J-S50030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TYRONE JONES

                            Appellant                No. 1771 EDA 2014


                   Appeal from the Order Entered May 21, 2014
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0612181-1973


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                         FILED DECEMBER 08, 2015

        Appellant, Tyrone Jones, appeals from the May 21, 2014 order

dismissing, as untimely, his sixth petition, as amended, filed pursuant to the

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

consideration, we affirm.

        We summarize the early history of this case as follows. Appellant, who

was a juvenile but tried as an adult, was convicted in May 1975 of first-

degree murder, carrying a firearm on a public street, and criminal conspiracy

in connection with the slaying of a 17-year-old victim as part of a gang

initiation.1   Appellant was sentenced to a mandatory term of life in prison

without the possibility of parole on October 28, 1975.       Appellant filed a

____________________________________________
1
    18 Pa.C.S.A. §§ 2502, 6108, and 903, respectively.
J-S50030-15


direct appeal, which was denied by our Supreme Court on April 28, 1977.

Commonwealth v. Jones, 372 A.2d 814 (Pa. 1977).               After filing a Post

Conviction Hearing Act petition, Appellant was permitted to file additional

post-sentence motions nunc pro tunc, which were denied by the trial court.

In a second direct appeal, Appellant’s sentence was affirmed by this Court

on October 23, 1986, and our Supreme Court denied Appellant’s petition for

allowance of appeal on April 30, 1987.           Commonwealth v. Jones, 517

A.2d 1365 (Pa. Super. 1987) (unpublished memorandum), appeal denied,

527 A.2d 536 (Pa. 1987).          Subsequently, Appellant filed a series of PCRA

petitions in 1993, 1997, 2001, and 2007, in which he claimed, inter alia, that

various witnesses existed who could provide alibis or testify that he was not

present at the shooting. All of Appellant’s petitions were dismissed.2

       Appellant filed the instant petition on July 14, 2010.      After several

authorized and unauthorized amendments, the PCRA court entered an order

notifying Appellant of its intent to dismiss Appellant’s PCRA petition without

a hearing on April 21, 2014. Appellant did not file a response, and on May




____________________________________________
2
  Appellant was appointed counsel for his 1993 and 1997 PCRA proceedings.
Appellant’s 2001 and 2007 petitions were dismissed as untimely. Appellant
appealed from the denial of the 1997, and 2001 petitions, and this Court
affirmed the rulings. Commonwealth v. Jones, 1076 EDA 1998 (Pa.
Super. 1999), appeal denied, 423 EDA 1999 (Pa. 1999); Commonwealth v.
Jones, 1495 EDA 2002 (Pa. Super. 2003).



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21, 2014, the PCRA court entered an order dismissing Appellant’s PCRA

petition.3 Appellant filed a timely notice of appeal on June 20, 2014.4

       On appeal, Appellant raises the following issues for our review.

              [1] Did the PCRA court err in ruling that
              [Appellant’s] Rule 1925(b) Statement of Errors on
              Appeal — claiming that the court erred in
              determining his Fourth Amended Petition “was
              untimely” — was too vague when: the statement
              complied with Pennsylvania Rule of Appellate
              Procedure 1925(b)(4)(v), as amended in 2007, and
              encompassed all subsidiary issues; and the issue was
              not only fully preserved in the record but was the
              only substantive issue addressed in the court below?

              [2] Did the PCRA court err in ruling that
              [Appellant] waived review of the issues set forth in
              his Fourth Amended Petition by failing to seek leave
              to amend his petition when [Appellant] consistently
              informed the court of his intent to amend, the
              Commonwealth filed a motion to dismiss the Fourth
              Amended Petition, and the court implicitly accepted
              his Fourth Amended Petition as the operative
              pleading?

