J-S45033-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES P. MCNULTY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 866 EDA 2022

Appeal from the PCRA Order Entered February 3, 2022

In the Court of Common Pleas of Philadelphia County

Criminal Division at CP-51-CR-0003422-2014

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 27, 2023

James P. McNulty (Appellant) pro se appeals from the order dismissing 

his serial petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546.1 We affirm.

On March 26, 2015, the trial court convicted Appellant of 50 counts of 

possessing child pornography, two counts of sexual abuse of children, and one 

count of criminal use of a communications facility.

2

 On May 28, 2015, the trial 

court sentenced Appellant to an aggregate 4 – 8 years in prison followed by 

10 years of probation.

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1 Appellant’s “status as a pro se litigant does not entitle him to any 

advantage,” and he “must still comply with the Pennsylvania Rules of 

Appellate Procedure.” Commonwealth v. Ray, 134 A.3d 1109, 1114-15 (Pa. 

Super. 2016) (citations omitted).

2 18 Pa.C.S.A. §§ 6312(d), (c), and 7512(a), respectively.
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Appellant filed a direct appeal and this Court affirmed his judgment of 

sentence. Commonwealth v. McNulty, 1767 EDA 2015 (Pa. Super. Mar. 4, 

2016) (unpublished memorandum). Appellant did not petition the 

Pennsylvania Supreme Court for allowance of appeal.

On June 29, 2016, Appellant filed a first counseled PCRA petition, which 

he withdrew on July 14, 2016. On February 28, 2017, Appellant filed a second 

counseled PCRA petition. The PCRA court conducted a hearing and denied 

relief on January 24, 2019. Appellant appealed the denial of PCRA relief, and

this Court affirmed. Commonwealth v. McNulty, 236 A.3d 1066 (Pa. Super. 

Apr. 27, 2020) (unpublished memorandum). Appellant did not petition the 

Pennsylvania Supreme Court for allowance of appeal.

On December 6, 2021, Appellant pro se filed the underlying PCRA 

petition. On December 22, 2021, the PCRA court issued notice of intent to 

dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. The 

PCRA court dismissed the petition on February 3, 2022. Appellant filed a 

notice of appeal on March 21, 2022, more than 30 days later. See Pa.R.A.P. 

903(a) (requiring appeals to be filed “within 30 days after the entry of the 

order from which the appeal is taken.”). On April 21, 2022, this Court issued 

a rule upon Appellant to show cause why we should not quash the appeal as 

untimely. See, e.g., Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. 

Super. 2007) (“Jurisdiction is vested in the Superior Court upon the filing of a 

timely notice of appeal.” (citation omitted)).
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Appellant, who is incarcerated, filed a response claiming he placed his

notice of appeal in prison mail on February 21, 2022. Response, 5/3/22, at 

1-8 (unnumbered). This Court discharged the Rule.

The timeliness of an appeal invokes this Court’s jurisdiction. “When a 

statute fixes the time within which an appeal may be taken, the time may not 

be extended as a matter of indulgence or grace.” Commonwealth v. Pena, 

31 A.3d 704, 706 (Pa. Super. 2011) (citation omitted). Time limitations on 

appeals are strictly construed. See Commonwealth v. Burks, 102 A.3d 497, 

500 (Pa. Super. 2015). A party must file the notice of appeal with the clerk 

of the trial court; upon “receipt of the notice of appeal the clerk shall 

immediately stamp it with the date of receipt, and that date shall constitute 

the date when the appeal was taken, which date shall be shown on the 

docket.” Pa.R.A.P. 905(a)(3).

Under the prisoner mailbox rule, a pro se prisoner’s submissions are 

deemed filed on the date delivered to prison authorities for mailing. 

Commonwealth v. Kennedy, 266 A.3d 1128, 1132 n.8 (Pa. Super. 2021); 

Pa.R.A.P. 121(f) (“A pro se filing submitted by a person incarcerated in a 

correctional facility is deemed filed as of the date of the prison postmark or 

the date the filing was delivered to the prison authorities for purposes of 

mailing as documented by a properly executed prisoner cash slip or other 

reasonably verifiable evidence.”).
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Appellant claims he placed his notice of appeal in prison mail on 

February 21, 2022. Response, 5/3/22, at 1-8 (unnumbered). However, the 

notice of appeal has no postmark and prison authorities did not confirm the 

date of mailing. See Inmate’s Request to Staff Member, 4/26/22 (completed 

by prison staff and stating, “Because there were no cash slips the mail room 

would not have a record.”). Notably, Appellant concedes he sent his notice of 

appeal to the PCRA court rather than the clerk of courts. Response, 5/3/22, 

at 2 (unnumbered); see also Pa.R.A.P. 905(a).

