J. S02009/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ZAID SHABAZZ, : No. 3694 EDA 2017

:

 Appellant :

Appeal from the PCRA Order, October 18, 2017,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0006606-2011

BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 09, 2019

Zaid Shabazz appeals from the October 18, 2017 order entered by the 

Court of Common Pleas of Philadelphia County denying appellant’s first 

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

§§ 9541-9546. After careful review, we affirm.

The relevant procedural history of this case is as follows: 

On January 22, 2013, [appellant pled] guilty to 

attempted murder and possession of an instrument of 

crime (“PIC”) . . . . On March 7, 2013, [the trial court]

imposed a sentence of eight to sixteen years of 

confinement for attempted murder, followed by two 

consecutive years of probation for PIC. On March 19, 

2013, [appellant] filed an untimely Post-Sentence 

Motion which the [trial] court denied on July 8, 2013. 

[Appellant] did not file a direct appeal on this matter.

[Appellant] filed an untimely pro se petition pursuant 

to the [PCRA]. David Rudenstein, Esq. was appointed 

to represent [appellant]. Mr. Rudenstein filed an 
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amended PCRA petition. [The PCRA court] issued a 

[Pa.R.Crim.P.] 907 Notice to [appellant] advising him 

that his PCRA petition would be denied/dismissed 

within twenty days because the [PCRA court] found 

his pro se PCRA petition was without merit or had 

been waived, to which no response was received. On 

October 18, 2017, [the PCRA court] held an 

evidentiary hearing and dismissed [appellant’s] PCRA 

Petition. [Appellant] filed a timely appeal and [the 

PCRA court] entered an Order requiring [appellant] to 

file a Statement of Matters Complained of on Appeal 

[pursuant to Pa.R.A.P. 1925(b)]. [Appellant] 

complied.

PCRA court opinion, 5/17/18 at 1-2. The PCRA court filed an opinion pursuant 

to Pa.R.A.P. 1925(a).

Appellant raises the following issue for our review:

Did the Honorable PCRA Court err when it dismissed 

the Pro Se Petition without granting a hearing and all 

where [appellant] pled, and would have been able to 

prove, that he was entitled to relief?

Appellant’s brief at 3.

The PCRA requires that any petition for collateral relief be filed within 

one year of the date that the judgment of sentence becomes final. 

42 Pa.C.S.A. § 9545(b)(1). “[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.” Commonwealth v. Callahan, 101 A.3d 118, 

122 (Pa.Super. 2014), quoting 42 Pa.C.S.A. § 9545(b)(3). A petitioner may 

only timely file a PCRA petition beyond one year of the date the judgment of 

sentence becomes final if:
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(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)(i)-(iii).

“[T]he time limitations pursuant to . . . the PCRA are 

jurisdictional.” Commonwealth v. Fahy, [] 737 A.2d 

214, 222 ([Pa.] 1999). “[Jurisdictional time] 

limitations are mandatory and interpreted literally; 

thus, a court has no authority to extend filing periods 

except as the statute permits.” Id. “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, 1285 (Pa.Super. 2008).

Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.Super. 2011), appeal 

denied, 47 A.3d 845 (Pa. 2012).

Here, appellant filed an untimely post-sentence motion on March 19, 

2013. We have previously held the following pertaining to untimely 

post-sentence motions:
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An untimely post-sentence motion does not toll the 

appeal period. Commonwealth v. Green, 862 A.2d 

613, 618 (Pa.Super .2004) (en banc ) (“[T]he time 

for filing an appeal can be extended beyond 30 days 

after the imposition of sentence only if the defendant 

files a timely post-sentence motion.”).

. . . . 

Under Commonwealth v. Dreves, 839 A.2d 1122, 

1128 (Pa.Super. 2003) (en banc), a post-sentence 

motion nunc pro tunc may toll the appeal period, but 

only if two conditions are met. First, within 30 days 

of imposition of sentence, a defendant must request 

the trial court to consider a post-sentence motion 

nunc pro tunc. “The request for nunc pro tunc

relief is separate and distinct from the merits of the 

underlying post-sentence motion.” Id. at 1128-29. 

Second, the trial court must expressly permit the filing 

of a post-sentence motion nunc pro tunc, also within 

30 days of imposition of sentence. Id. at 1128 & n.6. 

“If the trial court does not expressly grant nunc pro 

tunc relief, the time for filing an appeal is neither 

tolled nor extended.” Id. at 1128. Moreover, “[t]he 

trial court's resolution of the merits of the late postsentence motion is no substitute for an order 

expressly granting nunc pro tunc relief.” Id. at 

1129.

Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa.Super. 2015).

Based on our review of the record, appellant did not request nunc pro 

tunc relief in his post-sentence motion, and the trial court disposed of the 

motion on its merits. Our holding in Capaldi requires us to find that the time 

for filing a direct appeal was not tolled by appellant’s untimely post-sentence 

motion. Accordingly, pursuant to the PCRA, appellant’s judgment of sentence 

became final on April 6, 2013. 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). 
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Therefore, appellant’s final day to file a timely petition pursuant to the PCRA 

was April 7, 2014.1 42 Pa.C.S.A. § 9545(b)(1).

In this case, appellant filed his pro se PCRA petition on May 6, 2014. 

An amended PCRA petition was filed on December 27, 2016. Therein, 

appellant does not plead any of the three exceptions to the PCRA time-bar. 

Because appellant filed an untimely PCRA petition and did not plead nor prove 

any of the three exceptions to the PCRA time bar, we do not have jurisdiction 

to consider the merits of appellant’s appeal.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/9/19

 

1 April 6, 2014 fell on a Sunday. Therefore, appellant’s deadline for filing a 

timely petition was extended to the following business day. See 1 Pa.C.S.A. 

§ 1908.