J.S23045/16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

LARRY GUESS, :

:

Appellant :

: No. 3092 EDA 2015

Appeal from the PCRA Order September 30, 2015

in the Court of Common Pleas of Montgomery County Criminal Division

at No(s): CP-46-CR-0009813-2008

BEFORE: PANELLA, OTT, and FITZGERALD,*JJ.

JUDGMENT ORDER BY FITZGERALD, J.: FILED APRIL 14, 2016

Pro se Appellant, Larry Guess, appeals from the order dismissing as 

untimely1 his serial pro se petition filed pursuant to the Post Conviction 

Relief Act2(“PCRA”). Appellant claims that the petition was timely filed 

under the PCRA’s exception in 42 Pa.C.S. § 9545(b)(1)(iii), following the 

 

*

Former Justice specially assigned to the Superior Court.

1 We note that in the PCRA court’s September 30, 2015 order, the court 

states that it is dismissing the PCRA petition for the reasons set forth in its 

August 31, 2015 order. The August 31st filing was the notice of intent to 

dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. 

In the notice, the court determined that the petition was untimely. The 

PCRA court refers to the instant petition as Appellant’s second petition. 

However, the court corrects this error in the September 30th order, 

indicating that it is dismissing Appellant’s third PCRA petition. See Order, 

9/30/2015. Appellant filed his first PCRA petition on June 9, 2011. The 

second PCRA petition was filed on May 16, 2013 and the instant PCRA 

petition on August 13, 2015.

 

2 42 Pa.C.S. §§ 9541-9546.
J.S23045/16 

- 2 -

decision of the United States Supreme Court in Johnson v. United States, 

135 S. Ct. 2551 (2015). We affirm.

We adopt the facts and procedural history set forth in the PCRA court’s 

opinion. See PCRA Ct. Op., 11/24/15, at 1-5. Appellant filed a court 

ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The 

PCRA court filed a responsive opinion.

After a careful review of the parties’ arguments, the record, and the 

decision of the Honorable Steven T. O’Neill, we affirm on the basis of the 

PCRA court’s opinion. See id. at 5-9 (holding Appellant failed to timely file 

instant petition and invoke exception to PCRA time-bar; Johnson not 

retroactive; Appellant not sentenced under federal statute).3 Having 

discerned no abuse of discretion or error of law, we affirm the order below. 

See Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267-68 (Pa. 2008).

Order affirmed. 

 

3 We note that the PCRA court stated that Appellant “had one year, until 

August 5, 2012 . . . to file for [PCRA] review.” Id. at 7. However, August 

5th fell on a Sunday. Therefore, Appellant had until August 6, 2012 to file 

for PCRA review. See 1 Pa.C.S. § 1908 (providing that when last day of any 

period of time referred to in any statute falls on Saturday, Sunday or legal 

holiday, such day shall be omitted from computation); In re Nomination 

Papers of Lahr, 842 A.2d 327, 333 n.6 (Pa. 2004) (“The courts have 

generally employed Section 1908 in circumstances that require counting 

forward[,]” including Rules of Criminal Procedure).
J.S23045/16 

- 3 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/2016
As Krupka walked down the hallway toward the door, he 

heard the doorknob "jingle" and saw "pressure being put on the 

door like someone was trying to elbow - like pry their way into the 

door." (N.T., 11/04/09, p. 78) Believing someone was trying to get 

into the apartment, Krupka ran back into his bedroom and 

grabbed a baseball bat. (N.T., 11/04/09, p. 79) He then stood 

away from the door and watched as it shook for about 10 to 15 

seconds. (N.T., 11/04/09, p. 79) 

On August 28, 2008, Brandon Krupka was a resident of 

apartment M-101 at Wissahickon Apartments, 757 East Main 

Street, Lansdale, Montgomery County. (N.T., 11 /04 /09, p. 77) At 

approximately 12:22 p.m., while lying in bed watching television, 

he heard a knock at the front door, which was secured with a 

doorknob lock and deadbolt. (N.T., 11/04/09, pp. 77, 79) 

Superior Court on March 30, 2012 and November 12, 2013 as follows: 

The relevant facts were set forth by this Court's Opinions written to the 

I. FACTS AND PROCEDURAL HISTORY 

affirmed. 

without a hearing. For the reasons set forth below, the Order should be 

30, 2015, dismissing his third Post Conviction Relief Act ("PCRA") Petition 

Defendant, Larry Guess, appeals pro se from the Order dated September 

f's) 

O'NEILL, J, NOVEMBERl...>, 2015°.' 

OPINION 1.0 

LARRY GUESS 

f') . ' ; 

t. s v. 

