J-S76045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JAMIE KIRNON

                            Appellant                  No. 1101 EDA 2016


                   Appeal from the PCRA Order March 8, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0503741-2001


BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED OCTOBER 21, 2016

        Appellant Jamie Kirnon appeals from the order entered in the Court of

Common Pleas of Philadelphia County on March 8, 2016, dismissing as

untimely his third petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        In 1998, Appellant and his cohort, Rafael Stewart, shot and killed

Darius Cuthbert and seriously wounded Omar Johnson in connection with a

drug-related confrontation.        Following a jury trial, on November 4, 2003,

Appellant was convicted of first-degree murder, aggravated assault, criminal

conspiracy, possessing an instrument of crime and carrying a firearm on a


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*
    Former Justice specially assigned to the Superior Court.
J-S76045-16


public street.1    On November 5, 2003, following the penalty phase of the

trial, the jury sentenced Appellant to life imprisonment on the first-degree

murder conviction, and on December 22, 2003, the trial court imposed

consecutive sentences for the criminal conspiracy and aggravated assault

convictions.

        Following the denial of his post-sentence motion, Appellant filed a

timely appeal.      This Court affirmed Appellant’s judgment of sentence on

January 13, 2005, and Appellant did not seek further review with our

Supreme Court. On January 13, 2006, Appellant filed, pro se, a timely PCRA

petition. Counsel was appointed, and by order and opinion entered on

October 5, 2006, the PCRA court dismissed Appellant’s petition and

permitted counsel to withdraw. Appellant filed a second petition on June 2,

2011, and the PCRA court dismissed it as untimely on March 5, 2014. On

appeal, this Court affirmed both PCRA orders.

        Appellant filed the instant PCRA petition, pro se, on January 30, 2015,

as well as several amended petitions thereafter. Appellant retained counsel

who requested leave to amend. The PCRA court granted that relief on June

2, 2015, and Appellant filed his Amended Motion for Post Conviction Relief

on August 28, 2015. The basis for Appellant’s initial petition and amended,

counseled petition arises from the testimony Mr. Johnson provided at Mr.

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1
    18 Pa.C.S.A. §§ 2502, 2702, 903, 6108, and 907, respectively.



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Stewart’s trial in 2014 which Appellant avers constitutes newly discovered

evidence.2

       On March 8, 2016, the PCRA court dismissed Appellant’s petition as

untimely, and Appellant filed a timely notice of appeal on April 6, 2016. The

PCRA court did not direct Appellant to file a statement of matters complained

of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant did not file one.

The PCRA court filed its Opinion pursuant to Pa.R.A.P. 1925(a) on April 26,

2016, wherein it requested that this Court affirm its order dismissing

appellant’s PCRA petition for the reasons contained in its March 8, 2016,

opinion.

       In his brief, Appellant presents the following Statement of the

Question Involved:


       Did the PCRA court err and violate Appellant’s Fourth, Sixth and
       Fourteenth Amendment rights by finding that the new evidence
       petition was untimely filed?


Appellant’s Brief at 4. The text of Appellant’s brief essentially reiterates the

claims he made in his Amended Motion for Post Conviction Relief filed on

August 28, 2015.

       Preliminarily, we must determine whether Appellant’s instant PCRA

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50
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2
  After the shooting, Mr. Stewart had been “on the run” and was not
apprehended and brought to trial until 2014.



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(Pa.Super. 2000).    “Our standard of review is whether the PCRA court’s

order is supported by the record and without legal error.” Commonwealth

v. Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (citation omitted).

      Pennsylvania law makes it clear that 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 19, 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). 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 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 the law of this Commonwealth or the Constitution or
               law 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 Pennsylvania after

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               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).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation

omitted).

      In the case sub judice, Appellant was sentenced to life imprisonment

on November 5, 2003, and to consecutive prison sentences for aggravated

assault and criminal conspiracy on December 22, 2003. This Court affirmed

his judgment of sentence on January 13, 2005.       Appellant did not file a

petition for allowance of appeal; therefore, Appellant’s judgment of sentence

became final thirty days thereafter, on February 12, 2005, when the time for

seeking allocator with our Supreme Court expired.       See 42 Pa.C.S.A. §

9545(b)(3) (providing “a judgment becomes 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[ ]”). Thus, Appellant had until February 13, 2006, to

file a timely PCRA petition; however, Appellant filed the instant PCRA

petition on January 30, 2015; therefore, it is patently untimely under the

PCRA. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Gamboa-

Taylor, 562 Pa. 70, 753 A.2d 780 (2000) (holding a PCRA petition filed

more than one year after judgment of sentence becomes final is untimely

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and the PCRA court lacks jurisdiction to address the petition unless the

petitioner pleads and proves a statutory exception to the PCRA time-bar).

