J-S12023-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY DARRELL HEATH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 871 EDA 2021

Appeal from the PCRA Order Entered March 12, 2021

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

No(s): CP-39-CR-0001175-2014

BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.

MEMORANDUM BY BOWES, J.: FILED MAY 4, 2022

Anthony Darrell Heath appeals pro se from the Post Conviction Relief 

Act (“PCRA”) court’s March 12, 2021 orders which (1) dismissed Appellant’s 

June 1, 2020 PCRA petition as untimely; (2) dismissed a PCRA petition 

supposedly filed on January 14, 2021, as premature; and (3) denied 

Appellant’s February 23, 2021 motion for a subpoena duces tecum. We affirm, 

albeit on a different basis than the PCRA court.

1

This Court succinctly summarized the facts of this case as follows in 

disposing of Appellant’s appeal from the denial of his first PCRA petition:

On February 1, 2014, Appellant strangled Victim to death, 

dragged her body down the embankment of a remote road, 

doused her body in lighter fluid, and lit her body on fire. Appellant 

then used Victim’s vehicle to flee to North Carolina, where he was 

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1 “[T]his Court may affirm a PCRA court’s order on any legal basis.” 

Commonwealth v. Parker, 249 A.3d 590, 595 (Pa.Super. 2021). 
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ultimately apprehended. Following trial [at which Appellant 

elected to waive his right to counsel and represent himself], a jury 

convicted Appellant on June 23, 2015, of first-degree murder, 

theft by unlawful taking, receiving stolen property, access device 

fraud, abuse of a corpse, and tampering with evidence. On 

July 29, 2015, the court imposed an aggregate sentence of life in 

prison, plus eight to sixteen years’ imprisonment. [Appellant 

requested and was granted the appointment of counsel for his 

appeal.] This Court affirmed the judgment of sentence on 

February 21, 2017, and our Supreme Court denied allowance of 

appeal on August 30, 2017. See Commonwealth v. Heath, 161 

A.3d 382 (Pa.Super. 2017), appeal denied, 642 Pa. 527, 170 A.3d 

1023 (2017).

Commonwealth v. Heath, 237 A.3d 450 (Pa.Super. 2020) (non-precedential 

decision at 1-2) (cleaned up). 

Appellant’s first, timely PCRA petition was dismissed for lack of merit 

after his appointed counsel withdrew pursuant to Commonwealth v. Turner, 

544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 

(Pa.Super. 1988) (en banc). This Court affirmed the dismissal on the basis 

that Appellant waived his myriad issues by filing a brief “consist[ing] of over 

fifty pages of repetitive, rambling, and incoherent argument, mixed with 

citations to general case law” that failed to satisfy the requirements of the 

Rules of Appellate procedure. Heath, supra at 4. We further observed that, 

even if the seven issues we were able to discern were not waived, the PCRA 

court opinion properly disposed of them. Id. at 5-6. 

Appellant, an inmate at SCI-Mahanoy, filed his next PCRA petition on 

June 1, 2020, raising a bevy of claims ranging from challenges to the criminal 

information to his sentence in the context of ineffective assistance of trial and 
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PCRA counsel. See generally PCRA Petition, 6/1/20.2 Regarding the PCRA 

court’s jurisdiction, Appellant invoked the newly discovered facts timeliness 

exception codified at 42 Pa.C.S. § 9545(b)(1)(ii). Id. at Addendum page 1. 

After a dismissal and a reinstatement of the petition, the PCRA court issued 

notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss the petition without 

a hearing as untimely. Upon consideration of Appellant’s response to the 

notice, the PCRA court concluded that its untimeliness determination had been 

in error.

3

 However, it issued a new Rule 907 notice of its intent to dismiss the 

petition, indicating that the petition lacked merit because Appellant failed to 

establish the necessary elements of ineffective assistance of counsel. After 

being granted an extension of time to respond, Appellant filed a response to 

the new Rule 907 notice on December 4, 2020. Therein, Appellant, inter alia, 

further developed his claims that prior counsel had provided ineffective 

assistance. This response was initially docketed as “Pro Se Correspondence”

on December 14, 2020, but later docketed as a new PCRA petition on 

January 14, 2021, and filed on January 27, 2021. 

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2 We apply the prisoner mailbox rule in discerning and discussing the dates 

of Appellant’s various filings. See Commonwealth v. DiClaudio, A.3d 1070, 

1074 (Pa.Super. 2019) (“The prisoner mailbox rule provides that a pro se

prisoner’s document is deemed filed on the date he delivers it to prison 

authorities for mailing.” (cleaned up)). 

