J-S03045-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SAMUEL THEODORE ROSS, 

Appellant

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2816 EDA 2018

Appeal from the PCRA Order Entered September 12, 2018

in the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0003055-1996

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED MARCH 29, 2019

Samuel Theodore Ross (“Ross”), pro se, appeals from the Order 

dismissing his serial Petition for relief filed pursuant to the Post Conviction 

Relief Act (“PCRA”).1 The PCRA court dismissed the Petition, without a 

hearing, as untimely filed. We affirm. 

On January 21, 1997, Ross entered an open guilty plea to one count 

each of third-degree murder, robbery and burglary, and two counts of criminal 

conspiracy.2 On May 19, 1997, the trial court sentenced Ross to an aggregate

prison term of 30 to 60 years. This Court affirmed Ross’s judgment of 

sentence on January 20, 1998. Commonwealth v. Ross, 711 A.2d 1041 

____________________________________________

1 See 42 Pa.C.S.A. §§ 9541-9546.

2 See 18 Pa.C.S.A. §§ 2502(c), 3701, 3502, 903. 
J-S03045-19

- 2 -

(Pa. Super. 1998) (unpublished memorandum). Ross did not file a petition 

for allowance of appeal to the Pennsylvania Supreme Court.

Ross filed a timely, first PCRA Petition, which was denied, without a 

hearing, on February 17, 1999. Thereafter, Ross filed numerous PCRA 

Petitions, all of which have been dismissed as untimely filed.

On April 26, 2018, Ross filed the instant PCRA Petition. After 

appropriate Notice pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed 

the Petition as untimely filed. Thereafter, Ross filed the instant timely appeal, 

followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters 

complained of on appeal.

Ross presents the following claims for our review:

1. Did the [PCRA court] deny [Ross’s] constitutional rights to due 

process and to a remedy by due course of law where it failed 

to provide recourse to address the ineffective assistance of 

counsel on appeal issue?

2. Did the [PCRA court] apply section 9545 of the [PCRA], which 

provides original jurisdiction over PCRA proceedings, 

unconstitutional [sic] when it declined jurisdiction to address 

whether the PCRA proceeding, as applied to this case, 

reasonably comported with constitutional rights to due process 

and to a remedy by due course of law?

3. Whether the [PCRA] court’s application of section 9545(b) of 

the PCRA statute to bar review of an ineffective assistance of 

counsel on appeal issue that already once defeated section 

9545(b) is unreasonable and denies [Ross’s] constitutional 

rights to due process, to a remedy by due course of law and to 

petition the court?

4. Whether [Ross] is entitled to have his ineffective counsel on 

appeal issue reviewed under section 9544(a)(3), which 
J-S03045-19

- 3 -

addresses issues raised and decided in previous collateral 

proceedings?

Brief for Appellant at 3 (capitalization omitted).

“In reviewing the denial of PCRA relief, we examine whether the PCRA 

court’s determination is supported by the record and free of legal error.” 

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and 

internal quotation marks omitted). 

As a preliminary matter, we first address whether Ross timely filed the 

instant PCRA Petition. “[T]he timeliness of a PCRA petition is a jurisdictional 

requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015). 

Neither this Court nor the PCRA court has jurisdiction to address the merits of 

an untimely-filed petition. Commonwealth v. Leggett, 16 A.3d 1144, 1145 

(Pa. Super. 2011).

A PCRA petition, “including a second or subsequent petition, shall be 

filed within one year of the date the judgment becomes final[,]” unless the 

petitioner pleads and proves one of three statutory exceptions. 42 Pa.C.S.A. 

§ 9545(b)(1); Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 

2000). The three statutory exceptions are for newly-discovered facts, 

interference by a government official, and a newly-recognized constitutional 

right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “We emphasize that it is the 

petitioner who bears the burden to allege and prove that one of the timeliness 

exceptions applies.” Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 

2008) (citation omitted). Any petition asserting one of these exceptions must 
J-S03045-19

- 4 -

also establish that the exception was raised within one year of the date the 

claim could have been first presented. 42 Pa.C.S.A. § 9545(b)(2).3 “As such, 

when a PCRA petition is not filed within one year of the expiration of direct 

review, or not eligible for one of the three limited exceptions, or entitled to 

one of the exceptions, but not filed within [one year] of the date that the claim 

could have been first brought, the trial court has no power to address the 

substantive merits of a petitioner’s PCRA claims.” Gamboa-Taylor, 753 A.2d 

at 783 (footnote added). 

