J-S33038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

GEORGE WILLIAMS

                            Appellant                  No. 2523 EDA 2014


                  Appeal from the PCRA Order August 18, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0419612-1990


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                               FILED JULY 14, 2015

        George Williams appeals pro se from the order entered in the Court of

Common Pleas of Philadelphia County, dated August 18, 2014, dismissing

his petition and supplemental petition filed pursuant to the Post Conviction

Relief Act (“PCRA”)1 as untimely. We affirm.

        The PCRA court set forth the factual and procedural history of the

matter as follows:

        [Williams] was found guilty after a jury trial of second degree
        murder, robbery, and possession of an instrument of crime on
        December 27, 1991, before the Honorable Judge John J.
        Poserina, Jr. On April 8, 1994, [Williams] was sentenced by
        Judge Poserina to serve a life sentence. After [Williams] filed his
        timely appeal, the Superior Court affirmed the judgment of
        sentence on December 21, 1994. No further appeal was filed.

____________________________________________


1
    42 Pa. C.S. §§ 9541-9546.
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      [Williams] filed his first pro se post conviction relief petition on
      March 4, 1995. Thereafter counsel was appointed, and the
      petition was dismissed after his appointed counsel filed a “no
      merit” letter pursuant to [Commonwealth v. Turner, 544 A.2d
      927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213
      (Pa. Super. 1988).] The Superior Court affirmed the dismissal
      on November 24, 1997, and the Supreme Court denied allocatur
      on August 17, 1998.

      [Williams] filed his second post conviction petition on March 28,
      2006, and the petition was dismissed as untimely on June 21,
      2007. [Williams] then filed his third post conviction petition on
      May 5, 2008, and the petition was dismissed as untimely on
      February 17, 2009. The Superior Court affirmed the dismissal
      on October 8, 2009 and the Supreme Court denied allocatur on
      May 19, 2010.

      Prior to the denial of allocatur, [Williams] filed a petition for re-
      argument in the Superior Court, which denied the petition on
      December 10, 2009. Subsequent thereto, on July 30, 2010,
      [Williams] filed a Writ of Certiorari to the United States Supreme
      Court which denied it on October 4, 2010. [Williams] filed his
      fourth post conviction petition on August 24, 2010, which was
      denied. The Superior Court affirmed the dismissal on December
      14, 2012, and the Supreme Court denied allocatur on September
      24, 2013.

      [Williams] filed his current post conviction petition on August 15,
      2012, and a supplemental petition on July 16, 2013. After
      conducting an extensive and exhaustive review of the record and
      applicable case law, this [c]ourt determined that [Williams’]
      petition and supplemental petition seeking post conviction
      collateral relief were untimely field. Therefore, this [c]ourt did
      not have jurisdiction to consider Williams’ PCRA petition.

PCRA Court Opinion, 11/24/14, at 1-2.

      On March 26, 2014, the PCRA court issued a notice of its intention to

dismiss Williams’ August 15, 2012 petition and July 16, 2013 supplemental

petition   (collectively   the   “PCRA   petition”)   without   a   hearing.   See

Pa.R.Crim.P. 907(1). Williams filed a pro se response on April 4, 2014. On


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August 18, 2014, the PCRA court entered an order dismissing the PCRA

petition.2    The PCRA court subsequently filed a supporting opinion on

November 24, 2014.

        In his timely pro se appeal, Williams raises the following issues for our

review, verbatim:

        I.    Whether the PCRA court erred in finding that [Williams’]
              8/15/12 and 7/16/13 PCRA petitions are untimely filed
              when both petitions were: a) filed within 60 days of their
              discovery; b) predicated on information previously
              unknown and couldn’t be discovered any earlier by the use
              of due diligence; c) 8/15/12 petition was based upon
              recent rulings rendered in Miller v. Alabama3 and
              Commonwealth v. Knox;4 and d) properly pled
              exceptions as required by the filing statute?

        II.   Whether the PCRA court erred in not holding a hearing on
              [Williams’] 7/16/13 petition that was based upon an
              affidavit of Commonwealth witness Kevin M. Lewis and the
              after-discovered evidence[, consisting of several 75-48
              police reports, including one by Coroner Block,] which
              shows that [Williams] did not search the pockets of Mr.
              Fleming for money after the shooting and killing of Mr.
              Fleming by an alleged codefendant and that [Williams] is
              therefore convicted of a crime that he did not commit?

