J-S49016-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

THOMAS J. CROSSLEY

Appellant No. 3594 EDA 2015

Appeal from the PCRA Order October 27, 2015

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0004523-2009

CP-23-CR-0004531-2009

CP-23-CR-0005623-2009

BEFORE: PANELLA, OLSON, JJ. and STEVENS, P.J.E.* 

MEMORANDUM BY OLSON, J.: FILED JULY 13, 2016

Appellant, Thomas J. Crossley, appeals pro se from the order entered 

on October 27, 2015, dismissing his third petition filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm the 

dismissal of this untimely petition.

On March 3, 2010, Appellant pled guilty to 70 counts of burglary, one 

count of conspiracy, and two counts of robbery. On that same day, the trial 

court sentenced Appellant to ten to 30 years’ incarceration, followed by ten 

years’ probation, in accordance with the terms of the negotiated plea. 

Appellant did not file post-sentence motions or a notice of appeal from the 

judgment of sentence.
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On July 27, 2010, Appellant filed an untimely, pro se motion to modify 

his sentence, which the court treated as a timely PCRA petition. The PCRA 

court dismissed the petition on April 15, 2011. A timely appeal followed. 

This Court affirmed the dismissal of Appellant’s petition on April 2, 2012.

Appellant filed his second PCRA petition on April 19, 2012. Appellant’s 

petition alleged that he did not enter a voluntary plea because of an alleged 

threat issued by the trial court to sentence him to 160 years’ imprisonment. 

The PCRA court dismissed Appellant’s petition without a hearing on June 2, 

2014. We affirmed that dismissal order on February 6, 2015.

Subsequently, Appellant obtained a copy of his guideline sentencing 

form through a Freedom of Information Act request. He thereafter filed his 

third petition, pro se, on July 28, 2015, in the form of a petition for writ of 

habeas corpus. The court treated Appellant’s submission as a petition under 

the PCRA. Appellant claimed that plea counsel was ineffective and that his 

sentence was “illegal” because it exceeded the guidelines and because the 

sentencing court never stated its rationale on the record or completed the 

guideline sentencing form. Appellant’s Brief at 7. The PCRA court dismissed 

this petition as untimely by order dated October 27, 2015. This appeal 

followed.1

Appellant raises the following questions for our review:

____________________________________________

1 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
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Whether Appellant’s failure to raise issues concerning his 

sentencing in a motion [pursuant to] Pennsylvania Rule of 

Criminal Procedure [720] constitute[d] a knowing and intelligent 

waiver since he was not informed on the record that failure to so 

file would affect his right to raise issues upon appeal?

Whether [] trial counsel was ineffective in that he failed to raise 

these issues presented as questions herein either at Appellant’s 

sentencing hearing or in a motion pursuant to Pennsylvania Rule 

of Criminal Procedure 720?

Whether the trial court erred by sentencing Appellant 

unreasonably outside the sentencing guidelines?

Whether the trial court erred by failing to state upon the record 

during sentencing proceedings and in a [c]ontemporaneous 

[m]emorandum his reasons for the sentence imposed?

Appellant’s Brief at 3.

The PCRA contains a jurisdictional time-bar, which is subject to limited 

statutory exceptions. Because the time-bar implicates the subject matter 

jurisdiction of our courts, we first determine the timeliness of a petition

before we consider the underlying claims. Commonwealth v. Yarris, 731 

A.2d 581, 586 (Pa. 1999). As our Supreme Court explained:

the PCRA timeliness requirements are jurisdictional in nature 

and, accordingly, a PCRA court is precluded from considering 

untimely PCRA petitions. See, e.g., Commonwealth v. 

Murray, 753 A.2d 201, 203 (Pa. 2000) (stating that “given the 

fact that the PCRA’s timeliness requirements are mandatory and 

jurisdictional in nature, no court may properly disregard or alter 

them in order to reach the merits of the claims raised in a PCRA 

petition that is filed in an untimely manner”); Commonwealth 

v. Fahy, 737 A.2d 214, 220 (Pa. 1999) (holding that where a 

petitioner fails to satisfy the PCRA time requirements, this Court 

has no jurisdiction to entertain the petition). 

***
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[Timeliness] is a threshold question implicating our subject 

matter jurisdiction and ability to grant the requested relief. 

Commonwealth v. Whitney, 817 A.2d 473, 475-76 (Pa. 2003).

