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[U] Commonwealth v. Bethea

Superior Court of Pennsylvania

February 3, 2014



Appeal from the PCRA Order October 31, 2012 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-23-CR-0003638-2003




Terrance Bethea appeals from the order entered in the Court of Common Pleas of Lehigh County denying him relief, without a hearing, on his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Among other reasons, the PCRA Court determined Bethea's petition, his second, was untimely and no exception to the timeliness requirements applied. Following a thorough review of the certified record, relevant law and Bethea's pro se brief[1], we affirm.

Bethea is serving a life sentence after being convicted by a jury of first and second-degree murder[2] involving the deaths of Carlos Juarbe and Oscar Rosado. We rely on the trial court's recitation of the facts:

According to the Commonwealth's theory of the case, [Bethea] had been involved in a dispute with one of the victims, Carlos Juarbe. Although Mr. Juarbe, a part-time disc-jockey, and [Bethea] had been friends at one time, relations had deteriorated to the point where [Bethea], along with co-defendant Junius Burno, set out to rob Mr. Juarbe. As the evening of April 12, 2003, waned into the early hours of April 13, 2003, [Bethea] and Burno appeared at the Allentown home of Mr. Juarbe. [Bethea] and co-defendant produced hand guns in order to rob Juarbe and his guest, Oscar Rosado, who had been snorting cocaine and watching movies that evening with Mr. Juarbe. Evidently anticipating foul play, Mr. Juarbe had a shotgun at the ready that he managed to discharge twice. After being struck in the leg by one of the blasts, [Bethea] struggled with Juarbe and fired several bullets into him. Dumping additional shots in Juarbe, Burno finished him off before depositing, under [Bethea's] instruction, a single bullet into the head of Rosado, who had sat cowering in the next room during the altercation involving Juarbe.

Opinion, 6/8/05, at 2-3.[3]

Judgment of sentence was imposed on Bethea on November 24, 2006. He filed a timely direct appeal that afforded him no relief. See Commonwealth v. Bethea, 913 A.2d 938 (Pa.Super. 2006) (unpublished memorandum), appeal denied, 921 A.2d 494 (2007). The Pennsylvania Supreme Court denied Bethea's petition for allowance of appeal on April 25, 2007. Bethea's judgment of sentence became final 90 days later when time expired to file a writ of certiorari with the United States Supreme Court. See U.S.Sup.Ct.R. 13.

On October 3, 2007, Bethea filed his first PCRA petition. Following a hearing, the PCRA court denied him relief on March 5, 2009. A panel of our Court similarly denied Bethea relief on June 29, 2010. See Commonwealth v. Bethea, 4 A.3d 701 (Pa.Super. 2010) (unpublished memorandum), appeal denied, 13 A.3d 473 (2010).

On September 12, 2012, Bethea filed the instant petition, claiming trial counsel was not qualified pursuant to Pa.R.Crim.P. 801, he had been subject to an illegal wiretap when his prison phone conversations were recorded, the homicide statute is unconstitutionally vague, his sentence is illegal, and multiple claims of ineffective assistance of counsel. Although he checked the box indicating he was claiming the discovery of recently available exculpatory evidence, that claim was not developed in his petition.

Even though the PCRA court denied Bethea relief on multiple grounds, the court noted the petition was untimely. We have held that,

[t]his Court's standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa.Super. 2013). We further note,

Pennsylvania law makes clear that no court has jurisdiction to hear an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157, 1161 (2003). Statutory time restrictions are mandatory and jurisdictional in nature, and may not be altered or disregarded to reach the merits of the claims raised in the petition. Commonwealth v. Murray, 562 Pa. 1, 753 A.2d 201, 203, (2000). Generally, a PCRA petition must be filed within one year of the date the underlying judgment becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment is deemed final for purposes of the PCRA "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking review." 42 Pa.C.S. § 9545(b)(3). The PCRA provides three narrow statutory exceptions to the general timeliness requirements:
(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 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. § 9545(b)(1). A petition seeking relief pursuant to a statutory exception must adhere to the additional requirement of filing the claim within 60 days of the date the claim could have been first presented. 42 Pa.C.S. § 9545(b)(2).
Section 9545(b) applies to any petition filed under the PCRA, including second and subsequent ones. Thus, notwithstanding that these are serial petitions, pursuant to statute, Appellants still had to file their petitions within one year from the date their judgments of sentence became final for the petitions to be timely.


As noted above, Bethea's judgment of sentence became final on July 24, 2007, 90 days after our Supreme Court denied his petition for allowance of appeal. Therefore, pursuant to the PCRA's timeliness requirements, Bethea had until July 22, 2008[4] to file a timely PCRA petition. While Bethea's first PCRA petition was timely, the instant petition was filed September 12, 2012, more than four years after the one-year limit had expired.

Although Bethea checked off a box on his PCRA cover sheet indicating the timeliness exception at Section 9545(b)(1)(ii) applied, he did not attempt to support that allegation. Therefore, he has failed to plead and prove the applicability of any of the timeliness exceptions.

Because the petition is untimely and there is no applicable exception, no court has jurisdiction to entertain the merits of the petition. The certified record supports the PCRA court's determination that the petition was untimely. Accordingly, we are required to affirm the order denying Bethea's petition.

Order affirmed.[5]

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