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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT 

OF PENNSYLVANIA 

v. 

EMIL M. COOPER 

Appellee 

Appellant No. 81 MDA 2019 

Appeal from the PCRA Order entered December 20, 2018 

In the Court of Common Pleas of Lycoming County 

Criminal Division at No: CP-41-CR-0001464-2009 

BEFORE: STABILE, MURRAY, and MUSMANNO, JJ. 

MEMORANDUM BY STABILE, J.: FILED AUGUST 08, 2019 

Appellant, Emil M. Cooper, pro se appeals from the December 20, 2018 

order of the Court of Common Pleas of Lycoming County dismissing as 

untimely his petition for collateral relief under the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S.A. §§ 9541-46. We affirm. 

The factual and procedural background is not at issue. Briefly, following 

a bench trial, Appellant was found guilty of attempted criminal homicide, 

aggravated assault (2 counts), simple assault (2 counts), and possession of 

an instrument of crime. See Commonwealth v. Cooper, 565 MDA 2012 

(Pa. Super. filed September 19, 2012). On appeal, we affirmed. Id. Our 

Supreme Court denied Appellant's petition for allowance of appeal on March 

6, 2013. 
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Appellant filed the instant PCRA petition, his third, on November 6, 

2018. The PCRA court denied it on December 20, 2018. This appeal followed. 

Appellant acknowledges that the instant petition is facially untimely.' 

However, he argues that the instant petition meets "the newly -discovered 

evidence" exception under Section 42 Pa.C.S.A. § 9545(b)(1)(ii). Specifically, 

Appellant argues that he did not know his limited mental competence was 

relevant at his trial, appeal, and collateral review, and that he learned about 

its relevancy only recently. Accordingly, Appellant argues, all prior counsel 

were ineffective for not pursuing the mental incompetence avenue. The PCRA 

court, in reviewing the claim, found that it was untimely and that it did not 

meet any exception to the time -bar. We agree. 

All PCRA petitions, "including a second or subsequent petition, shall be 

filed within one year of the date the judgment becomes final." 42 Pa.C.S.A. 

§ 9545(b)(1). The one-year time limitation, however, can be overcome if a 

petitioner (1) alleges and proves one of the three exceptions set forth in 

Section 9545(b)(1)(i)-(iii) of the PCRA, and (2) files a petition raising this 

' Appellant's judgment of sentence became final June 4, 2013, that is, upon 

the expiration of the 90 -day period for seeking appellate review to the United 

States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); Rule 13, Rules of the 

Supreme Court of the United States. 

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exception within one year of the date the claim could have been presented. 

42 Pa.C.S.A. § 9545(b)(2).2 

"The PCRA's time restrictions are jurisdictional in nature. Thus, [i]f a 

PCRA petition is untimely, neither this Court nor the [PCRA] court has 

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

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

Chester, 895 A.2d 520, 522 (Pa. 2006) (first alteration in original) (internal 

citations and quotation marks omitted). As timeliness is separate and distinct 

from the merits of Appellant's underlying claims, we first determine whether 

this PCRA petition is timely filed. See Commonwealth v. Stokes, 959 A.2d 

306, 310 (Pa. 2008) (consideration of Brady3 claim separate from 

consideration of its timeliness). The timeliness requirements of the PCRA 

petition must be met, even if the underlying claim is a challenge to the legality 

of the sentence. See Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 

2007) ("Although legality of sentence is always subject to review within the 

PCRA, claims must still first satisfy the PCRA's time limits or one of the 

exceptions thereto") (citing Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 

1999)). 

2 Section 9545(b)(2) was recently amended to enlarge the deadline from sixty 

days to one year. However, the amendment applies only to claims arising on 

or after December 24, 2017. 

3 Brady v. Maryland, 373 U.S. 83 (1963). 

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At issue here is the newly -discovered exception. The newly -discovered 

exception requires a petitioner to plead and prove two components: 1) the 

facts upon which the claim was predicated were unknown, and (2) these 

unknown facts could not have been ascertained by the exercise of due 

diligence. See Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017). 

It is well -established that Appellant's discovery that all counsel were 

ineffective for not pursuing his mental incompetence claim is not a newly - discovered "fact" that qualifies for the exception under Section 9545(b)(1)(ii). 

See, e.g., Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785-86 (Pa. 

2000); Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000) (claims of 

counsel's ineffectiveness do not escape the PCRA one-year time limitation 

merely because they are presented in term of current's counsel discovery of 

the fact); Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000) (couching 

argument in terms of ineffectiveness cannot save a petition that does not fall 

into exception to time -bar). 

Additionally, Appellant, in his brief, confirms that all prior counsel were 

aware of his mental condition, they all told Appellant that they "would argue 

this mitigating factor to the trial court, but failed to do so." Appellant's Brief 

at 10. It is clear, therefore, that Appellant has been aware of the alleged 

ineffective assistance of counsel for a considerable period of time and failed 

to act on it in a timely manner. The claim is, therefore, untimely. 

Appellant finally argues that prior counsel were ineffective for not 

seeking quashal of the underlying indictment. All PCRA claims, including 

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ineffective assistance of counsel claims, are subject to the same jurisdictional 

time limitation described above. As with all PCRA claims, it is incumbent on 

Appellant to plead and prove by a preponderance of the evidence that he is 

entitled to relief. See, e.g., 42 Pa.C.S.A. § 9543(a). The instant claim is 

patently untimely, and Appellant makes no effort to explain what exception, 

if any, would save this otherwise untimely claim. We must therefore conclude 

that the second claim is also untimely. 

Order affirmed. 

Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 8/8/2019 

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