J-S30041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

DAMIYELL VAUGHTER

                             Appellant               No. 2404 EDA 2015


                    Appeal from the PCRA Order July 28, 2015
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0500732-1998


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED MAY 11, 2016

        Appellant Damiyell Vaughter (“Appellant”)1 appeals from the order of

the Philadelphia County Court of Common Pleas dismissing as untimely his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§ 9541 et seq. After careful review, we affirm.

        The PCRA court set forth the relevant facts and procedural history of

this matter as follows:

             On July 10, 2001, a jury found [Appellant] guilty of First
        Degree Murder[2] and Conspiracy.[3]    On August 9, 2001,
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1
  The trial court also refers to Appellant as “Damtyell Vaughter”. See
Docket, CP-51-CR-0500732-1998; see also Trial Court’s Pa.R.A.P. 1925(a)
Opinion, filed October 5, 2015 (“1925(a) Opinion”), p. 1.
2
    18 Pa.C.S. § 2502.
3
    18 Pa.C.S. § 903.
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       [Appellant] was sentenced to life imprisonment. [Appellant]
       appealed the judgment to the Superior Court and it was affirmed
       on February 13, 2004. No petition for allowance of appeal in the
       Supreme Court was filed.

             [Appellant] filed a timely pro se PCRA petition on
       December 22, 2004.       Counsel was appointed and filed an
       amended petition as well as an advocate’s brief in support of the
       amended petition. On September 13, 2007, the PCRA court
       dismissed the petition. On May 4, 2011, the Superior Court
       affirmed the dismissal.[4]    [Appellant] filed a petition for
       allowance of appeal in the Pennsylvania Supreme Court, which,
       on November 10, 2011, denied allowance of appeal.

              [Appellant] filed the current petition on November 21,
       2014, his second PCRA petition. After conducting an extensive
       and exhaustive review of [Appellant’s] filings, record, and
       applicable case law, th[e PCRA c]ourt found that [Appellant’s]
       petition for post[-]conviction collateral relief was untimely
       filed.[5] Therefore, th[e PCRA c]ourt did not have jurisdiction to
       consider [Appellant’s] PCRA petition. [Appellant] appealed the
       dismissal on August 3, 2015.



____________________________________________


4
  The delay between the PCRA court’s dismissal of the petition and this
Court’s affirmance of the dismissal was occasioned by the PCRA court
improperly dismissing the petition based on Commonwealth v. Turner,
544 A.2d 927 (Pa.1988) and Commonwealth v. Finley, 550 A.2d 213
(Pa.Super.1988) (en banc). The PCRA court also incorrectly noted that the
PCRA petition was Appellant’s second or serial petition and that Appellant
would therefore have to proceed pro se or with privately-retained counsel.
Upon the discovery of these errors, on March 27, 2009, this Court remanded
the matter to the PCRA court to allow Appellant to file a counseled appeal.
On June 10, 2010, private counsel entered an appearance and began
prosecuting the appeal on Appellant’s behalf. See Commonwealth v.
Vaughter, 2362 EDA 2009.
5
  On June 16, 2015, the PCRA court filed a Pa.R.Crim.P. 907 notice of intent
to dismiss Appellant’s second PCRA petition as untimely. Appellant filed a
response to the Rule 907 notice on June 29, 2015. The PCRA court denied
Appellant’s second PCRA petition as untimely on July 28, 2015.



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1925(a) Opinion, pp. 1-2 (original footnotes omitted). The PCRA court filed

its 1925(a) Opinion on October 5, 2015.

      Appellant raises the following issues for our review:

      I. Whether the PCRA court erred, thereby declining to assume
      jurisdiction of the matter finding [Appellant’s] [s]econd PCRA
      petition was untimely[ w]here [Appellant] filed his [s]econd
      PCRA petition within [s]ixty (60) days of learning the information
      from Mr. Dwyer[ and Appellant] acted with [d]ue [d]illigence as
      there was no conceivable way for [Appellant] to have discovered
      this evidence any sooner[?]

