J-S90024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MUHAMMAD AZIZ A/K/A RICHARD 

HARRIS A/K/A SAMUEL LEWIS

Appellant No. 883 EDA 2016

Appeal from the PCRA Order Dated January 28, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0107501-1999

 CP-51-CR-0107511-1999

BEFORE: OTT, J., SOLANO, J., and JENKINS, J. 

MEMORANDUM BY SOLANO, J.: FILED DECEMBER 21, 2016

Appellant, Muhammad Aziz (also known as Samuel Lewis and Richard 

Harris), appeals pro se from the order dismissing his third petition filed 

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The 

PCRA court dismissed Appellant’s petition as untimely, and we affirm.

On June 3, 1999, a jury convicted Appellant of first-degree murder, 

two counts of robbery, aggravated assault, criminal conspiracy, and 

possessing an instrument of crime. Trial Ct. Op., 11/16/99, at 1-2.1

Appellant was sentenced to life imprisonment for the murder conviction and 

lesser terms of incarceration on the remaining charges. Id. at 2. Through his 

____________________________________________

1 18 Pa.C.S. §§ 2502, 3701, 2702, 903, and 907, respectively.
J-S90024-16

- 2 -

trial counsel, Appellant filed a timely direct appeal. Id. Appellant claimed 

that the evidence was insufficient to support the convictions of murder and 

aggravated assault, complained of an alleged discovery violation, and 

challenged the propriety of the trial court’s questioning of a trial witness. Id.

at 6. On August 31, 2000, this Court dismissed the appeal for failure to file a 

brief. PCRA Ct. Op., 5/16/16, at 1.2

Appellant filed his first pro se PCRA petition in August, 2003. PCRA Ct. 

Op., 5/16/16, at 1.3In that petition, Appellant complained that his trial 

counsel was ineffective for failing to preserve his appellate rights by (1) 

failing to file a brief, and (2) failing to advise him that his direct appeal had 

been dismissed. PCRA Pet., 8/11/03, at 3.4 Appellant alleged that he was 

unaware of his counsel’s ineffectiveness until June 8, 2003, when he 

____________________________________________

2 Apparently, Appellant’s trial counsel did not file an appellate brief because 

he was told by Appellant’s family that the family had retained another 

attorney for purposes of the appeal. Turner/Finley Letter, 5/13/04, at 2. 

We note that Appellant’s trial counsel was not granted leave to withdraw by 

the trial court or this Court during the course of Appellant’s direct appeal.

3 The trial court said the petition was filed on August 11, 2003, PCRA Ct. 

Op., 5/16/16, at 1, but the petition was postmarked August 6, 2003, PCRA 

Pet., 8/11/03. Under the “prisoner mailbox rule,” it therefore may be 

deemed filed on August 6, 2003. See Commonwealth v. Little, 716 A.2d 

1287, 1289 (Pa. Super. 1998). The difference in dates is not relevant to the 

matter currently before this Court.

4 Appellant also asserted in his first petition that trial counsel was ineffective 

for failing to adequately research, interview, and present witnesses at trial, 

to move for the suppression of evidence, and to object to prosecutorial 

misconduct and the admission of certain evidence and testimony. PCRA Pet., 

8/11/03, at 3.
J-S90024-16

- 3 -

received a copy of the Superior Court’s docket sheet in response to his 

request. Id.5 The PCRA court appointed counsel, who subsequently filed a 

petition to withdraw and a “no merit” letter pursuant to Commonwealth v. 

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 

A.2d 213 (Pa. Super. 1988) (en banc). PCRA Ct. Op., 5/16/16, at 1. In the 

letter, appointed PCRA counsel explained that Appellant’s petition was 

____________________________________________

5 Docketed on the trial court’s record is a letter dated June 6, 2001, and 

allegedly sent to Appellant from a supervisor of the Post Trial Unit of the 

Philadelphia County Court of Common Pleas Criminal Division. Enclosed with 

the letter was a copy of the August 31, 2000 order dismissing his direct 

appeal. The letter stated:

Please see the attached Order entered in the Superior 

Court in reference to your appeal. The appeal was dismissed due 

to counsel’s failure to file a brief, without prejudice to appellant’s 

rights under the Post Conviction Relief Act. 

If you want to have your appeal rights reinstated, you 

must file a PCRA Petition. PCRA Petitions are available through 

county or state prison authorities.

. . .

Upon receipt by the PCRA Unit, your petition will be 

reviewed on an individual basis, and where appropriate, counsel 

will be appointed.

