J-S47032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EUGENE MCCLURE

Appellant No. 3111 EDA 2013

Appeal from the PCRA Order entered on October 31, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-1031753-1988

BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.: FILED OCTOBER 22, 2014

Eugene McClure challenges the order of October 31, 2013, which 

dismissed his third petition for collateral relief under the Post Conviction 

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. In his petition, McClure argued 

that he was entitled to relief under the United States Supreme Court’s 

decision in Missouri v. Frye, 132 S.Ct. 1399 (U.S. 2012), in which the 

Court held that defense counsel has a duty to convey to the defendant 

potentially favorable plea bargains proposed by the prosecution. The trial 

court ruled that Frye did not create a new and retroactive constitutional 

right such as would incur the application of an exception to the PCRA’s 

jurisdictional time limit, thus concluding that it lacked jurisdiction to grant 

McClure relief. We affirm.
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Given the circumstances of this case and the grounds of our 

disposition, we need only review the procedural history of this case:

On November 10, 1989, following a jury trial . . ., [McClure] was 

convicted of one count of murder of the second degree (18 

Pa.C.S. § 2502(b)), one count of criminal conspiracy (18 Pa.C.S. 

§ 903), one count of kidnapping (18 Pa.C.S. § 2901), and two 

counts of burglary (18 Pa.C.S. § 3502). On March 2, 1990, the 

[trial court] imposed the mandatory sentence of life in prison for 

the murder charge (18 Pa.C.S. § 1102(a)(1)), to be followed by 

an aggregate sentence of 10-20 years[’] imprisonment for the 

other charges. [McClure] appealed and the Superior Court 

affirmed his judgment of sentence on January 17, 1996. 

[McClure] did not file a petition for allocatur to the 

[Pennsylvania] Supreme Court. [McClure’s] judgment of 

sentence thus became final on February 16, 1996. . . .

On October 1, 1997, [McClure] filed his first pro se petition 

pursuant to the [PCRA]. [The PCRA court appointed PCRA 

counsel to represent McClure.] On October 2, 2000, pursuant to 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) 

(en banc), [PCRA counsel] filed a letter stating that there was no 

merit to [McClure’s] claims for collateral relief and a motion to 

withdraw as counsel. On January 26, 2001, [the PCRA court] 

dismissed [McClure’s] petition as untimely and granted counsel’s 

motion to withdraw. [McClure] filed an appeal, which was 

dismissed for failure to file a brief on August 23, 2001.

On June 16, 2006, [McClure] filed his second PCRA petition. As 

it was his second petition, no counsel was appointed. On 

November 15, 2007, [the PCRA court] dismissed [McClure’s] 

petition as untimely. [McClure] did not appeal the dismissal.

On May 31, 2012, [McClure] filed his third PCRA Petition, styled 

as a petition for writ of habeas corpus. The [PCRA court] issued 

a Rule 907 Notice of Intent to Dismiss [McClure’s] petition as 

untimely on February 5, 2013. On February 22, 2013 [new 

counsel was appointed to represent McClure.]1 As a Rule 907 

Notice had already been filed, [counsel] filed two Rule 907 

Responses, instead of an Amended Petition, on [McClure’s] 

behalf. See Response to Notice Pursuant to Pa.R.Crim.P. 907, 

4/23/2013, and Amendment to Response to Notice Pursuant to 

Pa.R.Crim.P. 907, 5/2/2013. . . . On October 31, 2013, the 
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[PCRA court] dismissed [McClure’s] PCRA [petition], styled as a 

habeas petition, as untimely.

_______________

1 While an indigent PCRA litigant is typically only entitled 

to court-appointed counsel on his first PCRA, 

see Pa.R.Crim.P. 904(C), [McClure] raised in this, his third 

petition, a claim pertaining to a recently-decided United 

States Supreme Court case, Frye, 132 S.Ct. 1399. The 

Post-Trial Unit of this Court therefore appointed counsel for 

[McClure] in order to investigate the merits of this claim. 

See Pa.R.Crim.P. 904(E) (authorizing appointment of 

counsel for any indigent defendant on a PCRA petition 

“whenever the interests of justice require it”).

PCRA Court Opinion (“P.C.O.”), 2/19/2014, at 1-2 (citations modified; 

footnote omitted).

On November 8, 2013, McClure filed a counseled notice of appeal from 

the PCRA court’s dismissal of his PCRA petition. On November 12, 2013, the 

PCRA court issued an order directing McClure to file a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). McClure filed 

his Rule 1925(b) statement on November 15, 2013. On February 19, 2014, 

the PCRA court issued the above-excerpted Rule 1925(a) opinion. 

Before this Court, McClure raises one issue: “Did the PCRA court err 

when it dismissed [McClure’s] PCRA petition without a hearing . . . since 

[McClure] is entitled to relief pursuant to [Frye] . . . .?” Brief for McClure 

at 4. We agree with the PCRA court that McClure invokes Frye in vain under 

the circumstances of this case.