COMMONWEALTH OF No. 9813-08 

PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, 

PENNSYLVANIA 

CRIMINAL DIVISION 

(I) 

Circulated 03/24/2016 02:53 PM
2 

From inside his vehicle, Detective DiBonaventura identified 

himself as being with the Lansdale Police Department, and 

inquired of the two men whether [they] lived at the apartment. 

They responded that they did not live there, but were on the 

premises to visit a friend. (N.T., 11/04/09, p. 107) The two men 

were not able, however, to identify any friend living at the 

apartment complex. (N.T., 11/04/09, p. 108) 

Detective DiBonaventura positioned himself outside "M" 

building near his unmarked vehicle and a marked police cruiser 

while three uniformed officers went inside the building. Moments 

later Detective DiBonaventura saw two black males coming from a 

grassy area between buildings "M" and "N." (N.T., 11/04/09, pp. 

102, 105) Both men had on white t-shirts, and one of the men had 

a dark jacket. (N.T., 11/04/09, p. 102) The men began to walk 

away "rapidly," looking back frequently in the direction of Detective 

DiBonaventura and ''M" building. (N.T., 11/04/09, pp. 103-104) 

Detective DiBonaventura then drove his vehicle across the parking 

lot toward the suspects. 

Within 10 minutes of the call, Lansdale police, including 

plain-clothes Detective Justin DiBonaventura, responded to a 

report of a burglary in progress at the apartment complex. (N.T., 

11/04/09, pp. 88, 99) The suspects were described in the report 

as two black males, one wearing a white t-shirt, and the other 

wearing a black jacket. (N.T., 11/04/09, p. 99) They reportedly 

had last been seen in the area of the "M" building. (N.T., 

11/04 /09, p. 99) 

Continuing to look through the peephole, Krupka observed 

the two males knocking on doors, turning the knobs and trying to 

"nudge" their way into other apartments. (N.T., 11/04/09, pp. 80- 

81) In all, Krupka observed the two males unsuccessfully attempt 

to gain access to at least three other apartments. Krupka 

telephoned 911 after he saw the two men attempt to enter the third 

apartment. (N.T., 11/04/09, p. 85) 

!Jl 

Once the shaking stopped, Krupka walked to the door and 

looked out the peephole. From that vantage point, he could hear 

the same activity occurring at the apartment next door. (N.T., 

11 / 04 / 09, p. 80) He then saw two black males in the hallway 

walk away from the next door apartment. Krupka observed one of 

the males wearing a white t-shirt, and the other wearing a black 

jacket. (N.T., 11 /04 /09, pp. 80, 84, 96) 
3 

Defendant filed a direct appeal to the Superior Court on 

February 4, 2010. The Superior Court affirmed the judgment of 

sentence on December 2, 2010, and our Supreme Court denied a 

Petition for Allowance of Appeal on May 5, 2011. 

On November 5, 2009, the jury found Defendant guilty of all 

charges, with the exception of the offense of Identity Theft, which 

this court had dismissed at the close of the evidence. On January 

15, 2010, this court sentenced Defendant to a term of 25 to 50 

years imprisonment. Defendant, through trial counsel, filed a 

timely post-sentence motion, attacking the sufficiency and weight 

of the evidence produced by the Commonwealth. This court denied 

the post-sentence motion in an Order dated January 25, 2010. 

Kumar, who lived in apartment M-204 on the day in 

question, and whose credit card Defendant had dropped, also 

testified at trial. He stated that he was at work around the time of 

the incident. (N.T., 11/04/09, p. 128) Prior to leaving his 

apartment that morning, he locked the door by using the doorknob 

lock only, as was his habit, and not with the deadbolt. He had not 

given anyone permission to be in his apartment. (N.T., 11/04/09, 

pp. 128, 137) The credit card dropped by Defendant was one 

Kumar did not regularly use, but kept in a drawer in his bedroom. 

(N.T., 11/04/09, p. 134) 

At a jury trial that commenced on November 4, 2009, 

Defendant stood accused of Burglary (Apt. M-204), Criminal 

Conspiracy (Burglary), Criminal Attempt (Burglary - Apt. M-101), 

Possession of an Instrument of Crime (Plastic Hotel Placards), 

Criminal Trespass (Apt. M-204), Theft by Unlawful Taking (Credit 

Card of Ramana Kumar), Identity Theft and Receiving Stolen 

Property (Credit Card of Ramana Kumar). Krupka and Detective 

DiBonaventura testified to the previously detailed events. 

After Defendant dropped the credit card, both men were 

patted down. (N.T., 11/04 /09, p. 111) The police retrieved various 

pieces of jewelry from Defendant's pockets. (N.T., 11/04/09, pp. 