It will be to your advantage to file the PCRA Petition within 

thirty (30) days, or the Quarter Sessions file will be returned to 

storage, which will cause delay in the processing of your Petition.

Letter, 6/6/01. Other than advising Appellant to file a petition within 30 

days, the letter did not advise Appellant of any timing requirements for filing 

a petition under the PCRA. The record does not clearly reflect how the letter 

was addressed or whether Appellant was likely to have received it.
J-S90024-16

- 4 -

untimely and did not meet any of the exceptions to the PCRA’s timeliness 

requirements. Turner/Finley Letter, 5/13/04, at 3-4.

On May 14, 2004, the PCRA court notified Appellant that his PCRA 

petition would be dismissed without a hearing, and that he had thirty days to 

respond. Order, 5/14/04.6 On June 15, 2004, rather than contest the 

impending dismissal, Appellant filed a pro se motion to withdraw his PCRA 

petition. Mot., 6/15/04. In the motion, Appellant asserted that he recognized 

that the PCRA court lacked jurisdiction to grant him relief due to his untimely 

petition. Id. at 2.7 The trial court dismissed the petition as untimely on 

June 21, 2004, and permitted counsel to withdraw. Order, 6/21/04. 

Appellant was sent a copy of the order with a cover letter which advised of 

his right to appeal the dismissal within 30 days. Letter, 6/21/04. Appellant 

did not appeal the dismissal. PCRA Ct. Op., 5/16/16, at 2.

____________________________________________

6

Pa.R.Crim.P. 907 requires a PCRA court to give a petitioner twenty days to 

respond to such a notice.

7 Appellant now alleges that he withdrew his first petition upon the advice of 

a “jailhouse lawyer,” who advised him not to respond to the court’s notice of 

intent to dismiss and instead to withdraw his PCRA petition and file a petition 

for habeas corpus in federal court. PCRA Pet., 8/28/13, at 4; see also id. at 

Ex. B (unsigned first page of a “Declaration of Stanley Phillip,” which states 

that he was employed as a paralegal by the Department of Corrections and 

advised Appellant to not respond to the Rule 907 Notice from the court and 

instead to withdraw his first petition).
J-S90024-16

- 5 -

On August 10, 2008, Appellant filed a second pro se PCRA petition. 

PCRA Ct. Op., 5/16/16, at 2.8 The allegations in Appellant’s second petition 

echoed those of his first: he complained that his trial attorney was 

ineffective for failing to file a brief on direct appeal and for failing to advise 

Appellant that his appeal had been dismissed. PCRA Pet., 8/10/08, at 3.9

New PCRA counsel was again appointed, and again counsel filed a no-merit 

letter and petition to withdraw pursuant to Turner/Finley, concluding that 

Appellant’s second PCRA petition was also untimely. PCRA Ct. Op., 5/16/16, 

at 2. The PCRA court dismissed the petition on September 21, 2009. Id.

Appellant appealed the dismissal pro se on October 26, 2009, and 

claimed that both his trial counsel and his second appointed PCRA counsel 

were ineffective. Statement of Matters Complained of on Appeal, 10/26/09.10

The PCRA court appointed new counsel to assist Appellant with the appeal, 

____________________________________________

8 Appellant’s second petition also referenced the docket numbers for four 

other cases involving Appellant. PCRA Ct. Op., 5/16/16, at 2.

9 Appellant also complained that his trial counsel was ineffective for failing to 

preserve his right to a police line-up, that the evidence was insufficient to 

support the verdicts against him, and that his trial had been subject to 

judicial and prosecutorial misconduct. PCRA Pet., 8/10/08, at 3. 

10 Appellant includes in his current petition a letter from appointed counsel 

for his second petition in which counsel admits that he was unable to 

promptly communicate with Appellant and provide him with copies of court 

documents due to lack of funds. See PCRA Pet., 8/28/13. Ex. C. The letter 

appears to have been sent to Appellant on the same date that counsel filed 

his Turner/Finley letter explaining that Appellant’s second PCRA petition did 

not merit relief due to its untimeliness.
J-S90024-16

- 6 -

but appointed counsel once again filed a letter advising that the petition was 

untimely and requesting withdrawal. Tuner/Finley Letter, 6/13/11.11 On 

February 27, 2012, this Court permitted appointed counsel to withdraw and 

quashed the appeal as untimely, as Appellant had filed his notice of appeal 

more than thirty days after his PCRA petition had been dismissed. 

