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

v.

HERMAN L. EDMON D SON

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

PENNSYLVANIA

No. 884 WDA 2023 Appeal from the PCRA Order Entered June 30, 2023 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP

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- CR

- 0000038

- 2018

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J. MEMORANDUM BY KUNSELMAN, J.: FILED: February 27, 2024 Herman L. Edmon d son appeals pro se from the order denying his latest request for post

- conviction relief. The lower court treated this as a serial petition under the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541

- 46. For the reasons that follow, we affirm. The pertinent facts and procedural history are as follows: In 2018, a jury convicted Ed mondson of co nspiracy to commit aggravated assault. These convictions arose after Edmondson conspired with Lawrence Johnson to shoot two people thereby causing them serious bodily injury. On December 1 0 , 2018, the trial court sentenced him to an aggregate term of 84 to 164 months in prison. Edmondson file d a timely post

- sentence motion, which was granted only as to a time credit issue. Edmondson appealed. On November 22, 2019, this Court affirmed his judgment of sentence. Commonw ealth v.J

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Edmondson , 224 A.3d 791 (Pa. Super. 2019) (non

- precedential decisi on). Edmondson did not seek further review. On November 30, 2020, Edmon d son filed a timely pro se PCRA petition. The PCRA court appointed counsel. On April 21, 2021, PCRA counsel file d an amended petition. In this petition, PCRA counsel opined that t he ineffectiveness claims raised by Edmondson in his pro se petition were meritless . Instead, PCRA counsel raised a claim of after

- discovered evidence based on an affidavit from Lawrence Johnson. On May 5, 2021, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing. Edmondson did not file a timely response. By order entered June 2, 2021, the PCRA court denied Edmondson’s amended petition. Edmondson did not file an appeal. On March 24, 2023, Edmondson filed a pro se “Reinstatement of [Appellate ] Rights Nunc Pro Tunc and Request to Pursue [PCRA] Counsel’s Ineffective Assistance of Counsel Claim Pursuant to Commonwealth v. [Bradley ].” 1 By separate memorandum and o rder , the PCRA court denied the request for reinstatement of appellate rights

. 2 The PCRA court treated the remaining portion of Edmond son ’s filing as a s ubsequent PCRA petition. On May 10, 2023, the PCRA court issued a Rule 907 notice of its intent to dismiss the petition without a hearing because it was untimely

- filed, and Edmondson

_________________ __________ ______ ____ _______ 1 Commonwealth v. Bradley , 261 A.3d 381 (Pa. 2021).

2 Ed mondson did not appeal this order.J

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failed to establish an exception to the PCRA’s time bar. Edmon dson filed a
pro se response. By order entered June 30 , 2023, the PCRA court dismissed Edmondson’s petition. This appeal followed. Both Edmondson and the PCRA
court have complied with Pa.R.A.P. 1925. Edmon d son rai ses four issues on appeal which we cite verbatim : I. Did the PC RA court erred as matter of law in dismissing PCRA petition without a hearing? II. Was Petitioner denied his rights under Article I, Section 9 of the Pennsylvania Constitution and the Sixth and Fourteenth Amendments to the United States Constitution when PCRA counsel failed to properly pres ent and preserve trial counsel’s ineffective assistance to the PCRA court. III. Did the PCRA court erred as a matter of law in dismissing Petitioner’s claim of trial counsel’s ineffectiveness in failing to interview of call as a witness Lawrence “Larry” Johnson in violation of the 6 th and 14 th Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution wherein PCRA counsel failed to make the proper and correct argument to the PCRA court? IV. Were the PCRA court’s factual findings and legal conclusions in denying Petitioner’s lack effective assistance of counsel and access to the PCRA process in violation of the 6 th and 14 th Amendments to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution?
Edmondson’s Brief at 4. Before discussing th ese issues , however, we must first address whether the PCRA court properly considered Edmon d son’s latest filing for post

conv iction relief as a se cond PCRA petition. See 42 Pa.C.S.A. § 9542 (providing that the PCRA “shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the sameJ

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purpose . . . including habeas corpu s ”); Commonwealth v. Descardes , 136 A.3d 493, 499 (Pa. 2016) (explaining that “claims that could be brought under the PCRA must be brought under that Act. . . . A claim is cognizable under the PCRA if the . . . conviction resulted from one of seven enumer ated errors set forth in 42 Pa.C.S. § 9543(a)(2)”).
In his 2023 filing , Edmondson raised layered claims of ineffective assistance of P CRA counsel. These challenges constitute a cognizable claim under the PCRA. See Pa.C.S.A. § 9543(a)(2)(ii). Thus, the PCRA court properly considered Edmondson’s filing at issue here as a serial PCRA petition. Treating Edmondson’s latest filing as a PCRA petition, we next determine whether the PCRA court correctly concluded that it was untimely filed, and that Edmondson failed to establish a time

