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

v.

NATHAN HOWARD DENEAU

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 491 MDA 2020 Appeal from the PCRA Order Entered February 10, 2020 In the Court of Common Pleas of Franklin County Criminal Division at

No(s): CP

- 28

- CR

- 0000853

- 2009

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E. * MEMORANDUM BY STEVENS, P.J.E.: F ILED: AUGUST 31, 2020

Appellant Nathan Howard Deneau appeals pro se from the Order entered on February 10, 2020, in the Court of Common Pleas of Franklin County dismissing as untimely his thir d petition filed pursuant to the Post Conviction Relief Act (PCRA)

. 1 We affirm. On February 9, 2010, following a jury trial, Appellant was convicted of one count each of Robbery and Theft by Unlawful Taking. 2 On March 17, 2010, Appellant was sentenced to an aggregate term of sixty

- six (6 6 ) months to one hundred forty

- four (1 44 ) months in prison

. On August 26, 2010, Appellant

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S.A. §§ 9541

- 9546. 2 18 Pa.C.S.A. §§ 3701(a)(1)(ii) and 3951(a), 901, respectively.J

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filed a n otice of a ppeal with this Court, and o n March 7, 2011, we a ffirmed his
convictions. Appellant did not seek review from the Pennsylvania Supreme
Court ; therefore, his conviction s became final on April 6, 2011. 3 Appellant filed his first PCRA petition on October 13, 2011 , and the PCRA
court denied the same on October 25, 2011. On December 19, 2011, Appellant filed a second PCRA petition . That petition was denied on September 18, 2012 , and this Court affirmed on July 16, 2013. A second petition followed on June 30, 2014, and subsequently was denied on September 10, 2014

. Appel l ant filed what he titled as a Motion to Modify Sentence on December 20, 2019, wherein he claimed his actual innocence in that no robbery occurred on April 22, 2009. The PCRA court treated this filing as a PCRA petition and issu ed its notice of its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907(1) on January 13, 2020 . Appellant filed his objection to the Notice on January 31, 2020, wherein he averred he
is innocent in that “ even though he has been ti me bared, there stands a gateway through which he can succe ssfully pass with his claim of ‘ actual innocence’ which is excused from the procedural bar of the statute of limitations under the miscarriage of justice exception. ” See Objection to

_________________ __________ ______ ____ _______ 3 Pa.R.A.P. 903(a) (notice of appeal shall be filed within thirty (30) days after the entry of the order from which the appeal is taken).J

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Intention to Dismiss, January 31, 2020, at 1

- 2 ¶ ¶ 1, 5. T he PCRA court denied Appellant’s motion in its Order entered on February 10, 2020. Appellant timely filed his Notice of Appeal. 4 The PCRA court did not order, and Appellant did not file, a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925. The part ies have filed appellate briefs; however , in violation of the Pennsylvania Rules of Appellate Procedure, Appellant does not present a clear statement of questions for this Court to consider in his pro se brief. As a prefatory matter, although this Court is willing to construe liberally materials filed by a pro se litigant, pro se status generally confers no special benefit upon an appellant . Accordingly, a pro se litigant must comply with the

_________________ __________ ______ ____ _______ 4 T he prisoner mailbox rule allows a pro se and incarcerated individual to have his or her appeal deemed “filed” on the date he or she deposits the appeal with prison authorities, and this Court may accept “any reasonably verifiable evidence” that such was the case

. Commonwealth v. Jones , 700 A.2d 423, 426 (Pa. 1997) Smith v. Pennsylvania Board of Probation and Parole , 683 A.2d 278 (Pa. 1996) . As Appellant is both pro se and incarcerated, he is a beneficiary of the prisoner mailbox rule

. The certified docket reflects that Appellant’s pro se notice of appeal was filed on March 16, 2020

. The record also indicates the Clerk of Court served Appellant with a copy of the Order on February 10, 2020. Thus, t he last date upon which a notice of appeal could have been timely filed was March 1 1 , 2020. See Pa.R.A.P. 108(a)(1) (day of entry of an order shall be the day the clerk of courts mails or delivers copies of the order to the parties); Pa.R.A.P. 903(a)

. Appellant ’s handwritten Order Appealing Decision is dated March 11, 2020 , and the notice was sent with a postage date of March 12, 2020. Therefore, we find the appeal was timely filed under the prisoner mailbox rule.J

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procedural rules set forth in the Pennsylvania Rules of the Court. T herefore,
t his Court may quash or dismiss an appeal if an appellant fails to co nform with the requirements set forth in the Pennsylvania Rules of Appellate Procedure. Commonwealth v. Lyons , 833 A.2d 245, 251

– 52 (Pa.Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005) (citations omitted) (emphasis added). Nevertheless, in the interest of justi ce we will address the argument that reasonably can be discerned from this defective brief. See id

. Essenti ally, Appellant asserts the surveillance video presented at trial as well as the “written record” evince that he committed no robbery , altho ugh the court refused to credit such evidence . Before we may consider the merit s of this claim, we must determine whether the instant PCRA petition was timely filed. Our standard of review for the dismissal of a PCRA petition is limited to “whether the r ecord supports the PCRA court’s determination and whether the
PCRA court’s decision is free of legal error.” Commonwealth v. Lawson , 90 A.3d 1, 4 (Pa. Super. 2014) (citation omitted). It is well

- settled that “the timeliness of a PCRA petition is a jurisdictional [pre

- ]requisite.” Commonwealth v. Brown , 111 A.3d 171, 175 (Pa. Super. 2015) (citation omitted). “A PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the underlying judgment b ecomes final.” Id. (citation omitted). A judgment is final “at the conclusion of direct review, including discretionary review in the Supreme Court of the United States andJ

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the Supreme Court of Pennsylvania, or at the expiration of time for seeking the re view.” Id. (quoting 42 Pa.C.S. A. § 9545(b)(3)). Courts may consider a PCRA petition filed more than one year after a judgment of sentence becomes final only if the petitioner pleads and proves one of the following three statutory exceptions: (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.
42 Pa.C.S. A. § 9545(b)(1)(i)

- (iii). A petition invoking any one of the exceptions “shall be filed within 60 days of the date the claim could have been presented.” 42 Pa.C.S. A. § 9545(b)(2). 5 Appellant has not attempted to ple a d, let alone prove, one of the aforementioned exceptions to the PCRA time bar. Moreo ver, he simply reiterates claim s he previously has , or could have , presented on direct appeal

_________________ __________ ______ ____ _______ 5 Until recently, a petition invoking an exception was required to be filed within sixty days of the date the claim could have been presented. However , 42 Pa.C.S. A. § 9545(b)(2) has been amended to allow petitioners one year to present claims

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or in a timely PCRA petition

. Because Appellant failed to plead and prove a statutory exception to the time bar, the PCRA court properly determined that his instant petition is untimely. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 0 8/31/2020