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

v.

RASUL YOUNG

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

PENNSYLVANIA

No. 1738 EDA 2022 Appeal from the PCRA Order Entered June 9, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0004605

- 2008

BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J. MEMORANDUM BY NICHOLS, J.: FILED MARCH 7, 2023 Appellant Rasul Young appeals pro se from the order dismissing his
second petition filed pursuant to the Post Conviction Relief Act 1 (PCRA) as untimely. Appellant contends that his trial counsel w as ineffective. We affirm.
The PCRA court summarized the relevant facts and procedural history of this matter as follows: This case stems from a robbery which took place on March 16, 2008. On August 4, 2009, following a jury trial before the Honorable Denis P. Cohen of the Court o f Common Pleas, [Appellant] was convicted of the following charges: r obbery, r obbery of a m otor v ehicle, [two counts of criminal conspiracy] , and u nauthorized u se of a m otor v ehicle. [ 2 ] [Appellant] was sentenced to [an aggregate term of] ten to twenty ye ars ’ incarceration.

_________________ __________ ______ ____ _______
1 42 Pa.C.S. §§ 9541

- 9546.

2 18 Pa.C.S. § § 3701(a)(1)(v) , 3702 , 903 , and 3928 , respectively.J

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[Appellant] timely filed an appeal [of] his sentence. On March 13, 2011, the Superior Court affirmed the judgment of sentence [, and Appellant ’ s petition for allowance of appeal] was denied by the [Pennsylvania] Supreme Court on October 13, 2011. [ See Commonwealth v. Young , 821 EDA 2010 (Pa. Super. filed May 13, 2011) ( Young I ) (unpublished mem.), appeal denied , 357 EAL 2011 (Pa. filed Oct. 13, 2011) ( Young II )

. ] On April 15, 2011, [Appellant] filed his first pr o se PCRA Petition. Counsel filed a [ Turner

/] Finl ey [ 3 ] letter on September 17, 2014. [ 4 ] On February 10, 2015, this c ourt denied [Appellant ’ s] PCRA [petition]

. On [November] 30, 2020, [Appellant] filed [the instant pro se ] PCRA [petition]

. On June 23, 2021, the Commonwealth filed a m otion to d ismiss. On February 16, 2022, this c ourt filed a [Pa.R.Crim.P.] 907 n otice of [intent to dismiss] to the instant PCRA [petition] for untimeliness. This c ourt formally dismissed [Appellant ’ s] PCRA [petition] o n June 9, 2022.
PCRA Ct. Op., 8/19/22 , at 1

- 2 (some formatting altered)

. Appellant filed a timely pro se appeal on June 29, 2022

. 5 On July 22, 2022, th e PCRA court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) . Appellant ’ s Rule

_________________ __________ ______ ____ _______ 3 See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988) ( setting forth the requirements for appointed counsel to withdraw from representation on collateral review) ; Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ) (same).

4 The record reflects that the PCRA court granted Appellant’s PCRA counsel ’s request to withdraw on January 30, 2015. See Cert ified Rec ord at Docket Entry 154.

5 We note that on May 14, 2021, Appellant filed a pro se request for the PCRA court to appoint counsel , and the PCRA court denied Appellant’s request

. Order, 6/16/21. Appellant subsequently filed his pro se appellate brief in this Court on September 29, 2022. On September 30, 2022, Appellant filed a motion in the Court for the appointment of counsel. On October 24, 2022, this Court denied Appellant’s motion. See Ord er, 10/24/22 (citing Commonwealth v. Maple , 559 A.2d 953 (Pa. Super. 1989) (providing that the appointment of counsel after original PCRA counsel has been permitted to withdraw under Turner / Finley is unnecessary and improper).J

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1925(b) statement was due on or before August 11, 2022. Appellant failed to comply and did not file a Rule 1925(b) statement. On August 19, 2022, the
PC RA court filed its Rule 1925(a) opinion concluding that Appellant waived a ll issues on appeal. See PCRA Ct. Op., 8/19/22, at 2

- 3 (citations omitted)

. On appeal, Appellant contends that counsel at his preliminary hearing
and trial w as ineffective for failing to challenge his identification as the perpetrator of the crimes

. 6 See Appellant ’ s Brief at 2. Appellant argues that
this renders his conviction void

. See id. Our review of the denial of PCRA relief is limited to “ whether the record 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) (citations omitted). “ The PCRA court ’ s credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court ’ s legal
conclusions. ” Commonwealth v. Mitchell , 105 A.3d 1257, 1265 (Pa. 2014) (citation omitted).
The “ PCRA ’ s timing provisions as jurisdictional in nature, and no court may entertain an untimely PCRA petition. ” Commonwealth v. Small , 238 A.3d 1267, 1280 (Pa. 2020) (citations omitted). “ A PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the

_________________ __________ ______ ____ _______ 6 The record reflects that Michael Farrell, Esq., represented Appellant at his preliminary hear ing and at trial. See Letter of Appointment, 3/ 17 /08 ; see also N.T., 7/29/09

