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Appellant No. 1849 EDA 2015

Appeal from the PCRA Order January 23, 2014

In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0203311-2005;

CP-51-CR-0203851-2005; CP-51-CR-0204541-2005 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 13, 2016 Appellant, Mastafa McCloud, appeals nunc pro tunc from the order denying as untimely his second petition filed pursuant to the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546.1 We affirm.

The relevant facts and procedural history of this case are aptly stated in the PCRA court’s opinion. Therefore, we will only briefly summarize them here. Appellant was one of several men who engaged in a shooting rampage on the streets of Philadelphia on the evening of October 14, 2004.

Following a bench trial, Appellant was convicted on November 18, 2005, of numerous counts of aggravated assault, and one count each of attempted ____________________________________________

1 Appellant purports to appeal from the judgment of sentence imposed on May 16, 2006. As we will discuss, that assertion is incorrect.

J-S30012-16 murder, carrying a firearm without a license, and criminal conspiracy. On May 16, 2006, the court imposed an aggregate sentence of thirteen and one half (13½) to twenty-seven (27) years’ incarceration. The court denied Appellant’s timely post-sentence motions. This Court affirmed the judgment of sentence on November 14, 2008. See Commonwealth v. McCloud, 964 A.2d 945 (Pa.Super. 2008) (addressing sufficiency of evidence issue and waiving discretionary aspects of sentencing issue). Appellant did not seek further review at that time. Thus, for purposes of the PCRA, Appellant’s judgment of sentence became final on December 14, 2008, upon expiration of the 30-day time period to petition for allowance of appeal with our Supreme Court. See Pa.R.A.P. 1113 (stating: “Except as otherwise prescribed by this rule, a petition for allowance of appeal shall be filed with the Prothonotary of the Supreme Court within 30 days after the entry of the order of the Superior Court or the Commonwealth Court sought to be reviewed”). On October 5, 2009, Appellant filed a pro se, untimely petition with our Supreme Court for leave to file a petition for allowance of appeal nunc pro tunc, which the Court denied on December 30, 2009.

Appellant filed his first PCRA petition pro se on April 23, 2010, alleging numerous claims of ineffective assistance of counsel. Appellant also asserted his petition was timely, although he erroneously measured the oneyear statutory time limit from December 30, 2009, the date our Supreme Court denied his untimely petition for allowance of appeal nunc pro tunc.

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See Commonwealth v. Hutchins, 760 A.2d 50 (Pa.Super. 2000) (holding untimely petition for allowance of appeal filed with Pennsylvania Supreme Court, which later denied petition, does not operate to circumvent time restrictions of PCRA by altering date on which petitioner’s sentence became final). The court appointed counsel who filed a motion to withdraw and a “no-merit” letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.

1988) (en banc), noting the PCRA petition was untimely and no statutory exception applied. Following notice per Pa.R.Crim.P. 907 on June 23, 2011, the court dismissed the petition without a hearing on July 22, 2011.

Appellant filed his second PCRA petition soon after, on August 8, 2011, and an amended petition on December 5, 2011. The court issued Rule 907 notice on October 4, 2012, but later granted Appellant’s request for

–  –  –

Turner/Finley no-merit letter and petition to withdraw on August 1, 2013.

On December 12, 2013, the court issued Rule 907 notice, to which Appellant responded on December 27, 2013, raising additional claims including one claim of after-discovered facts in the form of a newspaper article from November 8, 2013, involving an investigation of one particular police officer.

On January 23, 2014, the court dismissed the petition without a hearing and permitted counsel to withdraw.

On May 27, 2014, Appellant filed a third PCRA petition, requesting

–  –  –

reinstatement of his appellate rights nunc pro tunc from the dismissal of his second PCRA petition, because he did not receive notice of the court’s dismissal of the second PCRA petition. By order docketed on June 1, 2015,

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Commonwealth’s agreement, the court reinstated Appellant’s right to file an appeal from the order dismissing his second PCRA petition. Appellant filed a notice of appeal on June 19, 2015.2 The court ordered Appellant on June 24, 2015, to file a concise statement of errors complained of on appeal.

Appellant complied on July 1, 2015.

As a preliminary matter, we must determine whether Appellant timely filed his current PCRA petition. Commonwealth v. Harris, 972 A.2d 1196 ____________________________________________

2 Appellant purports to appeal from the judgment of sentence imposed on May 16, 2006. That assertion is plainly incorrect. Nevertheless, the certified record does contain some misleading documents. For example, in the record there is an order dated June 18, 2015, that says it is reinstating Appellant’s right to file a direct appeal from his judgment of sentence. This order does not appear as a certified docket entry, although counsel included the order along with the court’s June 1, 2015 order, when counsel filed the notice of appeal. The June 18, 2015 order, however, cannot be correct, where the PCRA court lacked jurisdiction to grant that kind of relief because Appellant already had the benefit of a direct appeal from the judgment of sentence.

See Commonwealth v. Grosella, 902 A.2d 1290, 1293-94 (Pa.Super.

