J-S54016-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RAYMOND CALIMAN

Appellant No. 2992 EDA 2014

Appeal from the PCRA Order October 10, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0925261-1985

BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 16, 2015

Appellant, Raymond Caliman, appeals from the order entered October 

10, 2014, by the Honorable Gwendolyn N. Bright, Court of Common Pleas of 

Philadelphia County, which denied as untimely Caliman’s serial Post 

Conviction Relief Act (“PCRA”)1 petition. No relief is due. 

On June 18, 1986, Caliman was convicted of first-degree murder and 

possession of an instrument of crime and sentenced to life imprisonment. 

Although Caliman filed a timely direct appeal to this Court, the appeal was 

dismissed for failure to file a brief. On September 30, 1987, Caliman filed a 

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*

Former Justice specially assigned to the Superior Court.

1

Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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PCHA2petition requesting reinstatement of his direct appeal rights nunc pro 

tunc and raising various claims of ineffective assistance of counsel. 

Caliman’s direct appeal rights were subsequently reinstated, and this Court 

thereafter affirmed Caliman’s judgment of sentence on October 18, 1988. 

See Commonwealth v. Caliman, 551 A.2d 592 (Pa. Super. 1988) 

(unpublished memorandum). The Pennsylvania Supreme Court denied 

allocatur on March 30, 1989. See Commonwealth v. Caliman, 558 A.2d 

530 (Pa. 1989) (Table).

On August 25, 1999, Caliman filed a pro se PCRA petition. The PCRA 

court appointed counsel, who later filed a Petition to Withdraw and a 

Turner/Finley3 no-merit letter. The PCRA court granted counsel’s petition 

to withdraw and dismissed Caliman’s petition as untimely. Caliman did not 

file an appeal. Caliman subsequently filed PCRA petitions on October 22, 

2002, and May 28, 2010, respectively, both of which were denied as 

untimely and affirmed as such on appeal. See Commonwealth v. 

Caliman, 864 A.2d 575 (Pa. Super. 2004) (unpublished memorandum); 

____________________________________________

2

The Post Conviction Hearing Act (“PCHA”), the statutory predecessor of the 

PCRA, was repealed in part, modified in part, and renamed the Post 

Conviction Relief Act, effective April 13, 1988.

3 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). 
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Commonwealth v. Caliman, 60 A.3d 567 (Pa. Super. 2012) (unpublished 

memorandum). 

On July 29, 2013, Caliman filed the instant PCRA petition – his fourth. 

The PCRA court again dismissed Caliman’s petition as untimely. This appeal 

followed. 

Caliman raises the following issues for our review.

I. Whether the PCRA petition can be dismissed as “untimely” 

when the claims presented in the PCHA petition were 

presented in a timely PCHA petition back in 1987?

II. Whether the PCRA is unconstitutional as applied 

because the application violates the Statutory 

Construction Act and the U.S. Constitution? 

Appellant’s Brief at 2. 

Before we may address the merits of a PCRA petition, we must first 

consider the petition’s timeliness because it implicates the jurisdiction of 

both this Court and the PCRA court. See Commonwealth v. Williams, 35 

A.3d 44, 52 (Pa. Super. 2011) (citation omitted), appeal denied, 50 A.3d 

121 (Pa. 2012). “Pennsylvania law makes clear no court has jurisdiction to 

hear an untimely PCRA petition.” Id. (citation omitted). The PCRA “confers 

no authority upon this Court to fashion ad hoc equitable exceptions to the 

PCRA time-bar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) 

(citation omitted). This is to “accord finality to the collateral review 

process.” Id. (citation omitted). “A petition for relief under the PCRA, 

including a second or subsequent petition, must be filed within one year of 

the date the judgment becomes final unless the petition alleges, and the 
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petitioner proves, that an exception to the time for filing the petition, set 

forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met.” 

Commonwealth v. Harris, 972 A.2d 1196, 1199-1200 (Pa. Super. 2009) 

(footnote omitted). A petitioner asserting a timeliness exception must file a 

petition within 60 days of the date the claim could have been presented. See 

42 Pa.C.S.A. § 9545(b)(2).

The 1995 amendments to the PCRA provide a grace period for 

petitioners whose judgments have become final on or before the passage of 

the jurisdictional time-bar. This Court has stated that the timeliness 

provision for convictions that, as here, occurred before the 1995 

amendments required a first time PCRA petition to be filed by January 16, 

1997. See Commonwealth v. Thomas, 718 A.2d 326, 328 (Pa. Super. 

1998) (en banc). Instantly, Caliman did not file the current PCRA petition 

until July 29, 2013. Thus, Caliman’s petition is patently untimely and he 

must plead and prove in his petition one of the three enumerated statutory 

exceptions to the time-bar. 

Relying on the Supreme Court’s decision in Commonwealth v. 

