J-S30022-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

MARK ALAN WEAVER

Appellant No. 810 MDA 2016

Appeal from the PCRA Order May 4, 2016

In the Court of Common Pleas of Lebanon County

Criminal Division at No(s): CP-38-CR-0000075-2009

BEFORE: SHOGAN, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.: FILED JUNE 27, 2017

Appellant, Mark Alan Weaver, appeals from the order entered May 4, 

2016, denying as untimely his serial petition for collateral relief filed under 

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

In November 2009, a jury convicted Appellant of three counts of 

aggravated indecent assault and indecent assault, two counts each of 

involuntary deviate sexual intercourse and criminal attempt to commit rape, 

and one count each of criminal attempt to commit sexual assault, sexual 

assault, indecent exposure, and simple assault.1

In February 2010, the court imposed an aggregate sentence of nine to 

forty years of incarceration. Appellant filed a post-sentence motion, which 

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1 See 18 Pa.C.S. §§ 3125(a), 3126(a), 3123(a), 901, 3121(a), 3124.1, 

3127(a), 2701(a)(1), respectively.
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was denied. His judgment of sentence was affirmed on direct appeal. See

Commonwealth v. Weaver, 29 A.3d 829 (Pa. Super. 2011) (unpublished 

memorandum). Appellant did not appeal this decision.

In April 2012, Appellant timely filed a first PCRA petition, counsel was 

appointed, and an evidentiary hearing held. Ultimately, the PCRA court 

denied the petition. This Court affirmed the dismissal on appeal. See 

Commonwealth v. Weaver, 82 A.3d 464 (Pa. Super. 2013), appeal 

denied, 81 A.3d 77 (Pa. 2013).

In December 2013, Appellant untimely filed a second PCRA petition. 

His petition was denied without a hearing, and he did not appeal.

In April 2016, Appellant untimely filed a third PCRA petition. After 

sending notice that Appellant’s petition would be dismissed without a hearing 

pursuant to Pa.R.Crim.P. 907, the court dismissed Appellant’s petition as 

untimely filed.

Appellant timely appealed and filed a court-ordered statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA 

court issued a responsive opinion.

On appeal, Appellant raises two issues for our review, which we have 

restated for clarity.

1. Did the trial court err in failing to conduct an evidentiary 

hearing regarding the ineffectiveness of all prior counsel?

2. Did the trial court err in finding that Appellant’s petition was 

time barred and whether Appellant is entitled to nunc pro tunc

review of his issues? 
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See Appellant’s Brief at 4.

This Court’s standard of review regarding an order denying a petition 

under the PCRA is whether the determination of the PCRA court is supported 

by the evidence of record and is free of legal error. See Commonwealth v. 

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). 

In this case, the PCRA court dismissed Appellant’s petition without a 

hearing. See PCRA Court Order, 5/4/16, at 1. There is no absolute right to 

an evidentiary hearing. See Commonwealth v. Springer, 961 A.2d 1262, 

1264 (Pa. Super. 2008). On appeal, we examine the issues raised in light of 

the record “to determine whether the PCRA court erred in concluding that 

there were no genuine issues of material fact and denying relief without an 

evidentiary hearing.” Springer, 961 A.2d at 1264.

We begin by addressing the timeliness of Appellant’s petition, as the 

PCRA time limitations implicate our jurisdiction and may not be altered or 

disregarded in order to address the merits of his claims. See 

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the 

PCRA, any petition for relief, including second and subsequent petitions, 

must be filed within one year of the date on which the judgment of sentence 

becomes final. Id. There are three exceptions:

(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;
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(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). Any petition attempting to invoke these 

exceptions “shall be filed within 60 days of the date the claim could have 

been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v. 

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

Appellant’s petition is untimely.2 Accordingly, in order to reach the 

merits of his issues, he must plead and prove one of the exceptions to the 

time bar. See Bennett, 930 A.2d at 1267. Appellant does not plead any of 

the three time bar exceptions. Instead, he raises various evidentiary and 

sentencing issues, and he avers that he has made a prima facie showing of a 

miscarriage of justice, per Commonwealth v. Lawson, 549 A.2d 107, 112 

(Pa. 1988) (holding that a second or subsequent petition for post-conviction 

relief will not be entertained unless a strong prima facie showing is offered 

to demonstrate a miscarriage of justice may have occurred). 

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2 Appellant’s petition is patently untimely. Appellant’s judgment of sentence 

became final on May 11, 2011, at the expiration of his thirty days to petition 

for allowance of appeal to the Pennsylvania Supreme Court. See 42 Pa.C.S. 

§ 9545(b)(3) (a judgment of sentence becomes final at the conclusion of 

direct review or the expiration of the time for seeking the review). 

Accordingly, he had until May 2012 to timely file a PCRA petition.
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Appellant’s argument does not merit relief. Lawson predates the 

1995 amendment to the PCRA that added the jurisdictional time bar, and 

Appellant does not acknowledge that, since that time, our courts have 

consistently viewed the PCRA’s time limits as mandatory and jurisdictional. 

See Bennett, 930 A.2d at 1267; see also Commonwealth v. Lawson, 90 

A.3d 1, 4 (Pa. Super. 2014) (“The timeliness of a PCRA petition is a 

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

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

Appellant also misinterprets our Supreme Court’s decision in 

Commonwealth v. Grant, 813 A.3d 726 (Pa. 2002), arguing, incorrectly, 

that because all prior counsel were ineffective and he is innocent, the 

jurisdictional time bar does not apply to his case. Id. at 738 (noting that, 

as a general rule, a petitioner should wait to raise claims of ineffectiveness 

until collateral review, and an ineffectiveness claim will be waived only after 

a petitioner has had the opportunity to raise the issue on collateral review 

and did not do so).

Accordingly, because Appellant’s petition is untimely and he does not 

plead an exception to the time bar, the PCRA court did not err in dismissing 

his petition. See 42 Pa.C.S. § 9545(b); Bennett, 930 A.2d at 1267; Ragan, 

923 A.2d at 1170.

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/27/2017