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Commonwealth v. Turpin

Superior Court of Pennsylvania

September 17, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
KENYATTA TURPIN, Appellant

Appeal from the PCRA Order December 27, 2012 in the Court of Common Pleas of Philadelphia County. Criminal Division at No.: CP-51-CR-0201681-1998.

BEFORE: GANTMAN, J., DONOHUE, J., and PLATT, J. MEMORANDUM BY PLATT, J.[*]

OPINION

MEMORANDUM

PLATT, J.

Appellant, Kenyatta Turpin, appeals pro se from the order dismissing his third petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § § 9541-9546, as untimely. We affirm.

On June 24, 1999, a jury convicted Appellant of attempted murder, aggravated assault, conspiracy, possession of an instrument of a crime, and carrying a firearm without a license. [1] His conviction stemmed from an incident on January 15, 1998, outside of a store, during which Appellant fired several shots at the victim, Wayman Scott, striking him once in the right side. On November 20, 2000, the court sentenced Appellant to a term of not less than ten nor more than twenty years' incarceration, followed by seven years' probation. Appellant filed a direct appeal, and this Court affirmed the judgment of sentence. ( See Commonwealth v. Turpin, 816 A.2d 336 (Pa. Super. 2002) (unpublished memorandum)). Appellant did not timely seek allowance of appeal in our Supreme Court.

On August 12, 2003, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel, who filed an amended petition on June 1, 2004. Following a hearing, the PCRA court reinstated Appellant's right to seek allowance of appeal in our Supreme Court nunc pro tunc . Our Supreme Court denied allowance of appeal on May 25, 2005. ( See Commonwealth v. Turpin, 583 Pa. 672, 876 A.2d 395 (Pa. 2005)).

On April 25, 2006, Appellant filed a second pro se PCRA petition. Appointed counsel filed an amended petition, which the PCRA court dismissed on January 3, 2008. This Court affirmed the PCRA court's order on March 31, 2009, and our Supreme Court denied Appellant's petition for allowance of appeal on September 11, 2009. ( See Commonwealth v. Turpin , 974 A.2d 1193 (Pa. Super. 2009) (unpublished memorandum), appeal denied, 602 Pa. 666, 980 A.2d 608 (Pa. 2009)).

On July 10, 2012, Appellant filed the instant pro se PCRA petition. On November 21, 2012, the PCRA court issued notice of its intent to dismiss the petition without a hearing.[2] On December 27, 2012, the court entered its order dismissing Appellant's PCRA petition. This timely appeal followed.[3]

Appellant raises the following two issues for our review:

1. Whether the trial court abused it's [sic] discretion and denied [Appellant] a fair trial by admitting into evidence the testimony of Tracy Skinner and Wayman Scott that [Appellant] was responsible for the theft of Tracy Skinner's car, where [Appellant] was not arrested for or charged with this unrelated prior bad act[?]
2. Did the trial court error [sic] in admitting insufficient evidence do [sic] to the unlawful arrest by the P.H.A. Officers[?]

(Appellant's Brief, at unnumbered page 6).

Our standard of review for an order denying PCRA relief is well-settled:

This Court's standard of review regarding a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record.

Commonwealth v. Carter , 2011 PA Super 113, 21 A.3d 680, 682 (Pa. Super. 2011), appeal denied, 72 A.3d 600, (Pa. filed July 31, 2013) (citations and quotation marks omitted).

Before we may consider the merits of Appellant's claims, we must consider whether this appeal is properly before us. The PCRA court determined that Appellant's petition was untimely and that he did not properly plead an exception to the PCRA's time-bar. ( See PCRA Court Opinion, 1/30/13, at 3-4). We agree.

A PCRA petition, including a second or subsequent one, must be filed within one year of the date the petitioner's judgment of sentence became final, unless he pleads and proves one of the three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes final at the conclusion of direct review by [the Pennsylvania Supreme] Court or the United States Supreme Court, or at the expiration of the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3). The PCRA's timeliness requirements are jurisdictional; therefore, a court may not address the merits of the issues raised if the petition was not timely filed. The timeliness requirements apply to all PCRA petitions, regardless of the nature of the individual claims raised therein. The PCRA squarely places upon the petitioner the burden of proving an untimely petition fits within one of the three exceptions.

Commonwealth v. Jones , 617 Pa. 587, 54 A.3d 14, 16-17 (Pa. 2012) (case citations and footnote omitted).

In this case, Appellant's judgment of sentence became final on August 23, 2005, when his time to file a petition for writ of certiorari with the United States Supreme Court expired. See S.Ct. R. 13; 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had one year from that date to file a petition for collateral relief, specifically, until August 23, 2006. See 42 Pa.C.S.A. § 9545(b)(1). Because Appellant filed the instant petition on July 10, 2012, is untimely on its face, and the PCRA court lacked jurisdiction to review it unless he pleaded and proved one of the statutory exceptions to the time-bar. See id. at § 9545(b)(1)(i)-(iii).

Section 9545 of the PCRA provides only three exceptions that allow for review of an untimely PCRA petition:

(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;
(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.A. § 9545(b)(1)(i)-(iii). In addition, a PCRA petition invoking one of these statutory exceptions must " be filed within 60 days of the date the claim could have been presented." 42 Pa.C.S.A. § 9545(b)(2).

Our Supreme Court " has repeatedly stated it is the appellant's burden to allege and prove that one of the timeliness exceptions applies." Commonwealth v. Hawkins , 598 Pa. 85, 953 A.2d 1248, 1253 (Pa. 2006) (citation omitted). Therefore, an appellant must acknowledge that his PCRA petition is untimely, and demonstrate that one or more of the statutory exceptions applies. See Commonwealth v. Crews , 581 Pa. 45, 863 A.2d 498, 501 (Pa. 2004).

Here, Appellant has not acknowledged that his PCRA petition is untimely, nor has he attempted to plead and prove that any of the statutory exceptions to the time-bar apply to his case. ( See Appellant's Brief, at unnumbered pages 8-14). Instead, the argument section of Appellant's brief consists of a rambling, often incoherent narrative, in which he does not assert the applicability of any of the time-bar exceptions, or even cite to a single provision of the PCRA. ( See id. at 11-14). His pro se PCRA petition is also devoid of reference to a potentially applicable timeliness exception. ( See PCRA Petition, 7/10/12, at 1-9). Accordingly, we conclude that Appellant has failed to meet his burden of proving his untimely petition fits within one of the three exceptions to the PCRA's time-bar. See Jones, supra at 17; Hawkins, supra at 1253. Because his claims are untimely, neither the PCRA court nor this Court has jurisdiction to consider them. See Jones, supra at 17.

Order affirmed.

Judgment Entered.

Karen Reid Bramblett

Prothonotary


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