J-S44025-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL FOSCHINI, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 363 MDA 2020

Appeal from the PCRA Order Entered February 12, 2020

In the Court of Common Pleas of Luzerne County Criminal Division at 

No(s): CP-40-CR-0000366-2015

BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY NICHOLS, J.: FILED: FEBRUARY 9, 2021

Appellant Michael Foschini, Jr. appeals pro se from the order dismissing 

his first Post Conviction Relief Act1 (PCRA) petition as untimely. Appellant 

asserts that (1) he entered the guilty plea in the above-captioned case 

unknowingly, unintelligently, and involuntarily, (2) the trial court erred when 

sentencing him without being aware of his mental health condition, and (3) 

his sentence was excessive. We affirm. 

The PCRA court summarized the procedural history of this appeal as 

follows: 

a. On January 19, 2016, [Appellant] pleaded guilty to aggravated

assault, reckless endangerment and possession of a small 

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1 42 Pa.C.S. §§ 9541-9546.
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amount of marijuana at Docket 366 of 2015.[

2 As noted in 

Appellant’s related appeal in J-S44024-20, Appellant 

subsequently entered open guilty pleas in Dockets 3736 and 

3737 of 2015 on March 22, 2016.

3]

b. On April 4, 2016, the [Appellant] was sentenced at Docket 366 

of 2015 to three (3) to six (6) years’ imprisonment on Count 

1, and thirty (30) days’ probation on Counts [F]ive . . . and 

Six[. That same day, the trial court also sentenced Appellant 

in Dockets 3736 and 3737.]

c. No direct appeal was filed. [On October 12, 2017, Appellant 

filed a counseled PCRA petition in the related cases in Dockets 

3736 and 3737 of 2015, which the PCRA court denied. This 

Court affirmed the denial of relief on November 9, 2018, and 

the Pennsylvania Supreme Court denied Appellant’s petition for 

allowance of appeal on May 30, 2019.]

d. The instant PCRA petition was filed pro se on June 13, 2019 to 

all three docket numbers, constituting the second PCRA 

petition filed to Dockets 3736 and 3737 of 2015, but the first 

PCRA petition filed to Docket 366 of 2015.

e. The June 13, 2019 PCRA petition asserted that [Appellant] is 

eligible for relief pursuant to Section 9543(a)(2)(ii) (pertaining 

to the “[i]neffective assistance of counsel which, in the 

circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or 

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2 Attorney Joseph Sklarosky, Esq. represented Appellant in the underlying 

criminal case. We note that the record in the instant matter contains a plea 

agreement form indicating that the parties agreed to the imposition of a threeto-six-year sentence of incarceration, which the trial court imposed at 

sentencing. 

3 Nandakumar Palissery, Esq. represented Appellant in Dockets 3736 and 3737 

of 2015. As discussed in Appellant’s related appeal in J-S44024-20, Appellant 

retained counsel to litigate a separate PCRA petition in Dockets 3736 and 3737 

of 2015 and alleged Attorney Palissery’s ineffectiveness as to the entry of his 

guilty pleas in those cases. 
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innocence could have taken place.”). 42 Pa.C.S.[] § 

9543(a)(2)(ii).

f. Counsel was appointed to represent [Appellant in the litigation 

of his PCRA petition in the instant case4].

g. Following review of the record and discussion with the 

[Appellant], appointed counsel subsequently filed a no merit 

letter and a motion to withdraw as counsel, acknowledging that 

[Appellant] PCRA petition is untimely, and that review of the 

record and discussion with [Appellant] revealed that no 

exception to the PCRA’s timeliness requirements apply to the 

petition.

h. On December 13, 2019, Appointed Counsel was permitted to 

withdraw.

Notice of Intention to Dismiss Mot. for PCRA Relief Pursuant to Pa.R.Crim.P. 

907, 1/6/20, at 1-3 (footnotes omitted, some formatting altered). The PCRA 

court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s 

petition on January 6, 2020, and dismissed Appellant’s petition as untimely on 

February 12, 2020. 

Appellant timely appealed and complied with the PCRA court’s order to 

file and serve a Pa.R.A.P. 1925(b) statement.5 The PCRA court filed a 

responsive opinion maintaining that Appellant’s petition was untimely

Appellant presents the following issues for review: 

1. Whether [Appellant] knowingly, voluntarily, and intelligently 

entered his guilty plea, when he did not understand the terms 

of the plea bargain and/or had a complete understanding of 

the plea process? 

