J-S76010-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL SIMPSON

Appellant No. 3749 EDA 2015

Appeal from the PCRA Order dated December 4, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-1106411-2005

BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED DECEMBER 30, 2016

Appellant Michael Simpson pro se appeals from the December 4, 2015 

order of the Court of Common Pleas of Philadelphia County (“PCRA court”), 

which dismissed as untimely Appellant’s request for collateral relief under 

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. For the 

reasons set forth below, we affirm. 

The facts and procedural history underlying this case are undisputed.1 

Briefly, following a jury trial, Appellant was convicted—for his role in the 

robbery and shooting of Kareem Frazier and Roy Williams—of two counts of 

aggravated assault, two counts of criminal conspiracy, attempted murder, 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 We need not recite the full facts giving rise to this appeal as they are not 

relevant for purposes of disposition. 
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carrying a firearm without a license, carrying a firearm on public streets or 

public property in Philadelphia, and possessing an instrument of crime. On 

September 7, 2007, Appellant was sentenced in absentia to an aggregate 

term of 20 to 40 years’ imprisonment. Appellant timely appealed to this 

Court. On August 28, 2008, a panel of this Court dismissed Appellant’s 

appeal because Appellant was and had remained a fugitive since the jury 

returned its verdicts. See Commonwealth v. Simpson, 961 A.2d 1283 

(Pa. Super. 2008). Appellant did not petition for allowance of appeal. As a 

result, Appellant’s sentence became final on September 27, 2008. In 

September 2009, Appellant was arrested and returned to custody.2 

On April 14, 2014, Appellant filed the instant PCRA petition, alleging 

that his trial counsel was ineffective for failing to inform him of the 

Commonwealth’s plea offer. In support of his petition, Appellant attached a 

document titled “Major Trials Unit Case Identification,” which shows a 

purported plea offer of 8 to 20 years’ imprisonment. Appellant alleged that 

he first learned of the plea offer on April 8, 2014, i.e., about one week prior 

to the filing of the instant petition, when he reviewed his case file. Following 

issuance of a Pa.R.Crim.P. 907 notice, the PCRA court dismissed as untimely 

Appellant’s PCRA petition on December 4, 2015. Appellant timely appealed 

to this Court. The PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b) 

____________________________________________

2 Appellant subsequently was unsuccessful in his pro se efforts to obtain 

nunc pro tunc reinstatement of his appellate rights. 
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statement of errors complained of on appeal. Appellant complied. In 

response, the PCRA court issued a Pa.R.A.P. 1925(a) opinion.

On appeal,3 Appellant argues only that the PCRA court erred in 

dismissing his petition “where Appellant filed his petition within 60 days of 

learning that the Commonwealth provided a plea offer prior to trial.” 

Appellant’s Brief at 5. 

As a threshold matter, we must determine whether the court erred in 

dismissing as untimely Appellant’s PCRA petition. The PCRA contains the 

following restrictions governing the timeliness of any PCRA petition. 

(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 

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3

“In PCRA proceedings, an appellate court’s scope of review is limited by the 

PCRA’s parameters; since most PCRA appeals involve mixed questions of 

fact and law, the standard of review is whether the PCRA court’s findings are 

supported by the record and free of legal error.” Commonwealth v. Pitts, 

981 A.2d 875, 878 (Pa. 2009) (citation omitted).
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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. 

(3) For purposes of this subchapter, a judgment 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.A. § 9545(b) (emphasis added). Section 9545’s timeliness 

provisions are jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 

2014). Additionally, we have emphasized repeatedly that “the PCRA confers 

no authority upon this Court to fashion ad hoc equitable exceptions to the 

PCRA time-bar in addition to those exceptions expressly delineated in the 

Act.” Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) 

(citations omitted).

Here, as stated earlier, the record reflects Appellant’s judgment of 

sentence became final on September 27, 2008. See 42 Pa.C.S.A. 

§ 9545(b)(3); Pa.R.A.P. 903(a). Because Appellant had one year from 

September 27, 2008 to file his PCRA petition, the current filing is facially 

untimely given it was filed on April 14, 2014.

The one-year time limitation, however, can be overcome if a petitioner 

alleges and proves one of the three exceptions set forth in Section 

9545(b)(1)(i)-(iii) of the PCRA. Here, Appellant concedes that the instant 

PCRA petition is untimely. He, however, alleges that he is entitled to relief 

under Section 9545(b)(1)(ii) because he learned of the pre-trial plea offer 
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for the first time on April 8, 2014 and filed the instant PRCA petition within 

60 days. As the PCRA court and the Commonwealth note, however, 

Appellant fails to plead and prove that the plea offer “could not have been 

ascertained by the exercise of due diligence” prior to April 8, 2008. See 42 

Pa.C.S.A. § 9545(b)(1)(ii). Specifically, considering Appellant was 

sentenced in 2007, Appellant does not explain why he failed to review his 

case file prior to April 8, 2014. Thus, because Appellant does not meet the 

due diligence requirement under Section 9545(b)(1)(ii), we conclude that 

the PCRA court did not err in dismissing as untimely his PCRA petition. 

Simply put, the PCRA court did not have jurisdiction to entertain it.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2016