J-S34044-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LYNWOOD E. RAY,

Appellant No. 269 EDA 2016

Appeal from the PCRA Order January 5, 2016

in the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0008880-2008

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

MEMORANDUM BY PLATT, J.: FILED AUGUST 23, 2017

Appellant, Lynwood E. Ray, appeals, pro se, from the order of January 

5, 2016, dismissing as untimely his first petition filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

We take the underlying facts and procedural history in this matter 

from our independent review of the certified record.

On October 19, 2009, following a bench trial, the court convicted 

Appellant of rape by forcible compulsion and related sexual offenses. On 

January 19, 2010, the trial court sentenced Appellant to an aggregate term 

of incarceration of not less than twenty-five nor more than fifty years.

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* Retired Senior Judge assigned to the Superior Court.
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Appellant filed a timely appeal. On December 15, 2011, this Court 

affirmed the judgment of sentence. (See Commonwealth v. Ray, 40 A.3d 

192 (Pa. Super. 2011)). Appellant did not seek leave to appeal to the 

Pennsylvania Supreme Court.

On August 22, 2012, Appellant filed a motion for production of 

transcripts and other related documents. The trial court did not act on the 

motion. On September 8, 2014, Appellant, acting pro se, filed a PCRA 

petition seeking restoration of his direct appeal rights nunc pro tunc. (See 

PCRA Petition, 9/08/14, at 3). On February 9, 2015, Appellant filed a motion 

for a Grazier1 hearing. The PCRA court did not rule on the motion.2 On 

April 23, 2015, counsel entered an appearance on behalf of Appellant.

On July 27, 2015, counsel filed a Turner/Finley letter.3 On 

September 28, 2015, counsel filed a second Turner/Finley letter in 

response to an amended PCRA petition Appellant had sent him. On 

September 29, 2015, Appellant filed a pro se amended PCRA petition. On 

October 1, 2016, the PCRA court issued notice of its intent to dismiss the 

petition pursuant to Pennsylvania Rule of Criminal Procedure 907(1). 

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1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

2 While, ordinarily, we would remand the matter for a hearing on the motion, 

the issue is moot.

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Appellant filed a response to the Rule 907 notice on October 23, 2015. On 

December 10, 2015, counsel filed a third Turner/Finley letter. On January 

5, 2016, the PCRA court dismissed Appellant’s PCRA and amended PCRA 

petitions as untimely and granted counsel’s request to withdraw. 

On January 14, 2016, Appellant filed a timely notice of appeal. On 

February 17, 2016, the PCRA court ordered Appellant to file a concise 

statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). 

Appellant filed a timely Rule 1925(b) statement on March 7, 2016. See id. 

On July 25, 2016, the PCRA court issued an opinion. See Pa.R.A.P. 1925(a).

On appeal, Appellant raises the following questions for this Court’s 

review.4

1. Whether the court below erred in [dismissing] Appellant’s 

PCRA petition as untimely where the Appellant did claim 

abandonment of counsel pursuant to 42 Pa.C.S.A. § 

9545(b)[?]

2. Whether appellate counsel was ineffective for failing to keep 

the Appellant informed of the status of his direct appeal as 

instructed to do so by the Appellant[?]

3. Whether [the] PCRA court abused its discretion [or] 

commit[ted] [an] error of law by dismissing [Appellant’s] 

September 8, 2014 PCRA as untimely rather than accepting it 

as [an] amend[ment] to [Appellant’s] August 22, 2012 first

timely PCRA erroneousl[y] title[d] Motion for Notes of 

Testimony; or for di[s]missing [Appellant’s] PCRA as untimely 

when exception was invoke[d] and applicable in the matter[?]

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4 We note that despite requesting and receiving two extensions of time to 

file a brief, the Commonwealth filed a late brief in this matter.
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4. Whether PCRA counsel was ineffective for filing a “No-Merit” 

letter without adequate[] review of the record or proper 

understanding of the law where [Appellant’s] August 22, 2012 

PCRA (erroneously title[d] Motion for Notes of Testimony 

wherein at Averment Three.) [Appellant] put the PCRA 

counsel on notice of his intent of seeking relief[?]

(Appellant’s Brief, at 3) (unnecessary capitalization omitted).

Our standard of review for an order denying PCRA relief is well-settled:

This Court’s standard of review regarding a PCRA court’s 

order is whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. 

Great deference is granted to the findings of the PCRA court, and 

these findings will not be disturbed unless they have no support 

in the certified record. 

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations 

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a 

trial court has no jurisdiction to entertain the petition.” Commonwealth v. 

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted). 

