J-S21031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CLIFTON PARKER,

Appellant No. 2432 EDA 2014

Appeal from the PCRA Order August 4, 2014

in the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0608821-2001

BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED APRIL 21, 2015

Appellant, Clifton Parker, appeals pro se from the order dismissing his 

second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

We summarize the procedural history of this case as follows. On 

March 11, 2004, a jury convicted Appellant of one count each of seconddegree murder, attempted murder, aggravated assault, robbery, and theft 

by unlawful taking, and three counts of criminal conspiracy for his 

participation in a crime spree in Philadelphia, Pennsylvania on April 8, 2001.1 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(b), 901, 2702, 3701, 3921, and 903, respectively. 

Appellant was charged under three separate criminal actions that were 

consolidated for trial.
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On May 3, 2004, the court sentenced Appellant to the mandatory term of life 

imprisonment without parole followed by an aggregate term of not less than 

twenty nor more than forty years’ incarceration.

Appellant timely filed a pro se direct appeal on May 6, 2004. 

Appellant’s counsel filed a post-sentence motion on May 11, 2004, which the 

sentencing court dismissed as moot on July 28, 2004 because of the pending 

pro se appeal. The trial court appointed new counsel on May 21, 2004. On 

May 5, 2005, this Court affirmed the judgment of sentence. (See 

Commonwealth v. Parker, 880 A.2d 10 (Pa. Super. 2005) (unpublished 

memorandum)). The Pennsylvania Supreme Court denied leave to appeal 

on December 29, 2005. (See Commonwealth v. Parker, 892 A.2d 822 

(Pa. 2005)).

On August 31, 2006, Appellant timely filed his first pro se PCRA 

petition positing claims of ineffective assistance of counsel. The PCRA court 

appointed counsel on November 21, 2006. Initially, on May 4, 2007, counsel 

filed a Turner/Finley no merit letter.2 However, counsel filed an amended 

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

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Counsel only 

addressed the issue of the failure to call alleged alibi witnesses.
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PCRA petition on June 25, 2007.3 The PCRA court held a hearing and 

ultimately denied relief on November 1, 2007.

Appellant timely appealed on November 5, 2007. On April 14, 2010, 

this Court affirmed the PCRA court’s denial of relief. (See Commonwealth 

v. Parker, No. 2925 EDA 2007 (Pa. Super. filed April 14, 2010) 

(unpublished memorandum)). The Pennsylvania Supreme Court denied 

Appellant’s pro se petition for allowance of appeal on October 5, 2010. (See 

Commonwealth v. Parker, 8 A.3d 343 (Pa. 2010)).

On July 19, 2012, Appellant filed a second pro se PCRA petition and a 

supplement on August 15, 2012.4 The PCRA court notified Appellant of its 

intention to dismiss his PCRA petition without a hearing pursuant to 

Pennsylvania Rule of Criminal Procedure 907 on July 7, 2014. See

Pa.R.Crim.P. 907. Appellant filed a pro se response on July 22, 2014. The 

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3 Appellant’s counseled PCRA petition incorporated by reference the claims 

made in his pro se petition and raised the issue of whether a new trial was 

warranted based on newly discovered exculpatory evidence.

4 We note that Appellant titled these filings as a Writ of Habeas Corpus. The 

PCRA court found that “[t]he [PCRA] is the exclusive vehicle for obtaining 

post-conviction relief and this is true regardless of the manner in which the 

petition is titled. Therefore, [the PCRA] court will treat the instant motion as 

a PCRA [petition].” (PCRA Court Opinion, 8/04/14, at 1 n.1) (citation and 

quotation marks omitted); see Commonwealth v. Taylor, 65 A.3d 462, 

465 (Pa. Super. 2013). We agree and will treat the filings as Appellant’s 

second pro se PCRA petition.
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PCRA court dismissed the petition as untimely on August 4, 2014 with an 

accompanying opinion. Appellant timely appealed on August 20, 2014.5

Appellant raises the following issue for our review: “Whether Appellant 

is entitled to a remand to the PCRA court for an evidentiary hearing as the 

findings of the PCRA court are frought [sic] with error and have deviated 

from the legal standard?” (Appellant’s Brief, at 3) (most capitalization 

omitted).

Our standard of review is well-settled:

[A]n appellate court reviews the PCRA court’s findings of 

fact to determine whether they are supported by the record, and 

reviews its conclusions of law to determine whether they are free 

from legal error. The scope of review is limited to the findings of 

the PCRA court and the evidence of record, viewed in the light 

most favorable to the prevailing party at the trial level.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014) 

(citation omitted).