As such, the PCRA court could not address the merits of Appellant’s petition

unless a timeliness exception applies.

      Appellant attempts to invoke the timeliness exception of 42 Pa.C.S.A.

§ 9545(b)(1)(ii) by claiming the testimony provided by Mr. Johnson during

Mr. Stewart’s trial constitutes newly discovered evidence. Appellant alleges

he first became aware of Mr. Stewarts’s trial from a newspaper article

published on November 19, 2014, but he was unable to obtain the trial

transcripts until April 15, 2015.   See Amended Motion for Post Conviction

Relief at 6-7 (unnumbered).      Appellant maintains that upon reading the

notes of testimony he learned Mr. Johnson had committed the crime of

perjury as to “key material issues” when he testified at Appellant’s trial, a

fact which he could not establish until Mr. Johnson testified in Mr. Stewart’s

case. Id. at 9, 11 (unnumbered).

      Appellant avers that while Mr. Johnson testified at Appellant’s trial that

the shooting occurred in response to the victim’s having attempted to take

over a “coke house,” he stated at Mr. Stewart’s trial that Appellant and

Stewart shot him because he and Mr. Cuthbert had robbed the “drug house,”

which went to the motive for the crime. Id. at 11. Appellant further notes

that while at the first trial Mr. Johnson had indicated he and others had been

merely standing on the corner prior to the shooting, at the Stewart trial he


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stated he and others had been selling drugs on the corner.         Id. at 12.

Finally, Appellant stresses that Mr. Johnson maintained at Appellant’s trial an

individual nicknamed “Nasty”3 had not been on the corner with them that

evening, and in reliance upon this testimony, the defense did not call Mr.

Arthur to testify as an eyewitness to the shooting. To the contrary, at Mr.

Stewart’s trial, Mr. Johnson indicated “Nasty” was standing on the corner at

the time of the shooting, which Appellant argues would have made his

testimony as an eyewitness to the shooting vital at trial. Id. at 13-14.

Although he acknowledged that “Johnson’s recantation still inculpates

[Appellant] as Stewart’s accomplice,” Appellant baldly posits “the prejudicial

impact that Johnson’s perjury had on [Appellant’s] verdict is of constitutional

dimension.” Id. at 14.

        Our Supreme Court previously has stressed that the newly discovered

evidence exception in Section 9545(b)(1)(ii) requires a petitioner to allege

and prove that there were “facts” that were “unknown” to him and that he

could not have ascertained those facts by the exercise of “due diligence.”

Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1270-72

(2007). To do so, an Appellant must prove that “(1) the evidence has been

discovered after trial and it could not have been obtained at or prior to trial

through reasonable diligence; (2) the evidence is not cumulative; (3) it is

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3
    “Nasty’s” given name is Lester Arthur.



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not being used solely to impeach credibility; and (4) it would likely compel a

different verdict.”   Commonwealth v. D’Amato, 579        Pa. 490, 519, 856

A.2d 806, 823 (2004).       Moreover, “[d]ue diligence demands that the

petitioner take reasonable steps to protect his own interests.   A petitioner

must explain why he could not have learned the new fact(s) earlier with the

exercise of due diligence. This rule is strictly enforced.” Commonwealth

v. Williams, 35 A.3d 44, 53 (Pa.Super. 2011) (citations omitted). Further,

“[t]he 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. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 720 (2008)

(emphasis in original).

      Additionally, as this Court has often explained, all of the time-bar

exceptions are subject to a separate deadline.

             The statutory exceptions to the timeliness requirements of
      the PCRA are also subject to a separate time limitation and must
      be filed within sixty (60) days of the time the claim could first
      have been presented. See 42 Pa.C.S.A. § 9545(b)(2). The sixty
      (60) day time limit . . . runs from the date the petitioner first
      learned of the alleged after-discovered facts. A petitioner must
      explain when he first learned of the facts underlying his PCRA
      claims and show that he brought his claim within sixty (60) days
      thereafter.

Williams, 35 A.3d at 53 (citations omitted).




