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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : RASHAWN FARMER-SHAW : : Appellant : No. 4068 EDA 2017 Appeal from the PCRA Order November 17, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0606951-2002, CP-51-CR-0714361-2002

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED MAY 29, 2019 Appellant, Rashawn Farmer-Shaw, appeals pro se from the order entered in the Philadelphia County Court of Common Pleas, which dismissed his second petition filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. On February 27, 2004, a jury convicted Appellant at Docket Nos. 606951-2002 and 714361-2002, collectively, of robbery, conspiracy to commit robbery, possession of an instrument of crime (“PIC”), and related offenses. That same day, the court sentenced Appellant at both docket numbers to an aggregate term of 20 to 40 years’ incarceration.

Appellant sought no direct review, so the judgment of sentence became final on Monday, March 29, 2004, the last day he could have filed a direct appeal.

On December 1, 2008, Appellant pro se filed his first PCRA petition at both docket numbers. The PCRA court appointed counsel and later denied ____________________________________ * Retired Senior Judge assigned to the Superior Court.

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relief on August 16, 2013. This Court affirmed on December 3, 2014. See Commonwealth v. Farmer-Shaw, 116 A.3d 677 (Pa.Super. 2014) (unpublished memorandum). On March 23, 2016, Appellant filed pro se his second and current PCRA petition at both docket numbers. The PCRA court issued Rule 907 notice, and Appellant responded pro se on October 13, 2017.

On November 17, 2017, the PCRA court dismissed Appellant’s petition at both docket numbers. Appellant filed pro se a timely notice of appeal at both docket numbers on December 11, 2017.1 The PCRA court ordered Appellant on December 26, 2017, to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant failed to comply.

Preliminarily, the timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the underlying judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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 statutory exceptions to the PCRA time-bar allow very limited circumstances to ____________________________________________

1Appellant filed his notice of appeal prior to June 1, 2018. Thus, this case does not present a jurisdictional issue pursuant to Commonwealth v. Walker, ___ Pa. ___, 185 A.3d 969 (2018).

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excuse the late filing of a petition; a petitioner asserting a timeliness exception must also file the petition within 60 days of when the claim could first have been presented.2 42 Pa.C.S.A. § 9545(b)(1-2). When asserting the newly created constitutional right exception under Section 9545(b)(1)(iii), “a petitioner must prove that there is a ‘new’ constitutional right and that the right ‘has been held’ by that court to apply retroactively.” Commonwealth v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal denied, 616 Pa. 625, 46 A.3d 715 (2012). Additionally, to be eligible for relief under the PCRA, a petitioner must plead and prove, inter alia, his allegations of error were not previously litigated. 42 Pa.C.S.A. § 9543(a)(3).

Instantly, Appellant’s judgment of sentence became final on Monday, March 29, 2004, upon expiration of the time to file a direct appeal. See Pa.R.A.P. 903(a). Appellant filed the current PCRA petition on March 23, 2016, which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the “new constitutional right” exception to the PCRA time bar, relying on Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (decided on June 17, 2013), and its Pennsylvania progeny.

Alleyne, however, does not apply in Appellant’s case. See Commonwealth v. Washington, 636 Pa. 301, 142 A.3d 810 (2016) (holding Alleyne cannot

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2As of December 24, 2018, Section 9545(b)(2) changed the 60-day rule and now allows one year from the date the claim first could have been presented.

See Act 2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018]. This amendment does not apply to Appellant’s case.

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be used retroactively on collateral review to challenge sentences which became final before Alleyne was decided). Furthermore, Appellant unsuccessfully litigated a substantially identical claim in his first PCRA petition.

See 42 Pa.C.S.A. § 9543(a)(3). Thus, Appellant’s petition remains time- barred, and the PCRA court lacked jurisdiction to review it. See Ziegler, supra. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/29/19

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