- bar exception. The ti meliness of a post
- conviction petition is jurisdictional. Commonwealth v. Hernandez , 79 A.3d 649, 651 (Pa. Super. 2013). Generally, a petition for relief under the
P CRA, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition is met. The three narrow sta tutory exceptions to the one

- year time bar are as follows: “(1) interference by government officials in the presentation of the claim; (2) newly discovered facts; and (3) an after

- recognized constitutional right.” Commonwealth v. Brandon , 51 A.3d 231, 233

- 34 (Pa. Super. 2012) (citing 42 Pa.C.S.A. § 9545(b)(1)(i

- iii)). In addition, exceptions to the PCRA’s time bar must be pled in the petition and may not be raised for the first timeJ

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on appeal. Commonwealth v. Burton , 936 A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are waived and cannot be raised for the first time on appeal). Moreover, a PCRA petitioner must file his petition “within one year of the date the claim could have been pre sented.” 42 Pa.C.S.A. § 9545(b)(2). Finally, if a PCRA petition is untimely and the petitioner has not pled and proven an exception , “neither this Court nor the [PCRA] court has jurisdiction over the petition. Without jurisdiction, we simply do not have the legal authority to address the substantive claims.” Commonwealth v. Derrickson , 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted). Here, Edmondson’s judgment of sentence became final on December 23, 2019, thirty days after he failed to file a petition for allowance of appeal with our Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3). 3 Therefore, Edmondson had until December 22, 2020, to file a timely PCRA petition. As Edmondson filed the petition at issue in 202 3 , it is patently untimely unless he has satisfied his burden of pleading and proving that one of the enumerated exceptions applies. See Hernandez , supra . Edmondson h as failed to plead and prove any exception to the PCRA’s time bar. Indeed, in both his latest filing a nd brief he fails to acknowledge the statutory time restrictions, and proceeds to argue his substantive issue s .

_________________ __________ ______ ____ _______ 3 Because the thirtieth day fell on a Sunday, Edmondson had until the following Monday to file a timely petition for allowance of appeal. See generally , 1 Pa.C.S.A. § 1908.J

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Instead , Edmondson asserts that his Mar ch 2023 filing was actually his pro se

res ponse to the PCRA court’s Rule 907 notice for his November 2020 PCRA petition

. Edmondson’s pro se response was filed after the PCRA court had already entered its order denying his 2020 PCRA petition. Thus , the 2023 filing was treated as a second PCRA petition. Edmondson contends that even if his
response is treated as a second PCRA petition, “it should be treated as a timely filed second petition based on the newly discovered fact exception, i.e. , PCRA counsel’ s abandonment.” Edmondson’s Brief at 10. We cannot agree. The PCRA court held that our Supreme Court’s decision in Bradley , supra , does not permit Edmondson to raise a claim of PCRA counsel’s ineffectiveness in a n untimely serial PCRA Petition. The c ourt explained:

[Edmondson] predicates his claim for PCRA relief on [ Bradley , supra ] . However, the reason for this is unclear on the face of the Petition. To the extent [Edmondson] implies a new excepti on to the timeliness rule was carve d out by [ Bradley ], [Edmondson’s] reliance upon the case is misplaced. Bradley did not abrogate the Pennsylvania Supreme Court’s decision of Commonwealth v. Fahy , 737 A.2d 214, 223 (Pa. 1999) (claim of ineffective assistance of counsel does not save an ot herwise untimely petition for review on the merits). As the majority in Bradley stated ,”[u]nder the PCRA , ineffective assistance of counsel is one of the enumerated errors entitling a defend to relief so long as the other conditions of the PCRA are met.” [ Bradley , 261 A.3d at 390 ] . The jurisdictional timeliness requirement is one such condition of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1). Rule 907 Notice, 5/10/23, at 3

- 4. Our review of recent precedent supports the PCRA court’s conclusions. This Court has held that “[n]othing in Bradley creates a right to file a secondJ

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PCRA outside the PCRA’s one

- year time limit as a method of raising ineffectiveness of PCRA counsel or permits recognition of such a right.” Commonwealth v. Stahl , 292 A.3d 1130, 11 36 (Pa. Super. 2023). The Stahl court clarified that “our Supreme Court in Bradley unambiguously rejected the filing of a successive untimely PCRA petition as a permissible method of vindicating the right to effective representation by PCRA counsel.” Id. Therefore, Bradley does not excuse the facial untimeliness of Edmondson’s second PCRA petition. Additionally, PCRA counsel’s alleged abandonment is not a “newly

- discovered” fact concerning the crime f or which he was convicted. As such, this alleged aba ndonment does not satisfy a time

bar exce ption. In sum, Edmondson’s latest filing is cognizable under the PCRA, but it is untimely, and he has failed to establish a time

- bar exception. As such, both the PCRA court and this Court lack jurisdiction to con sider his substantive claim s . Derrickson , supra . We therefore affirm the PCRA court’s order denying him post

- conviction relief. Order affirmed.J

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2/27/2024