J-S65014-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PAUL PARHAM

Appellant No. 444 EDA 2017

Appeal from the PCRA Order January 5, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0506761-1997

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.: FILED NOVEMBER 14, 2017

Appellant, Paul Parham, appeals pro se from the January 5, 2017 order 

dismissing his sixth petition filed pursuant to the Post-Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The factual background and procedural history of this case are as 

follows. On December 4, 1989, Appellant was involved in a drug-related 

dispute with Jetta James (“James”) and Leon Jones (“Jones”). Appellant shot 

and killed James and Jones. On November 23, 1998, Appellant was convicted 

of two counts of abuse of a corpse,1third-degree murder,2 and criminal 

 

1 18 Pa.C.S.A. § 5510.

2 18 Pa.C.S.A. § 2502(c).
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conspiracy.3 On February 4, 1999, the trial court sentenced Appellant to an 

aggregate term of 11 to 22 years’ imprisonment. On direct appeal, this Court 

affirmed and our Supreme Court denied allowance of appeal. 

Commonwealth v. Parham, 761 A.2d 1237 (Pa. Super. 2000) (unpublished 

memorandum), appeal denied, 771 A.2d 1282 (Pa. 2000). 

On December 18, 2001, Appellant filed a pro se PCRA petition. Counsel 

was appointed and filed an amended petition. On March 7, 2003, the PCRA 

court dismissed the petition. Appellant did not appeal that dismissal. On 

August 25, 2004, Appellant filed his second pro se PCRA petition. On January 

13, 2005, the PCRA court dismissed the petition. This Court affirmed and our 

Supreme Court denied allowance of appeal. Commonwealth v. Parham, 

889 A.2d 116 (Pa. Super. 2005) (unpublished memorandum), appeal denied, 

897 A.2d 454 (Pa. 2006).

On December 4, 2007, Appellant filed his third pro se PCRA petition. On 

July 2, 2008, the PCRA court dismissed the petition. This Court affirmed the 

dismissal and our Supreme Court denied allowance of appeal. 

Commonwealth v. Parham, 981 A.2d 930 (Pa. Super. 2009) (unpublished 

memorandum), appeal denied, 989 A.2d 916 (Pa. 2009). On January 26, 

2011, Appellant filed his fourth pro se PCRA petition. On July 24, 2015, the 

PCRA court dismissed the petition. On September 21, 2015, Appellant filed 

 

3 18 Pa.C.S.A. § 903.
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his fifth pro se PCRA petition. On June 15, 2016, the PCRA court dismissed 

the petition. 

On July 28, 2016, Appellant filed his sixth pro se PCRA petition. On 

September 9, 2016, the PCRA court issued notice of its intent to dismiss the 

petition without an evidentiary hearing. See Pa.R.Crim.P. 907. On 

September 27, 2016, Appellant filed his response to the Rule 907 notice. On 

January 5, 2017, the PCRA court dismissed the petition. This timely appeal 

followed.4

Appellant presents one issue for our review: 

Whether this Court should [r]emand this matter to the [PCRA 

court] for [] further proceedings based on [newly-discovered 

facts] regarding the competency of [PCRA] counsel[?]

Appellant’s Brief at 3.

“Crucial to the determination of any PCRA appeal is the timeliness of the 

underlying petition.” Commonwealth v. Brown, 141 A.3d 491, 499 (Pa. 

Super. 2016) (citation omitted). The timeliness requirement for PCRA 

petitions “is mandatory and jurisdictional in nature[.]” Commonwealth v. 

Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citation omitted). 

A PCRA petition is timely if it is “filed within one year of the date the 

judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1). “[A] 

 

4 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). Nonetheless, on March 17, 2017, the PCRA court issued a Rule 

1925(a) opinion.
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judgment becomes 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). Appellant’s judgment of sentence 

became final on March 20, 2001. See Sup. Ct. R. 13. Appellant’s sixth PCRA 

petition was filed on July 28, 2016. Thus, the petition was patently untimely. 

An untimely PCRA petition may be considered if one of the following 

three exceptions applies:

(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). If an exception applies, a PCRA petition may be 

considered if it is filed “within 60 days of the date the claim could have been 

presented.” 42 Pa.C.S.A. § 9545(b)(2). “The petitioner bears the burden to 

plead and prove an applicable statutory exception.” Commonwealth v. 

Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017), appeal denied, 2017 WL 

3614192 (Pa. Aug. 23, 2017).
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In his lone appellate issue, Appellant argues that the PCRA court erred 

in dismissing his petition as untimely because he satisfied the newlydiscovered fact exception to the PCRA’s one-year time bar. The newlydiscovered fact exception

has two components, which must be alleged and proved. Namely, 

the petitioner must establish that: 1) the facts upon which the 

claim was predicated were unknown and 2) could not have been 

ascertained by the exercise of due diligence. If the petitioner 

alleges and proves these two components, then the PCRA court 

has jurisdiction over the claim under this subsection.

Commonwealth. v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (internal 

quotation marks and citations omitted; emphasis removed). 

Appellant argues that he recently discovered that PCRA counsel, who 

was appointed to represent him with respect to his first PCRA petition, had 

disciplinary and personal problems at the time Appellant’s first PCRA petition 

was pending. Appellant argues that PCRA counsel abandoned him by failing 

to appeal the March 7, 2003 order dismissing his first PCRA petition and failing 

to consult Appellant regarding whether an appeal was appropriate. Appellant 

contends that this newly-discovered fact, i.e., PCRA counsel’s disciplinary and 

personal problems, helps establish that PCRA counsel was per se ineffective 

for failing to file a notice of appeal and consult Appellant regarding whether 

an appeal was appropriate.

It is well-settled that “a conclusion that previous counsel was ineffective 

is not a newly discovered fact entitling [a petitioner] to the benefit of the 

exception for newly-discovered facts. In sum, a conclusion that previous 
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counsel was ineffective is not the type of newly-discovered fact encompassed 

by the exception.” Commonwealth v. Mitchell, 141 A.3d 1277, 1285 (Pa. 

2016) (internal quotation marks and citation omitted). There is, however, an 

exception to this general rule if a petitioner discovers that prior counsel 

abandoned him or her. Bennett, 930 A.2d at 1273. In such cases, a 

petitioner can satisfy the newly-discovered fact exception if he or she files the 

petition within 60 days of learning of such abandonment.

In this case, Appellant was aware of PCRA counsel’s alleged 

abandonment by December 12, 2008. See Appellant’s Brief in 2769 EDA 

2008, 12/12/08, at 12 (arguing that PCRA “counsel effectively abandoned 

Appellant by failing to preserve and protect his appellate rights or notify 

Appellant that he had failed to do so”). Appellant filed the instant petition on 

July 28, 2016 – more than seven years after he became aware of PCRA 

counsel’s alleged abandonment. The discovery regarding PCRA counsel’s 

disciplinary problems did not contribute to Appellant learning of PCRA 

counsel’s alleged abandonment. Accordingly, Appellant failed to plead and 

prove that applicability of the newly-discovered fact exception and the PCRA 

court correctly held that it lacked jurisdiction to reach the merits of the 

petition.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/14/2017