Appellant’s Brief, at v.

____________________________________________


2
  It appears that the PCRA court issued two identical orders dismissing the
PCRA petition, one dated August 18, 2014, and one dated August 25, 2014.
Williams’ notice of appeal was filed August 26, 2014, and references the
order of August 18, 2014.
3
    Miller v. Alabama, 132 S.Ct. 2455 (2012).
4
    Commonwealth v. Knox, 50 A.3d 732 (Pa. Super. 2012).




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      Our standard and scope of review for the denial of a PCRA petition is

well-settled.   We review the PCRA court’s findings of fact to determine

whether they are supported by the record, and review its conclusions of law

to determine whether they are free from legal error.       Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our review is limited to

the findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level. Id.

      Before we may consider the merits of Williams’ claims, we must

consider whether this appeal is properly before us.

      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. § 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. § 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, 54 A.3d 14, 16-17 (Pa. 2012) (citations and

footnote omitted).

      Williams was sentenced to serve a life sentence on April 8, 1994. This

Court affirmed the judgment of sentence on December 21, 1994, and

Williams did not seek allowance of appeal.       Thus, Williams’ judgment of

sentence became final on January 20, 1995, when his time to seek


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allowance of appeal expired.    See Pa.R.A.P. 1113. Williams had one year

from that date to file a PCRA petition, specifically, until January 20, 1996.

However, Williams filed the instant PCRA petition on August 15, 2012, and

filed a supplemental petition on July 16, 2013, such that the PCRA petition is

untimely on its face. Thus, the PCRA court lacked jurisdiction to review the

PCRA petition unless Williams pleaded and proved one of the statutory

exceptions to the time-bar.

      The three statutory exceptions for an untimely petition under the PCRA

consist of the following:

      (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)(i)-(iii). Additionally, a petition invoking a timeliness

exception pursuant to the statute must “be filed within 60 days of the date

the claim could have been presented.” Id. at § 9545(b)(2).

      Williams’ first PCRA claim invokes the newly-recognized constitutional

right exception in section 9545(b)(1)(iii); Williams bases his claim upon the

holding in Miller v. Alabama, 132 S.Ct. 3455, decided on June 25, 2012.



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Williams filed his PCRA petition on August 15, 2012, within sixty days of the

Miller decision.   The holding in Miller provides that a sentence of life

imprisonment without the possibility of parole is an unconstitutional

sentence when imposed upon juveniles convicted of murder.            Id.   See

Commonwealth v. Knox, 50 A.3d 732 (Pa. Super. 2012) (applying the

Miller holding in a Pennsylvania case).       However, despite providing a new

constitutional right with respect to sentencing, Miller does not apply

retroactively. See Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013),

cert. denied sub nom. Cunningham v. Pennsylvania, 134 S.Ct. 2724

(2014).

      Moreover, the Miller holding is specifically limited to juveniles under

eighteen years of age at the time they committed murder. See Miller, 132

S.Ct. at 2460; Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super.

2013) (refusing to extend Miller to individuals eighteen years of age or

older at time murder committed). In the instant matter, Williams was over

the age of eighteen at the time he committed the crimes for which he was

convicted of murder.    Thus, the holding in Miller is wholly inapplicable to

Williams’ case, and Williams has failed to plead and prove a timeliness

exception with respect to this claim.

      Williams’ second PCRA claim is asserted in his supplemental petition,

filed July 16, 2013.      Williams invokes the newly-discovered evidence

exception in section 9545(b)(1)(ii). Williams provides two separate types of

newly-discovered evidence. First, Williams asserts that three police reports,

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including one completed by Coroner Block, were withheld at earlier stages of

the proceedings and contain exculpatory information.     However, the police

reports Williams mentions were provided to Williams on February 3, 2006,

and he filed a PCRA petition based on the contents of the police reports on

March 28, 2006. That petition was Williams’ second, and it ultimately was

dismissed as untimely on June 21, 2007.     As the police reports have been in

Williams’ possession for nearly a decade and have already been considered

within the context of a PCRA petition, the police reports do not constitute

newly-discovered evidence and Williams’ claims regarding the police reports

are not timely.