      II. [Whether t]he lower [c]ourt erred in dismissing on timeliness
      grounds [Appellant’s] amended PCRA petition, [i]n which he
      proved that the Commonwealth had failed to disclose the
      impeachment evidence of the prosecution[’]s two primary
      witnesses[’] criminal histories at trial, when the lower court
      failed to consider that: (a) [t]he only reason [Appellant] did not
      file his petition any sooner was because the [C]ommonwealth
      concealed the very evidence [Appellant] would need to prove the
      “After-Discovered Evidence” exception[] to the time bar; (b)
      Appellant timely filed the instant PCRA petition within sixty days
      of discovering the evidence the [C]ommonwealth failed to
      disclose; and (c) Appellant could not have discovered this
      evidence any sooner with the exercise of [d]ue [d]iligence
      because the law allowed him to rely on the representations of
      the [C]ommonwealth that there had been no criminal histories
      when later events proved that there had been[?]

Appellant’s Brief, p. 3.

      Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and is free of legal error. The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record.”    Commonwealth v. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).

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     We must first consider the timeliness of the petition. “It is undisputed

that a PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final.” Commonwealth v. Hernandez, 79

A.3d 649, 651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1).           “This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of a petition.” Hernandez, 79 A.3d at

651 (citing Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.2000)). A

judgment of sentence “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.” 42 Pa.C.S. § 9545(b)(3). However, a facially untimely petition

may be received where any of the PCRA’s three limited exceptions to the

time for filing the petition are met. Hernandez, 79 A.3d at 651 (footnote

omitted). These exceptions include:

     (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.




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42 Pa.C.S. § 9545(b)(1)(i)-(iii).        As our Supreme Court has repeatedly

stated, the petitioner maintains the burden of pleading and proving that one

of these exceptions applies.          Commonwealth v. Abu-Jamal, 941 A.2d

1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008). Further,

      [a] petition invoking one of these exceptions must be filed within
      sixty days of the date the claim could first have been presented.
      42 Pa.C.S. § 9545(b)(2).        In order to be entitled to the
      exceptions to the PCRA’s one-year filing deadline, the petitioner
      must plead and prove specific facts that demonstrate his claim
      was raised within the sixty-day time frame under section
      9545(b)(2).

Hernandez, 79 A.3d at 651-652 (internal quotations omitted).

      Finally, a heightened standard applies to a second or subsequent PCRA

petition   to      avoid    “serial    requests    for     post-conviction     relief.”

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011).                     “A second or

subsequent request for relief under the PCRA will not be entertained unless

the petitioner presents a strong prima facie showing that a miscarriage of

justice may have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248,

1251 (Pa.2006).        Additionally, in a second or subsequent post-conviction

proceeding,     “all   issues   are   waived   except    those   which    implicate   a

defendant’s innocence or which raise the possibility that the proceedings

resulting in conviction were so unfair that a miscarriage of justice which no

civilized society can tolerate occurred”. Commonwealth v. Williams, 660

A.2d 614, 618 (Pa.Super.1995).




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       Here, because Appellant did not file a petition for allowance of appeal

to our Supreme Court, Appellant’s judgment of sentence became final on

March 15, 2004, thirty days after this Court affirmed his convictions. 6 See

42 Pa.C.S. § 9545(b)(3). Accordingly, Appellant had until March 15, 2005 to

timely file a PCRA petition.

       Appellant filed the instant petition, his second, on November 21, 2015,

over ten and one-half years after the expiration of his PCRA limitations

period. Accordingly, Appellant’s petition is facially untimely. Thus, he must

plead and prove that his petition falls under one of the Section 9545

exceptions set forth in the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

       To overcome the PCRA’s time bar, Appellant first asserts the unsworn

affidavit of fellow prisoner Timothy Dwyer amounts to after-discovered

evidence that provides him with a time-bar exception. He is incorrect.

       To be eligible for PCRA relief based on after-discovered evidence, a

petitioner must plead and prove by a preponderance of the evidence “[t]he

unavailability at the time of trial of exculpatory evidence that has

subsequently become available and would have changed the outcome of the

trial if it had been introduced.” 42 Pa.C.S. § 9543 (a)(2)(vi). The petitioner


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6
  The actual 30th day fell on March 13, 2004, a Saturday. Therefore,
Appellant had until the following Monday, March 15, 2004, to timely file a
petition for allowance of appeal in the Supreme Court. See 1 Pa.C.S. §
1908. Accordingly, Appellant’s judgment of sentence became final on March
15, 2004.



