J-S73022-17

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES LEE STANLEY,

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 549 MDA 2017

Appeal from the PCRA Order March 8, 2017

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0001321-2005,

CP-06-CR-0003610-2004

BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.: FILED MARCH 26, 2018

Appellant, James Lee Stanley, appeals pro se from the March 8, 2017

Order entered in the Berks County Court of Common Pleas dismissing as 

untimely his second Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm on the 

basis that Appellant’s PCRA Petition is untimely and this Court, thus, lacks 

jurisdiction to review the Petition.

In June 2006, a jury convicted Appellant of burglarizing two separate 

residences. On July 7, 2006, the trial court sentenced Appellant to an

aggregate term of 19 to 38 years’ imprisonment. This Court affirmed 

Appellant’s Judgment of Sentence on April 7, 2008. Commonwealth v. 

Stanley, 953 A.2d 840 (Pa. Super. 2008) (unpublished memorandum). 

Appellant did not file a Petition for Allowance of Appeal.
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On June 26, 2008, Appellant filed his first pro se PCRA Petition, in 

which he alleged a Batson violation.1 The PCRA court appointed counsel

and eventually permitted counsel to withdraw pursuant to Turner/Finley.

2

On January 5, 2009, the PCRA court dismissed Appellant’s PCRA 

Petition. This Court affirmed on October 8, 2009, and our Supreme Court 

denied allowance of appeal. Commonwealth v. Stanley, 988 A.2d 731

(Pa. Super. filed Oct. 8, 2009) (unpublished memorandum), appeal denied, 

4 A.3d 1053 (Pa. filed Aug. 23, 2010).

On June 11, 2015, Appellant filed the instant pro se PCRA Petition, his 

second, claiming, inter alia, ineffectiveness of trial and PCRA counsel. The 

PCRA court appointed counsel, and counsel eventually sought to withdraw 

pursuant to Turner/Finley.

On February 10, 2017, the PCRA court issued notice of its intent to 

dismiss Appellant’s PCRA Petition without a hearing pursuant to Pa.R.Crim.P. 

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1 Batson v. Kentucky, 476 U.S. 79 (1986) (holding that while a defendant 

has no right to a jury composed in whole or in part of persons of his own 

race, the Equal Protection Clause guarantees that the government will not 

exclude members of the defendant’s race from the jury venire based on 

race). See also Commonwealth v. Garrett, 689 A.2d 912, 915 n.3 (Pa. 

Super. 1997) (observing that the U.S. Supreme Court has expanded the 

principles in Batson and held that “any racial discrimination in the jury 

selection process violates the rights of the excluded jurors and 

fundamentally undermines the integrity of the judicial process.” (citing 

Georgia v. McCollum, 505 U.S. 42 (1992))).

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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907. Appellant responded pro se on March 6, 2017. On March 8, 2017, the 

PCRA court dismissed Appellant’s PCRA Petition.

On March 27, 2017, Appellant timely filed a pro se Notice of Appeal. 

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents six issues for our review:

1) Did attorney Randall L. Miller, Esq., render ineffective 

assistance of counsel?

2) Did the prosecution bring in perjury [sic] testimony?

3) Did the Commonwealth’s evidence support this conviction?

4) Did the judge along with the district attorney allowed [sic] a 

member from jury to hear testimony knowing she was related to 

the alledged [sic] victim?

5) The Commonwealth’s key witness knew he didn’t have 

evidence to support there [sic] case. So why were charges 

brought against Defendant?

6) Did attorney Osmer S. Deming, Esq. render ineffective 

assistance?

Appellant’s Brief at 5-6 (suggested answers omitted).

We review the denial of a PCRA Petition to determine whether the 

record supports the PCRA court’s findings and whether its Order is otherwise 

free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 

2014). There is no right to a PCRA hearing; a hearing is unnecessary where 

the PCRA court can determine from the record that there are no genuine 

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. 

