________________________________

2

 The PCRA court entered an order attaching a copy of the certified mail 

receipt demonstrating that Appellant received the order dismissing his 

petition on November 18, 2015. Order, 11/18/15, at 1. The notice of 

appeal was not docketed until January 20, 2016, well outside the thirty day 

window dictated by Pa.R.A.P. 903 (notice of appeal shall be filed within thirty 

days). 

However, Appellant’s January filing represented that he had sent a notice of 

appeal on November 12, 2015, which was apparently not received or 

docketed, and provided a cash slip from the jail to that effect. Neither the 

PCRA court nor the Commonwealth has challenged the authenticity of the 

document and we therefore elect to treat the notice of appeal as timely filed 

(Footnote Continued Next Page)
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Whether the PCRA court erred in dismissing Appellant’s third 

PCRA petition (without appointing counsel or holding an 

evidentiary hearing) on the basis that this petition was untimely 

on its face, although Appellant satisfied the timeliness 

requirements under Cruz and Santiago?

Appellant’s brief at 3.

All PCRA petitions must be filed within one year of the date a 

defendant's judgment becomes final unless an exception to the one-year 

time restriction applies. 42 Pa.C.S. § 9545(b)(1). If a PCRA petition is 

untimely, “neither this Court nor the trial court has jurisdiction over the 

petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014). 

(citation omitted). We review that legal conclusion de novo. Id. 

Appellant’s sentence became final in 1992 and the instant petition is timely 

only if one of the statutory exceptions applies. 

Appellant relies upon Commonwealth v. Cruz, 852 A.2d 287 (Pa. 

2004), which established that claims defaulted as a result of mental 

incompetence may be revived through the exception codified at §

9545(b)(1)(ii). That exception requires the petitioner to establish (1) that 

the facts upon which the claim was predicated were unknown and (2) that 

the facts could not have been discovered through the exercise of due 

(Footnote Continued) _______________________

under the “prisoner mailbox” rule. See Commonwealth v. Jones, 700 

A.2d 423 (Pa. 1997) (interpreting Rule 903 as containing an exception for 

pro se prisoners; notice of appeal must be delivered to prison authorities 

within the filing deadline). 
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diligence. Commonwealth v. Bennet, 930 A.2d 1264, 1272 (Pa. 2007). 

Specifically, Cruz requires Appellant to establish that the mental condition 

prevented him from learning the factual bases of his claims or otherwise 

impacted his ability to communicate his PCRA claims. “Thus, the general 

rule remains that mental illness or psychological condition, absent more, will 

not serve as an exception to the PCRA's jurisdictional time requirements.” 

Commonwealth v. Monaco, 996 A.2d 1076, 1081 (Pa.Super. 2010). A 

petition invoking any of these exceptions must be filed within sixty days of 

the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2). 

We find that Appellant is not entitled to the time-bar exception. 

Preliminarily, we note that Appellant does not claim he was incompetent 

during the pendency of his second PCRA proceedings. In Commonwealth 

v. Ali, 86 A.3d 173 (Pa. 2014), our Supreme Court considered a Cruz

mental incompetence PCRA exception claim wherein a capital defendant had 

litigated a timely PCRA petition from June 25, 1999 through December 29, 

2010. Ultimately, the appellant secured the right to represent himself to our 

Supreme Court on appeal of the PCRA. Id. at 176. The Supreme Court 

denied relief on December 29, 2010. Id. (citing Commonwealth v. Ali, 10 

A.3d 282 (Pa. 2010)). 

Following denial of that appeal, attorneys from the Defender 

Association of Philadelphia, Federal Court Division, filed, on February 25, 

2011, a serial PCRA petition raising the Cruz exception. Id. The petition 
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claimed that Ali was mentally incompetent throughout the time for filing and 

litigating his timely PCRA. Id. at 177. The Supreme Court focused its 

analysis on whether Ali proved “by a preponderance of the evidence that he 

was mentally incompetent during the period in which to raise and preserve 

claims in his first PCRA petition.” Id. at 178.

In contrast, Appellant herein concedes that he became competent 

prior to filing his second PCRA. Therefore, Appellant is now seeking to 

invoke the § 9545(b)(1)(ii) exception on the theory that appointed counsel 

for his second PCRA petition ineffectively failed to advance the Cruz claim 

during that litigation. “Had counsel been aware of our State’s Supreme 

Court ruling in [Cruz, supra], he could’ve used this case to circumvent the 

PCRA time-bar.” Appellant’s brief at 11. 

However, prior counsel’s ineffectiveness cannot satisfy the time-bar 

exceptions. Commonwealth v. (Antyane) Robinson, 139 A.3d 178, 186 

(Pa. 2016) (“This Court has never suggested that the right to effective PCRA 

counsel can be enforced via an untimely filed PCRA petition.”). Thus, we 

need not reach the question of whether Appellant presented sufficient 

evidence entitling him to a hearing regarding his purported incompetency 

during the relevant time periods or whether Appellant would have been 

entitled to such a hearing if prior counsel had advanced that claim in 2012. 

Next, Appellant claims that the PCRA court should have treated the 

instant petition as an extension of his second PCRA petition. Our Supreme 
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Court has rejected this precise theory. Commonwealth v. (Michael) 

Robinson, 837 A.2d 1157 (Pa. 2003) (subsequent PCRA petition cannot be 

characterized as extension of earlier, final petition). Therefore, the PCRA 

court properly treated the third petition as a new PCRA petition seeking to 

advance a distinct claim.

3

 

Finally, Appellant relies upon Commonwealth v. Santiago, 855 A.2d 

682 (Pa. 2004), which notes that the issue of incompetency cannot be 

waived, as a basis for entertaining the third PCRA petition. However, while 

the issue of mental competency is not subject to waiver and is always 

cognizable in a PCRA petition, jurisdiction is a predicate to addressing the 

substantive aspects of any claim. See Commonwealth v. Fahy, 737 A.2d 

214, 223 (Pa. 1999) (“Although legality of sentence is always subject to 

review within the PCRA, claims must still first satisfy the PCRA's time limits 

or one of the exceptions thereto.”). Since Appellant has failed to invoke any 

exception as a matter of law, the PCRA court’s ruling is free from legal error. 

Order affirmed.

____________________________________________

3

 Even if Appellant could rely on his PCRA counsel ineffectiveness claim, he 

has failed to address the requirement that any such filing must be made 

within sixty days of when the claim could have first been presented. Our 

Supreme Court denied his petition for allowance of appeal regarding his 

second PCRA petition on September 18, 2014, and the instant third petition 

was not filed until August 6, 2015. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/8/2017