J-A30028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

DAVID LAWRENCE DIXON

                         Appellant                  No. 1281 WDA 2016


             Appeal from the PCRA Order entered July 5, 2016
            In the Court of Common Pleas of Allegheny County
 Criminal Division at No: CP-02-0005571-2007, CP-02-CR-0006620-2007,
                          CP-02-CR-0008288-2008


BEFORE: BOWES, STABILE, JJ., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                FILED FEBRUARY 27, 2018

     Appellant, David Lawrence Dixon, appeals pro se from the July 5, 2016

order entered in the Court of Common Pleas of Allegheny County, dismissing

his petition for collateral relief pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. Appellant raises a plethora of claims for

our review. The PCRA court found Appellant failed to establish the timeliness

of the instant petition. We agree. Accordingly, we affirm the order of the

PCRA court.

     The background of the instant matter can be summarized as follows.

On November 13, 2008, following a trial, a jury found Appellant guilty of

multiple sexual offenses in connection with two incidents involving minors. On

January 26, 2009, the trial court sentenced Appellant to an aggregate term of
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22 to 44 years’ imprisonment. After we denied his direct appeal,1 Appellant

filed a petition for allowance of appeal with our Supreme Court. The Supreme

Court denied his petition on April 7, 2011.2

       Appellant filed the instant PCRA petition, his second, on May 23, 2013,

as amended on June 24, 2015, claiming newly discovered evidence.3 On July

5, 2016, the PCRA court dismissed the petition. This appeal followed.

       “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). All PCRA petitions,

“including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final” unless an exception to timeliness

applies.    42 Pa.C.S.A. § 9545(b)(1).           “The PCRA’s time restrictions are

jurisdictional in nature. Thus, [i]f a PCRA petition is untimely, neither this

Court nor the [PCRA] court has jurisdiction over the petition.            Without

____________________________________________


1Commonwealth v. Dixon, No. 1206 WDA 2007, unpublished memorandum
(Pa. Super. filed August 6, 2010).

2   Commonwealth v. Dixon, 20 A.3d 1210 (Pa. 2011).

3 The PCRA court dismissed Appellant’s first PCRA petition on October 18,
2012. We affirmed the order on December 4, 2013. See Commonwealth
v. Dixon, No. 1757 WDA 2012, unpublished memorandum (Pa. Super. filed
December 4, 2013). The Supreme Court denied Appellant’s petition for
allowance of appeal on May 1, 2014. See Commonwealth v. Dixon, 91 A.3d
161 (Pa. 2014).



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jurisdiction, we simply do not have the legal authority to address the

substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.

2006) (first alteration in original) (internal citations and quotation marks

omitted). As timeliness is separate and distinct from the merits of Appellant’s

underlying claims, we first determine whether this PCRA petition is timely

filed.    See Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008)

(consideration of Brady4 claim separate from consideration of its timeliness).

The timeliness requirements of the PCRA petition must be met, even if the

underlying claim is a challenge to the legality of the sentence.                 See

Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 2007) (“Although legality

of sentence is always subject to review within the PCRA, claims must still first

satisfy the PCRA’s time limits or one of the exceptions thereto.”) (citing

Commonwealth v. Fahy, 737 A.2d 214, 223 (1999)).

         Finally, the exception to the PCRA’s one-year time limit requires

petitioners to file their PCRA petition within sixty days of the date the claim

could have been presented. Thus, petitioners must plead and prove specific

facts demonstrating their claim was raised within the sixty-day time frame of

Section     9545(b)(1)(ii).     See     42     Pa.C.S.A.   § 9545(b)(2);   see   also

Commonwealth v. Hernandez, 79 A.3d 649, 651-52 (Pa. Super. 2013).



____________________________________________


4   Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).




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       The instant PCRA petition is facially untimely as Appellant filed it

approximately one year after the expiration of the time for a timely filing.5

Appellant argues the petition meets one of the exception to the timeliness

general rule, i.e., the previously unknown facts exception set forth in Section

9545(b)(1)(ii).6 In particular, Appellant claims that, on October 15, 2013, he

came into possession of a jail form showing that his trial counsel and the

prosecutor committed perjury during a prior PCRA hearing. At that hearing,

held on October 2, 2012, counsel for Appellant and the Commonwealth

testified that they met with Appellant at a status conference or other pre-trial

meeting during which Appellant consented to the testimony of a witness at

trial via video-conferencing. Appellant argues that the jail form in question

establishes that he was not brought in for any status conference, contrary to

the testimony of both counsel.

