J-S05022-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

TROY DAVID CLARK,

Appellant

: IN THE SUPERIOR COURT OF 

: PENNSYLVANIA

:

:

:

:

:

:

: No. 900 WDA 2014

Appeal from the PCRA Order Entered April 25, 2014,

In the Court of Common Pleas of Clearfield County, 

Criminal Division, at Nos. CP-17-CR-0000137-2009

and CP-17-CR-0000726-2009.

BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 03, 2015

Appellant, Troy David Clark, appeals pro se from the April 25, 2014 

order that denied his second petition for relief filed pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After review, we 

affirm. 

The record reveals that on September 22, 2009, Appellant entered 

open guilty pleas at trial court docket numbers CP-17-CR-0000137-2009 and 

CP-17-CR-0000726-2009. At docket number CP-17-CR-0000137-2009, 

Appellant pled guilty to one count each of aggravated assault, simple 

assault, and disorderly conduct. At docket number CP-17-CR-0000726-

2009, Appellant pled guilty to one count each of intimidation of a witness, 

terroristic threats, and simple assault. The trial court sentenced Appellant 
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on September 28, 2009, to an aggregate term of ten months to fifteen years 

of incarceration. No direct appeal was filed. 

On June 29, 2010, Appellant filed a pro se PCRA petition. The PCRA 

court appointed counsel, and counsel filed an amended PCRA petition on 

March 30, 2011. The PCRA court denied Appellant relief in an order filed on 

February 27, 2012. Appellant filed a timely appeal on March 16, 2012, and 

this Court affirmed the PCRA court’s order on May 30, 2013. 

Commonwealth v. Clark, 494 WDA 2012, 81 A.3d 1009 (Pa. Super. filed 

May 30, 2013) (unpublished memorandum). 

Thereafter, Appellant filed, pro se, a second PCRA petition on June 25, 

2013. The PCRA court appointed counsel on December 13, 2013. Counsel 

subsequently filed a Turner/Finley1 no-merit letter and a petition to 

withdraw on February 28, 2014. In an order filed on April 25, 2014, the 

PCRA court granted counsel’s petition to withdraw and dismissed Appellant’s 

PCRA petition. This timely appeal followed.

On appeal, Appellant raises one issue: 

Whether the PCRA court erred as a matter of law and/or abused 

its discretion, when it dismissed Appellant’s PCRA petition 

without issuing a notice to dismiss, in accordance with 

Pa.R.Crim.P., Rule 907. 

Appellant’s Brief at 1 (full capitalization omitted).

 

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (setting forth 

the procedure for counsel to withdraw in PCRA matters).
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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. Commonwealth v. Phillips, 31 A.3d 

317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 A.2d 

479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be disturbed 

unless there is no support for them in the certified record. Id. (citing 

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001)).

Before we may reach the merits of Appellant’s claim of error, we must 

address whether Appellant satisfied the timeliness requirements of the 

PCRA. It is well settled that the timeliness of a PCRA petition is a 

jurisdictional threshold that may not be disregarded in order to reach the 

merits of the claims raised in a PCRA petition that is untimely. 

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). In order to be 

considered timely, a first, or any subsequent PCRA petition, must be filed 

within one year of the date the petitioner’s judgment of sentence becomes 

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

§ 9545(b)(3). 
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However, an untimely petition may be received when the petition 

alleges, and the petitioner proves, that any of the three limited exceptions to 

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), 

and (iii), is met.2 A petition invoking one of these exceptions must be filed 

within sixty days of the date the claim could first have been presented. 

42 Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the 

PCRA’s one-year filing deadline, “the petitioner must plead and prove 

specific facts that demonstrate his claim was raised within the sixty-day time 

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

Our review of the record reflects that Appellant’s judgment of sentence 

became final on October 28, 2009, thirty days after the time expired for 

Appellant to file a direct appeal with this Court. 42 Pa.C.S. § 9545(b)(3); 

 

2 The exceptions to the timeliness requirement are:

(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. § 9545(b)(1)(i), (ii), and (iii).
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Pa.R.A.P. 1113. Accordingly, Appellant’s instant PCRA petition, his second, 

which was filed on June 25, 2013, is patently untimely.

As previously stated, if a petitioner does not file a timely PCRA 

petition, his petition may nevertheless be received under any of the three 

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. § 

9545(b)(1). If a petitioner asserts one of these exceptions, he must file his 

petition within sixty days of the date that the exception could be asserted. 

42 Pa.C.S. § 9545(b)(2).

In his sole issue on appeal, Appellant correctly asserts that the PCRA 

court failed to comply with Pa.R.Crim.P. 907 by not providing him with 

notice that it intended to dismiss his PCRA petition without holding an 

evidentiary hearing. However, “our Supreme Court has held that where the 

PCRA petition is untimely, the failure to provide such notice is not reversible 

error.” Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa. Super. 2007) 

(citing Commonwealth v. Pursell, 749 A.2d 911, 917 n.7 (Pa. 2000)). 

Thus, the failure of the PCRA court to provide the Rule 907 notice does not 

entitle Appellant to relief. Davis, 916 A.2d at 1208. See also

Commonwealth v. Kutnyak, 781 A.2d 1259, 1263 (Pa. Super. 2000) 

(recognizing that under Pursell, the absence of Pa.R.Crim.P. 1507, now 

Rule 907, notice, standing alone, does not provide a basis for reversal of the 

dismissal of an untimely PCRA petition).
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Because Appellant raised no additional issues and provided no 

argument or basis upon which an exception to the PCRA time bar applies, we 

conclude that Appellant’s PCRA petition was untimely. Accordingly, because 

the instant PCRA petition was untimely and no exceptions apply, the PCRA 

court lacked jurisdiction to address the claim presented. See 

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding 

that the PCRA court lacks jurisdiction to hear an untimely petition). 

Likewise, we lack jurisdiction to reach the merits of the appeal. See 

Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) 

(holding that the Superior Court lacks jurisdiction to reach the merits of an 

appeal from an untimely PCRA petition). Therefore, we affirm the order 

denying Appellant’s PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/3/2015