J-S45023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

GREGORY THOMAS 

 Appellant No. 1601 EDA 2013 

Appeal from the PCRA Order of May 13, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at Nos.: CP-51-CR-0316801-1989 

 CP-51-CR-0820411-1990 

BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

 

MEMORANDUM BY WECHT, J.: FILED AUGUST 08, 2014 

 Gregory Thomas appeals pro se from the May 13, 2013 order 

dismissing his fifth petition for relief under the Post-Conviction Relief Act 

(“PCRA”), 42 Pa.C.S. §§ 9541-46. We affirm. 

Because we find that we may not review Thomas’ PCRA petition on the 

merits, we need not review the factual history of this case. The trial court 

has provided the following account of the case’s procedural history:

[Thomas] was found guilty of [two counts of] murder[1

] and 

related offensives [sic] stemming from the murders of Tom 

____________________________________________ 

*

 Former Justice specially assigned to the Superior Court. 

1

 18 Pa.C.S. §§ 2502(a) (first degree) and 2502(b) (second degree), 

respectively. 
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Corley and Clyde Henley, which occurred on November 28, 1988. 

Following [Thomas’] guilty verdict on June 13, 1991, an 

evidentiary hearing was held with regard to [Thomas’] claims of 

ineffective assistance of trial counsel. On September 13, 1991, 

[Thomas’] post-trial motions were denied. On December 13, 

1991, [Thomas] was sentenced to two concurrent life sentences 

for the two murder convictions. [Thomas] was also sentenced to 

[one to two] years for aggravated assault,[2

] [two to four] years 

for criminal conspiracy,[3] [ten to twenty] years for robbery, [4] 

[five to ten] years for robbery, [one to two] years for possession 

of an instrument of crime,[5] and [one to two] years for 

possession of an instrument of crime to run consecutive[ly] to 

the life sentence but concurrent[ly] with each other.[6] 

[Thomas] timely filed a Notice of Appeal, and on November 4, 

1992, the Superior Court vacated the sentence for aggravated 

assault and the matter was remanded for the imposition of 

sentence [for] simple assault.[7] Allowance of Appeal was 

sought, but the Supreme Court of Pennsylvania denied 

[Thomas’] appeal on April 6, 1993.[8] 

On January 15, 1997, [Thomas] filed his first PCRA petition, 

which [the PRCA court] dismissed on April 20, 1998. [Thomas] 

appealed this decision to the Pennsylvania Superior Court, which 

affirmed the decision to dismiss [Thomas’] post-conviction 

____________________________________________ 

2

 18 Pa.C.S. § 2702(a)(1). 

3

 18 Pa.C.S. § 903.

4

 18 Pa.C.S. § 3701.

5

 18 Pa.C.S. § 907(a). 

6

 Thomas was convicted on two separate counts of robbery and two 

counts of possession of a criminal instrument. 

7

 Commonwealth v. Thomas, 620 A.2d 1238 (Pa. Super. 1992) 

(table). 

8

 Commonwealth v. Thomas, 626 A.2d 1157 (Pa. 1993). 
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petition on August 13, 1999.[9

] On July 31, 2002, [Thomas] 

filed his second pro se PCRA petition. On March 19, 2003, [the 

PRCA court] dismissed [Thomas’] petition as frivolous. 

[Thomas] appealed that decision to the Superior Court, which 

affirmed the decision of [the PRCA court] by Order dated March 

16, 2004.[10] On March 3, 2009, [the PRCA court] dismissed 

[Thomas’] third pro se PCRA petition, originally filed on February 

9, 2009. [Thomas] appealed and, again, the Pennsylvania 

Superior Court affirmed the dismissal of [Thomas’] PCRA 

petition.[11] [Thomas] appealed that affirma[nce] to the 

Pennsylvania Supreme Court[,] but that appeal was denied on 

April 4, 2011.[12] 

One week later, [Thomas] filed his fourth pro se PCRA petition 

on April 11, 2011. [The PRCA court] dismissed the petition on 

November 30, 2011. [Thomas] did not appeal that denial. 

Instead, on April [4], 2012,[13] [Thomas] filed his fifth pro se

PCRA petition[,] which was denied [as] untimely on May 13, 

2013.[14] [Thomas] now appeals that denial. 

