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12/17/97 COMMONWEALTH PENNSYLVANIA v. MICHAEL D.

December 17, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
MICHAEL D. ALCORN, APPELLANT



Appeal from the POST CONV RELIEF ACT February 14, 1997. In the Court of Common Pleas of LANCASTER County, CRIMINAL, NO. 890 OF 1989. Before ALLISON, J.

Before: Eakin, Schiller, And Olszewski, JJ. Opinion By: Schiller, J. Judge Eakin Did Not Participate IN The Consideration OR Disposition OF This Case.

The opinion of the court was delivered by: Schiller

OPINION BY: SCHILLER, J.

Filed December 17, 1997

Appellant, Michael D. Alcorn, appeals from the order entered by the Court of Common Pleas of Lancaster County denying his petition for post-conviction relief. We affirm.

FACTS:

On September 14, 1989, following a jury trial, appellant was convicted of first degree murder *fn1 and sentenced to life imprisonment for the death of one Raymond Brown. After sentencing, new counsel was appointed and post-sentence motions were filed, which included allegations of trial counsel's ineffectiveness. Those motions were denied by the trial court on September 14, 1990. An appeal before this Court was dismissed on April 16, 1991, for failure of appellant to file an advocacy brief. Thereafter, on October 3, 1991, appellant filed his first petition for post-conviction relief pursuant to the Post Conviction Relief Act , 42 Pa.C.S. § 9541 et. seq. *fn2 This petition raised issues of counsel's ineffectiveness at trial, as well as the failure of post-sentence counsel to file an appellate brief to this Court. On December 16, 1992, after counsel was appointed and an evidentiary hearing held, the trial court denied the petition. That decision was affirmed by this Court on appeal. [ Commonwealth v. Alcorn , 432 Pa. Super. 661, 633 A.2d 1219, Memorandum decision, 1993].

On September 11, 1996, appellant filed his current PCRA petition, acting pro se. On February 14, 1997, the trial court dismissed the petition as meritless without appointing counsel or holding an evidentially hearing. This appeal followed.

Discussion

Appellant now raises four issues: (1) whether trial counsel was ineffective for failing to present evidence of his mental problems; (2) whether all previous counsel were ineffective for failing to allege trial counsel's ineffectiveness for failing to present evidence of appellant's mental problems; (3) whether the prosecutor committed misconduct in its closing argument; and (4) whether the PCRA court erred in dismissing appellant's petition without appointing counsel or holding an evidentiary hearing. We need not address any of appellant's issues because the PCRA court lacked jurisdiction to hear appellant's PCRA petition.

Appellant's present PCRA petition was filed on September 11, 1996. As such, it is governed by the most recent amendments to the Post Conviction Relief Act, enacted November 17, 1995 and effective 60 days thereafter. *fn3 Included within those recent statutory amendments were changes to the requirement of when a PCRA petition must be filed. The relevant statute, 42 Pa.C.S. § 9545(b), now provides:

(b) Time for filing petition.-

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, 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 the claim in violation of the Constitution or laws of this ...


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