3 As we explain infra, the PCRA court was correct the first time in determining 

that the June 2020 petition was untimely. 
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In the meantime, Appellant also filed a motion for issuance of a 

subpoena duces tecum directing the Clearfield County prothonotary and clerk 

of courts to provide him with the docket and various filings related to Elmer 

Herman Ulbrick, whose flat term-of-years sentence for second-degree murder 

was affirmed in 1975 upon presumption that the minimum sentence was one 

day. See Commonwealth v. Ulbrick, 341 A.2d 68, 69 (Pa. 1975). Appellant 

subsequently filed a modified motion for the subpoena, reportedly upon the 

direction of the court administrator, requesting that the PCRA court direct the 

production of the Ulbrick documents.

On March 12, 2021, the PCRA court entered the three orders at issue in 

this appeal.4 One denied and dismissed Appellant’s June 1, 2020 PCRA 

petition upon consideration of the Rule 907 notice and Appellant’s alleged 

failure to respond to it. Another dismissed the January 14, 2021 PCRA

petition, which was actually the supposedly-missing response to the Rule 907 

notice filed on December 14, 2020, on the basis that it was prematurely filed 

while the June 1, 2020 petition was still pending.5 The third order denied 

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4 These and subsequent filings were issued by a different jurist of the Court 

of Common Pleas of Lehigh County than the judge who entered the earlier 

orders discussed herein. 

5 Were this filing actually a new PCRA petition rather than a Rule 907 

response, the PCRA court’s basis for dismissal would have been erroneous. 

The PCRA court’s stated reason for concluding that an additional PCRA petition 

was premature was our Supreme Court’s ruling in Commonwealth v. Lark, 

746 A.2d 585 (Pa. 2000), overruled on other grounds by Commonwealth v. 

(Footnote Continued Next Page)
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Appellant’s motion for a subpoena duces tecum because Appellant failed to 

present the exceptional circumstances required to secure discovery in a PCRA 

proceeding. 

Appellant timely appealed from all three March 12, 2021 orders. The 

PCRA court ordered Appellant to file a Pa.R.A.P. 1925 concise statement of 

errors complained of on appeal, to which Appellant did not file a response, 

prompting the PCRA court to opine that Appellant waived his appellate issues. 

Appellant filed an application for relief in this Court documenting that the Rule 

1925(b) order had not been properly served upon him. We therefore 

remanded to allow Appellant to file and serve his concise statement on the 

PCRA judge and for the PCRA court to author a supplemental opinion. On 

September 21, 2021, the PCRA court transmitted the record back to this Court 

indicating that Appellant again had failed to file the Rule 1925(b) statement. 

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Small, 238 A.3d 1267 (Pa. 2020). The Lark Court held that “when an 

appellant’s PCRA appeal is pending before a court, a subsequent PCRA 

petition cannot be filed until the resolution of review of the pending PCRA 

petition by the highest state court in which review is sought, or upon the 

expiration of the time for seeking such review.” Id. at 588 (emphasis added). 

This Court subsequently made it clear that the Lark rule applied only when a 

prior petition has been disposed of and an appeal has been filed or could still 

be timely filed, and that “PCRA courts are not jurisdictionally barred from 

considering multiple PCRA petitions relating to the same judgment of sentence 

at the same time unless the PCRA court’s order regarding a previously filed 

petition is on appeal[.]” Commonwealth v. Montgomery, 181 A.3d 359, 

365 (Pa.Super. 2018) (en banc). As the PCRA court had not disposed of 

Appellant’s June 1, 2020 petition at the time he filed the document 

erroneously deemed to be a new petition, Lark did not preclude it from 

considering the subsequent filing.
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Appellant filed another application for relief in this Court indicating that he had 

timely filed his concise statement by depositing it with prison authorities for 

mailing on August 12, 2021, and requesting that we remand for, inter alia, an 

opportunity to hand the PCRA judge a copy of the statement. This Court 

denied the application without prejudice for Appellant to raise the issues in his 

brief.