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must establish 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 not being used solely

to impeach credibility; and (4) it would likely compel a different verdict.”

Commonwealth v. D’Amato, 856 A.2d 802, 823 (Pa.2004) (quoting

Commonwealth v. Abu-Jamal, 720 A.2d 79, 94 (Pa.1998)).                      The

petitioner must explain why he could not have learned the after-discovered

fact earlier with the exercise of due diligence.        Commonwealth v.

Breakiron, 781 A.2d 94, 98 (Pa.2001).          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, 947 A.2d 714, 720 (Pa.2008) (internal quotations, brackets, and

citation omitted; emphasis in original).

      In the affidavit in question, Mr. Dwyer describes a shooting he alleges

he witnessed in February 1998. See Timothy Dwyer Affidavit, October 31,

2014 (“the Affidavit”), pp. 1-4.   The Affidavit does not recount the date,

time, or location of the shooting. Id. Instead, the Affidavit vaguely tells a

tale of gunshots in February and concludes that Appellant was not the

passenger in the car from which a driver and passenger emerged to commit

the shooting. Id.

      The trial court disposed of Appellant’s attempt to invoke the after-

discovered evidence time-bar exception based on the Affidavit as follows:




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       . . . [Appellant] fails to state what due diligence, if any, he took
       to secure Mr. Dwyer’s testimony. According to the affidavit,
       [Appellant] and Mr. Dwyer know each other through prayer
       service at prison. It is unclear whether they knew each other
       prior to prison, or if they are from the same neighborhood.
       [Appellant] did not state what attempts, if any, he took to locate
       possible witnesses, including Mr. Dwyer, who may have seen him
       that night. [Appellant] does not explain why he could not have
       discovered the witness on an earlier date, through the use of a
       private investigator or otherwise. [Appellant], therefore, fails to
       establish he could not have obtained any alleged new facts at an
       earlier time with the exercise of due diligence.

1925(a) Opinion, pp. 3-4.         The PCRA court did not err in determining the

affidavit did not afford Appellant an exception to the PCRA time-bar.7

       Appellant also claims his belated discovery of the criminal histories of

certain Commonwealth witnesses provides an exception to the PCRA time-

bar. Appellant is again incorrect.

       The criminal histories of witnesses are a matter of public record. “[Our

Supreme] Court has addressed the meaning of ‘facts’ as that term is

employed in Section 9545(b)(1)(ii) and held that, to constitute such ‘facts,’

the information may not be part of the public record.” Commonwealth v.

Edmiston, 65 A.3d 339, 352 (Pa.2013).            As such, the criminal histories

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7
   Even if the Affidavit could be viewed as overcoming the PCRA’s
jurisdictional time limits, we agree with the Commonwealth’s observation
that the affidavit would not entitle Appellant to relief because it was not
exculpatory. See Commonwealth’s Brief, pp. 9-10. The affidavit does not
provide the date, time, or location of the shooting described in the affidavit.
See Affidavit, pp. 2-3. Instead, the affidavit merely states that Mr. Dwyer
remembered he was present for what he believed was a shooting sometime
in February. Id. at 3.



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Appellant alleges to have recently discovered cannot form the basis of a

newly discovered facts exception to the PCRA’s time-bar.

      Further, Appellant has not explained why he could not have discovered

this information at the time of trial, or, even assuming prosecutorial

misconduct, at any time in the more than a decade following his conviction.

      The PCRA court did not err in determining Appellant’s alleged

discovery of the criminal histories of certain Commonwealth trial witnesses

constituted an exception to the PCRA time-bar, and Appellant’s second PCRA

petition remains untimely.

      Because Appellant filed the instant PCRA petition over ten years after

the expiration of the PCRA limitations period and cannot avail himself of any

time-bar exceptions, the PCRA court did not err in dismissing this petition as

untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2016




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