J-S29017-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

EARL THOMAS 

 Appellant No. 1229 WDA 2014 

Appeal from the PCRA Order July 15, 2014 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0013321-1995 

BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.

*

 

MEMORANDUM BY MUNDY, J.: FILED JULY 24, 2015

 Appellant, Earl Thomas, appeals, pro se, from the July 15, 2014 order 

dismissing as untimely his serial petition filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful 

consideration, we affirm. 

 We summarize the pertinent procedural history of this case as follows. 

On April 1, 1996, a jury found Appellant guilty of burglary, attempted rape, 

unlawful restraint, and simple assault.1 The trial court sentenced Appellant 

to an aggregate term of incarceration of 15 to 30 years. Appellant filed a 

timely post-sentence motion, which the trial court denied. Appellant timely 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

1

 18 Pa.C.S.A. §§ 3502(a), 901, 2902(a)(1), and 2701(a), respectively. 
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appealed and challenged the effectiveness of trial counsel based on a conflict 

between counsel and Appellant, challenged the trial court’s refusal to appoint 

different counsel, and challenged the discretionary aspects of his sentence. 

We affirmed the judgment of sentence on April 15, 1998, and our Supreme 

Court denied Appellant’s petition for allowance of appeal on October 5, 1998. 

Commonwealth v. Thomas, 718 A.2d 349 (Pa. Super. 1998) (unpublished 

memorandum), appeal denied, 729 A.2d 428 (Pa. 1998). 

Appellant timely filed a pro se PCRA petition on February 16, 1999. 

Counsel was appointed by the PCRA court, and he filed an amended petition 

on September 12, 2000. Therein Appellant alleged ineffective assistance of 

trial counsel for failure to object to the trial court’s summary to the jury of 

certain expert testimony received during the trial. The PCRA court denied 

the petition without a hearing on December 14, 2000. Upon timely appeal, 

this Court affirmed on January 28, 2002. Commonwealth v. Thomas, 797 

A.2d 337 (Pa. Super. 2002) (unpublished memorandum), appeal denied, 

812 A.2d 229 (Pa. 2002).2

____________________________________________ 

2

 Appellant also filed two petitions for relief under 61 P.S. § 81 (providing for 

transfer or modification of sentence based on proof of unmet special medical 

needs), which were the subject of three appeals to this Court. See

Commonwealth v. Thomas, 790 A.2d 344 (Pa. Super. 2001) (unpublished 

memorandum); Commonwealth v. Thomas, 876 A.2d 471 (Pa. Super. 

2005) (unpublished memorandum); and Commonwealth v. Thomas, 965 

A.2d 304 (Pa. Super. 2009) (unpublished memorandum), appeal denied, 

973 A.2d 1006 (Pa. 2009). Additionally Appellant filed a petition for relief 

under 42 Pa.C.S.A § 9543.1 on January 28, 2011, seeking DNA testing of 

certain evidence. The PCRA court denied relief and this Court affirmed on 

(Footnote Continued Next Page) 
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Appellant filed the instant pro se PCRA petition on November 15, 2013. 

On March 4, 2014, pursuant to Pennsylvania Rule of Criminal Procedure 907, 

the PCRA court issued a notice of its intent to dismiss Appellant’s PCRA 

petition without a hearing because of untimeliness. Appellant filed a 

response to the PCRA court’s notice on April 7, 2014. The PCRA court 

dismissed Appellant’s PCRA petition on July 16, 2014. Appellant filed a 

timely notice of appeal on July 30, 2014.3

 On appeal, Appellant raises the following issues for our review. 

1. Was there a Sixth Amendment Violation[?] 

2. Was there Government Interference on the 

Trial Judge who was also under an investigation from 

1989 to 2006[?] 

3. Was there an Error by the Trial Court by 

allowing the Public Defender to continue his 

representation for the Appellant[?] 

Appellant’s Brief at 3. 

When presented with a challenge to a PCRA court’s denial of relief on a 

PCRA petition, we observe the following principles. “On appeal from the 

denial of PCRA relief, our standard and scope of review is limited to 

determining whether the PCRA court’s findings are supported by the record 

(Footnote Continued) _______________________ 

the basis the materials had already been subjected to DNA testing. 

Commonwealth v. Thomas, 87 A.3d 391 (Pa. Super. 2013) (unpublished 

memorandum). 

3

 Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925. 
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and without legal error.” Commonwealth v. Edmiston, 65 A.3d 339, 345 

(Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania, 134 

S. Ct. 639 (2013). “[Our] scope of review is limited to the findings of the 

PCRA court and the evidence of record, viewed in the light most favorable to 

the prevailing party at the PCRA court level.” Commonwealth v. Koehler, 

36 A.3d 121, 131 (Pa. 2012) (citation omitted). “The PCRA court’s 

credibility determinations, when supported by the record, are binding on this 

Court.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation 

omitted). “However, this Court applies a de novo standard of review to the 

PCRA court’s legal conclusions.” Id. In order to be eligible for PCRA relief, a 

petitioner must plead and prove by a preponderance of the evidence that his 

conviction or sentence arose from one or more of the errors listed at 42 

Pa.C.S.A. § 9543(a)(2). These issues must be neither previously litigated 

nor waived. 42 Pa.C.S.A. § 9543(a)(3). 

Instantly, the PCRA court dismissed Appellant’s petition as untimely. 

“[I]t is well-settled that ... a question of timeliness implicates the jurisdiction 

of our Court.” Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa. Super. 

2012) (internal quotation marks and citation omitted), appeal denied, 49 

A.3d 442 (Pa. 2012). “Because these 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. Lopez, 51 
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A.3d 195, 196 (Pa. 2012) (internal quotation marks and citation omitted). 

