J-S42022-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BERNARD FIELDING

Appellant No. 3462 EDA 2014

Appeal from the PCRA Order October 29, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1036801-1992

BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 28, 2015

Appellant, Bernard Fielding, appeals pro se from the October 29, 2014 

order, dismissing, without a hearing, his fifth petition filed pursuant to the 

Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. After careful 

consideration, we affirm.

The PCRA court summarized the procedural history of this case as 

follows.

On April 18, 1994, following a jury trial ... 

[Appellant] was found guilty of [s]econd[-d]egree 

[m]urder, [b]urglary, [r]obbery, [c]riminal 

[c]onspiracy, and [p]ossession of an [i]nstrument of 

[c]rime.[1] [Appellant] was sentenced to an 

aggregate term of life imprisonment. [Appellant] 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(b), 3502, 3701, 903, and 907, respectively.
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appealed, and on December 26, 1995, the Superior 

Court affirmed the judgment of sentence. 

[Commonwealth v. Fielding, 676 A.2d 280 (Pa. 

Super. 1995) (unpublished memorandum), appeal 

denied, 681 A.2d 1341 (Pa. 1996).] On August 9, 

1996, the Pennsylvania Supreme Court denied 

allocatur. [No further direct appeal was pursued.]

On September 2, 1997, [Appellant] filed his 

first petition pursuant to the [PCRA]. Courtappointed counsel subsequently filed a “no-merit” 

letter pursuant to Commonwealth v. Turner, 544 

A.2d 927 (Pa. 1988) and Commonwealth v. 

Finley, 550 A.2d 213 (Pa. Super. 1988), and the 

petition was dismissed. No appeal followed.

[Appellant] filed his second PCRA petition on 

December 19, 2001, and it was subsequently 

dismissed. The Superior Court affirmed the 

dismissal on May 23, 2003, and no appeal followed. 

[Commonwealth v. Fielding, 829 A.2d 356 (Pa. 

Super. 2003) (unpublished memorandum).]

[Appellant] filed his third PCRA petition on May 

26, 2004, and it was subsequently dismissed. The 

Superior Court affirmed the dismissal on July 13, 

2006, and no appeal followed. [Commonwealth v. 

Fielding, 907 A.2d 1132 (Pa. Super. 2006) 

(unpublished memorandum).]

[Appellant] filed his fourth PCRA petition on 

July 12, 2010, and it was dismissed [as untimely] 

February 17, 1012. The Superior Court affirmed the 

dismissal on March 5, 2013. [Commonwealth v. 

Fielding, 69 A.3d 1282 (Pa. Super. 2013) 

(unpublished memorandum).]

[Appellant] filed the instant petition, his fifth, 

on April 15, 2014. After conducting an extensive 

and exhaustive review of these filings, the record, 

and applicable case law, [the PCRA] court 

determined that the instant petition was untimely 

filed and that none of the timeliness exceptions 

applied. On August 14, 2014, [the PCRA court] 
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provided [Appellant] with notice of its intent to 

dismiss his petition without a hearing pursuant to 

Pa.R.Crim.P. 907, and [Appellant] filed a response 

on August 28, 2014. [The PCRA court] subsequently 

dismissed the petition on October 29, 2014. 

[Appellant] filed a [timely] notice of appeal from that 

order [on November 25, 2014].

PCRA Court’s Opinion, 1/22/15, at 1-2.2

Appellant has neglected to state any questions presented for review as 

required by Pa.R.A.P. 2116(a). Such an omission may be grounds for 

dismissal of an appeal. See generally Pa.R.A.P. 2101. Appellant does 

state that, “Appellant submits the PCRA court erred by summarily denying 

the claim presented ... without a hearing” in a section captioned “Summary.” 

Appellant’s Brief at 6. Because this deficiency does not impede our review of 

the timeliness of Appellant’s PCRA petition, we decline to dismiss the appeal. 

See Commonwealth v. Dupre, 866 A.2d 1089, 1096 (Pa. Super. 2005), 

appeal denied, 879 A.2d 781 (Pa. 2005) (declining to dismiss appeal where 

appellate brief’s deficient questions presented on appeal did not impede 

review).

We briefly note our standard of review in this matter.

Our standard of review of the denial of a PCRA 

petition is limited to examining whether the court’s 

rulings are supported by the evidence of record and 

____________________________________________

2 The PCRA court did not order Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pennsylvania Rule of Appellate 

Procedure 1925(b). The PCRA court issued its Rule 1925(a) opinion on 

January 22, 2015.
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free of legal error. This Court treats the findings of 

the PCRA court with deference if the record supports 

those findings. It is an appellant’s burden to 

persuade this Court that the PCRA court erred and 

that relief is due.

Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013) 

(citation omitted). 

