J-S34038-18

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

JAMES W. CRISE,

 Appellant

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 53 WDA 2018

Appeal from the PCRA Order December 1, 2017

in the Court of Common Pleas of Westmoreland County 

Criminal Division at No(s): CP-65-CR-0001899-2008

CP-65-CR-0004502-2008

BEFORE: BOWES, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JULY 31, 2018

James W. Crise (Appellant) pro se appeals from the December 1, 2017 

order denying his petition filed under the Post Conviction Relief Act (PCRA), 

42 Pa.C.S. §§ 9541-9546. We affirm.

We provide the following background. In 2009, Appellant was 

convicted of various crimes including involuntary deviate sexual intercourse 

(IDSI). Appellant was sentenced to an aggregate term of 20 to 55 years of 

imprisonment, which included a 10-year mandatory minimum sentence. 

This Court denied Appellant relief on direct appeal, and his judgment of 

sentence became final in 2011 after our Supreme Court denied his petition 

for allowance of appeal. Commonwealth v. Crise, 24 A.3d 455 (Pa. Super. 

2011) (unpublished memorandum), appeal denied, 24 A.3d 863 (Pa. 2011). 

Appellant’s first three PCRA petitions resulted in no relief.
J-S34038-18

- 2 -

Appellant filed the petition that is the subject of the instant appeal on 

September 18, 2017. Therein, he claimed that he was entitled to relief due 

to ineffective assistance of counsel1 and having been given an illegal

sentence. PCRA Petition, 9/18/2017, at ¶ 4(II), 4(VI). Appellant also 

suggested that two timeliness exceptions applied to this otherwise untimelyfiled fourth PCRA petition. Id. at ¶ 5.

The PCRA court issued an opinion and notice of its intent to dismiss 

Appellant’s petition without a hearing, to which Appellant filed a response in 

opposition. On December 1, 2017, the PCRA court entered an order 

dismissing Appellant’s petition as untimely filed. Appellant timely filed a 

notice of appeal, and both Appellant and the PCRA court complied with 

Pa.R.A.P. 1925.

Appellant raises two issues for our review. Before we may consider 

them, we must determine whether the PCRA court correctly held that his 

petition was untimely filed, for the timeliness of a post-conviction petition is 

jurisdictional. See, e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280–

81 (Pa. Super. 2013) (quoting Commonwealth v. Chester, 895 A.2d 520, 

522 (Pa. 2006)) (“[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.”).

 

1 Appellant does not raise this claim on appeal.
J-S34038-18

- 3 -

Generally, a petition for relief under the PCRA, including a second or 

subsequent petition, must be filed within one year of the date the judgment 

of sentence is final unless the petition alleges, and the petitioner proves, 

that an exception to the time for filing the petition is met, and that the claim 

was raised within 60 days of the date on which it became available. 42 

Pa.C.S. § 9545(b).

It is clear that Appellant’s 2017 petition is facially untimely: his 

judgment of sentence became final in 2011. However, we may consider an 

untimely-filed PCRA petition if Appellant explicitly pled and proved one of 

three exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i-iii). Any petition 

invoking one of these exceptions “shall be filed within 60 days of the date 

the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). 

Here, although inarticulately stated in his brief, Appellant’s petition

arguably asserts the after-recognized and retroactively-applied constitutional 

right exception found at 42 Pa.C.S. § 9545(b)(1)(iii) (providing an exception 

where “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”) based on Alleyne v. United States, 570 U.S. 99 

(2013). See PCRA Petition, 9/18/2017, at ¶ 5; Appellant’s Brief at 6-7. In 

Alleyne, the Supreme Court of the United States “held that any fact that, by 

law, increases the penalty for a crime must be treated as an element of the 
J-S34038-18

- 4 -

offense, submitted to a jury, rather than a judge, and found beyond a 

reasonable doubt.” Commonwealth v. Washington, 142 A.3d 810, 812 

(Pa. Super. 2016), citing Alleyne, 570 U.S. at 116. The U.S. Supreme 

Court reasoned that a Sixth Amendment violation occurs where these 

sentence-determinative facts are not submitted to a jury. Alleyne, 570 U.S. 

at 104. However, our Supreme Court has held specifically 

that Alleyne does not apply retroactively to cases on collateral review. 

See Washington, 142 A.3d at 820. Thus, Appellant has not satisfied this 

exception.

