J-S76029-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

FRED WILSON

Appellant No. 1373 EDA 2017

Appeal from the PCRA Order entered April 9, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0108842-1997

BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 12, 2018

Appellant, Fred Wilson, appeals pro se from the April 9, 2014 order 

entered in the Court of Common Pleas of Philadelphia County, denying as 

untimely Appellant’s second petition for collateral relief pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Following review, 

we affirm.

The PCRA court provided the following procedural history:

Following a jury trial, before the Honorable Judge Darnell C. Jones 

II, [Appellant] was found guilty of first degree murder, robbery, 

and criminal conspiracy. On October 6, 1997, [Appellant] was 

sentenced to life in prison for the murder charge, ten to twenty 

years for the robbery charge, and five to ten years for the charge 

of criminal conspiracy. [Appellant] filed a direct appeal. The 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Superior Court affirmed the judgment of sentence on December 

16, 1999, and the Pennsylvania Supreme Court denied allocatur 

on May 15, 2001.

[Appellant] filed his first timely PCRA petition on March 14, 2002. 

Counsel was appointed and an amended PCRA petition was filed 

on April 18, 2005. After a further pro se filing by [] Appellant, 

appointed counsel filed a supplemental PCRA petition on February 

28, 2007. The court ultimately denied his petition on September 

18, 2007. The Superior Court affirmed the denial of his petition 

on January 26, 2009 and the Supreme Court denied a petition for 

allowance of appeal on August 19, 2009.

[Appellant] filed his current post conviction petition of August 2, 

2012.

PCRA Court Opinion, 4/9/14, at 1. The court explained that it conducted “a 

diligent and exhaustive review of the record and applicable case law,” and 

determined Appellant’s petition was “patently untimely.” Id. Therefore, the 

court lacked jurisdiction to consider the petition and dismissed it. Id. 

By order entered on April 10, 2017, the PCRA court granted Appellant’s 

request for nunc pro tunc reinstatement of his rights to appeal the April 9, 

2014 dismissal of his petition. This timely appeal followed. The PCRA court 

did not direct Appellant to file a Rule 1925(b) statement of errors complained 

of on appeal and the PCRA court did not issue an opinion supplementing its 

April 9, 2014 opinion.

Appellant presents one issue for our consideration:

Whether Appellant suffered actual prejudice resulting from 

trial/appellate/PCRA counsel ineffectiveness, and, if so, whether 

the PCRA court’s refusal to consider Appellant’s request for nunc 

pro tunc reinstatement of his right to direct appeal based on the 

determination that his claim relating to ineffective assistance for 

failing to protect Appellant’s right on direct appeal to challenge 
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the trial court’s error in admitting the videotaped confession that 

his non-testifying codefendant gave to police was previously 

litigated or waived, is supported by de facto findings in the 

certified record and is free of legal error?

Appellant’s Brief at 4.

As a threshold matter, we must determine whether the PCRA court erred 

in dismissing Appellant’s PCRA petition as untimely. The PCRA contains the 

following provisions governing the timeliness of any PCRA petition:

(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;

(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.

(3) For 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 
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of Pennsylvania, or at the expiration of time for seeking the 

review.

42 Pa.C.S.A. § 9545(b). The PCRA’s timeliness provisions are jurisdictional. 

Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).

The record reflects that our Supreme Court denied Appellant’s petition 

for allowance of appeal on May 15, 2001. Appellant did not seek a writ of 

certiorari to the United States Supreme Court. As a result, Appellant’s 

judgment of sentence became final on August 13, 2001, when the time for 

Appellant to file a petition for a writ of certiorari expired. See 42 Pa.C.S.A. 

§ 9545(b)(3); U.S. Sup.Ct. R. 13(1). Therefore, to be timely, Appellant was 

required to file his petition by August 13, 2002. Because Appellant filed the 

instant petition on August 2, 2012, it was patently untimely because it was 

filed nearly ten years past the deadline. 

Appellant contends that the § 9545(b)(1)(iii) after-recognized 

constitutional right exception applies in this case. Specifically, Appellant avers 

that the United States Supreme Court’s decision in Melendez-Diaz v. 

Massachusetts, 557 U.S. 305 (2009) and this Court’s analogous case of 

Commonwealth v. Barton-Martin, 5 A.3d 363 (Pa. Super. 2010), apply 

retroactively and save his case from the PCRA’s time bar. 

Appellant’s contention fails. First, as the PCRA court correctly observed, 

a petitioner raising the after-recognized constitutional right exception has 

sixty days to raise the issue. 42 Pa.C.S.A. § 9545(b)(2). PCRA Court Opinion, 

4/9/14, at 3 (unnumbered). However, Appellant’s petition was filed more than 
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sixty days after both decisions. Therefore, Appellant’s attempt to invoke the 

after-recognized constitutional right exception fails. See Commonwealth v. 

Boyd, 923 A.2d 513, 517 (Pa. Super. 2007). 

Further, as the PCRA court recognized, Melendez-Diaz does not apply 

to Appellant’s case. While Melendez-Diaz applies retroactively to cases on 

direct appeal, this Court determined that the case does not apply retroactively 

to cases on collateral review. Id. (citing Commonwealth v. Brandon, 51 

A.3d 231, 236 (Pa. Super. 2012) and Commonwealth v. Leggett, 16 A.3d 

1144, 1147 n.8 (Pa. Super. 2011)). Therefore, even if Appellant filed his 

petition within 60 days of Melendez-Diaz or Barton-Martin, those cases 

would not save his petition from the PCRA’s time bar because their retroactive 

application is limited to cases on direct appeal. 

We agree with the PCRA court that Appellant’s petition was untimely 

filed and that the PCRA court did not have jurisdiction to entertain its merits. 

Likewise, this Court is without jurisdiction to consider the merits, if any, of the 

petition. Therefore, we shall affirm the April 9, 2014 order dismissing the 

August 2012 petition as untimely. 

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/12/18