        Next, Williams provides an affidavit of Kevin M. Lewis, an eye-witness

to the killing.   Williams asserts that the affidavit indicates that he, the

appellant, did not search the victim’s pockets for money after a codefendant

shot the victim, despite the testimony of another codefendant, Alvin Morgan,

indicating that Williams had searched the victim’s pockets. Williams claims

that the Commonwealth used his alleged search of the victim’s pockets as

“the overt act that sustained [his] conviction for second degree murder and

robbery as an accomplice.” Appellant’s Brief, at 16. Accordingly, Williams

claims that he was wrongly convicted and that the instant PCRA is timely

filed because Lewis did not prepare his exculpatory affidavit until May 28,

2013.

        As to the contents of Lewis’ affidavit, Williams has the burden of

demonstrating that he could not have previously discovered the information

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in Lewis’ affidavit through the exercise of due diligence. 42 Pa.C.S. §

9545(b)(1)(ii). “Due diligence demands that the petitioner take reasonable

steps to protect his own interests. A petitioner must explain why he could

not have obtained the new fact(s) earlier with the exercise of due diligence.

This rule is strictly enforced.” Commonwealth v. Monaco, 996 A.2d 1076,

1080 (Pa. Super. 2010) (citations omitted).       Moreover, the focus of the

exception is “on the newly discovered facts, not on a newly discovered or

newly willing source for previously known facts.” Commonwealth v.

Johnson, 863 A.2d 423, 427 (Pa. 2004).

       Lewis testified on behalf of the Commonwealth at trial. In his affidavit,

however, he seems to indicate that he was pressured into this testimony by

the prosecutor and that his testimony changed from his original recollection

to become more favorable to the Commonwealth.5 Lewis indicates that he

provided his testimony at trial because he was concerned that if he did not,

he would be arrested and would lose a college basketball scholarship. Lewis

seems to indicate that his trial testimony merely placed Williams at the

crime scene; the affidavit, however, expands upon this to indicate that




____________________________________________


5
   Lewis’ affidavit is difficult to comprehend and what Lewis attempts to
express is not entirely clear in places. Additionally, as the PCRA court noted,
Lewis “was recently convicted of first-degree murder and sentenced to life
imprisonment thereby giving him nothing to lose by fabricating the
information in his affidavit.” PCRA Court Opinion, 11/24/14, at 6.



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though Williams was present, he did not say anything, did not touch the

victim or search the victim’s pockets, and did not have a weapon.

       Williams obtained Lewis’ affidavit more than twenty years after

Williams was convicted. Williams was aware the entire time that Lewis had

been present at the crime scene.               Williams nevertheless asserts that he

could not have obtained Lewis’ observations sooner, though he provides no

concrete reason why this is so.            In fact, Williams did nothing regarding

Lewis’    observations    until   Lewis    provided    Williams   with   his   affidavit.

Accordingly, Williams fails to show due diligence or that he took reasonable

steps to protect his interests.                Monaco, supra.      See also, e.g.,

Commonwealth v. Edmiston, 65 A.3d 339 (Pa. 2013) (holding PCRA claim

regarding new evidence untimely since defendant failed to articulate reasons

for failing to interview witnesses and obtain information sooner).

       However, in support of his claim that he could not have determined

the information sooner, Williams cites to a recent en banc decision by this

Court, Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super. 2014) (en

banc), appeal granted, Commonwealth v. Medina, 105 A.3d 658 (Pa.

2014).6

____________________________________________


6
  Among other things, the issues raised on appeal include whether the Court
erred in deeming a PCRA petitioner duly diligent in pursuing his claim despite
failing to speak with the recanting witness for fourteen years, and whether
the Court erred in determining that the recantation evidence would have
changed the verdict in the matter.



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      Medina specifically considered recantation testimony in the context of

a PCRA petition.   This Court held that Medina’s PCRA petition was timely

based upon the newly-discovered fact exception to the time-bar even though

the petition was filed years beyond the deadline to file a timely petition. The

facts involved a witness relied upon by the Commonwealth at trial, who later

recanted and indicated that the Commonwealth had coerced him into

testifying against Medina. This Court determined that the record supported

the PCRA court’s determination that petitioner could not have previously

discovered the source of prosecution witness’ recantation, or the recantation

itself, through the exercise of due diligence.   Id. at 1217-18 (noting that

witness “testified consistently and unequivocally at trial that [Medina]

wielded a knife shortly before the murder and stated that he was going to

kill someone. As such, it was highly unlikely that defense counsel, without

any supporting factual basis, could have compelled [the witness] to change

his testimony during cross-examination, by engaging in a fishing expedition

as to why [the witness] was lying.”).