Here, Appellant filed his PCRA petition on September 8, 2014. The 

PCRA provides that “[a]ny petition under this subchapter, including a second 

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

judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). Appellant’s 

judgment of sentence became final on January 16, 2012, thirty-two days5

after this Court affirmed the judgment of sentence and Appellant failed to 

seek leave to appeal to the Pennsylvania Supreme Court. See Pa.R.A.P. 

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5 The thirtieth day, January 14, 2012, was a Saturday.
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1113(a)(1); 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had one year, 

until January 16, 2013, to file a timely PCRA petition. Because Appellant did 

not file his petition until September 8, 2014, the petition is facially untimely. 

Thus, he must plead and prove that he falls under one of the exceptions at 

Section 9545(b) of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1).

Section 9545 provides that the court can still consider an untimely 

petition where the petitioner successfully 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. 

Id. Further, a petitioner who wishes to invoke any of the above exceptions 

must file the petition “within [sixty] days of the date the claim could have 

been presented.” Id. at § 9545(b)(2). The Pennsylvania Supreme Court

has repeatedly stated that it is an appellant’s burden to plead and prove that 

one of the above-enumerated exceptions applies. See, e.g.,

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

denied, 555 U.S. 916 (2008). 
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Here, Appellant does not specifically argue any of the above-listed 

exceptions. Instead, he argues two issues: that his petition was timely 

because he received ineffective assistance of direct appeal counsel, (see 

Appellant’s Brief, at 7-9); and that, in actuality, his 2012 motion for 

transcripts was a first PCRA petition and his current petition should be 

treated as an extension of that petition. (See id. at 10-11). 

Appellant argues that he received ineffective assistance of direct 

appeal counsel. (See Appellant’s Brief, at 7-9). Appellant does not present 

an exception to the time-bar by claiming ineffective assistance of counsel. 

See Commonwealth v. Davis, 816 A.2d 1129, 1135 (Pa. Super. 2003), 

appeal denied, 839 A.2d 351 (Pa. 2003) (“[A]ttempts to utilize ineffective 

assistance of counsel claims as a means of escaping the jurisdictional time 

requirements for filing a PCRA petition have been regularly rejected by our 

courts.”) (citations omitted). Thus, Appellant’s ineffective assistance of 

counsel claims do not serve as an exception to the time bar. See id. at 

1135.

On appeal, for the first time, Appellant claims that his PCRA petition is 

timely because it is an extension of a 2012 motion for transcripts that 

Appellant now avers was a timely first PCRA petition. (See Appellant’s Brief, 

at 10-11). However, it is long settled that PCRA issues not raised in a PCRA 

petition or amended PCRA petition are waived on appeal. See 

Commonwealth v. Lauro, 819 A.2d 100, 103-04 (Pa. Super. 2003), appeal 
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denied, 830 A.2d 975 (Pa. 2003) (waiving five issues not in original or 

amended PCRA petition). Also, as amended in 2007, Rule 1925 provides 

that issues that are not included in the Rule 1925(b) statement or raised in 

accordance with Rule 1925(b)(4) are waived. See Pa.R.A.P. 

1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 

1998), superseded by rule on other grounds as stated in Commonwealth v. 

Burton, 973 A.2d 428, 430 (Pa. Super. 2009). Further, an appellant cannot 

raise a subject for the first time on appeal. See Commonwealth v. 

Hanford, 937 A.2d 1094, 1098 n.3 (Pa. Super. 2007), appeal denied, 956 

A.2d 432 (Pa. 2008) (new legal theories cannot be raised for first time on 

appeal); Pa.R.A.P. 302(a). Here, Appellant did not argue this in his PCRA 

petition, his amended PCRA petition, or his Rule 1925(b) statement, raising 

the issue for the first time in his brief on appeal. Thus, he waived his 

contention.6 See Lord, supra at 308; Handford, supra at 1098 n.3; 

Lauro, supra at 103-04.

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6 Even if Appellant had not waived the claim, it would fail. This Court has 

reviewed the 2012 filing and it is plainly a motion for transcription of the 

notes of testimony, not a PCRA petition. (See Motion for Notes of 

Testimony, 8/22/12, at unnumbered pages 1-2). In fact, in it, contrary to 

the record, Appellant states that he needs the notes of testimony for a PCRA 

petition that is already pending. (See id. at 1). Moreover, it is well settled 

that a defendant need not possess transcripts and other court documents 

before pursuing post-conviction relief. See Commonwealth v. Crider, 735 

A.2d 730, 733 (Pa. Super. 1999). 
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Accordingly, because Appellant failed to plead and prove that his 

petition falls within one of the enumerated exceptions to the PCRA time-bar, 

it is untimely. Thus, the PCRA court properly dismissed it. We are without 

jurisdiction to consider the merits of his appeal.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/23/2017