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       In the case sub judice, assuming, arguendo, Appellant met the initial

60-day threshold,4 we conclude the trial court did not abuse its discretion in

finding Mr. Johnson’s testimony did not provide “unknown facts.”5        In this

regard, when determining that it lacked jurisdiction over Appellant’s third

PCRA petition, the PCRA court reasoned as follows:

       The newly-discovered evidence-- Mr. Johnson’s testimony in the
       Stewart trial-- are [sic] only minor inconsistencies from his
       original testimony in [Appellant’s] case. The variations between
       the statements would merely be used to impeach Mr. Johnson’s
       credibility,6 which fails to qualify as after discovered evidence.
             Additionally, whether Lester Arthur was with Mr. Johnson
       at the corner of the shooting, or a city block away, does not
       amount to newly discovered evidence. As the Supreme Court of
       Pennsylvania clarified in Commonwealth v. Bennet, 930 A.2d
       1264, 1272 (Pa. 2007), a defendant “must also prove that the
       facts were ‘unknown’ to him and that he could not uncover them
       with the exercise of ‘due diligence.’” [Appellant] states that he
       relied upon Mr. Johnson’s testimony as to Mr. Arthur’s view of
       the incident, and chose not to call Mr. Arthur as a witness on the
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4
  Appellant asserts that his sister, Margaret Shaw, acquired the notes of
testimony from Mr. Stewart’s trial on March 18, 2015, and mailed them to
Appellant at SCI Dallas where they were allegedly confiscated by the
correctional institute as contraband and were not released to Appellant until
April 15, 2015. Appellant’s Brief at 11-12.
5
   It is noteworthy that although Appellant cites to and references Mr.
Johnson’s testimony from Mr. Stewart’s’ trial to support his claims, he has
failed to provide us with a complete trial transcript; therefore, our review of
the testimony is limited to the excerpts thereof which Appellant attached to
his pro se PCRA petition filed on May 12, 2015. We remind Appellant that
“[i]t is black letter law in this jurisdiction that an appellate court cannot
consider anything which is not part of the record in the case. It is also well-
settled in this jurisdiction that it is Appellant's responsibility to supply this
Court with a complete record for purposes of review.” Commonwealth v.
Martz, 926 A.2d 514, 524–525 (Pa.Super. 2007) (citations omitted) appeal
denied, 940 A.2d 363 (Pa. 2008).




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      belief that he would not provide any helpful information. See
      Amended Petition, at[] 13. Rather than conducting due diligence
      at the time of trial and question Mr. Arthur as to what he
      witnessed, [Appellant] waited until Mr. Johnson’s testimony
      eleven years after the fact to consider whether Mr. Arthur has
      any relevant information.[7]
             More importantly, any differences between the two
      testimonies cannot overcome the pivotal fact which Mr. Johnson
      reiterated in the Stewart trial- that [Appellant] was one of the
      shooters. There is no basis to conclude that the inconsistencies
      would likely compel a different outcome.

      __
      6
         For example, this court cannot imagine that the jury would hold
      Mr. Johnson’s testimony in a different light had they [sic] been
      informed that Mr. Johnson, along with Messrs. Cuthbert and
      Gissentanner, were selling drugs immediately before the
      shooting. Not only had Mr. Johnson testified during [Appellant’s]
      trial that he sold drugs from 1996 to 1998 and was arrested for
      selling drugs in 2001, the jury was also informed that Mr.
      Johnson was in custody awaiting trial for murder in New York.
      7
        In fact, [Appellant] did not attach a sworn affidavit from Mr.
      Arthur, and again relies on Mr. Johnson’s memory if Mr. Arthur
      might have witnessed the murder.

Trial Court Opinion, filed 3/8/16, at 4-5.

      Upon our review of the excerpts of Mr. Johnson’s testimony which

Appellant has provided for our review, we agree with the PCRA court’s

finding that Appellant has failed to demonstrate such testimony satisfies the

newly discovered evidence exception to the PCRA time bar. Rather than

demonstrate    Johnson     committed    perjury   at   Appellant’s   trial,   the

inconsistencies in his testimony at the two proceedings, which were

separated by ten years, pertain to such details as where individuals were

standing and what they were doing at the time of the shooting. While one’s

memory of such details is likely to be affected by the passage of time,

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significantly, Mr. Johnson never wavered in his identification of Appellant as

a shooter at Appellant’s trial, and he reaffirmed Appellant shot repeatedly at

him at Mr. Stewart’s trial.         N.T. Stewart Trial, 11/13/14, at 23-25.6   As

such, Mr. Johnson’s testimony cannot be viewed as exculpatory evidence,

but rather its use would be solely to impeach his prior testimony.

Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa.Super. 2010) (“a

defendant seeking a new trial must demonstrate he will not use the alleged

after-discovered evidence solely to impeach the credibility of a witness”).

       Accordingly, because Appellant has not established any of the

timeliness exceptions to the PCRA time-bar, the PCRA court lacked

jurisdiction to address his claim, and we affirm the dismissal of Appellant's

instant untimely PCRA petition.

       Order Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2016


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6
   In addition, another eyewitness, Danny Gissentanner, unequivocally
identified Appellant as one of the shooters at Appellant’s trial, and his
testimony was corroborated by ballistics evidence.



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