2006) (stating, “the reinstatement of direct appeal rights is not the proper remedy when appellate counsel perfected a direct appeal but simply failed to raise certain claims”; “In such circumstances, the [petitioner] must proceed under the auspices of the PCRA, and the PCRA court should apply the traditional three-prong test for determining whether appellate counsel was ineffective”). Counsel also labeled Appellant’s brief as if the appeal is from the judgment of sentence imposed on May 16, 2006. Notwithstanding these errors, the PCRA court properly treated the appeal presently before us as an appeal from the order dismissing Appellant’s second PCRA petition.

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(Pa.Super. 2009), appeal denied, 603 Pa. 684, 982 A.2d 1227 (2009).

Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective January 16, 1996, provide that a PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Bretz, 830 A.2d 1273 (Pa.Super. 2003). A judgment is deemed final “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 the review.” 42 Pa.C.S.A. § 9545(b)(3).

The three statutory exceptions to the timeliness provisions in the PCRA allow for very limited circumstances under which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a

petition must allege and the petitioner must prove:

(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;

–  –  –

(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

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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Additionally, a petitioner asserting a timeliness exception must file a petition within sixty (60) days of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2). “As such, when a PCRA petition is not filed within one year of the expiration of direct review, or not eligible for one of the three limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date that the claim could have been first brought, the trial court has no power to address the substantive merits of a petitioner’s PCRA claims.” Commonwealth v.

Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).

Instantly, Appellant’s judgment of sentence became final on December 14, 2008, upon expiration of the 30-day time period to petition our Supreme Court for allowance of appeal. This date was confirmed when the Supreme Court denied Appellant’s petition for allowance of appeal nunc pro tunc.

Appellant filed the current petition on August 8, 2011, almost three years after his judgment of sentence became final. Therefore, Appellant’s PCRA petition was patently untimely.

With respect to Appellant’s attempt to invoke the after-discovered facts exception, the PCRA court rejected Appellant’s reliance on news media reports of allegations of unrelated police misconduct, citing Commonwealth v. Castro, 625 Pa. 582, 596-99, 93 A.3d 818, 826-28 (2014) (holding newspaper article containing allegations of police misconduct alone is not

–  –  –

“evidence” for purposes of deciding whether new trial is warranted; motion for hearing for new trial must describe what will be presented at hearing;

hearing cannot be used as means to secure investigation; “Simply relying on conclusory accusations made by another, without more, is insufficient to

warrant a hearing”). The PCRA court said:

[Petitioner] made no attempt to demonstrate that there was even a trace of evidence of any misconduct on the part of Officer Dove or any of the other police officers involved in his arrest and conviction, even going so far as to having acknowledged himself that he was unaware of any. From the discussions of the proven facts by this [c]ourt and [petitioner’s] appellate and two previous PCRA attorneys, it does not appear that officer Dove even had any involvement in his arrest or conviction. [Appellant’s] is just one more of many attempts by convicted felons to belatedly challenge the weight and sufficiency of the evidence that convicted them by disparaging all of the conduct of all police officers involved based solely upon the fact that one of them may have been involved in later and totally unrelated questionable conduct. …[A]ny information contained in news media reports which [a petitioner] does not corroborate with actual evidence or purported witness testimony proving the allegations in them is simply hearsay upon hearsay and does not, and never did, provide any basis for relief whatsoever, nor for obtaining discovery and being given a hearing in connection therewith, even if the news sources were identified and documented. The law has also long been clear, …, that a PCRA petitioner cannot be allowed to go on a fishing expedition into police files simply because one of the officers involved in his case may have committed improprieties in unrelated matters, without meeting the PCRA requirements in demonstrating that there is a strong possibility that any improprieties were actually committed in [petitioner’s] case. He cannot simply rely on innuendo.

(PCRA Court Opinion, filed July 21, 2015, at 12-13). We agree with the court. Because Appellant failed to plead and prove any cognizable exception

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to the PCRA timeliness requirements, his second petition remained timebarred. See 42 Pa.C.S.A. § 9545(b)(1). Accordingly, the PCRA court properly dismissed the petition as untimely.3

–  –  –

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary Date: 9/13/2016 ____________________________________________

3 Due to our disposition, we deny Appellant’s open motion for remand and his open motion to strike the Commonwealth’s brief.

–  –  –

This is a nunc pro tune appeal by permission from the dismissal of the defendant's second petition for relief under the Post Conviction Relief Act, 42 Pa.CS. § 9541 et seq., hereinafter the PCRA. He and four other individuals' were charged with numerous offenses arising from a mass armed assault upon an intended victim on a city street in which seven other individuals, including four policemen, were caught in the line of fire. At the conclusion of a consolidated nonjury trial on November 18, 2005, he was found guilty of eight counts of Aggravated Assault and one count each of Attempted Murder, Carrying a Firearm Without a License and Criminal Conspiracy.' In order to explain the court's reasons for dismissing the petition it's necessary to recount the factual and procedural histories in some detail. The codefendants were convicted of similar charges and all of the judgments were affirmed on appeal. The factual history was generally set forth in one of them.

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