Commonwealth v. Lewis, 3199 EDA 2009, at 2 (Pa. Super., Feb. 27, 

2012) (unpublished memorandum) (citing Pa.R.A.P. 903), appeal denied, 

47 A.3d 846 (Pa., July 2, 2012).12 We noted that even if his appeal had been 

timely, Appellant would not have been entitled to relief, as his second PCRA 

petition was patently untimely and Appellant failed to establish any of the 

exceptions to the PCRA’s timing requirements. Id. at 2 n.3. The 

Pennsylvania Supreme Court denied allocatur on July 2, 2012. Lewis, 47 

A.3d 846.

Appellant filed the instant PCRA petition, his third, pro se on 

August 28, 2013. PCRA Ct. Op., 5/16/16, at 2.13 In the petition, Appellant 

____________________________________________

11 Appellant claims that counsel appointed to assist with the appeal of his 

second PCRA petition failed to conduct an independent review, and 

plagiarized part of previous PCRA counsel’s brief. Appellant’s Brief at 7.

12 This Court determined that Appellant had not alleged or proven that he 

delivered his appeal to prison authorities in conformance with the prisoner 

mailbox rule. Lewis, 3199 EDA 2009, at 2.

13 Actually, what Appellant filed was a motion entitled “Pro Se Motion for 

Reinstatement of Direct Appeal Rights Nunc Pro Tunc.” The court correctly 

treated that motion as Appellant’s third PCRA petition. See Notice Pursuant 

(Footnote Continued Next Page)
J-S90024-16

- 7 -

alleged that his trial counsel was ineffective for abandoning him on direct 

appeal without notice, all subsequent PCRA counsel were ineffective for filing 

Tuner/Finley letters and for failing to investigate trial counsel’s 

ineffectiveness, and the PCRA court had erred by allowing PCRA counsel to 

withdraw without conducting an independent review. PCRA Pet., 8/28/13, at 

3. Appellant also argued, for the first time, that the PCRA “is 

unconstitutional, vague, and contradictory.” Id.

The PCRA court found that Appellant’s petition was untimely “by 

approximately twelve years,” and, on December 11, 2015, sent Appellant 

notice of its intent to dismiss the petition without a hearing, pursuant to Rule 

907 of the Pennsylvania Rules of Criminal Procedure. Notice, 12/11/15. 

Appellant responded to the dismissal on December 28, 2015, by requesting 

a 30-day extension of time in which to file a response, claiming that he had 

limited access to the prison law library due to the holidays. Mot. for 

Extension of Time to File Answer, 12/28/15. The PCRA court did not rule on 

Appellant’s motion for an extension, and Appellant never filed a substantive 

response to the Rule 907 Notice. The PCRA court dismissed the petition on 

(Footnote Continued) _______________________

to Pennsylvania Rule of Criminal Procedure 907, 12/11/15 (citing 

Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001)).
J-S90024-16

- 8 -

January 28, 2016, and Appellant filed the instant notice of appeal on 

February 17, 2016. PCRA Ct. Op., 5/16/16, at 2.14

In his brief to this Court, Appellant presents the following issues:

(Q1) Whether the PCRA Court erred as a matter of law and 

constitution by dismissing Appellant’s PCRA as untimely where 

he met the timeliness exception provided by statute (42 Pa.C.S. 

§ 9545)

(Q2) Whether the PCRA is unconstitutional? Whether the PCRA’s 

timeliness statute in foreclosing on otherwise meritorious claims 

derived from deprivations of constitutional rights is 

unconstitutional and diametrically opposed to U.S. Supreme 

Court precedent?

Appellant’s Brief at 1. 

Our standard of review of the dismissal of a PCRA petition is as 

follows:

We review an order dismissing a petition under the PCRA 

in the light most favorable to the prevailing party at the PCRA 

level. This review is limited to the findings of the PCRA court and 

the evidence of record. We will not disturb a PCRA court’s ruling 

if it is supported by evidence of record and is free of legal error. 

This Court may affirm a PCRA court’s decision on any grounds if 

the record supports it. Further, we grant great deference to the 

factual findings of the PCRA court and will not disturb those 

findings unless they have no support in the record. However, we 

afford no such deference to its legal conclusions. Where the 

petitioner raises questions of law, our standard of review is de 

novo and our scope of review plenary.

____________________________________________

14 The PCRA court did not order Appellant to file a 1925(b) statement of 

errors complained of on appeal, and Appellant did not file one.
J-S90024-16

- 9 -

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations 

omitted). 

Timeliness of Appellant’s Third PCRA Petition

As his first issue, Appellant claims that the instant PCRA petition was 

timely. The timeliness of a post-conviction petition is jurisdictional. 

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). When 

a petition is untimely, the PCRA court is precluded from reaching the merits 

of the petition. Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 

2014). 