Appellant, who refers to himself in the first-person plural, raises the 

following issues, which we have reordered and numbered for ease of 

disposition:

1. Refusal of the clerk of judicial records of Lehigh County to 

file our Sunday 15 of August 2021 pro se Pa.R.A.P 1925(b) 

statement;

2. Refusal of the judiciary to timely serve 1925(b) statement;

3. The [PCRA] court deprived us of due process of law of the 

14th Amendment of the United States constitution by failing to 

read our response to the court[’]s initial 907 order;

4. No objection from the attorney for the Comm[o]nwealth;

5. We were not constitutionally or judicially served with murder 

in the first degree criminal charge;

6. We were not provided with defense counsel with regard to 

murder in the first degree criminal charge;

7. For a conviction of 18 Pa.C.S. § 2502(a) the court exceeded 

its statutory jurisdiction for sentence for first degree felonies at 

18 Pa.C.S. § 1103(1);

8. Deprived of liberty without due process when trial court 

denied our oral request for hearing on our ability to pay court cost 

and fines;
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9. Deprived of liberty without due process of law when the 

Commonwealth refused to d[i]sclose (a) “crime-lab-report”

[regarding] wire [removed] from [the] deceased’[s] neck and (b) 

scientific authority relied upon by forensic expert Michael W. 

Johnson;

10. Miranda v. Arizona, 384 U.S. 436 (1966)[,] was 

ineffective to protect against my serious medical mental health 

crisis.

11. The [PCRA] court deprived us of due process of law of the 

14th Amendment of the United States constitution by obstructing 

our ability to perfect our 2d PCRA motion.

Appellant’s brief at 5-6 (cleaned up).

We begin with our standard of review. “The standard of review of an 

order dismissing a PCRA petition is whether that determination is supported 

by the evidence of record and is free of legal error.” Commonwealth v. 

Cruz, 223 A.3d 274, 277 (Pa.Super. 2019) (cleaned up). “It is an appellant’s 

burden to persuade us that the PCRA court erred and that relief is due.” 

Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019) 

(internal quotation marks omitted). 

Appellant’s first two issues concern the irregularities in service and filing 

of the PCRA court’s Rule 1925(b) order and Appellant’s response. Based upon 

the apparent breakdowns in court operations, which seem to have continued 

despite our initial remand to remedy the issue, we grant Appellant relief in 

that we shall not deem any of his issues waived on the basis of Rule 

1925(b)(4)(vii). See, e.g., Commonwealth v. Davis, 867 A.2d 585, 588 

(Pa.Super. 2005) (en banc) (holding Rule 1925(b) waiver does not apply when 
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the trial court or clerk of courts did not strictly comply with the applicable 

procedural rules). Although the PCRA court did not address Appellant’s issues 

based upon its assumption that Appellant waived them, we need not remand 

for a new opinion because our review of the dispositive issues is not hampered 

by its absence. See, e.g., Casselbury v. Am. Food Serv., 30 A.3d 510, 511 

n.1 (Pa.Super. 2011) (noting that remand for preparation of a Rule 1925(a) 

opinion was unnecessary where review was not hampered). 

Appellant’s next issue is whether the PCRA court committed a due 

process violation by not reading his response to the “initial” Rule 907 notice. 

Appellant’s brief at 13. As detailed above, the PCRA court’s initial Rule 907 

notice indicated that it found Appellant’s petition to be untimely. The PCRA 

court apparently did read Appellant’s response to that notice, since it agreed 

with him that the petition was timely and issued the second Rule 907 notice 

proposing to dismiss the petition for lack of merit. To the extent that Appellant 

argues that the PCRA court erroneously treated the response to the second 

Rule 907 notice, which merely amplified the substantive claims raised in the

pending June 1, 2020 PCRA petition, as a new PCRA petition, we conclude that 

any error is harmless because, as we explain infra, the June 1, 2020 petition 

was untimely. 

It is well-settled that “the timeliness of any PCRA petition is a 

jurisdictional requisite.” Commonwealth v. Beatty, 207 A.3d 957, 961 

(Pa.Super. 2019).
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Whether a court has subject matter jurisdiction is a question of 

law. It is not waivable, even by consent, and may be raised by 

any party or by the court, sua sponte, at any stage of the 

proceeding. Even where the PCRA court does not address the 

applicability of the PCRA timing mandate, this Court will consider 

the issue sua sponte, as it is a threshold question implicating our 

subject matter jurisdiction and ability to grant the requested relief.

Id. (cleaned up). Indeed, “no court has jurisdiction to hear an untimely PCRA 

petition.” Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa.Super. 

2019). 