– 8/4/09

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underlying judgment becomes final. ” Commonwealth v. Valentine , 928 A.2d 346, 348 (Pa. Super. 2007) (citations omitted). “ 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 review. ’” Id. (quoting 42 Pa.C.S. § 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 officials7 with the presentation of the claim in violation of the Constitution or l aws 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. § 9545(b)(1)(i)

- (iii). It is the PCRA petitioner ’ s “ burden to allege and prove that one of the timeliness exceptions applies. ” Commonwealth
v. Albrecht , 994 A.2d 1091, 1094 (Pa. 2010) (citation omitted and formatting altered). To invoke one of the timelin ess exceptions, a petitioner must also file the petition “ within one year of the date the claim could have been presented. ” 42 Pa.C.S. § 9545(b)(2).J

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Further , we note that an y issues not raised in a timely filed Rule 1925(b)
statement will be deemed waiv ed on appeal. See Commonwealth v. Schofield , 888 A.2d 771, 77 4 (Pa. 2005) ; see also Commonwealth v.
Lord , 719 A.2d 306, 309 (Pa. 1998).
As stated previously, in Young I , this Court affirmed Appellant ’ s judgment of sentence, and our Supreme Court denied allowance of appeal on October 13, 2011. See Young II

. Therefore , Appellant ’ s judgment of sentence became final ninety days later on Wednesday, January 11, 2012 , when the time for filing a petition for a writ of certiorari in the United States Supreme Court expired. See 42 Pa. C.S. § 9545(b)(3) ( stating that “ [a] judgment becomes final at the conclusion of direct review .

. . or at the expiration of time for seeking the review ” ); see also U.S. Sup. Ct. Rule 13 (providing t hat a petition for a writ of certiorari in the United States Supreme
Court is timely when it is filed within ninety days after the entry of judgment
of a state court of last resort). Therefore, Appellant had one year from January 11, 2012, in which to fil e a timely PCRA petition. The record reflects that Appellant ’ s PCRA petition underlying the instant appeal was filed on October 30, 2020 , making it facially untimely. See Valentine , 928 A.2d at 348. Accordingly, the PCRA court lacked jurisdiction
to review Appellant ’ s PCRA petition unless he alleged and p rove d one of the statutory exceptions to the PCRA ’ s time

- bar set forth in 42 Pa.C.S. § 9545(b)(1)(i)

- (iii). See Albrecht , 994 A.2d at 1094.J

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Our review of the record re veals that in his November 30, 2020 PCRA petition, Appellant checked a box on the PCRA petition form indicating that his untimely second PCRA petition should be deemed timely due to a newly recognized constitutional right under 42 Pa .C.S § 9545(b)(1)(iii). See PCRA Petition, 11/30/20, at 2. However, in its Rule 907 notice of intent to dismiss , the PCRA court correctly found Appellant’s claim concerning an exception to the PCRA time bar was merely conclusory , and the PCRA court held that Appellant failed to satisfy any exception to the PCRA time bar. Rule 907 Notice, 2/16/22, at ¶¶5

- 9. Accordingly, the PCRA court dismissed Appellant’s PCRA petition as untimely

. See Order, 6/9/22.
Further , although Appellant filed a timely appeal, he failed to comply with the PCRA court’s order directing him to fil e a Rule 1925(b) statement

. In its Rule 1925(a) opinion, t he PCRA court concluded that Appellant ’s fail ure to file a Rule 1925(b) state ment resulted in waiver of “ all issues on ap peal. ” PCRA Ct. Op., 8/19/22, at 3 (citing, inter alia , Schofield , 888 A.2d at 774;
Lord , 719 A.2d at 309 ). After review, w e agree with the PCRA court’s findings
and conclusions , which are supported by the record and free of legal error.
For these reasons , we conclude that Appellant is due no relief. T he PCRA
court correctly found Appellant’s PCRA petition w as untimely , concluded that Appellant failed to establish an exception to the PCRA time bar , and notified Appellant of its intent to dismiss the petition

. Rule 907 Notice, 2/16/22, at ¶¶5

- 9. Because the PCRA petition was untimely and no exception applied, the PCRA court lacked jurisdiction , see Small , 238 A.3d at 1280; see alsoJ

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Albrecht , 994 A.2d at 1094, and it dismissed Appellant’s PCRA petiti on
. See Order, 6/9/22. Moreover , because Appellant failed to file a Rule 1925(b) statement, he waived his issues on appeal. 7 See Schofield , 888 A.2d at 77 4 ; see also Lord , 719 A.2d at 309. For these reasons , w e affirm the PCRA court’s order dismissing Appellant’s second PCRA petition as untimely

. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/7/2023

_________________ __________ ______ ____ _______
7 In any event, even if Appellant had file d a Rule 1925(b) statement, we would affirm the PCRA court’s order dismissing Appellant’s PCRA petition as untimely. In his pro se brief, Appellant fails to mention, much less prove, any exception to the PCRA time bar. See Appellant’s Brief at 2. Accord ingly, were we to reach the merits of Appellant’s argument, we would conclude that no relief is due.