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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

DEREYK L. MORRIS, : No. 79 EDA 2016

:

 Appellant :

Appeal from the PCRA Order, December 16, 2015,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-1103311-1995

BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED October 6, 2016.

Dereyk L. Morris appeals pro se from the order of December 16, 

2015, issued by the Court of Common Pleas of Philadelphia County that 

dismissed his serial PCRA1 petition without a hearing. 

On February 25, 1997, appellant entered a negotiated plea and was 

consecutively sentenced to 10 to 20 years’ imprisonment for third-degree 

murder, 10 to 20 years’ imprisonment for robbery, and 5 to 10 years for 

criminal conspiracy for an aggregate sentence of 25 to 50 years’ 

imprisonment.2 The sentences were to be served concurrently with a 17-

 

* Former Justice specially assigned to the Superior Court.

1

Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

2 18 Pa.C.S.A. § 2502(c), 18 Pa.C.S.A. § 3701(a)(1), and 18 Pa.C.S.A. 

§ 903(a), respectively.
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year federal sentence for carjacking3that appellant was serving at the time. 

Appellant did not file a direct appeal.

On December 14, 2009, appellant filed a PCRA petition that challenged 

his guilty plea on the basis that he did not want to plead guilty to robbery 

but did so because his counsel advised that he would get a lesser sentence. 

The PCRA court dismissed the petition as untimely. On July 13, 2011, 

appellant filed a second PCRA petition and claimed that trial counsel was 

ineffective for failure to examine the file. In an amended PCRA petition filed 

on November 18, 2011, appellant claimed that the common pleas court 

lacked subject matter jurisdiction. On December 17, 2012, appellant filed 

an affidavit in which he claimed to have newly discovered evidence and also 

leveled allegations of ineffective assistance of counsel. On May 14, 2013, 

appellant filed a motion to correct an illegal sentence and alleged that his 

murder and robbery convictions should have merged for sentencing 

purposes. The PCRA court dismissed this PCRA petition as untimely on 

October 6, 2014. The PCRA court also ruled that it lacked jurisdiction to rule 

on the motion to correct an illegal sentence which was treated as an 

untimely PCRA petition.

On August 27, 2015, appellant filed the current PCRA petition which 

was entitled “Motion to Correct Illegal Sentence-Merger Issues”4in which he 

 

3 18 U.S.C.A. § 2119.

4 The legality of a sentence is subject to review within the PCRA. 

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).
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argued that the sentence he received was illegal because of the Double 

Jeopardy Clause of the Fifth Amendment to the United States Constitution 

and because he should not have been sentenced separately for offenses 

which merged.

On November 6, 2015, the PCRA court issued a dismissal notice 

pursuant to Pa.R.Crim.P. 907. Appellant filed a pro se response in which he 

asserted that his petition was mailed on August 27, 2015, but it was not 

marked “received” by the PCRA unit until October 5, 2015. The PCRA court 

corrected the date of filing. On December 16, 2015, the PCRA court 

dismissed the petition as untimely.

Appellant raises the following issues for this court’s review:

1.) Did [the PCRA court] error [sic] by dismissing 

[appellant’s] petition as untimely?

A.) Is [appellant’s] sentence illegal 

where the court failed to merge for 

sentencing purposes?

B.) Does [appellant’s] claim on Double 

Jeopardy have arguable merit?

C.) Does [appellant’s] claim prove 

[and] meet requirements to 

establish counsel’s ineffectiveness?

D.) Is [appellant] eligible for time 

credit pursuant to 42 Pa.C.S.[A.] 

[§] 9760?

E.) Does [appellant] have a right to be 

appointed counsel?
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F.) Did [appellant] pass [and] meet 

timeliness requirements pursuant 

to 42 Pa.C.S.[A.] [§] 9545(b)(1)?

Appellant’s brief at 4.

In PCRA appeals, our scope of review “is limited to the findings of the 

PCRA court and the evidence on the record of the PCRA court’s hearing, 

viewed in the light most favorable to the prevailing party.” 

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation 

omitted). Because most PCRA appeals involve questions of fact and law, we 

employ a mixed standard of review. Commonwealth v. Pitts, 981 A.2d 

875, 878 (Pa. 2009). We defer to the PCRA court’s factual findings and 

credibility determinations supported by the record. Commonwealth v. 

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). In contrast, we 

review the PCRA court’s legal conclusions de novo. Id.

“When reviewing the grant or denial of post-conviction relief, the 

appellate court is limited to determining whether the lower court’s findings 

are supported by the record and its order is otherwise free of legal error. 

We grant great deference to findings of the PCRA court.” Commonwealth 

v. Stark, 658 A.2d 816, 818 (Pa.Super. 1995) (citations omitted).

