J-A18041-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NORMAN ELDER BOOHER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1459 WDA 2021

Appeal from the PCRA Order Entered November 16, 2021

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

No(s): CP-63-CR-0002368-2019

BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: NOVEMBER 9, 2022

Norman Elder Booher appeals the denial of his request for relief under 

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. He claims 

the court erred by failing to issue notice of its intent to dismiss his petition 

without a hearing pursuant to Rule 907 of the Pennsylvania Rules of Criminal 

Procedure. We affirm.

On December 17, 2019, Booher pled guilty to burglary and was 

sentenced the same day to three to six years’ incarceration followed by two

to three years reporting probation with credit for time served.

1 Booher did not 

file a direct appeal. Booher filed the instant petition on November 14, 2021,

after the denial of a series of PCRA petitions. He raised claims of ineffective 

assistance of counsel, the unavailability of exculpatory evidence, and a 

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1 18 Pa.C.S.A. § 3502(a)(4). 
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violation of the United States and Pennsylvania constitutions. The petition did 

not raise any time-bar exception and did not address the timeliness of the 

petition. The next day, the court dismissed the petition, stating that the 

petition “contains the same issues as his previous six petitions.” Order, filed 

11/16/21. The court did not issue a Rule 907 notice. It later justified its 

conclusion in its Pa.R.A.P. 1925(a) opinion by citing the comment to Rule 907, 

which states that in certain circumstances, the court may summarily dismiss 

a PCRA petition. This timely appeal followed. 

Booher raises one issue: “Did the PCRA court err in failing to comply 

with the notice requirements of Pa.R.Crim.P. 907 before dismissing Booher’s 

petition?” Booher’s Br. at 4. 

We review the denial of PCRA relief to determine whether the PCRA 

court’s factual findings are supported by the record and if it committed any 

legal error. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). 

When a court determines that a PCRA petition should be dismissed

without a hearing, the court must provide notice of its intent to dismiss 

pursuant to Rule 907. See Pa.R.Crim.P. 907(1); Commonwealth v. Guthrie, 

749 A.2d 502, 503 (Pa.Super. 2000) (stating issuance of Rule 1507 (prior 

version of Rule 907) notice is mandatory). 

Booher argues that the court was required to issue notice of its intent 

to dismiss his petition. He also maintains that the court erroneously 

interpreted the comment in Rule 907 to conclude that Rule 907 notice was 

excused here. He contends that despite the court’s interpretation, “nothing in 
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the comment creates a freestanding right to dismiss a petition without 

complying with the notice requirement.” Booher’s Br. at 10. 

Booher’s claim deals with the proper interpretation of a Rule of Criminal 

Procedure. “The interpretation of procedural rules is a question of law, so our 

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Phillips, 141 A.3d 512, 518 (Pa.Super. 2016) (citation 

omitted). When interpreting the Rules of Criminal Procedure, “we employ the

same principles employed in the interpretation of statutes.” Id. (citation 

omitted). Our objective in interpreting the criminal rules “is to ascertain and 

effectuate the intention of our Supreme Court[.]” Id. (internal quotations and 

citations omitted). “When the words of a [rule] are clear and free from all 

ambiguity, the letter of it is not to be disregarded under the pretext of 

pursuing its spirit.” 1 Pa.C.S.A. § 1921(b).

Here, the PCRA court concluded that it was not required to issue Rule 

907 notice because Booher’s petition raised the same facts and issues as his 

first PCRA petition. The court determined that the comment in Rule 907 stating 

that a court may summarily dismiss a petition raising the same issues and 

facts, excuses a court “from compliance with the process” of Rule 907. Rule 

1925(a) Opinion, filed 2/1/22, at 3. It also determined that if courts were 

required to “conduct the lengthy notice process” each time it denied a PCRA

petition for the same meritless issues, “it would rapidly and unjustifiably 

exhaust the time and judicial resources of the courts of this Commonwealth[.]” 

Id. at 5. 
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The relevant comment of Rule 907 provides: 

The judge is permitted, pursuant to paragraph (1), to 

summarily dismiss a petition for post-conviction collateral 

relief in certain limited cases. To determine whether a 

summary dismissal is appropriate, the judge should 

thoroughly review the petition, the answer, if any, and all 

other relevant information that is included in the record. If, 

after this review, the judge determines that the petition is 

patently frivolous and without support in the record, or that 

the facts alleged would not, even if proven, entitle the 

defendant to relief, or that there are no genuine issues of 

fact, the judge may dismiss the petition as provided 

herein.

A summary dismissal would also be authorized under this 

rule if the judge determines that a previous petition 

involving the same issue or issues was filed and was finally 

determined adversely to the defendant. See 42 Pa.C.S. § 

9545(b) for the timing requirements for filing second and 

subsequent petitions.

Pa.R.Crim.P. 907, comment (emphasis added).

A plain reading of this comment explains that a court may summarily

dismiss a PCRA petition without a hearing under certain conditions, but must 

do so pursuant to the procedures set forth in Rule 907. These conditions 

include if: 1)the petition is frivolous and without support in the record; 2) the 

facts alleged, even if true, would not entitle the petitioner to relief; 3) there 

are no genuine issues of fact; or 4) a previous petition involving the same 

issue or issues was filed and determined adversely to the petitioner. However 

even under these circumstances, subsection one of Rule 907 provides that the 

court “shall” give notice of its intent to dismiss a petition without a hearing. 

Pa.R.Crim.P. 907(1). The comment does not purport to create an exception to 
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this requirement, and we do not see how it could without contradicting the 

unambiguous terms of Rule 907 itself. See 1 Pa.C.S.A. § 1921(b). Therefore,

we conclude that the court erred in failing to issue notice of its intent to dismiss 

Booher’s petition. 

Nevertheless, no relief is due here because of the untimely nature of 

Booher’s petition. See Commonwealth v. Ziegler, 148 A.3d 849, 851 n. 2

(Pa.Super. 2016) (“[F]ailure to issue Rule 907 notice is not reversible error 

where the record is clear that the petition is untimely”). A petitioner seeking 

relief under the PCRA petition must file the petition within one year of the 

judgment of sentence becoming final. 42 Pa.C.S.A. § 9545(b)(1). When the 

petition is filed beyond this one-year deadline, the petitioner must plead and 

prove at least one time-bar exception. Id. at § 9545(b)(1)(i)-(iii). A failure to 

do so will result in the dismissal of the petition, as this Court and the PCRA 

court is without jurisdiction to entertain an untimely PCRA petition. See 

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

Booher’s judgment of sentence became final on January 16, 2020. See

42 Pa.C.S.A. § 9545(b)(3) (“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”); Pa.R.A.P. 903(a) (30 days to appeal from 
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order). Thus, Booher had until January 18, 2021 to file a timely PCRA petition.2

Booher filed his petition in November 2021 making it untimely. Booher’s 

petition did not address the petition’s timeliness, much less even attempt to

raise any time-bar exception. As such, because the petition is untimely, we

affirm the order of the court. See Commonwealth v. Pursell, 749 A.2d 911, 

917 n. 7 (Pa. 2000) (affirming dismissal of untimely PCRA petition where PCRA 

court did not issue Rule 1507 notice to petitioner and petitioner did not plead 

and prove any time-bar exception); Ziegler, 148 A.3d at 851; 

Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa.Super. 2009) (this Court 

may affirm the decision of the court on any basis which is supported by the 

record). 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/9/2022

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2 The 30-day deadline fell on a Saturday. See 1 Pa.C.S.A. § 1908 (“Whenever 

the last day of any such period shall fall on Saturday or Sunday, . . . such day 

shall be omitted from the computation”).