      Because the Medina Court considered the petition timely, the decision

involved whether a new trial was properly granted based upon after-

discovered evidence.     Id. at 1218.   In determining whether a new trial

should be granted based on newly-discovered evidence, it is the PCRA

petitioner’s burden to

      [d]emonstrate that the evidence: (1) could not have been
      obtained prior to the conclusion of the trial by the exercise of
      reasonable diligence; (2) is not merely corroborative or

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       cumulative; (3) will not be used solely to impeach the credibility
       of a witness; and (4) would likely result in a different verdict if a
       new trial were granted.

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008).

       In Medina, the Commonwealth argued that only the fourth prong in

Pagan was not satisfied. The Court, however, held that a different verdict

was likely because the witness’ recantation testimony not only repudiated

his own trial testimony implicating the petitioner in a stabbing death, it

directly contradicted the only eyewitness account which was made by a

witness lacking in credibility.       The Court found that if a jury believed the

recantation testimony, “the Commonwealth would be left with shaky

circumstantial proof.” Medina, 92 A.3d at 1220.

       Here, however, while Williams attempts to label Lewis’ affidavit as

“recantation,” Williams also states that Lewis did not directly recant his trial

testimony.7 See Brief for Appellant, at 18. Further, even if Lewis’ affidavit

were considered to recant his trial testimony, Medina is distinguishable from



____________________________________________


7
  Unfortunately, the notes of testimony Williams’ trial proceedings appear to
have been lost permanently, as they are unable to be located and a
memorandum within the record indicates an attorney who previously
represented Williams had the notes of testimony and refused to return them.
While some citations to the notes of testimony exist in the record, they are
not available in their entirety for us to compare with Lewis’ affidavit. Even
so, Lewis’ affidavit itself seems to indicate that his testimony was used
merely to place Williams at the crime scene. Under these circumstances, it
cannot be said that Lewis’ affidavit contradicts his trial testimony.




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the instant matter because the contents of Lewis’ affidavit would not result

in a different verdict if a new trial were granted.

      In the instant matter, the Commonwealth had at least one other

eyewitness, Alvin Morgan, who testified to Williams’ presence and actions at

the crime scene. No argument has been raised demonstrating that Morgan

was not credible in his testimony against Williams. Unlike the circumstances

in Medina, the Commonwealth would not be left with merely “shaky”

circumstantial evidence.    Additionally, because Moore testified to Williams’

presence and participation in the crime, Lewis’ testimony was cumulative at

the trial.   We also note the PCRA court’s skepticism regarding Lewis’

credibility, and we find that if Lewis’ proffered his testimony at this late date

it would not change the outcome of the matter.

      Furthermore, because an apparently credible witness implicated

Williams for his involvement in the crime and Lewis’ affidavit is an inherently

suspect piece of evidence, we find that Williams has not satisfied his burden

of providing a strong prima facie showing that a miscarriage of justice

occurred. See Commonwealth v. Hawkins, 598 Pa. 85, 91, 953 A.2d

1248, 1251 (2006) (holding that second or subsequent request for relief

under the PCRA will not be entertained without strong case for miscarriage

of justice). See Medina, 92 A.3d at 1224 (Gantman, P.J., dissenting).

      Thus, Williams is not entitled to a new trial based upon newly-

discovered evidence, and the PCRA court was therefore not required to hold

an evidentiary hearing prior to dismissing the PCRA petition.               See

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Commonwealth v. Neal, 713 A.2d 657, 660 (Pa. Super. 1998) (right to

evidentiary hearing in PCRA context is not absolute; where PCRA petitioner

is not entitled to relief, the court may dismiss a PCRA petition without

conducting an evidentiary hearing).                Therefore, we affirm the order

dismissing Williams’ PCRA petition, albeit on different grounds than the PCRA

court.8

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2015




____________________________________________


8
  “This Court may affirm the trial court’s decision on any basis supported by
the record.” Commonwealth v. Barren, 74 A.3d 250, 254 (Pa. 2013)
(citation omitted).



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