Super. 2008).
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Before addressing the merits of Appellant’s claims, we must first 

determine whether we have jurisdiction to entertain the underlying PCRA 

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008) 

(explaining that the timeliness of a PCRA Petition is a jurisdictional 

requisite).

Under the PCRA, any Petition “including a second or subsequent 

petition, shall be filed within one year of the date the judgment becomes 

final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence 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.” 42 Pa.C.S. § 

9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature, 

and a court may not address the merits of the issues raised if the PCRA 

petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091, 

1093 (Pa. 2010).

Here, Appellant’s Judgment of Sentence became final on May 7, 2008, 

upon expiration of the time to file a Petition for Allowance of Appeal with our 

Supreme Court. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a). In order 

to be timely, Appellant needed to submit his PCRA Petition by May 7, 2009. 

Id. Appellant filed this PCRA Petition on June 11, 2015, more than seven

years after his Judgment of Sentence became final. The PCRA court properly 
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concluded that Appellant’s Petition is facially untimely. PCRA Court Opinion, 

dated 4/20/17, at 6.

Pennsylvania courts may consider an untimely PCRA petition, however, 

if the appellant pleads and proves one of the three exceptions set forth in 42 

Pa.C.S. § 9545(b), which provides the following:

(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.

42 Pa.C.S. § 9545(b)(1)-(2). See, e.g., Commonwealth v. Lark, 746 

A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the 

claim had been timely raised within 60-day timeframe).
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Here, Appellant makes two arguments with respect to his attempt to 

invoke a timeliness exception. First, Appellant attempts to invoke the 

timeliness exception under Section 9545(b)(1)(ii) with respect to his claim 

that trial counsel was ineffective for failing to investigate Appellant’s 

competency issues. Appellant’s Brief at 15. In support of his claim of a 

timeliness exception, Appellant baldly avers that on May 20, 2015 he 

discovered that he was mentally incompetent throughout all court 

proceedings. Appellant’s Brief at 15.

The exception in Section 9545(b)(1)(ii) requires a petitioner to plead 

and prove that “1) the facts upon which the claim was predicated were 

unknown [at the time of trial;] and 2) could not have been ascertained by 

the exercise of due diligence [prior to trial].” Commonwealth v. Bennett, 

930 A.2d 1264, 1272 (Pa. 2007). “Due diligence demands that the 

petitioner take reasonable steps to protect his own interests. A petitioner 

must explain why he could not have learned the new fact(s) earlier with the 

exercise of due diligence. This rule is strictly enforced.” Commonwealth 

v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011) (citations omitted).

The PCRA court concluded that Appellant (1) “does not attempt to 

explain why or how his alleged incompetency only became known to him on 

May 20, 2015, nearly nine years after his trial[;]” (2) “did, in fact, have 

knowledge about his alleged mental incompetence prior to trial, well before 

May 20, 2015” because he alleged that he conveyed these concerns to his 
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trial counsel; and (3) failed to demonstrate due diligence. PCRA Court 

Opinion at 7-8. We agree with the PCRA court’s assessment.

Appellant also claims that his “actual innocence” entitles him to relief 

or a timeliness exception. Appellant’s Brief at 17-18. In support, Appellant 

argues that the Commonwealth did not prove its burden beyond a 

reasonable doubt. Appellant’s Brief at 17-27. This is, in essence, a 

challenge to the sufficiency and weight of the evidence.

Challenges to the sufficiency and weight of the evidence are not 

cognizable under the PCRA. See Commonwealth v. Price, 876 A.2d 988, 

995 (Pa. Super. 2005). Appellant’s attempt to fashion his sufficiency and 

weight claim into an “actual innocence” argument fails.

Accordingly, the PCRA court properly concluded that Appellant failed to 

plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. § 

9545(b)(1), and properly dismissed Appellant’s Petition as untimely. See

PCRA Court Opinion at 5-8. We, thus, affirm the denial of PCRA relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/26/2018