The PCRA provides as follows regarding the time for filing a petition:

Any petition [filed pursuant to the PCRA], including a second or 

subsequent petition, shall be filed within one year of the date the 

judgment 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. § 9545(b)(1). Further, a petition invoking a timeliness exception 

“shall be filed within one year of the date the claim could have been 

presented.” 42 Pa.C.S. § 9545(b)(2).
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As detailed above, Appellant’s direct appeal concluded on August 30, 

2017, when our Supreme Court denied his petition for allowance of appeal. 

Accordingly, his judgment of sentence became final on November 28, 2017, 

when the time expired for him to seek review by the U.S. Supreme Court. 

See 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct. Rule 13(1). The PCRA court initially 

concluded that Appellant’s June 1, 2020 petition was filed more than one year 

after his judgment of sentence became final and that his assertion that he 

discovered that PCRA counsel did not adequately review his case did not 

satisfy the newly-discovered facts exception.6 See Notice of Intent to Dismiss, 

8/11/20, at 3-4. 

Appellant filed a response arguing first and foremost that his petition 

was not untimely at all. Appellant reasoned that because he filed his first 

PCRA petition with ninety-two days left of the 365-day allotment provided by 

§ 9545(b)(1), and our Supreme Court held in Commonwealth v. Lark, 746 

A.2d 585 (Pa. 2000), that he could not file a subsequent PCRA petition until 

the first was fully resolved, those ninety-two days remained available for him 

to file another timely petition. See Response to 907 Order, 10/9/20, at 2. 

Appellant alternatively argued that the petition was entitled to the benefit of 

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6 The PCRA court erroneously indicated that the judgment of sentence became 

final on the day our Supreme Court denied Appellant’s petition for allowance 

of appeal. See Notice of Intent to Dismiss, 8/11/20, at 3. Appellant, for his 

part, calculated the incorrect date of October 29, 2019 as the date the 

judgment became final. See Response to 907 Order, 10/9/20, at 2. 
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the newly discovered facts exception. Specifically, the new fact that he 

discovered was that PCRA counsel had failed to present the meritorious claims 

identified in the June 1, 2020 petition. Id. at 1-2. Since he discovered that 

fact while the appeal concerning his first PCRA petition was pending in this 

Court, he was prohibited by Lark from filing his second petition before that 

appeal was finally resolved. Id. at 2. 

The PCRA court concluded that its “initial determination that the second 

PCRA petition was untimely was in error pursuant to [Lark], and therefore, 

the court's determination in its order of August 11, 2020 that the instant 

second PCRA petition should be dismissed based on untimeliness was in 

error[.]” Order, 10/30/20, at 1 (cleaned up). While it is unclear which of 

Appellant’s Lark-based arguments convinced the PCRA court that it had 

jurisdiction to entertain the merits of Appellant’s June 1, 2020 petition, we 

conclude neither argument suffices. 

As indicated above, “[a]ny [PCRA petition], including a second or 

subsequent petition, shall be filed within one year of the date the judgment 

becomes final” unless a timeliness exception applies. 42 Pa.C.S. 

§ 9545(b)(1). Appellant’s judgment of sentence became final on November 

28, 2017. One year from that date was November 28, 2018. The instant 

petition was filed on June 1, 2020. Hence, the instant petition was not filed 

within one year of the date the judgment became final. 
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Our Supreme Court has expressly rejected the argument, suggested 

here by Appellant, that the one-year period may be tolled:

Unlike a statute of limitations, a jurisdictional time limitation is not 

subject to equitable principles such as tolling except as provided 

by statute. Thus, the filing period is only extended as permitted; 

in the case of the PCRA, the time limitations are extended upon 

satisfaction of the exceptions found in § 9545(b)(1)(i)–(iii) and 

timely filing pursuant to (b)(2). As it has been established that 

the PCRA’s time restrictions are jurisdictional, we hold that the 

period for filing a PCRA petition is not subject to the doctrine of 

equitable tolling, save to the extent the doctrine is embraced by 

§ 9545(b)(1)(i)–(iii).

Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999) (rejecting argument 

that PCRA time limitation was tolled while the appellant’s federal habeas

petition was pending). Accordingly, Appellant’s claim that the pendency of his 

first PCRA petition tolled the running of § 9545(b)(1)’s one-year clock is 

unavailing.