Generally, a petition for relief under the PCRA, including a second or 

subsequent petition, must be filed within one year of the date the judgment 

becomes final. 42 Pa.C.S. § 9545(b)(1). 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. § 9545(b)(3). An 

appellant has thirty days after a decision of this Court to request review by 

the Supreme Court of Pennsylvania. Pa.R.A.P. 1113.

Exceptions to the time-bar apply when the petition alleges and the 

petitioner proves one of the following:

(i) the failure to raise the claim previously was the result 

of interference of 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;
J-S90024-16

- 10 -

(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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). A PCRA petition invoking one of these 

statutory exceptions “must be filed within sixty days of the date the claim 

could first have been presented.” Hernandez, 79 A.3d at 651-52; see also

42 Pa.C.S. § 9545(b)(2). Asserted exceptions to the time restrictions in the 

PCRA must be included in the petition and may not be raised for the first 

time on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 

2007), appeal denied, 959 A.2d 927 (Pa. 2008). 

In the instant case, the PCRA court concluded that 

[Appellant]’s untimely petition failed . . . to invoke an 

exception to the timeliness provision specified in 42 [Pa.C.S.] § 

9545(b)(1). [Appellant]’s judgment of sentence became final on 

September 30, 2000, upon expiration of the thirty-day window 

to file a petition for allowance of appeal to the Pennsylvania 

Supreme Court. His petition, filed on August 23, 2013[,] was 

therefore untimely by approximately twelve years.

PCRA Ct. Op., 5/16/16, at 4 (citations omitted). We discern no error in this 

analysis.15

____________________________________________

15 As we affirm on this portion of the PCRA court’s reasoning, we do not 

address the PCRA court’s other legal conclusions within its Pa.R.A.P. 1925(a) 

opinion. See generally Commonwealth v. Doty, 48 A.3d 451, 456 (Pa. 

(Footnote Continued Next Page)
J-S90024-16

- 11 -

In the instant PCRA petition and his appellate brief, Appellant argues 

that he met the exception set forth in 42 Pa.C.S. § 9545(b)(1)(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”). See PCRA 

Pet., 8/28/13, at 7-11; Appellant’s Brief at 4. Appellant claims that “the 

factual predicate of his case was trial counsel’s abandonment by failing to 

file a direct appeal brief after having committed to do so.” Appellant’s Brief 

at 4. He asserts that his first PCRA petition, filed on or before August 11, 

2003, was filed within sixty days of his discovery (on June 8, 2003) of his 

abandonment by his trial counsel, and was therefore timely, and that his 

first PCRA counsel was ineffective for failing to investigate and assert 

Appellant’s exception to the time bar. Id. at 4-5. Appellant claims that he 

then failed to respond to the notice dismissing his first PCRA petition or to 

appeal the dismissal because he relied on the advice of a legal clerk at the 

prison law library. Id. at 5-6.16 The fact remains, however, that Appellant 

(Footnote Continued) _______________________

Super. 2012) (appellate court is “not bound by the rationale of the trial court 

and may affirm on any basis”) (citation omitted).

16 Appellant argues:

A pro se litigant and especially one like Appellant who is 

unable to navigate, comprehend, and articulate legal theories 

and procedures is dependent on the prison-provided legal 

assistance. An inmate legal clerk therefore, acts like a 

government representative tasked to provide critical legal 

guidance and assistance to indigent, illiterate, pro se litigants. 

(Footnote Continued Next Page)
J-S90024-16

- 12 -

withdrew his first PCRA petition, meaning that he could obtain no relief 

under it. Even if Appellant did so because of a legal clerk’s incorrect advice, 

and even if that advice somehow could be characterized as ineffective 

assistance of “counsel,” the fact remains that no viable petition remained to 

satisfy the 60-day requirement. 

Appellant further avers that appointed PCRA counsel on his second 

petition admitted that he was unable to diligently perform his job due to lack 

of funds, and was ineffective for failing to pursue the claim of his first PCRA 

counsel’s ineffectiveness. Appellant’s Brief at 6. Appellant then claims that 

following the dismissal of his second PCRA petition, his appointed appellate 

counsel was also ineffective for failing to pursue prior counsel’s 

ineffectiveness, and she even plagiarized part of previous PCRA counsel’s 

brief. Id. at 7. Appellant fails to allege, however, that he learned any of 

these alleged new facts within 60 days of filing his third PCRA petition. See 

42 Pa.C.S. § 9545(b)(1)(ii), (2) (a petition is timely if based upon facts 

previously unknown to the petitioner if filed within sixty days of the 

discovery of those facts).

