J. S62043/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

WILL ARMSTEAD, : No. 3623 EDA 2017

:

 Appellant :

Appeal from the PCRA Order, October 10, 2017,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0403191-2004

BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 23, 2018

Will Armstead appeals, pro se, from the October 10, 2017 order of the 

Court of Common Pleas of Philadelphia County dismissing without a hearing 

his second pro se petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.1

The PCRA court provided the following procedural history:

On June 23, 2004, [appellant] pled guilty to 

aggravated assault, attempted murder, and two 

counts of possession of an instrument of crime 

before the Honorable Carolyn Engel Temin. On 

August 18, 2004, [appellant] was sentenced to 15 to 

30 years of imprisonment for the attempted murder 

 

1 On August 24, 2018, the Commonwealth filed a notice pursuant to 

Pennsylvania Rule of Professional Conduct 1.12(c)(2), informing both 

appellant and this court that Philadelphia County First Assistant District 

Attorney Carolyn Temin had previously participated as a trial judge in this 

case and “has disqualified herself and screened herself from any 

participation in this matter.”
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bill to run consecutively with five (5) to ten (10) 

years of imprisonment for the aggravated assault 

bill. [Appellant], subsequently, filed a direct appeal 

and on June 13, 2005, the Pennsylvania Superior 

Court affirmed the trial court’s judgment of 

sentence.[Footnote 2] The Pennsylvania Supreme 

Court, subsequently, denied allocatur on 

December 7, 2005.[Footnote 3]

[Footnote 2] Commonwealth v. 

Armstead, 881 A.2d 977 (Pa.Super. 

2004).

[Footnote 3] Commonwealth v. 

Armstead, 8[9]0 A.2d 1055 (Pa. 2005).

On June 26, 2006, [appellant] filed a pro se petition 

pursuant to the [PCRA.] Counsel was appointed and 

after an evidentiary hearing, the PCRA court 

dismissed the petition on May 4, 2007. The Superior 

Court affirmed the dismissal of the petition on June 

25, 2008, followed by the Pennsylvania Supreme 

Court’s denial of allocatur on October 29, 

2008.[Footnote 4]

[Footnote 4] Commonwealth v. 

Armstead, 959 A.2d 456 (Pa.Super. 

2008) (unpublished memorandum), 

appeal denied, 960 A.2d 454 (Pa. 

2008).

On August 10, 2015, [appellant] filed the instant 

pro se PCRA petition, styled as a writ of habeas 

corpus. An amended petition was filed on April 10, 

2017. [The PCRA] court sent a notice of its intent to 

dismiss the petition as untimely without exception on 

July 21, 2017. [Appellant] filed a response to the 

[Pa.R.Crim.P.] 907 notice on August 2, 2017. The 

PCRA petition was formally dismissed by [the PCRA] 

court on October 10, 2017. [Appellant] timely filed a 

notice of appeal to the Pennsylvania Superior Court 

on October 30, 2017.

PCRA court opinion, 2/2/18 at 1-2 (footnote 5 omitted).
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The PCRA court did not order appellant to file a concise statement of 

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

court filed an opinion pursuant to Pa.R.A.P. 1925(a) on February 2, 2018.

Appellant raises the following issues for our review:

[1.] Whether the PCRA court erred in denying 

appellant [sic] petition to withdraw his guilty 

plea[?]

[2.] [Whether the] PCRA court further violated its

oath of office, substantive/procedural due 

process rights by ignoring/refusing to grant 

relief where sentence imposed of 20-40 years 

lacked statutory authorization[?]

Appellant’s brief at 7 (full capitalization omitted).

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, 732 A.2d 582, 586 (Pa. 

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. 

Id. 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, 709 A.2d 849, 

856 (Pa. 1998).

A PCRA petition, including a second or subsequent 

petition, must be filed within one year of the date 
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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 the expiration of 

time for seeking the review.” 42 Pa.C.S. 

§ 9543(b)(3). PCRA time limits are jurisdictional in 

nature, implicating a court’s very power to 

adjudicate a controversy. Commonwealth v. Fahy, 

737 A.2d 214 (Pa. 1999). Accordingly, the “period 

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 222.

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

135 S.Ct. 707 (2014). We must first determine if the PCRA court properly 

dismissed appellant’s PCRA petition as untimely.

As noted above, a PCRA petitioner has one year from the date his or 

her judgment of sentence becomes final in which to file a PCRA petition. 

This court has held the following regarding when a judgment becomes final:

The plain language of the PCRA provides that a 

judgment of sentence becomes final at the 

conclusion of direct review or when the time seeking 

direct review expires. See 42 Pa.C.S.A. 

§ 9545(b)(3). In fixing the date upon which a 

judgment of sentence becomes final, the PCRA does 

not refer to the conclusion of collateral review or the 

time for appealing a collateral review determination. 

Thus, the plain language of the PCRA statute shows 

that a judgment of sentence becomes final 

immediately upon expiration of the time for seeking 

direct review, even if other collateral proceedings are 

still ongoing. As this result is not absurd or 

unreasonable, we may not look for further 

manifestations of legislative intent. See 

Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa. 
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2013) (internal quotation marks omitted) (We may 

“look beyond the plain language of the statute only 

when words are unclear or ambiguous, or the plain 

meaning would lead to a result that is absurd, 

impossible of execution, or unreasonable.”).

Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014). 

In the instant case, our supreme court denied appellant’s petition for 

allowance of appeal on December 7, 2005. Appellant did not file a writ of 

certiorari to the Supreme Court of the United States. Accordingly, 

appellant’s judgment of sentence became final on March 7, 2006. Appellant 

filed the instant petition on August 10, 2015—more than nine years after his 

judgment of sentence became final and more than eight years after a PCRA 

petition could be considered timely. See 42 Pa.C.S.A. § 9545(b)(1).

As noted above, the PCRA does enumerate exceptions to the one-year 

requirement. A petitioner may file a petition under the PCRA after one year 

has passed from the final judgment of sentence for any of the following 

reasons:

(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 
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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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Section 9545 also mandates that any 

petition filed under these exceptions must be filed within 60 days of the date 

the claim could have been presented. Id. at § 9545(b)(2).

In the instant appeal, appellant fails to demonstrate any of the 

exceptions to the PCRA time-bar. Rather, appellant appears to argue that 

his guilty plea was involuntary and unlawfully induced. (Appellant’s brief 

at 12.) Therefore, we cannot consider appellant’s appeal on its merits.2

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/23/18

 

2 Even if we were to consider appellant’s appeal, his claim would nonetheless 

not be cognizable under the PCRA, as it has been previously litigated. 

42 Pa.C.S.A. § 9544(a)(2)-(3). Appellant raised an issue of the 

voluntariness of his guilty plea on direct appeal and in his first PCRA petition 

as part of an ineffective assistance of counsel claim. See Commonwealth 

v. Armstead, 881 A.2d 877 (Pa.Super. 2004) (unpublished memorandum), 

appeal denied, 890 A.2d 1055 (Pa. 2005); Commonwealth v. Armstead, 

959 A.2d 456 (Pa.Super. 2008) (unpublished memorandum), appeal 

denied, 960 A.2d 454 (Pa. 2008).