J-S29028-18

____________________________________

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHARLES COLEY, 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 726 EDA 2017

Appeal from the PCRA Order February 10, 2017

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

No(s): CP-51-CR-1217311-1973

BEFORE: PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.: FILED MAY 30, 2018

Charles Coley (Appellant) appeals pro se from the order denying as 

untimely his ninth petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The PCRA court summarized the pertinent facts as follows: 

On August 19, 1974, [Appellant] was tried and convicted by a 

jur[y] of murder in the first degree, attempted robbery, and 

criminal conspiracy, before the Honorable Theodore B. Smith. The 

trial court granted [Appellant] a [new trial] following post-verdict 

motions. However, on appeal, the Pennsylvania Supreme Court 

reversed and remanded for sentencing. [Appellant] was 

sentenced to life imprisonment on April 21, 1976. No direct 

appeal was filed.

PCRA Court Opinion, 4/19/17, at 1 (footnote omitted).

Over the course of the next 35 years, Appellant filed nine petitions for 

PCRA relief and two federal petitions for habeas corpus, all of which were 
J-S29028-18

- 2 -

denied. See Commonwealth v. Coley, 1029 EDA 2010 at * 1-3 (Pa. Super. 

Nov. 8, 2010) (unpublished memorandum) (detailing the procedural history).

On February 23, 2015, Appellant filed the instant pro se PCRA petition 

seeking a new trial on the basis of newly discovered exculpatory evidence and 

governmental interference. On August 24, 2016, the PCRA court issued notice 

of its intent to dismiss the petition pursuant to Rule 907 of the Pennsylvania 

Rules of Criminal Procedure and Appellant filed a pro se response. On 

February 10, 2017, the PCRA court dismissed Appellant’s petition as untimely.

Appellant filed a timely pro se notice of appeal. Although it did not order 

Appellant to file a concise statement of errors complained of on appeal 

pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, 

the PCRA court filed a Rule 1925(a) opinion in which it set forth and discussed 

the governmental interference and newly discovered fact claims that Appellant 

raised in his PCRA petition.

This Court’s standard of review regarding an order dismissing a petition 

under the PCRA is whether the determination of the PCRA court is supported 

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

Roney, 79 A.3d 595, 603 (Pa. 2013) (citation omitted). The PCRA court’s 

findings will not be disturbed unless there is no support for the findings in the 

certified record. Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 

2016) (citation omitted). 

It is well-settled that the timeliness of a post-conviction relief petition is 

jurisdictional. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) 
J-S29028-18

- 3 -

(citation omitted). Thus, if a PCRA petition is untimely, neither an appellate 

court nor the PCRA court has jurisdiction over the petition. Id. “Without 

jurisdiction, we simply do not have the legal authority to address the 

substantive claims” raised in an untimely petition. Id. 

Generally, a petition for relief under the PCRA must be filed within one 

year of the date the judgment of sentence becomes final unless the petitioner 

pleads and proves an exception to the timeliness requirements. 42 Pa.C.S.A. 

§ 9545(b)(1). Under these exceptions, the petitioner must plead and prove:

(1) interference by government officials in the presentation of the claim; (2) 

newly discovered facts; and (3) an after-recognized constitutional right. 

Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012) (citing 

42 Pa.C.S.A. § 9545(b)(1)). A PCRA petition invoking one of these statutory 

exceptions must be filed within 60 days of the date the claim could have been 

presented. 42 Pa.C.S.A. § 9545(b)(2). 

Appellant was sentenced to life imprisonment in 1976 and did not pursue 

a direct appeal from his judgment of sentence. Accordingly, the instant 

petition, which Appellant filed nearly 40 years after his judgment of sentence 

became final, is untimely on its face. See 42 Pa.C.S.A. § 9545(b)(1).

Appellant has failed to prove the applicability of any of the exceptions 

to the PCRA’s time restrictions. Appellant argues that his claims satisfy both

the governmental interference and newly discovered facts exceptions to the 

PCRA’s time-bar. 42 Pa.C.S.A. § 9545(b)(1)(i)-(ii). In its Rule 1925(a) 

opinion, the PCRA court aptly summarized and resolved Appellant’s claims 
J-S29028-18

- 4 -

relating to the timeliness exception to the PCRA’s time limitation. The PCRA 

court explained:

[Appellant] unsuccessfully attempted to invoke the 

interference by government official exception as codified in 

Section 9545(b)(1)(i). [Appellant’s] claim concerned the 

immunity agreement that Commonwealth witness, Andre 

Anderson, entered with the Commonwealth and Pennsylvania 

Attorney General’s Office. [Appellant] alleged that the trial court 

interfered with his right to impeach Anderson by concealing the 

immunity petition from the jury. PCRA Petition, 2/23/15, at 6. 

[Appellant] also claimed that the Commonwealth refused to 

provide him with a copy of the immunity petition which allowed 

the Commonwealth to withhold critical evidence about the firearm 

that Anderson testified about. [Id.] at 13.

To plead and prove the governmental interference 

exception, [Appellant] must show that his failure to raise the claim 

previously was a result of government interference. [42 

Pa.C.S.A.] § 9545(b)(1)(i). Here, [Appellant] did not allege that 

the trial court interfered with his right to raise this issue either on 

direct appeal or collaterally. In fact, the record revealed that both 

[Appellant] and trial counsel were aware of the immunity petition 

and had previously raised it in a [federal] petition for writ of 

habeas corpus . . . and in a previous [state petition for postconviction relief]. Additionally, even if raised in a timely fashion, 

as this claim has been previously raised, [Appellant] was not 

eligible for relief. 42 Pa.[C.S.A.] § 9543(a).

[Appellant also] attempted to invoke the “newly discovered 

facts” exception enumerated in 42 Pa.[C.S.A.] § (b)(1)(ii) by 

claiming the Commonwealth withheld information about the 

firearm used in the homicide. Although it was unclear what 

argument [Appellant] was attempting to advance, it appeared that 

he was alleging [the] Commonwealth falsely categorized the 

changed appearance of the firearm used in the homicide as rusted 

and corroded. In support of [Appellant’s] assertions, he submitted 

an affidavit by Dr. Joseph Betz, dated January 13, 2015, 

purporting to disprove Commonwealth’s theory that the firearm 

was corroded.

Upon review, [Appellant] has failed to state what due 

diligence, if any, he took to secure the alleged newly discovered 
J-S29028-18

- 5 -

evidence. Furthermore, he does not explain why he could not 

have discovered this information at an earlier time, specifically 

since [Appellant] fully admitted he knew of the prosecution’s 

theory at trial. To raise this claim in a timely manner, [Appellant] 

needed to plead and prove that he raised it within 60 days of when 

it was discoverable. Here, [Appellant] does not demonstrate when 

the testimony disput[ing] the appearance of the gun was 

available, that he raised it within 60 days, and/or a reason 

demonstrated why it was timely under and exception. Therefore, 

[Appellant] has utterly failed to raise this claim in a timely 

manner, and this court is without jurisdiction to review the merits 

of his claim.

PCRA Court Opinion, 4/19/17, at 3-5 (footnotes omitted).

Our review supports the PCRA court’s conclusion that Appellant failed to 

meet his burden in proving an exception to the timeliness requirements of the 

PCRA. Having determined that it lacked jurisdiction to address Appellant’s 

claims, the PCRA court properly dismissed Appellant’s petition for postconviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/30/18