Our standard of review on appeal from an order denying a PCRA 

petition is whether the determination of the PCRA court is supported by the 
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evidence of record and is free of legal error. See Commonwealth v. 

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not 

be disturbed unless there is no support for the findings in the certified 

record. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. 

Super. 2001). However, before we may review the PCRA court’s decision 

substantively, we must confirm our jurisdiction to consider McClure’s 

petition. 

It is well-established that the PCRA time limits are jurisdictional, and 

must be strictly construed, regardless of the potential merit of the claims 

asserted. Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 

2011). Courts may not disregard or alter these filing requirements in order 

to reach the merits of the claims raised in a PCRA petition that is untimely 

filed. Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

Despite facial untimeliness, a tardy PCRA petition nonetheless will be 

considered timely if (but only if) the petitioner pleads and proves the 

application of one or more of the exceptions to the one-year time limit 

enumerated in subsection 9545(b)(1) of the PCRA. McClure seeks to 

establish only one exception, which the PCRA defines as follows:

(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:

* * * *

(iii) the right asserted is a constitutional right that 

was recognized by the Supreme Court of the United States 
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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. § 9545(b). 

Because McClure undisputedly filed his petition within sixty days of the 

Supreme Court’s publication of Frye, the two jurisdictional questions at 

issue in this case are whether the Court’s decision in Frye recognized a new 

rule of constitutional import, and whether that rule has been held by the 

Court to apply retroactively. The trial court determined correctly that the 

answer to both questions is no.

McClure’s argument effectively ends before it begins. In McClure’s

brief, he admits that this Court already has held that Frye did not establish 

the sort of “new” and retroactive constitutional right that qualifies for the 

timeliness exception set forth in subsection 9545(b)(1)(iii). See Brief for 

McClure at 12-13 (discussing Commonwealth v. Feliciano, 69 A.3d 1270 

(Pa. Super. 2013)). However, he insists that “[t]he Superior Court’s 

decision in Feliciano was wrongly decided. . . . Frye created a new 

constitutional right in the context of the plea negotiation process.” Id. at 12 

(citing Rishi Batra, Lafler and Frye: A New Constitutional Standard for 

Negotiation, 14 Cardozo J. of Conflict. Res. 309 (2013)).

What McClure declines to face squarely is the time-honored principle 

that, for as long as one of this Court’s decisions has not been overturned by 
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our Supreme Court, that decision continues to bind this Court. Marks v. 

N’wide Ins. Co., 762 A.2d 1098, 1101 (Pa. Super. 2000) (citing Sorber v. 

Amer. Motorists Ins. Co., 680 A.2d 881, 882 (Pa. Super. 1996)). But see 

Freed v. Geisinger Med. Ctr., 971 A.2d 1202, 1212 (Pa. 2009) (“[T]he 

doctrine of stare decisis is not a vehicle for perpetuating error, but rather a 

legal concept which responds to the demands of justice and, thus, permits 

the orderly process of the law to flourish. We should not follow a governing 

decision that is unworkable.” (ellipsis and internal quotation marks 

omitted)). While McClure makes some effort to establish that Feliciano was 

wrongly decided, see Brief for McClure at 12-13, his argument is 

unconvincing. Moreover, we reaffirmed our holding in Feliciano in 

Commonwealth v. Hernandez, 79 A.3d 649 (Pa. Super. 2013), which 

again rejected the Frye timeliness argument.

Put simply, there is nothing to distinguish McClure’s argument that he 

should be entitled to the benefit of the “new retroactive constitutional right” 

exception to the PCRA’s time bar from the parallel arguments raised in 

Feliciano and Hernandez, which this Court rejected. We can discern no 

basis upon which to deviate from our commitment to honor stare decisis by 

departing from this Court’s earlier rulings on the question presented in the 

instant case. Our rulings in Feliciano and Hernandez are supported amply 

by prior precedent. Consequently, we do not find that either decision is 

clearly erroneous or unworkable.
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It is beyond cavil, and undisputed, that the instant PCRA petition was 

facially untimely. Moreover, it is recognized by all parties and the PCRA 

court that the sole exception invoked by McClure is the “new retroactive 

constitutional right” exception embodied in PCRA subsection 9545(b)(1)(iii). 

Our binding decisions in Feliciano and Hernandez establish beyond any 

reasonable dispute that Frye did not establish the sort of new and 

retroactive right to which subsection 9545(b)(1)(iii) applies; this conclusion 

will bind this Court unless and until it is modified or overturned by a higher 

court or this Court sitting en banc. Thus, the trial court did not err or abuse 

its discretion in determining that it lacked jurisdiction and dismissing 

McClure’s PCRA petition without a hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/2014