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4 The PCRA court appointed Jeffrey Yelen, Esq. as Appellant’s PCRA counsel.

5 Appellant’s Rule 1925(b) statement did not claim error in the PCRA court’s 

ruling that Appellant’s petition was untimely. 
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2. Whether trial counsel was ineffective in representing [Appellant 

by] not adequately explaining the plea bargain and it[s] terms?

3. Did trial court error in imposing a sentence without a clear 

understanding of the mental health history of [Appellant]?

Appellant’s Brief at 5 (some capitalization omitted). 

Appellant’s arguments focus the merits of his claims that the entry of 

his plea was not valid and that his sentencing challenge concerns “the legality 

of his sentence which issue is never time barred and/or waived.” See id. at 

8-9. Appellant’s discussion of the timeliness of his instant petition consists of 

a single reference to his PCRA appeal in Dockets 3736 and 3737 of 2015.6 Id.

at 7. 

Our standard for reviewing an order dismissing a PCRA petition as 

untimely is well settled.

Our standard of review of an order denying PCRA relief is whether 

the record supports the PCRA court’s determination and whether 

the PCRA court’s decision is free of legal error. The PCRA court’s 

findings will not be disturbed unless there is no support for the 

findings in the certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations 

omitted).

The “PCRA’s timing provisions as jurisdictional in nature, and no court 

may entertain an untimely PCRA petition.” Commonwealth v. Small, 238 

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In addition to the lack of meaningful argument in his brief regarding the 

PCRA time bar, this Court could also find Appellant’s arguments as to the 

timeliness of his second PCRA petition waived due to Appellant’s failure to 

preserve them in his Rule 1925(b) statement. See PA.R.A.P. 1925(b)(4)(vii), 

2119.
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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 

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 officials[7] 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. § 9545(b)(1)(i)-(iii).

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7 Section 9545(b)(4) states that the term “government officials” does not 

include “defense counsel, whether appointed or retained.” 42 Pa.C.S. § 

9545(b)(4). 
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To invoke one of these exceptions, a petitioner must comply with 

Section 9545(b)(2), which requires the filing of a petition within a specific time 

from the date the claim could have been presented. See 42 Pa.C.S. § 

9545(b)(2).8 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 and quotation marks omitted).

Instantly, we agree with the PCRA court that Appellant’s first PCRA 

petition in this matter was facially untimely and that he did not establish a 

timeliness exception. Appellant’s judgment of sentence became final on May 

4, 2016, and he filed the instant petition in June 2019, more than two years 

after the deadline for filing a facially timely PCRA petition. Further, Appellant’s 

apparent reliance on Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000),9is 

misplaced. Under Lark, Appellant could not file a second PCRA petition in 

Dockets 3736 and 3737 of 2015 while his appeal in those matters was 

pending. See Lark, 746 A.2d at 588 (noting that “a subsequent PCRA petition 

cannot be filed until the resolution of review of the pending PCRA petition by 

the highest state court in which review is sought, or upon the expiration of 

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8 Section 9545(b)(2) was amended on October 24, 2018, effective December 

24, 2018, and extended the time for filing from sixty days of the date the 

claim could have been first presented to one year. The amendment applies 

to claims arising on December 24, 2017, or thereafter. See Act of Oct. 24, 

2018, P.L. 894, No. 146, § 3.

9 The Pennsylvania Supreme Court overruled Lark on other grounds in

Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020), which abrogated the 

“public records presumption” for purposes of the newly discovered facts 

exception. See Small, 238 A.3d at 1281-86, 1286 n. 12. 
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the time for seeking such review”). However, Appellant’s PCRA appeal in

those cases did not preclude him from filing a first PCRA petition in the present 

case, Docket 366 of 2015, or otherwise excuse the untimeliness of the instant

petition. 

Accordingly, finding no error or abuse of discretion in the PCRA court’s 

ruling, we affirm the order dismissing Appellant’s petition.

10

 See Lawson, 90 

A.3d at 4.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/09/2021

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10 Because we agree with the PCRA court that Appellant’s petition was 

untimely, we need not consider the merits of Appellant’s substantive 

arguments in this appeal.