We also note that a PCRA petitioner is not automatically 

entitled to an evidentiary hearing. We review the PCRA court’s 

decision dismissing a petition without a hearing for an abuse of 

discretion.

[T]he right to an evidentiary hearing on a postconviction petition is not absolute. It is within the 

PCRA court’s discretion to decline to hold a hearing if 

the petitioner’s claim is patently frivolous and has no 

support either in the record or other evidence. It is 

the responsibility of the reviewing court on appeal to 

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5 The PCRA court did not order Appellant to file a Rule 1925(b) statement. It 

entered its Rule 1925(a) opinion on September 8, 2014 incorporating its 

August 4, 2014 opinion. See Pa.R.A.P. 1925.
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examine each issue raised in the PCRA petition in 

light of the record certified before it in order to 

determine if the PCRA court erred in its 

determination that there were no genuine issues of 

material fact in controversy and in denying relief 

without conducting an evidentiary hearing.

* * *

Before we may address the merits of Appellant’s 

arguments, we must first consider the timeliness of Appellant’s 

PCRA petition because it implicates the jurisdiction of this Court 

and the PCRA court. Pennsylvania law makes clear that when a 

PCRA petition is untimely, neither this Court nor the trial court 

has jurisdiction over the petition. The period for filing a PCRA 

petition is not subject to the doctrine of equitable tolling; 

instead, the time for filing a PCRA petition can be extended only 

if the PCRA permits it to be extended[.] This is to accord finality 

to the collateral review process. However, an untimely petition 

may be received when the petition alleges, and the petitioner 

proves, that any of the three limited exceptions to the time for 

filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), 

and (iii), are met.

Commonwealth v. Miller, 102 A.3d 988, 992-93 (Pa. Super. 2014) 

(citations and quotation marks omitted).

Section 9545 of the PCRA states in relevant part:

(b) Time for filing petition.—

(1) Any petition under this subchapter, 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;
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(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.

(2) Any petition invoking an exception provided in 

paragraph (1) shall be filed within 60 days of the date the 

claim could have been presented.

42 Pa.C.S.A. § 9545(b)(1) and (2).

Here, Appellant’s judgment of sentence became final on March 29, 

2006 when the time to seek discretionary review in the United States 

Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Therefore, in 

order to comply with the filing requirements of the PCRA, Appellant’s petition 

had to be filed by March 29, 2007. Because the underlying petition was filed 

on July 19, 2012, it is facially untimely and the PCRA court lacked 

jurisdiction to review it unless Appellant pleaded and proved one of the 

statutory exceptions to the time bar under 42 Pa.C.S.A. § 9545(b)(1).

Appellant asserts that the PCRA court erred in dismissing his petition 

as untimely because his claim fell within the newly discovered facts 

exception to the time bar. Specifically, he argues that “[i]t was only after 

this [s]cience [of brain development not being complete until a person is in 

his or her mid-twenties] was revealed [in Miller v. Alabama, 132 S.Ct. 

2455 (2012),] did Appellant learn its relavance [sic] to him.” (Appellant’s 

Brief, at 9). He further argues that this new science “could have been 
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utilized to support mitigation and/or . . . undermine [his] responsibility . . . 

[and the counsel’s failure to advance the claim was] [in]effective assistance 

of counsel . . . .” (Id. at 11). We disagree.

Our Supreme Court has held that “subsequent decisional 

law does not amount to a new ‘fact’ under section 9545(b)(1)(ii)

of the PCRA.” As the Court noted:

Law is a principle; fact is an event. Law is 

conceived; fact is actual. Law is a rule of duty; fact 

is that which has been according to or in 

contravention of the rule. Put another way, a “fact,” 

as distinguished from the “law,” is that which is to be 

presumed or proved to be or not to be for the 

purpose of applying or refusing to apply a rule of 

law. Consistent with these definitions, an in-court 

ruling or published judicial opinion is law, for it is 

simply the embodiment of abstract principles applied 

to actual events. The events that prompted the 

analysis, which must be established by presumption 

or evidence, are regarded as fact.

Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. 2012) (quoting 

Commonwealth v. Watts, 23 A.3d 980, 986-87 (Pa. 2011)). Accordingly, 

Miller v. Alabama does not provide Appellant relief because the science 

mentioned in subsequent decisional law is not a new fact under the PCRA. 

See id.

Accordingly, Appellant has failed to plead and prove an exception to 

the PCRA time bar; the PCRA court properly dismissed Appellant’s petition as 

untimely and we lack jurisdiction to consider the merits of his petition. See

Miller, supra at 992-93.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2015