J-S82017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 STANLEY HAYES                             :
                                           :
                     Appellant             :    No. 1743 EDA 2017

                  Appeal from the PCRA Order May 19, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-1054681-1990


BEFORE:    LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                           FILED JANUARY 18, 2019

      Appellant, Stanley Hayes, appeals from the order entered on May 19,

2017 in the Criminal Division of the Court of Common Pleas of Philadelphia

County that dismissed as untimely his fourth petition filed pursuant to the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The relevant facts are as follows. At the conclusion of trial on June 21,

1991, a jury found Appellant guilty of first-degree murder and related offenses

in the shooting death of Melvin Phillips. Appellant received life imprisonment

for his first-degree murder conviction and the trial court later added additional,

concurrent terms of incarceration for Appellant’s related offenses. On January

28,   1994,   this   Court   affirmed   Appellant’s   judgment     of   sentence.

Commonwealth v. Hayes, 640 A.2d 472 (Pa. Super. 1994) (table).

Appellant did not seek further review before the Pennsylvania Supreme Court.



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      In the years after direct review, but prior to the commencement of the

instant petition, Appellant filed three petitions pursuant to the PCRA. These

petitions were filed on May 30, 1995, May 6, 2004, and October 23, 2007,

respectively.   Notably, Appellant’s second and third petitions alleged the

existence of “after-discovered evidence,” including the criminal history of

Carol Devan, a witness for the Commonwealth who testified at trial. Both

petitions alleged that counsel was ineffective in failing to use the information

to impeach Devan and that the Commonwealth violated Brady v. Maryland,

373 U.S. 83 (1963) in failing to produce this information to Appellant. Neither

petition secured relief before the PCRA courts and this Court rejected

Appellant’s claims and affirmed the dismissal of both petitions.

      Appellant, acting pro se, filed the instant petition (his fourth) on May

11, 2012. Amendments to Appellant’s petition raised the same Brady claim

predicated on Devan’s criminal history that was rejected in Appellant’s second

and third petitions. After issuing notice of its intent to dismiss Appellant’s

petition without a hearing pursuant to Pa.R.Crim.P. 907, the PCRA denied

Appellant’s fourth petition as untimely on May 19, 2017. This appeal followed.

      Appellant argues that the PCRA court erred in dismissing his fourth

petition as untimely. “As a general proposition, we review a denial of PCRA

relief to determine whether the findings of the PCRA court are supported by

the record and free of legal error.” Commonwealth v. Eichinger, 108 A.3d

821, 830 (Pa. 2014).




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      Before this Court can address the substance of Appellant’s claim, we

must determine if this petition is timely, as this inquiry determines whether

we may exercise jurisdiction over the present petition.

         [The PCRA requires] a petitioner to file any PCRA petition
         within one year of the date the judgment of sentence
         becomes final. A judgment of sentence becomes final at the
         conclusion of direct review . . . or at the expiration of time
         for seeking review.

                                       ...

         However, an untimely petition may be received when the
         petition alleges, and the petitioner proves, that any of the
         three limited exceptions to the time for filing the petition, set
         forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.
         A petition invoking one of these exceptions must be filed
         within [60] days of the date the claim could first have been
         presented. 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 [60]-day timeframe.

Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (some internal

citations omitted) (internal quotations omitted).

      Appellant does not dispute that his fourth petition was filed outside the

PCRA’s   one-year    time   limit   and,   therefore,   was   patently   untimely.

Accordingly, the burden fell upon Appellant to plead and prove that one of the

enumerated exceptions to the one-year time-bar applied to his case. See 42

Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286

(Pa. Super. 2008) (to properly invoke a statutory exception to the one-year

time-bar, the PCRA demands that the petitioner properly plead all required

elements of the relied-upon exception).

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      Citing our Supreme Court’s decision in Commonwealth v. Burton, 158

A.3d 618 (Pa. 2017), Appellant claims the PCRA court erred in dismissing his

petition as untimely.      In Burton, the Supreme Court examined the

“newly-discovered facts” exception to the time-bar, which permits the filing of

a petition outside of the one-year time-bar if the petitioner pleads and proves

that 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.” 42 Pa.C.S.A. § 9545(b)(1)(ii). Our Supreme Court explained that

the newly-discovered facts exception “does not require any merits analysis of

the underlying claim. Rather, the exception merely requires that the ‘facts’

upon which such a claim is predicated must not have been known to appellant,

nor could they have been ascertained by due diligence.” Commonwealth v.

Bennett, 930 A.2d 1264, 1271 (Pa. 2007) (internal quotations and citation

omitted), quoting Commonwealth v. Lambert, 884 A.2d 848, 852 (Pa.

2005).   Contrary to prior decisions which held that information within the

public sphere cannot be deemed “unknown” for purposes of § 9545(b)(1)(ii),

Burton made clear that the presumption of access to public information does

not apply to defeat a petitioner’s invocation of the newly-discovered facts

exception where the petitioner is incarcerated and acting as his own counsel.

Burton, 158 A.3d at 620.

      In the case at bar, the PCRA court noted that Appellant’s Brady claim

(predicated on Devan’s criminal history) was first raised in his second PCRA


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petition filed in 2004.      See PCRA Court Opinion, 7/31/18, at 4.   As such,

Appellant could not demonstrate that he filed the instant petition within 60

days of the date the claim could first have been presented. Id. Appellant

does not dispute this assessment. See Appellant’s Brief at 21 (acknowledging

that Appellant cannot submit a claim based upon the Brady violation alleged

herein within 60 days of its discovery). Hence, we conclude that Appellant

failed to plead a valid exception to the PCRA’s one-year time-bar and that his

petition is time-barred. Since we “are without jurisdiction to offer [Appellant]

any form of relief,” Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa.

Super. 2011), we affirm the PCRA court’s order dismissing Appellant’s fourth

PCRA petition without a hearing.1

       Order affirmed.




____________________________________________


1 Appellant argues that if the appellate courts of this Commonwealth decided
prior to 2004 that incarcerated, pro se petitioners were not subject to the
public information presumption, then he would have received the relief he
presently seeks. See Appellant’s Brief at 12. While this contention may have
some merit, it does not lead to a different result under our present
jurisdictional analysis. Appellant overlooks the fact that changes in the
interpretation of the PCRA statute do not expand the jurisdiction of PCRA
courts in the same manner as the adoption of new rules of constitutional law
which apply retroactively to cases in which the judgment of sentence has
become final. See 42 Pa.C.S.A. § 9545(b)(1)(iii).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/18/19




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