111-112) Defendant and the other male, Kevin Jordan, 

subsequently were arrested. 

Detective DiBonaventura eventually exited his vehicle and 

asked the men if he could speak with them. During this 

interaction, Defendant dropped a credit card. (N.T., 11/04/09, p. 

109) Detective DiBonaventura retrieved the card, which bore the 

name Ramana Kumar. 
4 

alleging a constitutional violation. After a review of the record, on August 31, 

On or about August 13, 2015, the Defendant filed a third PCRA petition 

the time bar. 

petition, finding that it was untimely filed and did not satisfy any exception to 

2014, the Superior Court affirmed the dismissal of the Defendant's second 

The Defendant appealed the dismissal of his second petition. On July 3, 

Trial Court Opinion, 11/ 13/ 13 pp. 1-4 (quoting Trial Court Opinion, 3/30/ 12 

pp. 1-5) (footnotes omitted)). 

Thereafter, on September 13, 2012, the Superior Court affirmed 

the trial court's denial of Defendant's first petition pursuant to the Post 

Conviction Relief Act. Defendant filed a prose second PCRA petition on 

May 16, 2013. After a review of the record, this Court sent Defendant a 

Notice of its intent to dismiss his PCRA petition without a hearing. 

Defendant filed a response to the Notice on July 11, 2013 in the form of a 

"Petitioner Motion for Reconsideration." Subsequently, on August 19, 

2013, this Court denied the PCRA petition without a hearing. 

On February 2, 2012, PCRA counsel filed a timely Notice of 

Appeal with the Superior Court. This court then held a Grazier 

hearing on February 13, 2012, at the conclusion of which 

Defendant stated his desire to continue to proceed on appeal with 

counsel. Defendant, through counsel, subsequently complied with 

this court's directive that he produce a statement of errors in 

conformance with Pennsylvania Rule of Appellate Procedure 

1925(b). 

After a hearing, this court denied the Amended Petition in an 

Order dated January 9, 2012. On January 23, 2012, PCRA 

counsel filed a Petition to Withdraw. This court issued an Order 

dated January 25, 2012, holding in abeyance a decision on the 

Petition pending the filing of a Notice of Appeal and a Grazier 

hearing to determine whether Defendant wanted to proceed on 

appeal without counsel. 

On June 9, 2011, Defendant filed a pro se Motion for PostConviction Collateral Relief. This court subsequently appointed 

Ethan O'Shea, Esquire to serve as PCRA counsel. Defendant, 

through counsel, filed an Amended Petition for Post-Conviction 

Relief on December 28, 2011. 

1 ·• 

(Ii 

O) 
Additionally, 42 Pa.C.S. §9545(b)(l) dictates that any PCRA petition shall 

5 

support either in the record or from other evidence. Id. 

be denied if a petitioner's claim is patently frivolous and is without a trace of 

(citing Commonwealth v. Box, 451 A.2d 252 (Pa. Super. 1982)). A hearing may 

absolute." Commonwealth v. Granberry, 644 A.2d 204, 208 (Pa. Super. 1994) 

"[tjhe right to an evidentiary hearing on a post-conviction petition is not 

would be served by any further proceedings. Pa.R.Crim.P. 907. Furthermore, 

defendant is not entitled to post-conviction collateral relief, and no purpose 

hearing when there are no genuine issues concerning any material fact, the 

A petition for post-conviction collateral relief may be dismissed without a 

III. DISCUSSION 

1. With regards to the instant appeal[,]Appellant argues that 

recent United States Supreme Court ruling in Johnson v. 

United States, holds that the residual clause is 

unconstitutional for three prior conviction(sic) for a violent 

felony under which appellant is sentenced. The above said 

case applies retroactively which enables appellant to over 

come (sic) the one-year time limitation set forth by 42 

Pa.C.S.A. (b)( 1) andl.] therefore[,] appellant contends that his 

claim under the new holding should have been consider[ed] 

on its merits in the courts below. 

Defendant raises the following issue in his Concise Statement: 

II. ISSUES 

Defendant has since complied with this directive. 

ordered the Defendant to produce a Concise Statement of Errors; the 

Defendant's petition. This appeal followed. On October 14, 2015, this Court 

without a hearing. By Order of September 30, 2015, this Court dismissed the 

2015, this Court sent the Defendant a notice of intent to dismiss his petition 
6 

2011, after he did not seek certiorari within ninety days pursuant to United 

on May 5, 2011. Therefore, Defendant's judgment became final on August 5, 

affirmed, and the Supreme Court of Pennsylvania denied discretionary review 

convicted and then sentenced on January 15, 2010. The Superior Court 

Commonwealth v. Banks, 726 A.2d 374, 375 (Pa. 1999). Defendant was 

under the PCRA begins to run upon the conclusion of direct review. 