Ross’s sentence became final on February 19, 1998, when the time for 

filing a petition for allowance of appeal to the Pennsylvania Supreme Court 

expired. See Pa.R.A.P. 1113 (“[A] petition for allowance of appeal shall be 

filed with the Prothonotary of the Supreme Court within 30 days after the 

entry of the order of the Superior Court[.]”). Therefore, he had until February 

19, 1999, to file a timely PCRA petition. The instant Petition was not filed until 

April 26, 2018, and therefore, the Petition is facially untimely. See 42 

Pa.C.S.A. § 9545(b)(1).

In his first claim, Ross attempts to avoid the PCRA’s timeliness 

requirement, arguing that his direct appeal counsel abandoned him by not 

filing a petition for allowance of appeal to the Pennsylvania Supreme Court. 

____________________________________________

3 Prior to Act 146 of 2018, a PCRA petition alleging an exception to the 

timeliness requirement was required to be filed within sixty days of the date 

the claim could have been presented.
J-S03045-19

- 5 -

Brief for Appellant at 13. However, Ross did not raise this claim in his first 

PCRA Petition, or within the time prescribed by 42 Pa.C.S.A. § 9545(b)(2). 

“[A]llegations of ineffective assistance of counsel will not overcome the 

jurisdictional timeliness requirements of the PCRA.” Commonwealth v. 

Wharton, 886 A.2d 1120, 1127 (Pa. 2005); but see Commonwealth v. 

Bennett, 930 A.2d 1264, 1274 (Pa. 2007) (stating that the Wharton rule 

does not extend to claims alleging the complete abandonment of counsel). 

Although Ross claims that his direct appeal counsel abandoned him, he has 

not invoked the PCRA’s jurisdiction, as he failed to raise his ineffectiveness 

claim within the PCRA’s time limitation. 

Ross additionally asserts that the Remedies Clause of the Pennsylvania 

Constitution guarantees a remedy for the deprivation of a constitutional right. 

See Pa. Const., art. I, § 11 (“All courts shall be open; and every man for an 

injury done him in his lands, goods, person or reputation shall have a remedy 

by due course of law....”). Ross interprets this section as requiring the relief 

he seeks, i.e., to have his claim of ineffective assistance of counsel heard and 

decided by a court of law. Brief for Appellant at 15. 

Similarly, in his remaining claims, Ross attempts to avoid the PCRA’s 

timeliness requirements by arguing that the PCRA court was required to 

litigate his challenge to the constitutionality of the timeliness requirement, 

see Brief for Appellant at 16-17; that the constitutional right to due process 

requires that he be given an opportunity to present his ineffectiveness claim, 
J-S03045-19

- 6 -

see id. at 17; and that the PCRA court is authorized to review the record 

beyond the jurisdictional time limit, in order to determine whether a claim was 

previously litigated, see id. at 22.

Contrary to Ross’s assertions, the PCRA afforded Ross a remedy for his 

claim of ineffective assistance of direct appeal counsel. See 42 Pa.C.S.A. 

§ 9543(a)(2)(ii) (identifying a claim of ineffective assistance of counsel as 

cognizable under the PCRA). “[P]ursuant to the plain language of Section 

9542, where a claim is cognizable under the PCRA, the PCRA is the only 

method of obtaining collateral review.” Commonwealth v. Descardes, 136 

A.3d 493, 501 (Pa. 2016). Since Ross’s ineffectiveness claim is cognizable 

under the PCRA, the PCRA court had no authority to address the claim, except 

under the strictures of the PCRA. See Commonwealth v. Eller, 807 A.2d 

838, 843 (Pa. 2002) (recognizing that where a claim is cognizable under the 

PCRA, “the trial court had no residual common law or statutory authority to 

entertain the claim except under the strictures of the PCRA”). 

Here, Ross’s present Petition was untimely filed, and he has failed to 

invoke the PCRA court’s jurisdiction by pleading and proving an exception to 

the PCRA’s timeliness requirement. Consequently, the PCRA court lacked 

jurisdiction to entertain his Petition. See Gamboa-Taylor, 753 A.2d at 783. 

Discerning no error or abuse of discretion, we affirm the Order of the PCRA 

court.

Order affirmed.
J-S03045-19

- 7 -

President Judge Emeritus Bender joins the memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/29/19