Furthermore, Appellant did not plead and offer to prove facts that, if 

accepted, would have satisfied the § 9545(b)(1)(ii) newly discovered facts 

exception. Appellant asserted that the fact he was unaware of until the 

dismissal of his first PCRA petition was pending on appeal was that PCRA 

counsel abandoned certain PCRA claims. See Response to 907 Order, 

10/9/20, at 1-2. However, counsel withdrew pursuant to Turner and Finley 

in the PCRA court prior to the appeal, and the record plainly shows that 

Appellant complained in his Rule 907 response and proposed amended PCRA 

petition, filed prior to the first PCRA appeal, that PCRA counsel abandoned him 

and the claims he raised in his pro se PCRA petition. See Response to Notice 
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of Intent to Dismiss and Pro Se Amendment to August 7, 2018 PCRA petition, 

12/12/18, at 1-2, 4-5. Indeed, Appellant’s complaint that “all court appointed 

counsels abandoned” him, including PCRA counsel, was one of the issues he 

presented to this Court in the appeal from the dismissal of his August 7, 2018 

PCRA petition. See Heath, supra (non-precedential decision at 3). Hence, 

the purportedly new fact was actually known to Appellant while his first, timely 

petition remained pending, was raised in that proceeding as permitted by 

Lark,

7 and was rejected by this Court on appeal because Appellant waived it, 

along with the rest of his issues, by filing a deficient brief. Id. at 4. 

Consequently, Appellant is unable to establish that the facts upon which his 

claim is predicated were unknown to him for purposes of utilizing the newly

discovered facts timeliness exception. 

Since neither of the bases Appellant proffered for invoking the PCRA 

court’s jurisdiction is availing, we agree with the Commonwealth that 

Appellant’s June 1, 2020 PCRA petition was properly dismissed as untimely, 

and affirm the order doing so on that basis. See Commonwealth’s brief at 16. 

Therefore, we also lack jurisdiction over Appellant’s substantive claims, and 

his issues four through ten are not subject to our adjudication.

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7 The Lark Court plainly stated that “this holding will not preclude a trial court 

from granting leave to amend a PCRA petition that is currently pending before 

that court.” Commonwealth v. Lark, 746 A.2d 585, 588 n.2 (Pa. 2000). 
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In his final issue, Appellant contends that the PCRA court interfered with 

his due process rights by failing to grant his motion for a subpoena duces 

tecum. See Appellant’s brief at 13-14. Misapprehending and misstating our 

Supreme Court’s holding in Ulbrick, supra,

8 Appellant asserts that various 

filings in that case are relevant to his contention that his sentence is illegal, 

and that the PCRA court’s denial of his request “to perfect our pro se PCRA 

motion . . . via the tools provided every other citizen” deprived him of liberty 

without due process of law. Id. 

With the exception of death penalty cases, “no discovery shall be 

permitted at any stage of [PCRA] proceedings, except upon leave of court 

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8 The Ulbrick majority opinion, in its entirety but for citations and footnotes, 

is as follows:

The appellant filed a petition under the Post Conviction Hearing 

Act challenging the legality of his sentence after his conviction of 

two counts of murder in the second degree. The petition was 

denied and this appeal followed.

The trial court imposed a sentence of twenty years. No minimum 

sentence was stated by the Court as is required by the Act of June 

19, 1911, P.L. 1055, § 6, 19 P.S. § 1057. Appellant contends that 

the failure to announce a minimum sentence makes the sentence 

illegal and justifies his discharge. However, imposition of a flat 

sentence benefits the defendant for the minimum is then 

presumed to be one day and he thus becomes immediately eligible 

for parole. Since the minimum is implied, the sentence is legal 

and the appellant has incurred no harm.

Order affirmed.

Commonwealth v. Ulbrick, 341 A.2d 68, 69 (Pa. 1975) (per curiam). 
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after a showing of exceptional circumstances.” Pa.R.Crim.P. 902(E)(1). As 

Appellant failed to “demonstrate a connection between the material requested 

and his underlying claim,” the PCRA court did not abuse its discretion in 

concluding that Appellant had failed to establish exceptional circumstances 

warranting discovery. Commonwealth v. Wharton, 263 A.3d 561, 573 (Pa. 

2021). Additionally, “a PCRA court does not abuse its discretion in failing to 

find exceptional circumstances warranting discovery in furtherance of an 

untimely petition.” Id. If Appellant wishes to obtain public records available 

to every other citizen, he must do so via the avenues utilized by every other 

citizen, not through an order from a PCRA court.

As Appellant has failed to establish that an error of law or abuse of 

discretion warrants relief from any of the PCRA court’s three March 12, 2021

orders, we affirm each of them.9

Orders affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/04/2022

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9 We reiterate that the order dismissing the supposedly premature serial PCRA 

petition was erroneous, but harmlessly so, such that no relief is due. 
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