PCRA Court Opinion (“P.C.O.”), 7/2/2013, at 1-2.15

____________________________________________ 

9

 Commonwealth v. Thomas, 745 A.2d 47 (Pa. Super. 1999) (table). 

10

 Commonwealth v. Thomas, 1139 EDA 2003 (Pa. Super 2003). 

11

 Commonwealth v. Thomas, 912 EDA 2009 (Pa. Super 2009). 

12

 Commonwealth v. Thomas, 20 A.3d 487 (Pa. 2011). 

13 The trial court incorrectly stated in its facts and procedural history that 

Appellant filed his fifth pro se petition on April 16, 2012, but correctly stated 

in its legal analysis that Thomas filed the petition on April 4, 2012. See

P.C.O at 2, 4. 

14 It is not clear from the record why the PCRA court delayed for over a 

year before dismissing Thomas’ petition.

15 The trial court did not order Thomas to file a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Without the 

(Footnote Continued Next Page) 
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 Thomas raises the following issues, reproduced verbatim and with all 

typographical errors preserved, for our review.16

 

1. WHETHER, under state law ineffective-assistance-counsel 

claims must be raised in an initial-review collateral 

proceeding, a procedural default will not bar States High 

Courts from hearing those claims if, in the initial-review 

collateral proceeding, there was no counsel or counsel in that 

proceeding was ineffective. by the Bedrock Principal. 

2. WHETHER, the Appeals Court will agree with limited 

circumstances recognized by the Federal Courts that the 

Antiterrorism And Effective Death Penalty Act of 1996 does 

not bar Thomas or speak to the questions presented here. 

3. WHETHER Thomas attorney abandonment in his first 

collateral proceeding was ineffective (Tariq Shabazz) and 

whether his ineffective-assistance-at trial claim is substantial, 

as well as the question of prejudice, are questions that 

remain open for a decision on remand. 

4. WHETHER, Petitioner’s newly discovered evidence meets the 

60 day rule. 

5. Whether. an appeal court may excuse a procedural default of 

an ineffective claim when the claim was not properly 

preserved and presented in the lower/district court due to an 

attorney errors in an initial-review collateral proceeding. 

6. WHETHER, the State refusal to turn over all notes/documents 

Detective interview notes concerning Raymond Bullock who

the State claim commented the murders Violates Brady 

evidence. And the Initial Statement of star witness Arthur 

Smith 

(Footnote Continued) _______________________ 

benefit of such a statement, on July 2, 2013, the trial court filed its opinion 

pursuant to Rule 1925(a). 

16

 The trial court points out that Thomas’ fifth pro se PCRA petition is 

identical to Thomas’ fourth pro se PCRA petition, which was filed on April 11, 

2011, and dismissed by the trial court on November 30, 2011. P.C.O. at 2. 
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Brief for Thomas at 6-7.

Like the trial court, we begin by reviewing our jurisdiction to consider 

Thomas’ petition. It is well-established that the PCRA time limits are 

jurisdictional, and must be construed strictly, regardless of the potential 

merit of the claims asserted. Commonwealth v. Leggett, 16 A.3d 1144, 

1145 (Pa. Super. 2011); Commonwealth v. Murray, 753 A.2d 201, 202-

03 (Pa. 2000), abrogated on other grounds by Commonwealth v. Brown, 

943 A.2d 264 (Pa. 2008). “[N]o court may properly disregard or alter [these 

filing requirements] in order to reach the merits of the claims raised in a 

PCRA petition that is filed in an untimely manner.” Murray, 753 A.2d at 

203.

A petition under the PCRA must be filed within one year of the date 

that the underlying judgment of sentence 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 

the time for seeking review.” 42 Pa.C.S. § 9545(b)(3). In the instant case, 

this Court affirmed Thomas’ judgment of sentence on November 4, 1992. 

On April 6, 1993, the Pennsylvania Supreme Court denied Thomas’ 

allowance of appeal. Thomas’ right to appeal to the United States Supreme 

Court, which he did not do, expired ninety days later. See U.S.Sup.Ct.R. 

13(1). Thus, his judgment became final for purposes of the PCRA on or 

about July 5, 1993. Consequently, under section 9545, Thomas had until 
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July 5, 1994 to file a timely PCRA petition, unless he alleged one of the 

exceptions enumerated in section 9545(b)(1). The instant petition, 

however, was filed on April 4, 2012, more than seventeen years after the 

expiration of the one-year period. Therefore, the petition is untimely on its 

face. 

