J. S 02 0 09 /1 9

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 E DA 20 17

: 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 0 9 , 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”), 4 2 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] cou rt 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 anJ. S 02 0 09 /1 9

- 2

- amended PCR A 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, t o 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 Stateme nt 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

Unit ed 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 beyo nd one year of the date the judgment of

sentence becomes final if:J. S 02 0 09 /1 9

- 3

- (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 Comm onwealth 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 pro ven, 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 (P a.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:J. S 02 0 09 /1 9

- 4

- 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 perm it 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 post

sentence 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 wa s 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).J. S 02 0 09 /1 9

- 5

-

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 th ree 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.