J-S44018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LANNY B. HARRIS

Appellant No. 1901 EDA 2015

Appeal from the PCRA Order entered October 23, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0903241-2002

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED AUGUST 24, 2016

Appellant, Lanny B. Harris, appeals pro se from the order the Court of 

Common Pleas of Philadelphia County entered on October 23, 2013 

dismissing his petition pursuant to the Post-Conviction Relief Act (“PCRA”), 

42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm. 

The PCRA court summarized the relevant background in its July 28, 

2015 opinion, which we adopt here by reference. Briefly, on March 17, 

2005, following a probation revocation hearing, Appellant was sentenced to 

five to ten years’ imprisonment in connection with his guilty plea to 

possession of a controlled substance (cocaine) with intent to deliver. 

Appellant filed a PCRA petition on August 29, 2006, which the PCRA 

court dismissed on May 22, 2009. On January 28, 2013, Appellant filed the 

instant PCRA petition, his second, which the PCRA court dismissed on 
J-S44018-16

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October 23, 2013, as untimely. On November 26, 2013, Appellant filed 

another PCRA petition, his third. The PCRA court appointed counsel, and on 

August 14, 2014 an amended PCRA petition was filed. On May 29, 2015, the 

PCRA court granted nunc pro tunc reinstatement of Appellant’s right to 

appeal from the dismissal of the January 2013 PCRA petition. Upon request, 

Appellant’s counsel was allowed to withdraw from the representation. 

Appellant pro se timely appealed the order dismissing his second PCRA 

petition. The PCRA court ordered Appellant to file Pa.R.A.P. a 1925(b) 

statement within 21 days of the order. Appellant, however, failed to do so. 

The PCRA court order denying as untimely Appellant’s January 28, 2013 

PCRA petition is now before us for disposition.

Appellant argues the trial court erred in several instances with regard 

to his prior filings.1 Nowhere, however, does Appellant explain whether we 

can entertain the merits of his challenges. In fact, we cannot. 

“[A]n appellate court reviews the PCRA court’s findings of fact to 

determine whether they are supported by the record, and reviews its 

____________________________________________

1 Appellant alleges he filed an untimely motion for reconsideration on 

October 21, 2005, which the trial court failed to treat as a PCRA petition. 

There is no record of a motion filed on that day. The trial court’s docket 

sheet shows an entry on October 31, 2005 stating: “PETITION FILE 

MAINTENANCE ADMINISTRATIVE DELETION”. The entry following the 

October 31, 2005 notation concerns the filing, on August 29, 2006, of 

Appellant’s PCRA petition. 
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conclusions of law to determine whether they are free from legal error.” 

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). 

A PCRA petition, including a second or a subsequent petition, must be 

filed within one year of the judgment becoming final. See 42 Pa.C.S.A. 

§ 9545(b)(1). 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 the review.” 42 Pa.C.S.A. § 9545(b)(3). There are some 

exceptions to this general rule. It is Appellant’s duty, however, to allege and 

prove the applicability of the exceptions, and that the petition was filed 

within 60 days of the date the claim could have been presented. See

42 Pa.C.S.A § 9545(b)(2). Failure to do so precludes further review of the 

petition. See, e.g., Commonwealth v. Beasley, 741 A.2d 1258, 1261 

(Pa. 1999). 

Here, Appellant’s judgment became final on April 18, 2005, at the 

expiration of 30 days for filing a direct appeal. See Pa.R.A.P. 903; 

42 Pa.C.S.A. § 9545(b)(3). Appellant had one year from that date to file a 

timely PCRA petition. The instant petition was filed on January 28, 2013, 

more than seven years after the expiration of the above deadline. The 

petition is, therefore, facially untimely. Thus, Appellant had to allege and 

prove he met one of the exceptions to the time-bar. Appellant did not do 
J-S44018-16

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so.2 Accordingly, we affirm the order of the PCRA court dismissing 

Appellant’s instant petition as untimely.3 We direct that a copy of the trial 

court’s July 28, 2015 opinion be attached to any future filings in this case.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/24/2016

____________________________________________

2 On appeal, for the first time, Appellant alleges that he met the 

“governmental interference” exception because the trial court failed to 

appoint counsel in connection with his October 21, 2005 motion. Appellant’s 

Brief at 15. The argument is waived. See Pa.R.A.P. 302(a) (“Issues not 

raised in the lower court are waived and cannot be raised for the first time 

on appeal.”). In any event, it is well-settled that the timeliness exceptions 

must be pled in the PCRA petition. Commonwealth v. Burton, 936 A.2d 

521, 525 (Pa. Super. 2007) (“[E]xceptions to the time bar must be pled in 

the PCRA petition, and may not be raised for the first time on appeal.”). 

Here, Appellant did not even acknowledge a timeliness issue, let alone 

address the applicability of any exception in his petition. Additionally, we do 

not see any connection between the trial court’s alleged “error” in 2005 and 

the untimeliness of the instant petition. Finally, nowhere did Appellant state 

when he first learned of the “governmental interference” and what 

prevented him from filing a petition within 60 days from the discovery of the 

interference. See 42 Pa.C.S.A. § 9545(b)(2). 