Instantly, the PCRA court dismissed Appellant’s fifth PCRA petition as 

untimely. “[I]t is well-settled that ... a question of timeliness implicates the 

jurisdiction of our Court.” Commonwealth v. Gandy, 38 A.3d 899, 

902 (Pa. Super. 2012) (internal quotation marks and citation omitted), 

appeal denied, 49 A.3d 442 (Pa. 2012). “Because these timeliness 

requirements are mandatory and jurisdictional in nature, no court may 

properly disregard or alter them in order to reach the merits of the claims 

raised in a PCRA petition that is filed in an untimely manner.” 

Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa. 2012) (internal quotation 

marks and citation omitted). The PCRA “confers no authority upon this 

Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]” 

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted). 

This is to “accord finality to the collateral review process.” Id. (citation 

omitted). “It is well settled that [a]ny and all PCRA petitions must be filed 

[in a timely manner] unless one of three statutory exceptions applies.” 

Commonwealth v. Garcia, 23 A.3d 1059, 1061-1062 (Pa. Super. 2011) 

(internal quotation marks and citations omitted), appeal denied, 38 A.3d 823 
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(Pa. 2012). “We have repeatedly stated it is the appellant’s burden to allege 

and prove that one of the timeliness exceptions applies. Whether [the 

a]ppellant has carried his burden is a threshold inquiry prior to considering 

the merits of any claim.” Commonwealth v. Edmiston, 65 A.3d 339, 

346 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania, 

134 S. Ct. 639 (2013).

The Act provides for the following possible exceptions to the timeliness 

requirement.

§ 9545. Jurisdiction and proceedings

...

(b) Time for filing petition.—

(1) Any petition under this subchapter, 

including a second or subsequent petition, shall be 

[timely] filed ... 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 
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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. 

...

42 Pa.C.S.A. § 9545(b).

Instantly, Appellant’s fifth PCRA petition is facially untimely. His 

judgment of sentence became final on November 7, 1996, ninety days after 

our Supreme Court denied Appellant’s petition for allowance of appeal, when 

the time to file for a writ of certiorari to the United States Supreme Court 

expired. See generally U.S.Sup.Ct.R. 13(1). Therefore, Appellant had until 

November 7, 1997, one year from that date, to file a timely first or 

subsequent PCRA petition. See generally 42 Pa.C.S.A. § 9545(b)(3). As 

noted, it is required that Appellant pleads and proves one of the statutory 

exceptions to the PCRA’s time limits to invoke the PCRA or this Court’s 

jurisdiction to consider his petition. See Edmiston, supra.

In neither his PCRA petition, his response to the PCRA court’s Rule 907 

notice, nor his Appellate brief, does Appellant allege the applicability of any 

of the enumerated statutory exceptions to the PCRA’s timeliness 

requirements. Rather, Appellant avers “[c]laims of Actual Innocence are 

never time barred.” Appellant’s Brief at 7A. Appellant asserts he has made 
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out a strong prima facie case for innocence and manifest injustice such that 

it “will equitably toll limitations period.” Id.

Such arguments have been clearly rejected as misconstruing the 

jurisdictional nature of the PCRA’s timeliness provisions. See Lopez, supra. 

This court has determined that in reviewing claims 

for relief in a second or subsequent collateral attack 

on a conviction and judgment of sentence, the 

request will not be entertained unless a strong prima 

facie showing is demonstrated that that[sic] a 

miscarriage of justice occurred. Commonwealth v. 

Lawson, 519 Pa. 504, 549 A.2d 107 (1988). “An 

appellant makes such a prima facie case only if he 

demonstrates that either the proceedings which 

resulted in his conviction were so unfair that a 

miscarriage of justice occurred which no civilized 

society could tolerate, or that he was innocent of the 

crimes charged.” Commonwealth v. Morales, 549 

Pa. 400, 701 A.2d 516 (1997). However, the 

Lawson miscarriage of justice standard affords 

Appellant no relief in this case.

Again, Appellant fails to understand that this court ... 

clearly noted that the time requirements under the 

amendments to the PCRA are jurisdictional. Thus, 

while the court would consider a timely petition 

under the Lawson standard, the court has no 

jurisdiction to address an untimely petition....

Commonwealth v. Fahy, 737 A.2d 214, 223, (Pa. 1999).

As noted, Appellant’s petition is facially untimely. Appellant has failed 

to plead or prove any exception to the one-year time limit for filing a PCRA 

petition. We therefore conclude the PCRA court and this Court lack 

jurisdiction to review the merits of Appellant’s claims. See id. Accordingly, 

we affirm the PCRA court’s October 29, 2014 dismissal order.
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Order affirmed.

Judge Shogan joins the memorandum.

Justice Fitzgerald did not participate in the consideration or decision of 

this case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/28/2015