Despite facial untimeliness, a tardy PCRA petition nonetheless will be 

considered timely if (but only if) the petitioner pleads and proves one of the 

three exceptions to the one-year time limit enumerated in 

subsection 9545(b) of the PCRA, which provides as follows: 

(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. 
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42 Pa.C.S. § 9545(b). When an appellant files a facially untimely petition 

under the PCRA, and fails to plead and prove one or more of the exceptions 

to the PCRA’s one-year jurisdictional time limit, the petition is untimely and 

we must deny the appellant relief. Commonwealth v. Gamboa-Taylor, 

753 A.2d 780, 784 (Pa. 2000). Moreover, even when one of the exceptions 

may apply to a given petition, we will excuse the untimeliness only if the 

petition was filed within sixty days of the date that the conditions underlying 

the exception came to light. 42 Pa.C.S. § 9545(b)(2); Gamboa-Taylor, 

753 A.2d at 783-84. 

Thomas does not argue that any of the exceptions to the one-year rule 

apply. Rather, he proceeds directly to assert various poorly developed 

claims of ineffective assistance primarily with respect to trial counsel, claims 

he has litigated unsuccessfully before. To prevail on an ineffective 

assistance of counsel (“IAC”) claim raised under the PCRA, a petitioner must 

plead and prove by a preponderance of the evidence that counsel’s 

ineffectiveness “so undermined the truth determining process that no 

reliable adjudication of guilt or innocence could have taken place.” 42 

Pa.C.S.A. § 9543(a)(2)(ii). In order to obtain relief on an IAC claim, the 

petitioner must satisfy a three-prong test set forth by our Supreme Court, 

and must do so by a preponderance of the evidence. 

[I]n order to obtain relief based on [an IAC] claim, a petitioner 

must establish: (1) the underlying claim has arguable merit; 

(2) no reasonable basis existed for counsel’s actions or failure to 

act; and (3) petitioner suffered prejudice as a result of counsel's 
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error such that there is a reasonable probability that the result of 

the proceeding would have been different absent such error. 

Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2009) (citing 

Commonwealth v. (Charles) Pierce, 527 A.2d 973, 975 (Pa. 1987)). 

The petitioner bears the burden of proving all three prongs of this test. 

Commonwealth v. Meadows, 787 A.2d 312, 319-20 (Pa. 2001). “Counsel 

is presumed to be effective[,] and Appellant has the burden of proving 

otherwise.” Commonwealth v. Holloway, 739 A.2d 1039, 1044 (Pa. 

1999). Finally, an IAC claim will be denied if the petitioner fails to meet any 

one of the three prongs. Commonwealth v. (Michael) Pierce, 786 A.2d 

203, 221-22 (Pa. 2001), abrogated on other grounds by Commonwealth v. 

Grant, 813 A.2d 726 (Pa. 2002). 

 It is well-established that a claim of ineffective assistance of counsel 

does not save an otherwise untimely PRCA petition. Commonwealth v. 

Pursell, 749 A.2d 911, 915-16 (Pa. 2000) (citing Commonwealth v. 

Beasley, 741 A.2d 1258, 1260 (Pa. 1999); Commonwealth v. Yarris, 731 

A.2d 581, 586 (Pa. 1999)). This is true even when the allegations of IAC are 

claimed to have contributed to the untimeliness of the petition, see id., 

although Thomas raises no such argument. Thus, notwithstanding Thomas’ 

IAC claims, he can establish his right to relief only by pleading and proving 

that one of the timeliness exceptions applies. However, Thomas does not 

cite any of the three enumerated exceptions to the PCRA’s one-year 

jurisdictional time limit. Furthermore, he does not argue that he filed the 
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instant petition within sixty days of the date upon which he discovered facts 

establishing any of his IAC claims.17 Indeed, he provides no discussion 

whatsoever regarding his petition’s timeliness. Consequently, Thomas’ fifth 

PCRA petition is untimely. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/8/2014 

 

____________________________________________ 

17 Although, as set forth supra, Thomas includes (as question presented 

number four) a contention that his petition satisfied the sixty-day rule, 

nothing appears in his argument to substantiate that claim.