Pursuant to §9545(b)(3), the one-year period in which to file a petition 

authority to address the substantive claims. Id. 

522 (Pa. Super. 2006)). Moreover, without jurisdiction, there is no legal 

1280-81 (Pa. Super. 2013) (citing Commonwealth v. Chester, 895 A.2d 520, 

has jurisdiction over the petition." Commonwealth v. Lewis, 63 A.3d 1274, 

PCRA petition is untimely, neither [the Superior) Court nor the [PCRA] court 

"The PCRA's time restrictions are jurisdictional in nature. Thus, if a 

(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. 

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 

(ii) 

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; 

(i) 

petition alleges and the petitioner proves that: 

be filed within one year of the date the judgment becomes final, unless the 

()) 
7 

U.S.C.A. §925(e}(2)(B)(ii)(emphasis added). The Court found that the italicized 

conduct that presents a serious potential risk of physical injury to another." 18 

"burglary, arson, extortion, involves the use of explosives, or otherwise involves 

rights. Id. The residual clause of the ACCA defines "violent felony" as 

unconstitutionally vague and therefore violative of Johnson's due process 

Armed Career Criminal Act's ("ACCA") definition of "violent felony'' was 

In Johnson, the Supreme Court held that that residual clause of the 

Commonwealth v. Abdul-Salaam, 571 Pa. 219, 227, 812 A.2d 497, 501 (2002)). 

Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007)(quoting 

petitioner can assert retroactive application of the right in a PCRA petition." 

have also ruled on the retroactivity of the new constitutional right, before the 

that court to apply retroactively' means the court announcing the rule must 

have stated, "for purposes of subsection (iii), the language 'has been held by 

satisfied an exception to the time bar. He is mistaken. Pennsylvania courts 

135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), to support his claim that he has 

found in §9545(b)(l)(iii). The Defendant relies on Johnson v. United States, 

met, it appears from his filings that he is attempting to satisfy the exception 

While the Defendant does not specify which exception he believes he has 

court can review his substantive claims. 

limitation. Therefore, he must satisfy one of the time-bar exceptions before this 

Petition was filed August 13, 2015, approximately three years beyond the time 

per §9545(b)(l), to file for Post Conviction Relief Act review. The instant, third 

States Supreme Court Rule 13. He then had one year, until August 5, 2012, 

U1 

~· •1' 
8 

Because his second PCRA petition is untimely and he has failed to 

constitute "crimes of violence," he is not entitled to relief based on Johnson. 

creates no uncertainty about whether the crimes committed by the Defendant 

violence in §9714(g). Id. at 29. Therefore, because the Pennsylvania statute 

a prior conviction for robbery, which is also one of the enumerated crimes of 

violence. N.T., 1/ 15/ 10 pg. 28. This Court also found that the Defendant had 

the Defendant had a prior conviction for murder, which is clearly a crime of 

mandatory minimum sentence for a third strike offender, this Court found that 

present, which is one of the enumerated crimes in §9714(g). In imposing a 

Instantly, the Defendant was convicted of attempted burglary, with a person 

list of clearly enumerated crimes of violence. 42 Pa. C.S.A. §9714(g). 

to be unconstitutional, does not contain similarly vague language, but rather a 

statute under which the Defendant was sentenced, which has not been found 

Defendant was not sentenced under this federal statute. The Pennsylvania 

Furthermore, even if Johnson is found to apply retroactively, the 

jurisdiction to address the merits of his claim. 

the exception to the time bar found in §9545(b)(l)(iii) and the Court is without 

ul Circuit has yet to address this issue. Therefore, the Defendant cannot satisfy 

did not address the retroactive application of their holding and the Third 

Johnson, 135 S.Ct. at 2563 (emphasis added). However, the Supreme Court 

enumerated offenses, or the remainder of the Act's definition of a violent [eloruj." 

decision does not call into question the application of the Act to the four 

language "violates the Constitution's guarantee of due process ... Today's 

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9 

Copies mailed on iJ /.;Jt.f./tS 

to the following: 

Robert Falin, Esq. (District Attorney's Office) 

La Gues~I Somerset, 1600 Walters Mill Rd. Somerset, PA 15510-0001 

BY THE COURT: 

Based upon the foregoing, the Order should be affirmed 

IV. CONCLUSION 

i'<'l without a hearing. 

i,i~ 

unnecessary. Therefore, the court did not err in denying Defendant's petition 

claim is meritless and an evidentiary hearing would have been frivolous and 

jurisdiction to address the substantive claims raised therein. Defendant's 

establish that any exceptions to the time-bar apply, this Court does not have