(Footnote Continued) _______________________

Intentionally providing critical erroneous and misleading 

information resulting in waiver [of] claims and forfeiture of 

constitutional rights is a serious issue and violates a prisoner[’]s 

fundamental right of access to the courts.

Appellant’s Brief at 6.
J-S90024-16

- 13 -

Appellant concludes that he is entitled to relief because “[f]our courtappointed lawyers and one inmate paralegal had all abandoned, deceived or 

just plainly misrepresented him.” Appellant’s Brief at 7. Appellant relies 

heavily on Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), for the 

proposition that ineffective assistance of counsel can be an after-discovered 

“fact” falling within the second timeliness exception when counsel’s 

ineffectiveness was so deficient as to represent complete abandonment by 

counsel. But Appellant’s reliance on Bennett is misplaced. 

Generally, a claim of ineffectiveness does not constitute a “fact” for 

purposes of the timeliness exception allowed by 42 Pa.C.S. § 9545 (b)(1)(ii). 

See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785-86 (Pa. 

2000). Bennett established an exception to this principle: where counsel 

abandons a petitioner for purposes of appeal, and where the petitioner 

exercises due diligence in discovering the abandonment and files a petition 

within sixty days of that discovery, the petition will be considered timely. 

See 930 A.2d at 1272-74 (holding petition may be timely where PCRA 

counsel failed to file a brief on appeal, petitioner never received a copy of 

the Superior Court’s order dismissing his PCRA appeal for failure to file the 

brief, and petitioner filed a second petition within twenty-five days after 

learning of the dismissal). The Court in Bennett added that because “it is 

illogical to believe that a counsel that abandons his or her client for a 

requested appeal will inform his client that his case has been dismissed 
J-S90024-16

- 14 -

because of his own failures,” it should not be presumed that a prisoner is 

aware of the status of his own case, albeit a matter of public record. Id. at 

1274. 

Although Bennett establishes an exception to the normal rule that 

ineffectiveness of counsel is not a new fact, it remains essential for Appellant 

to establish that he discovered new facts giving rise to a claim under 

Bennett within sixty days of filing his third petition on August 28, 2013. 

Appellant has failed to establish any such discovery, and his claim therefore 

is untimely under Bennett. 

As Appellant failed to plead and prove any other timeliness exception, 

we discern no error by the PCRA court in dismissing Appellant’s third petition 

as untimely. See Ford, 44 A.3d at 1194.

Constitutionality of the PCRA Timeliness Requirements

In his second issue, Appellant claims that the time bar imposed by the 

PCRA is unconstitutional, as it infringes on his right to file a direct appeal 

under Article V, Section 9, of the Constitution of Pennsylvania and the Sixth 

and Fourteenth Amendments to the United States Constitution. Appellant’s 

Brief at 8. Appellant contends that “while there may be legislative limitations 

or judicial limitations on [] constitutional rights, such limitations must be 

reasonable,” id. (quoting Commonwealth v. Peterkin, 722 A.2d 638, 642 

(Pa. 1998)), and that the PCRA’s timeliness requirements are unreasonable 

as applied to Appellant, “since [they provide] a vehicle for where the state 
J-S90024-16

- 15 -

can pervert justice by foreclosing on petitioner’s constitutional rights, all in 

the name of finality.” Id. at 9. Appellant additionally argues that “the 

language of the PCRA is impermissibly vague, confusing, and contradictory, 

which has left it open to arbitrary interpretation and enforcement by the 

courts.” Id. at 10-11 (citing Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 

1999), and the dissent in Bennett).17

As Appellant himself acknowledges, the Supreme Court of 

Pennsylvania has already upheld the constitutionality of the time restrictions 

imposed by the PCRA. Appellant’s Brief at 9; see Peterkin, 722 A.2d at 

642-43 (holding that the time restrictions for filing PCRA petitions are 

constitutional); accord Commonwealth v. Fahy, 737 A.2d 214, 220 (Pa. 

1999). We thus conclude Appellant’s issue lacks merit. This Court has no 

authority to contradict the Supreme Court of Pennsylvania.

Based on the foregoing, we discern no error by the PCRA court in 

dismissing Appellant’s third untimely PCRA petition. See Ford, 44 A.3d at 

1194. We therefore affirm the PCRA court’s order denying Appellant postconviction relief.

Order affirmed.

____________________________________________

17 The PCRA court did not address this issue in its order dismissing 

Appellant’s PCRA petition or in the Rule 1925(a) opinion justifying its order.
J-S90024-16

- 16 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/21/2016