Beasley, 967 A.2d 376 (Pa. 2009), Caliman first argues that the instant 

serial PCRA petition is timely because the original PCHA court reinstated his 

direct appeal rights without addressing his remaining ineffective assistance 

of counsel claims. Before we address the merits of this issue, we must first 

determine whether this issue is previously litigated as law of the case. “The 

‘law of the case doctrine’ refers to a family of rules which embody the 
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concept that a court involved in the later phases of a litigated matter should 

not reopen questions decided by another judge of that same court or by a 

higher court in the earlier phases of the matter.” Commonwealth v. 

Fears, 86 A.3d 795, 816 n.23 (Pa. 2014) (citation omitted). 

Among the related but distinct rules which make up the law of 

the case doctrine are that: (1) upon remand for further 

proceedings, a trial court may not alter the resolution of a legal 

question previously decided by the appellate court in the matter; 

(2) upon a second appeal, an appellate court may not alter the 

resolution of a legal question previously decided by the same 

appellate court; and (3) upon transfer of a matter between trial 

judges of coordinate jurisdiction, the transferee trial court may 

not alter the resolution of a legal question previously decided by 

the transferor trial court.

Commonwealth v. Viglione, 842 A.2d 454, 461-461 (Pa. Super. 2004) 

(citations omitted). 

The argument Caliman espouses in his first issue is identical to the one 

previously raised on direct appeal from the denial of his May 2010 PCRA 

petition. In our August 13, 2012, memorandum, this Court found Caliman’s 

reliance upon Beasley to be inapposite. Rejecting Caliman’s argument that 

“the failure of the original PCHA court to examine each of his ineffectiveness 

issues resulted in governmental interference with his right to appeal 

pursuant to 42 Pa.C.S. § 9545(b),” we concluded that “[i]t is long standing 

law in this Commonwealth that it is improper to afford relief on additional 

ineffectiveness claims on the merits when reinstating a defendant’s direct 

appeal right.” Caliman, 60 A.3d 576 at *8-9 (citations omitted). We 

continued our analysis as follows.
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Appellant’s contention is even more untenable when one 

considers that when he filed his nunc pro tunc direct appeal, he 

could have, indeed was required, to raise the ineffectiveness 

claims he states were never addressed by the PCHA court. 

Appellant was clearly afforded the opportunity to raise the 

additional ineffectiveness issues and did forward several the 

claims during his nunc pro tunc direct appeal. Finally, Appellant 

does not suggest in any manner how this issue was presented 

within sixty days of the date the claim could have been set forth. 

Hence, Appellant’s first issue is wholly devoid of merit. 

Id. at 9. 

Following our disposition of this issue, Caliman did not seek 

discretionary review with the Pennsylvania Supreme Court. He has not 

alleged any changed circumstances that would alter our prior analysis 

rejecting his claim. Thus, we are precluded by the law of the case doctrine 

from granting relief on a claim which this Court has already decided.4 See 

Viglione, supra. 

Caliman alternatively contends that the jurisdictional time-bar is 

unconstitutional as applied to him because it violates the Pennsylvania 

Statutory Construction Act, 1 Pa.C.S.A. § 1501 et seq. Caliman argues that 

“it was not the intent of the General Assembly to have the PCRA time bar 

considered a jurisdiction bar to a colorable gateway claim of actual 

innocence especially where, as here, proof of the required mens rea is thin, 

____________________________________________

4

In the future, we caution Caliman’s counsel, Cheryl J. Sturm, Esquire, 

against merely regurgitating identical claims that this Court has previously 

decided. It is a waste of this Court’s time and resources. 
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and there is new reliable evidence suggesting Appellant was having an 

epileptic seizure when he shot the victim.” Appellant’s Brief at 17. 

This argument again echoes one previously addressed by this Court in 

our August 13, 2012, memorandum, although in that petition Caliman 

alleged that the jurisdictional time-bar violated the privileges and immunities 

clause of the Fourteenth Amendment. We correctly noted then that “[t]he 

PCRA statute does not prohibit persons whom assert actual innocence from 

achieving relief if they present a legitimate claim based on new evidence.” 

Caliman, supra, 60 A.3d 576 at *13. Tellingly, Caliman does not now 

assert his actual innocence, rather, he admits that “he shot the victim.” 

Appellant’s Brief at 17. It is therefore this admission, and not the 

jurisdictional time-bar, that prevents him from proving his actual innocence.5

Finally, we note Caliman’s additional claim that the PCRA is 

unconstitutional as applied to persons raising federal constitutional claims 

rings hollow. The PCRA explicitly states that claims “arising under the 

Constitution or law of the United States” decidedly are cognizable under the 

PCRA. 42 Pa.C.S.A. § 9543(a)(2)(ii). 

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5 We note that Caliman’s claim that the shooting was a result of an epileptic 

seizure is not an assertion of innocence, but, at the most, constitutes 

mitigating evidence. Regardless, Caliman does not assert that he filed his 

PCRA petition within 60 days of discovering the fact of his alleged seizure. 

See 42 Pa.C.S.A. § 9545(b)(2).
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As Caliman has failed to assert a meritorious timeliness argument, we 

agree with the PCRA court that the serial PCRA petition is patently untimely. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/16/2015