Next, Appellant attempts to assert the newly-discovered-facts 

timeliness exception found at 42 Pa.C.S. § 9545(b)(1)(ii) (providing an 

exception where “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”). See PCRA Petition, 9/18/2017 at ¶ 5; Appellant’s Brief at 7. 

Specifically, Appellant claims that he recently discovered that the trial judge 

has a “business relationship” with a close anonymous relative of Appellant’s, 

insomuch as Appellant claims the relative allegedly sold the trial judge illegal 

narcotics. PCRA Petition, 9/18/2017, at ¶ 5(II); see also Appellant’s Brief 

at 7. Appellant submitted an anonymous, handwritten letter from an 

unspecified relative, dated June 12, 2017, in support of his newly-discovered 

facts exception claim. Appellant’s Brief at Exhibit A. 

Our Supreme Court has previously described a petitioner’s 

burden under the newly-discovered fact exception as follows.
J-S34038-18

- 5 -

[S]ubsection (b)(1)(ii) has two components, which 

must be alleged and proved. Namely, the petitioner 

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.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis 

added).

Commonwealth v. Bennett, [] 930 A.2d 1264, 1272 ([Pa.] 

2007). Due diligence demands that the petitioner take 

reasonable steps to protect his own interests. A petitioner must 

explain why he could not have learned the new fact(s) earlier 

with the exercise of due diligence. This rule is strictly enforced.

Commonwealth v. Medina, 92 A.3d 1210, 1216 (Pa. Super. 2014) (some 

citations and quotation marks omitted).

The PCRA court addressed Appellant’s assertion as follows:

Notably, [Appellant] states that the [trial c]ourt “has had 

an ongoing ‘business’ relationship with a close relative of 

[Appellant,]” and “there is photographic evidence of the [trial 

court judge] purchasing several items from [Appellant’s] 

relative.” He states that “the relative will remain ‘Jane Doe’ as 

to protect her from threats that the [p]rosecution and [j]udge 

have been accused of in the past with other witnesses.”

[Appellant] avers that this “business relationship” meets 

the newly discovered evidence exception. [Appellant], however, 

while stating that the facts were unknown to him and could not 

have been ascertained by due diligence, contradicts his own 

argument by stating in the next line that “the [trial court judge] 

was made aware of this relationship during the trial, and failed 

to recuse herself.”

[Appellant’s] claim is spurious and without a scintilla of 

merit. The [trial court] is not aware of any “business 

relationship” with any close relative of [Appellant], and 

[Appellant’s] previous claims regarding witness intimidation and 

threats from both the district attorney’s office and the [trial 

court] have been equally as specious. [Appellant] has also failed 

to plead how he learned of such information, whether it met the 
J-S34038-18

- 6 -

60-day statutory deadline, and how it affected his trial. As noted 

by the Superior Court in [Appellant’s third PCRA petition], the 

[trial court] cannot and will not try to make his arguments for 

him in regards to meeting the statutory guidelines of the PCRA. 

Based on the information presented by [Appellant], the [trial 

court] does not have jurisdiction to entertain the merits of his 

argument.

Trial Court Opinion, 11/6/2017, at 5-6. We agree with the PCRA court that 

Appellant cannot simultaneously assert that the facts were both unknown 

and known to him, and thus, he fails to meet the requirements of the 

exception.

Furthermore, Appellant has not only failed to establish that the letter 

from his relative contained new facts, but he also failed to satisfy the 

requirements to establish due diligence in obtaining said letter. According to 

Appellant, the anonymous author of this letter “sold illegal narcotics to the 

[t]rial [j]udge, and during one such transaction in 2009, [she] told the 

[j]udge [she is] related to [Appellant].” Appellant’s Brief at 7. Even if the 

trial court were to have believed the letter, this purported fact is not new, as 

Appellant avers that the trial court judge knew this fact at the time of trial. 

PCRA Petition, 9/18/2017, at 2 (unnumbered). Moreover, Appellant has not 

explained why he did not present this sooner. 

Because Appellant’s petition was filed untimely without exception, the 

PCRA court lacked jurisdiction to consider it on the merits. See 

Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming 
J-S34038-18

- 7 -

dismissal of PCRA petition without a hearing because appellant failed to 

meet burden of establishing timeliness exception).

Therefore, the PCRA court properly dismissed the petition for lack of 

jurisdiction.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/31/2018