J-S34044-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DONALD HOWARD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 495 WDA 2022

Appeal from the PCRA Order Entered April 1, 2022

In the Court of Common Pleas of Erie County Criminal Division at No(s): 

CP-25-CR-0000530-2010

BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: September 30, 2022

Donald Howard (Howard) appeals from the order of the Court of 

Common Pleas of Erie County (PCRA court) dismissing his serial petition for 

relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. 

After review, we affirm.

In February 2011, a jury found Howard guilty of second-degree murder, 

robbery, theft by unlawful taking and burglary.1 After the trial court sentenced 

him to life imprisonment, Howard filed a direct appeal that we later dismissed. 

The PCRA court reinstated his direct appeal rights nunc pro tunc following 

which he filed another direct appeal. In March 2013, we affirmed his judgment 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2502(b), 3701(a)(1)(i), 3921(a) and 3502(a).
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of sentence. See Commonwealth v. Howard, 69 A.3d 181 (Pa. Super. 

2013) (unpublished memorandum).

In February 2014, Howard filed his first PCRA petition raising two 

ineffective assistance of counsel claims and a claim that he was denied the 

right to confront a witness whose testimony was admitted into evidence 

through a police witness. Howard refused the appointment of PCRA counsel 

and amended his petition to raise additional claims. At the PCRA hearing, the 

PCRA court conducted an on-the-record colloquy under Commonwealth v. 

Grazier, 73 A.2d 81 (Pa. 1998) and Pa.R.Crim.P. 121, following which the 

PCRA court determined that Howard validly waived his ruled-based right to 

counsel in a first-time PCRA petition. After hearing testimony from both 

Howard and his trial counsel, the PCRA court entered an order dismissing the 

petition. After the dismissal, Howard filed a counseled appeal. In January

2016, this Court affirmed the PCRA court’s dismissal of Howard’s petition. See 

Commonwealth v. Howard, 136 A.3d 1026 (Pa. Super. 2016) (unpublished 

memorandum).

After unsuccessfully filing several more petitions, Howard filed this serial 

petition for PCRA relief on January 31, 2022, which he labeled “Brady v. 

Maryland Claim of Actual Innocence.” On March 10, 2022, the PCRA court 

gave notice of its intent to dismiss the petition without hearing under 

Pa.R.Crim.P. 907(1). In the notice, the PCRA court explained that Howard’s 

petition was filed over eight years after his judgment of sentence became 
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final, thus requiring him to plead and prove that his petition fell under the 

three enumerated timeliness exceptions set forth under 42 Pa.C.S. 

§§ 9545(b)(1)(i)-(iii). Finding that Howard failed to plead and prove any of 

the exceptions, the PCRA court explained:

Although Howard raises claims of prosecutorial misconduct 

that occurred at trial, he does not allege in his Petition that his 

failure to timely raise the claim within the one-year time bar was

the result of government interference or misconduct, as required 

under Section 9545(b)(1)(i), nor does he claim that any of the 

alleged facts underlying his claims were unknown to him at the 

time of trial or could not have been ascertained by the exercise of 

due diligence. Neither does Howard make any claim concerning 

the retroactive application of a constitutional right. Indeed, he 

fails to even acknowledge that his Petition is filed beyond the oneyear time bar despite that fact that at least one prior PCRA Petition 

at this docket was dismissed for that very reason. See Notice of

Intent to Dismiss PCRA Without Hearing Pursuant to Pa.R.Crim.P. 

907(1), Docket No. 530-2010 (Erie. Co. April 22, 2020) (Mead,

J.). The PCRA’s statutory time bar remains just as applicable

today as it did then. Because Howard’s present Petition does not 

allege an exception to the one-year time bar of Section 

9545(b)(1), it is patently untimely and must be dismissed.

Rule 907 Notice, 3/10/22, at 2-3 (footnote omitted).

After receiving Howard’s response, the PCRA court entered its order 

formally dismissing the serial petition without hearing on April 1, 2022.

2

 

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2 Upon review of the trial court docket, we discovered that the there was no 

entry for the PCRA court’s April 1, 2022 order dismissing the petition. Rather, 

there was only an entry on that same date for a second notice of intent to 

dismiss. Under Pa.R.A.P. 301(a)(1), an order is not appealable until it has 

been entered upon the trial court docket. As a result, on July 15, 2022, we 

entered an order directing the Erie County Clerk of Courts to docket the April 

1, 2022 “Order” dismissing Howard’s serial PCRA petition and to forward this 

(Footnote Continued Next Page)
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Howard subsequently filed this appeal to reassert the merits of the claims he 

raised in his serial petition.3

Before considering the merits of Howard’s serial PCRA petition, we first 

consider whether the PCRA court properly found that it was untimely under 

the PCRA’s jurisdictional time-bar. A PCRA petition, “including a second or 

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

becomes final.” 42 Pa.C.S. § 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.” 42 Pa.C.S. § 9545(b)(3). Because 

the timeliness requirements of the PCRA are jurisdictional in nature, courts 

cannot address the merits of an untimely petition. See Commonwealth v.

Moore, 247 A.3d 990, 998 (Pa. 2021).

Here, Howard’s judgment of sentence became final in 2013 after he 

declined to file a petition for allowance of appeal in our Supreme Court after 

we affirmed his judgment of sentence. See 42 Pa.C.S. § 9545(b)(3) (“For 

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Court a copy of the amended trial court docket, which was since been 

completed.

3 We review the decision to deny PCRA relief to determine whether the decision 

“is supported by evidence of record and whether it is free of legal error.” 

Commonwealth v. Hart, 199 A.3d 475, 481 (Pa. Super. 2018) (citation 

omitted). Where the PCRA court declined to hold an evidentiary hearing, we 

consider whether the petition presented any genuine issues of material fact 

that warranted a hearing. Id. We review the court’s legal conclusions de

novo. Id.
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purposes of this subchapter, 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.”).

Howard’s serial petition was not filed until January 31, 2022, thus 

making it patently untimely. To overcome the one-year time bar, “[i]t is 

[Howard’s] burden to allege and prove that one of the timeliness exceptions 

applies.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) 

(citation omitted). The timeliness exceptions include:

(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)(i)-(iii). Any petition invoking an exception must be 

filed within one year of the date the claim could have been presented. Id. at

§ 9545(b)(2).

On appeal, Howard again fails to assert any of the timeliness exceptions 

to the PCRA jurisdictional time-bar. In fact, Howard fails to even acknowledge 

the basis for the PCRA court’s dismissal of his serial petition, even though, as 
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noted, the court gave him notice that his petition was being dismissed for 

failure to plead and prove any of the exceptions. Instead, Howard does on 

appeal what he did in the PCRA court and goes forward with his argument as 

if he is entitled to merits review regardless of the PCRA time-bar. However, 

as stated above, the PCRA’s timeliness requirements are jurisdictional in 

nature and cannot be overlooked. As a result, Howard’s continued failure to 

even attempt to plead and prove any of the timeliness exceptions compels us 

to affirm the PCRA court’s order dismissing his serial petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/30/2022