The PCRA “confers no authority upon this Court to fashion ad hoc equitable 

exceptions to the PCRA time-bar[.]” Commonwealth v. Watts, 23 A.3d 

980, 983 (Pa. 2011) (citation omitted). This is to “accord finality to the 

collateral review process.” Id. “It is well settled that [a]ny and all PCRA 

petitions must be filed [in a timely manner] unless one of three statutory 

exceptions applies.” Commonwealth v. Garcia, 23 A.3d 1059, 1061-1062 

(Pa. Super. 2011) (internal quotation marks, citation, appeal denied, 38 

A.3d 823 (Pa. 2012). “We have repeatedly stated it is the appellant’s 

burden to allege and prove that one of the timeliness exceptions applies. 

Whether Appellant has carried his burden is a threshold inquiry prior to 

considering the merits of any claim.” Edmiston, supra at 346 (citation 

omitted). 

The Act provides for the following possible exceptions to the timeliness 

requirement. 

§ 9545. Jurisdiction and proceedings 

... 

(b) Time for filing petition.— 

(1) Any petition under this subchapter, 

including a second or subsequent petition, shall be

[timely] filed ... unless the petition alleges and the 

petitioner proves that: 

(i) the failure to raise the claim 

previously was the result of interference by 

government officials with the presentation of 
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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. 

(2) Any petition invoking an exception 

provided in paragraph (1) shall be filed within 60 

days of the date the claim could have been 

presented. 

... 

42 Pa.C.S.A. § 9545(b). 

 In this case, Appellant’s judgment of sentence became final on January 

4, 1999, 90 days after our Supreme Court denied Appellant’s petition for 

allowance of appeal on October 5, 1998, being the time allowed to file a writ 

of certiorari with the United States Supreme Court.4 See U.S. S. Ct. R. 

13(1). Thus, Appellant’s first and any subsequent PCRA petition was 

required to be filed on or before January 4, 2000. Appellant’s petition under 

____________________________________________ 

4

 We note that the 90th day was Sunday, January 3, 1999. Because the last

day to file fell on a weekend, Appellant had until Monday, January 4, 1999, 

to timely file a petition for a writ of certiorari. See generally 1 Pa.C.S.A. 

§ 1908. 
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review was filed, as stated, on November 15, 2013, and is, therefore, 

demonstrably untimely. 

 Instantly, Appellant purports to invoke the first of the enumerated 

timeliness exceptions, governmental interference. Appellant’s Brief at 14. 

[Appellant] has met the enumerated exception that 

would allow [Appellant] to file his PCRA petition late 

under the First [exception] and not the Second or 

Third, ... as it was “a delay” caused by the [trial 

j]udge who is ... a “Goverment [sic] Official.” 

[Appellant] is not time barred from raising this claim 

in his PCRA. [Appellant] has met the exception rule 

under 42 Pa.C.S.A. § 9545 (b)(1)(i). 

Id. at 14, ¶ 25. 

 Appellant contends the governmental interference consisted of the trial 

judge’s alleged refusal to permit Appellant to hire a private attorney for trial. 

Id. at 15. Specifically, Appellant asserts the following. 

[Appellant’s] PCRA petition is filed in a timely 

manner because of the interference by the [trial 

judge], when he refused to let [Appellant,] after 

[Appellant] stated on record that [Appellant] had 

money to hire a private attorney, and the [trial 

j]udge denied [Appellant’s request which was clearly 

a 6th Amendment Right Violation; and also a 

violation of the Canon which the Code of Judicial 

Conduct require Judges to be patient, dignified and

courteous. And requesting to have a new lawyer is a 

Constitutional Right.... 

Id. at 15, ¶ 30. 

 This claim, even if it could properly be construed as governmental 

interference, fails to establish the claimed exception. As Appellant notes, 

this issue was known and raised at trial and on direct appeal. Id. at 14, ¶ 
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25. “[Appellant] [] raised this claim back on 5/30/1996 when his prior 

Attorney ... raised it, but it was denied by [the Superior Court on direct 

appeal].” Id. Thus, the PCRA court notes as follows. “The question of 

whether or not [Appellant] had been forbidden to have his trial counsel 

withdraw and either have court-appointed counsel or private counsel 

represent him has previously been litigated and the Superior Court rejected 

that contention in its Memorandum Opinion filed on April 15, 1998.” Trial 

Court Opinion, 1/9/15, at 2. Consequently, the governmental interference 

alleged by Appellant did not prevent him from raising his issues in a timely 

fashion. Further, Appellant’s current PCRA petition was filed well outside the 

60-day deadline for filing after discovering the alleged interference. See 42 

Pa.C.S.A. § 9545(b)(2); Commonwealth v. Burton, 936 A.2d 521, 

525 (Pa. Super. 2007) (noting, “the PCRA mandates that any petition 

invoking an exception to the time bar requirement be filed within 60 days of 

the date the claim could have been presented”). 

 Based on his underlying right to counsel argument, Appellant also 

baldly asserts, “that [a petitioner] can never be time barred when its [sic] a 

Constitutional Rights Violation.” Appellant’s Brief at 15, ¶ 29. Our Supreme 

Court has held that such an argument “is nothing more than a convoluted 

way of attempting to carve out an exception to the jurisdictional timeliness 

requirements of the PCRA.” Commonwealth v. Wharton, 886 A.2d 1120, 

1126-1127 (Pa. 2005). 
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 For these reasons, we conclude Appellant’s November 15, 2013 PCRA 

petition is untimely, and both the PCRA court and this Court are without 

jurisdiction to consider its merits. We therefore affirm the PCRA court’s July 

15, 2014 order dismissing Appellant’s PCRA petition without a hearing. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/24/2015