J-S59038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                      v.

RASHEEN NIFAS

                            Appellant                  No. 3395 EDA 2016


                  Appeal from the PCRA Order October 5, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-1004371-1991

BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED OCTOBER 25, 2017

        Appellant, Rasheen Nifas, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas denying his second Post

Conviction Relief Act1 (“PCRA”) petition as untimely.     Appellant argues the

PCRA’s newly discovered facts and governmental interference exceptions

excuse the untimeliness of his petition. We affirm.

        On February 18, 1993, a jury convicted Appellant of first-degree

murder2 and related offenses.           The trial court subsequently sentenced

Appellant on October 4, 1994, to life imprisonment, with concurrent terms of

incarceration for the remaining convictions. Appellant timely appealed, and

*   Former Justice specially assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541-9546.

2   18 Pa.C.S. § 2502(a).
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this Court affirmed his judgment of sentence on March 29, 1996. Appellant

did not file a petition for allowance of appeal to our Supreme Court.

        Appellant timely filed his first PCRA petition pro se on November 18,

1996.     The PCRA court appointed counsel, who subsequently filed a “no-

merit” letter and petition to withdraw. On September 24, 1999, the PCRA

court ultimately issued notice of its intent to dismiss Appellant’s petition

without a hearing. Appellant did not respond, and the PCRA court dismissed

his petition on October 26, 1999.         Appellant appealed to this Court;

however, his appeal was dismissed on August 10, 2000, for failure to file a

brief. Appellant filed a petition for reconsideration, which this Court denied.

        Appellant filed his current PCRA petition pro se on May 20, 2015. The

PCRA court issued notice of its intent to dismiss the petition without a

hearing pursuant to Pa.R.Crim.P. 907, and denied the petition as untimely

on October 5, 2016. Appellant timely appealed on October 21, 2016.

        “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”        Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

        As our Supreme Court has explained:

          the PCRA timeliness requirements are jurisdictional in
          nature and, accordingly, a PCRA court is precluded from
          considering untimely PCRA petitions. We have also held
          that even where the PCRA court does not address the
          applicability of the PCRA timing mandate, th[e] Court will
          consider the issue sua sponte, as it is a threshold question


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        implicating our subject matter jurisdiction and ability to
        grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations

omitted).

     A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.”    Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (some citations and footnote omitted). Pursuant to 42

Pa.C.S. § 9545(b)(3), “[a] judgment becomes final at the conclusion of

direct review by this Court or the United States Supreme Court, or at the

expiration of the time seeking such review.” Commonwealth v. Jones, 54

A.3d 14, 17 (Pa. 2012) (citations omitted).

     When a petition is filed outside the one-year time limit, the petitioner

must plead and prove the applicability of one of the three exceptions to the

PCRA timeliness requirements.     Commonwealth v. Johnston, 42 A.3d

1120, 1126 (Pa. Super. 2012) (“If the petition is determined to be untimely,

and no exception has been pled and proven, the petition must be dismissed

without a hearing because Pennsylvania courts are without jurisdiction to

consider the merits of the petition.” (citation omitted)).         The three

exceptions to the general one-year time limitation are:

        (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


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           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).

         Instantly, Appellant’s judgment of sentence became final on April 28,

1996, thirty days after this Court affirmed his judgment of sentence.

Therefore, his current petition, which was filed more than nineteen years

later on May 20, 2015, is facially untimely.        Although Appellant alleges an

affidavit from his co-defendant indicating Appellant was not present during

the crime satisfies the newly discovered facts exception, Appellant has not

proven that these facts were unknown to him at the time of his trial or that

they could not have been discovered through due diligence.                See id. §

9545(b)(1)(ii). In fact, the co-defendant’s affidavit states he told Appellant’s

trial counsel of this exculpatory information in 1992, prior to Appellant’s

trial.     Furthermore,   Appellant     asserts   the   governmental     interference

exception     applies   because   the    Commonwealth         withheld   exculpatory

information     that    was   discovered     during     his   co-defendant’s    trial.

Nevertheless, Appellant again failed to prove he exercised due diligence in

obtaining the alleged exculpatory information when his co-defendant was


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tried before Appellant and Appellant could have requested a copy of the

transcripts from his co-defendant’s trial prior to his own trial.   See id. §

9545(b)(1)(i). Therefore, Appellant has failed to prove any of the statutory

exceptions to the PCRA’s timeliness requirement. See id. § 9545(b)(1)(i)-

(iii). Accordingly, the PCRA court lacked jurisdiction to consider the merits

of Appellant’s claims, and we affirm the dismissal of Appellant’s untimely

PCRA petition. See Johnston, 42 A.3d at 1126.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2017




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