Our review reveals another procedural deficiency. Although Appellant 

received the PCRA court’s order and has not challenged service, the court 

docket does not conform with Pa.R.Crim.P. 114 (Order and Court Notices: 

Filing; Service; and Docket Entries). Rule 114(C)(2)(c) states that “docket 

entries shall contain ... the date of service of the order ....” Here, the record 

contains the order with a certificate of service attached stating the order was

mailed to Appellant on February 3, 2022. However, the docket does not 

indicate when the order was served. In these circumstances, we may find a 

breakdown in the court process. See Commonwealth v. Braykovich, 664 

A.2d 133, 136, 137 (Pa. Super. 1995) (“It is well-established that the 

extension of the filing period or the allowance of an appeal nunc pro tunc will 

be permitted only in extraordinary circumstances, namely, fraud or some 

breakdown in the processes of the court”). See also Commonwealth v. 

Carter, 122 A.3d 388, 390-92 (Pa. Super. 2015) (appeal period does not run 
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until the clerk of court mails or delivers copies of the order to the parties as 

shown on the docket); and see Commonwealth v. Jerman, 762 A.2d 366, 

368 (Pa. Super. 2000) (no indication on trial court docket that clerk furnished 

a copy of the final order to appellant; this Court “assume[d] the period for 

taking an appeal was never triggered,” and the appeal was considered timely).

We reviewed a similar situation in Commonwealth v. Ferguson, 239 

A.3d 115 (Pa. Super. 2020) (unpublished memorandum), appeal denied, 244 

A.3d 1226 (Pa. 2021).

3

 In Ferguson,

[The appellant] mistakenly “filed” his notice of appeal directly with 

the PCRA judge. Mailing a document to a judge’s chambers does 

not constitute filing and to “file” a notice of appeal, the appellant 

at a minimum must deliver the notice of appeal to the clerk of the 

lower court. [Commonwealth v.]

Crawford, 17 A.3d [1279,] 1282 [(Pa. Super. 2011)]. 

Indeed, “while the prisoner mailbox rule uses the term

‘filed,’ the document must at least be addressed to a proper

filing office within the Unified Judicial System in order to

complete the filing.” Id.

Id. at *2 (emphasis in original).

We observed, “Ordinarily, [the appellant’s] failure to file a timely notice 

of appeal would result in immediate quashal of the appeal.” Id. However, the 

record also revealed “the PCRA court did not adequately comply with the 

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3 Non-precedential Superior Court decisions may be cited as persuasive 

authority pursuant to Pa.R.A.P. 126(b)(2).
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service requirements of Pa.R.Crim.P. 907(4) when it dismissed the subject 

PCRA petition.” Id.4 This Court concluded:

In these circumstances, we decline to quash [the] appeal as 

untimely due to the PCRA court’s failure to follow the directives of 

Rule 907. Accordingly, we will proceed to consider [the] appeal.

Id. (citation and footnote omitted).

Consistent with the foregoing authority, we consider this appeal. We 

review “the PCRA court’s findings of fact to determine whether they are 

supported by the record, and ... its conclusions of law to determine whether 

they are free from legal error.” Commonwealth v. Spotz, 84 A.3d 294, 311 

(Pa. 2014) (citation omitted).

“Pennsylvania law makes clear no court has jurisdiction to hear 

an untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076, 

1079 (Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 A.2d 

1157, 1161 (Pa. 2003)). A petitioner must file a PCRA petition within one year 

of the judgment becoming final unless a statutory exception applies. 42 

Pa.C.S.A. § 9545(b)(1). A petitioner invoking an exception must do so within 

a year of the date the claim could have been presented. 42 Pa.C.S.A. § 

9545(b)(2). If a petition is untimely and the petitioner has not pled and 

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4 Rule 907(4) provides that when a PCRA court dismisses a petition without a 

hearing, it must advise the petitioner of the right to appeal and the time for 

initiating an appeal “by certified mail, return receipt requested.” Pa.R.Crim.P. 

907(4).
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proven an exception, “neither this Court nor the trial court 

has jurisdiction over the petition. Without jurisdiction, we simply do not have 

the legal authority to address the substantive claims.” Commonwealth v.

Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).

Appellant presents four claims concerning the denial of his request for a

forensic expert and witness credibility. Appellant’s Brief at 9-10. We lack 

jurisdiction to review these claims because Appellant’s petition is untimely. 

See PCRA Court Opinion, 2/3/22, at 9.5 Appellant filed his PCRA petition 

nearly 5 years after his judgment of sentence became final. See id. The 

PCRA court properly concluded it was “procedurally barred from conducting a 

merit analysis” of the petition. Id. at 10 (explaining newly-discovered facts 

exception was inapplicable because facts were known to Appellant in 2018). 

The PCRA court further addressed — “for the benefit of any future 

proceedings” — Appellant’s substantive claims. Id. at 10-11 (explaining the

claims were previously litigated in Appellant’s second PCRA petition and lacked 

merit). Accordingly, no relief is due.

Order affirmed.

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5 The Commonwealth agrees Appellant’s petition is untimely and does not 

satisfy an exception to the PCRA time-bar. Commonwealth Brief at 8. The 

Commonwealth also argues that even if timely, Appellant’s “issues fail because 

they were previously litigated and deemed meritless.” Id.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/27/2023