This time-bar demands that “any PCRA petition, including a second or 

subsequent petition, [] be filed within one year of the date that the 

petitioner’s judgment of sentence becomes final, unless [the] petitioner 

pleads [and] proves that one of the [three] exceptions to the timeliness 

requirement . . . is appropriate.” Commonwealth v. McKeever, 947 A.2d 

782, 785 (Pa. Super. 2008); see also 42 Pa.C.S.A. § 9545(b). A judgment 

of sentence becomes final at the conclusion of direct review or at the 

expiration of the time for seeking review. Fahy, 737 A.2d at 218.

The three statutory exceptions to the timeliness provisions in the 

PCRA allow for very limited circumstances under which the late 

filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1). 

To invoke an exception, a petition must allege and the petitioner 

must prove:

(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)(i)-(iii).
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Commonwealth v. Brown, 111 A.3d 171, 175-176 (Pa. Super. 2015).

In the case at bar, Appellant’s judgment of sentence became final on 

April 2, 2010, when his time for filing a direct appeal to this Court expired. 

Fahy, 737 A.2d at 218; Pa.R.A.P. 903(a). Appellant then had until April 2, 

2011 to file a timely PCRA petition. 42 Pa.C.S.A. § 9545(b)(1). As 

Appellant did not file his current petition until July 28, 2015, his petition is 

patently untimely. The burden thus falls upon Appellant to plead and prove 

that one of the enumerated exceptions to the one-year time-bar applies to 

his case. Brown, 111 A.3d at 175.

Appellant argued in his petition that his claims are not time-barred 

because of the “newly discovered facts” exception.2 PCRA Petition, 8/20/15, 

at ¶¶ 9-15. Specifically, Appellant maintains that the guideline sentencing 

form he recently obtained includes facts that were previously unknown to 

him and which could not have been ascertained by the exercise of due 

diligence.3 Id.

____________________________________________

2

 See 42 Pa.C.S.A. § 9545(b)(1)(ii).

3 Alternatively, Appellant contends that § 9545(b)(1)(i) excuses the 

untimeliness of his petition because the sentencing judge interfered with the 

presentation of these claims in violation of Appellant’s constitutional right to 

due process of law. PCRA Petition, 8/20/15, at ¶ 14. This Court is uncertain 

what Appellant’s theory of governmental interference might be. Since 

Appellant did not request the guideline sentencing form until five years after 

(Footnote Continued Next Page)
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[A]s an initial jurisdictional threshold, [§ 9545(b)(1)(ii)] requires 

[Appellant] to allege and prove that there were facts unknown to 

him and that he exercised due diligence in discovering those 

facts. Once jurisdiction is established, [Appellant] can present a 

substantive after-discovered-evidence claim.

* * *

In other words, the “new facts” exception at [§ 9545](b)(1)(ii) 

has two components, which must be alleged and proved. 

Namely, [Appellant] 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.

Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015) 

(emphasis in original, citations and quotations omitted). “Due diligence 

demands that the [appellant] take reasonable steps to protect his own 

interests.” Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 

2001). We strictly enforce this rule. Id.

The guideline sentencing form upon which Appellant bases his claims is 

part of the public record of this case. It was available for Appellant’s review 

since April of 2010. As the PCRA court observed:

Waiting in excess of five (5) years to make an application for a 

copy of court documents that have been noted on the 

Administrative Office of the Pennsylvania Courts Delaware 

County computerized criminal docket since April of 2010 cannot 

reasonably or otherwise be seen as exercising due diligence.

PCRA Court Opinion, 2/12/16, at 16.

(Footnote Continued) _______________________

his sentencing hearing, he cannot argue that any act or omission of the 

sentencing judge is responsible for the delay in raising the instant claims. 

We are therefore not convinced that the governmental interference 

exception applies here.
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Appellant fails to plead or prove any explanation as to why, in the 

exercise of due diligence, he could not have acquired the guideline 

sentencing form, or learned of the information contained therein, within the 

one-year period prescribed by the PCRA. See Commonwealth v. Lopez, 

84 A.3d 195, 196 (Pa. 2012) (concluding that PCRA petition does not qualify 

for exception found at § 9545(b)(1)(ii) where information at issue was 

publicly available for years and discoverable); see also Commonwealth v. 

Stokes, 959 A.2d 306, 310 (Pa. 2008) (petitioner’s failure to explain why he 

did not request information earlier defeats governmental interference and 

newly discovered facts exceptions to PCRA time-bar). Therefore, Appellant’s 

attempt to invoke the “newly discovered facts” exception to the PCRA 

time-bar fails and the PCRA court correctly dismissed his petition as 

untimely. See Brown, 111 A.3d at 176-77.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/13/2016