3 We also note that Appellant failed to file a Rule 1925(b) statement, despite 

the PCRA court’s order to do so. Failure to file said statement generally 

results in a waiver of the issues raised on appeal. See Pa.R.A.P. 

1925(b)(4)(vii); Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). 
1111111111111111111111111 

.>24831961 

CP-51-CR-0903241-2002 Comm. v. Harris. LannY 

Opmicn 

this court (N.T. 3/17/05, p. 8). He was sentenced to five to ten years incarceration. 

probation by committing a murder six months after being placed on probation by 

(VOP) hearing on March 17, 2005, defendant was found in direct violation of this 

months reporting probation, 35 P.S. §780-113(a)(30). At a violation of probation 

PWID (possessing cocaine with the intent to deliver) and was sentenced to 36 

On December 5, 2002, defendant entered into a negotiated guilty plea to 

Procedural Posture 

CHRIS R. WOGAN, J. 

FILED 

JUL 2 8 2015 

. Crimin~! Appeals Unit 

F,rst Jud1c1a1 District of PA 

OPINION 

LANNY B. HARRIS 

SUPERIOR COURT 

1901 EDA 2015 

v. 

CP-51-CR-0903241-2002 

COMMONWEALTH OF 

PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

Circulated 07/28/2016 09:46 AM
2 

2 In her Finley letter, counsel wrote that petitioner did not file his claim until August, 2006, 

over a year after the trial court denied his Petition for Reconsideration of Sentence. "Therefore, 

this [petition] was not timely." 

These dates are according to the Secure Docket in this case. Defendant states that he 

filed the reconsideration of sentence on March 17, 2005, and it was denied on March 24, 2005. 

PCRA counsel Emily Beth Cherniack, Esquire, also wrote those dates in her Finley Letter. 

Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). 

On October 21, 2005, defendant filed an untimely prose "Motion For Modification Of 

Sentence Nunc Pro Tune." 

going to dismiss his second PCRA Petition as untimely; on October 7, 2013, the 

hearing on September 23, 2013, this court sent defendant a 907 Notice that it was 

On January 28, 2013, defendant filed a prose second PCRA Petition. After a 

were without merit. The PCRA Petition was formally dismissed on May 22, 2009. 

petition were without merit, and his attorney also determined that the issues raised 

Notice under Pa.R.Crim.P. 907, writing that the issues raised in defendant's 

As Counsel on April 24, 2009.2 On April 24, 2009, this court filed a dismissal 

appearance on January 18, 2007, and filed a Finley letter and Petition To Withdraw 

§9541, et seq. PCRA counsel, Emily Beth Cherniack, Esquire, entered her 

system as a Petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. 

Relief/Dismissal Correction of Sentence ... " This "writ" was classified by the court 

On August 29, 2006, defendant filed a "Writ of Habeas Corpus 

which was denied on April 21, 2005.1 

Defendant filed a "Petition To Reconsider VOP Sentence" on March 24, 2005, 
3 

Defendant sought reinstatement of his right to appeal this court's October 

23, 2013, Order denying his second filed PCRA Petition. See Amended Petition 

Under The Post Conviction Relief Act, Aug. 14, 2014, ~15. His second PCRA 

Petition was untimely filed because it was not filed within one year of the date his 

Discussion 

907 Notice was filed. On October 23, 2013, the second PCRA Petition was 

formally dismissed. 

On November 26, 2013, a third pro se PCRA Petition was filed. On May 

20, 2014, Sandjai Weaver, Esquire, entered her appearance. On August 14, 2014, 

a counseled Amended PCRA Petition was filed. On April 28, 2015, the 

Commonwealth agreed to nunc pro tune reinstatement of defendant's appellate 

rights; on May 29, 2015, defendant's appellate rights were reinstated. On June 21, 

2015, attorney Weaver filed a Motion to Withdraw as counsel. 

On June 22, 2015, defendant filed a prose Notice of Appeal. On July l, 

2015, and re-sent July 15, 2015, this court ordered pro se defendant to file a 

Statement Of Errors Complained Of On Appeal within 21 days of the date of the 

Order. The Superior Court Docket lists that defendant is being represented on 

appeal by Sandjai Weaver, Esquire. In the interest of time, this court will address 

the only issue that can be raised on appeal, the timeliness of the PCRA Petition. 
4 

3 See 42 Pa.C.S. §9545, Jurisdiction and Proceedings 

(b) Time for filing petition.>- 

(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. 

and defendant's sentence should stand. 

exceptions to the late filing. Defendant's PCRA Petition was properly dismissed 

Defendant's second PCRA Petition was untimely and did not plead any 

Conclusion 

exceptions to excuse the late filing. See 42 Pa.C.S. §9545(b ).3 

judgment became final and defendant did not even plead any of the three 

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