Pennsylvania law makes clear no court has 

jurisdiction to hear an untimely PCRA petition. 

Commonwealth v. Robinson, 575 Pa. 500, 508, 

837 A.2d 1157, 1161 (2003). The most recent 

amendments to the PCRA, effective January 16, 

1996, provide a PCRA petition, including a second or 

subsequent petition, shall be filed within one year of 

the date the underlying judgment becomes final. 
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42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. 

Bretz, 830 A.2d 1273, 1275 (Pa.Super. 2003); 

Commonwealth v. Vega, 754 A.2d 714, 717 

(Pa.Super. 2000). A judgment is deemed 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.” 42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).

Subsequent PCRA petitions beyond a petitioner’s first petition are 

subject to the following standard:

A second or subsequent petition for post-conviction 

relief will not be entertained unless a strong 

prima facie showing is offered to demonstrate that 

a miscarriage of justice may have occurred. 

Commonwealth v. Allen, 557 Pa. 135, 141, 732 

A.2d 582, 586 (1999). A prima facie showing of 

entitlement to relief is made only by demonstrating 

either that the proceedings which resulted in 

conviction were so unfair that a miscarriage of 

justice occurred which no civilized society could 

tolerate, or the defendant’s innocence of the crimes 

for which he was charged. Allen, at 142, 732 A.2d 

at 586. Our standard of review for an order denying 

post-conviction relief is limited to whether the trial 

court’s determination is supported by evidence of 

record and whether it is free of legal error. 

Commonwealth v. Jermyn, 551 Pa. 96, 709 A.2d 

849, 856 (1998).

A PCRA petition, including a second or subsequent 

petition, must be filed within one year of the date 

that judgment of sentence becomes final. 42 Pa.C.S. 

§ 9545(b)(1). A judgment becomes final for 

purposes of the PCRA “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.” 42 Pa.C.S. 
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§ 9545(b)(3). PCRA time limits are jurisdictional in 

nature, implicating a court’s very power to 

adjudicate a controversy. Commonwealth v. Fahy, 

558 Pa. 313, 737 A.2d 214 (1999). Accordingly, 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, i.e., by operation of 

one of the statutorily enumerated exceptions to the 

PCRA time-bar. Id. at 329, 737 A.2d at 222.

Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied, 

135 S.Ct. 707 (2014). 

The three statutory exceptions to the timeliness 

provisions in the PCRA allow for very limited 

circumstances under which the late filing of a 

petition will be excused. 42 Pa.C.S.A. § 9545(b)(1). 

To invoke an exception, a petition must allege and 

prove:

(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.
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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “As such, when a 

PCRA petition is not filed within one year of the 

expiration of direct review, or not eligible for one of 

the three limited exceptions, or entitled to one of the 

exceptions, but not filed within 60 days of the date 

that the claim could have been first brought, the trial 

court has no power to address the substantive merits 

of a petitioner’s PCRA claims.” Commonwealth v. 

Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 

(2000); 42 Pa.C.S.A. § 9545(b)(2).

Monaco, 996 A.2d at 1079-1080.

Here, appellant’s conviction became final on March 27, 1997, when his 

ability to file a direct appeal ended. In order to timely file a PCRA petition, 

appellant had to file the petition within one year of March 27, 1997. The 

current petition was not filed until August 27, 2015, which was clearly 

untimely. In order for the PCRA court to properly consider the current 

petition, appellant must establish that the petition meets one of the three 

exceptions to the one-year requirement.

Appellant argues that the PCRA court is the government official who 

has interfered with the presentation of his claim because it has ruled that 

the motion to correct an illegal sentence must be treated as a PCRA petition 

and was untimely. As the PCRA court states, the Pennsylvania Supreme 

Court has held that “[a]lthough legality of sentence is always subject to 

review within the PCRA, claims must still first satisfy the PCRA’s time limits 

or one of the exceptions thereto.” Fahy, 737 A.2d at 223. Appellant cannot 

claim governmental interference when a common pleas court judge correctly 

applies the law regarding a timely petition.
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Appellant also asserts that he did not become aware that the PCRA 

court could correct an unlawful sentence until March 15, 2013, and he filed 

his motion to correct an illegal sentence on May 14, 2013. The current 

petition was not filed until 2015, so this assertion is irrelevant. The PCRA 

court did not err when it dismissed the petition as untimely.5 Besides, 

whether his sentence was illegal is not an “after-discovered fact” that would 

satisfy an exception to the one-year time bar. 

Order affirmed.

Judgment Entered.

JosephD.Seletyn,Esq.

Prothonotary

Date: 10/6/2016

 

5 Because of the disposition of the timeliness issue, this court need not 

address appellant’s remaining issues.