       The PCRA court addressed the claim as follows:


____________________________________________


5Appellant’s sentence became final on July 6, 2011, after our Supreme Court
denied his petition for allocatur and the expiration of the time for filing a
petition for writ of certiorari in the United States Supreme Court. See 42
Pa.C.S.A. § 9545(b)(3); U.S. Sup.Ct.R. 13. Appellant had one year from that
date to file a timely petition. He filed the instant petition approximately one
year after that date. The instant PCRA petition is therefore facially untimely.

6 The exception requires a petitioner to plead and prove two components:
(1) the facts upon which the claim was predicated were unknown, and (2)
these unknown facts could not have been ascertained by the exercise of due
diligence. See Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017).
Thus, a petitioner must explain why he could not have learned of the new
facts earlier with the exercise of due diligence. See Commonwealth v.
Breakiron, 781 A.2d 94, 98 (Pa. 2001).

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       [Appellant] cannot establish that he only learned of the existence
       of the information within sixty days of his filing of the instant
       [PCRA petition]. [Appellant] has previously acknowledged in his
       pro se filings that he instructed his counsel in February of 2012 to
       investigate his appearances at pretrial conference to prove that
       he did not appear in courtroom to consent to the use of video-
       conferenced testimony. It wasn’t until approximately fifteen
       months later that he filed the instant [PCRA petition]. Therefore,
       even assuming that the jail records somehow constitute after-
       discovered [sic] evidence, he did not file the instant PCRA
       [petition] within sixty days of the records being discovered.

       Additionally, [the PCRA court] does not believe that the records
       constitute after-discovered [sic] evidence. [Appellant] has not
       provided a factual foundation that the jail records actually contain
       the information he claims it does. He has not supplied the [PCRA
       court] with any authenticated basis for this [c]ourt to conclude
       that the records he relies on demonstrate that he could not have
       been in court to consent to the video-conferenced testimony.

PCRA Court Opinion, 6/27/17, at 7-8.7
____________________________________________


7 The PCRA court seems to confuse the requirements for the newly-discovered
facts exception to the PCRA’s time limitations, set forth in 42 Pa.C.S.A.
§9545(b)(1)(ii), with the after-discovered evidence basis for relief delineated
in 42 Pa.C.S.A. § 9543(a)(2).

In Burton, the Supreme Court explained:

       To qualify for an exception to the PCRA’s time limitations under
       subsection 9545(b)(1)(ii), a petitioner need only establish that the
       facts upon which the claim is based were unknown to him and
       could not have been ascertained by the exercise of due diligence.
       However, where a petition is otherwise timely, to prevail on an
       after-discovered evidence claim for relief under subsection
       9543(a)(2)(vi), a petitioner must prove that (1) the exculpatory
       evidence has been discovered after trial and could not have been
       obtained at or prior to trial through reasonable diligence; (2) the
       evidence is not cumulative; (3) it is not being used solely to
       impeach credibility; and (4) it would likely compel a different
       verdict.




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       The PCRA court also noted that the “new fact” alleged in the instant

petition (i.e., Appellant could not have consented to the video-conferenced

testimony because he was not present when the matter had been discussed)

was already brought to the court’s attention in his previous, unsuccessful

PCRA petition. Id. at 8-9. To this end, we also note that “[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, 947 A.2d 714, 720 (Pa. 2008) (emphasis in original) (citation

omitted). “[Appellant]’s use of [jail records] is just another “conduit for the

same claim[, which] does not transform his latest source into evidence falling

within the ambit of § 9545(b)(1)(ii).” Id. (quoting Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1269 (Pa. 2008)). In light of the foregoing, we agree

with the PCRA court’s analysis and conclusion. Accordingly, we conclude the

PCRA court properly found that Appellant failed to satisfy the exception set

forth in Section 9545(b)(1)(ii).        Therefore, we affirm the order dismissing

Appellant’s petition as untimely.

       Order affirmed.




____________________________________________


Burton, 158 A.3d at 629.


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J-A30028-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/27/2018




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