____________________________________________
3
   On June 4, 2014, the PCRA court filed a second order, redundantly
dismissing Appellant’s PCRA petition.
4
  Appellant filed a second notice of appeal at the same time, treating the
PCRA court’s order as separate dismissals of his fourth amended PCRA
petition and his April 4, 2014 emergency petition. In compliance with the
PCRA court’s directive, Appellant also filed separate concise statements of
errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). On October 24, 2014, this Court dismissed the appeal
at 1770 EDA 2014 as duplicative. See Commonwealth v. Jones, 1770
EDA 2014, Per Curiam Order, 10/24/14. On November 24, 2014, this Court
clarified that Appellant was free to raise the issues from both Rule 1925(b)
statements in his brief for the instant appeal. See id. Per Curiam Order,
11/24/14. In the meantime, the PCRA court issued two Rule 1925(a)
opinions on August 21, 2014 and September 2, 2014, respectively.


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          [3] Did the PCRA court err in ruling, without an
          evidentiary hearing, that [Appellant] had not
          exercised due diligence in obtaining new evidence
          when: (a) [Appellant] raised issues of material fact
          regarding his diligence that required an evidentiary
          hearing under Pennsylvania Rule of Criminal
          Procedure 908(2); and (b) the PCRA court’s findings
          regarding [Appellant’s] alleged lack of diligence are
          not supported by the record?

          [4] Did the PCRA court err in dismissing
          [Appellant’s] claim under Brady v. Maryland, 373
          U.S. 83 (1963) when: (a) the evidence withheld by
          the Commonwealth was material and favorable to
          [Appellant]; and (b) the court failed to conduct a
          fact-intensive inquiry to determine the materiality of
          the withheld evidence, consequently misconstruing
          the facts of record and misapplying the principles of
          Brady?

          [5] Did the PCRA court prematurely deny
          [Appellant’s] request for discovery when it had not
          yet determined whether it had jurisdiction over
          [Appellant’s] claims?

          [6] Did the PCRA court err in dismissing
          [Appellant’s] independent actual innocence claim
          when: (a) such a claim should be recognized under
          the Pennsylvania and United States Constitutions;
          and (b) the PCRA court’s finding that [Appellant]
          could not establish actual innocence was made
          without an evidentiary hearing?

          [7] Did the PCRA [c]ourt err in concluding that
          [Appellant] failed to timely file his Amended
          Emergency Petition under the PCRA?

          [8] Did the PCRA [c]ourt err in concluding that, if,
          [Appellant’s] claims are not cognizable under the
          PCRA, he may not seek relief through a writ of
          habeas corpus?

          [9] Does the failure to apply Miller v. Alabama,
          []132 S. Ct. 2455 (2012) retroactively in

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             Commonwealth v. Cunningham, 81 A.3d 1 (Pa.
             2013), render [Appellant’s] sentence unlawfully
             disproportionate in violation of the United States
             Constitution’s bar on cruel and unusual punishment
             and the Pennsylvania Constitution’s prohibition on
             cruel punishment?

             [10] Is the failure to apply Miller retroactively in
             Cunningham so unfair and inequitable that it
             independently       violates     the      Pennsylvania
             Constitution’s prohibition on cruel punishment?

             [11] Does the failure to apply Miller retroactively in
             Cunningham irrationally and without justification
             treat similarly-situated juvenile offenders differently
             and thus violate [Appellant’s] state and federal
             constitutional rights to equal protection and due
             process?

             [12] Under the constitutional avoidance canon,
             should this Court refrain from deciding the
             constitutional issues raised in Questions 9-11 and,
             instead, conclude that Miller applies retroactively
             under settled Pennsylvania law because good
             grounds exist to do so and the Miller rule comports
             with Pennsylvania norms?

Appellant’s Brief at 4-8.

      We address the denial of PCRA relief according to the following

standards.

             Our standard of review of the denial of a PCRA
             petition is limited to examining whether the court’s
             rulings are supported by the evidence of record and
             free of legal error. This Court treats the findings of
             the PCRA court with deference if the record supports
             those findings.     It is an appellant’s burden to
             persuade this Court that the PCRA court erred and
             that relief is due.




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Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)

(citation omitted).

              [Our] scope of review is limited to the findings of the
              PCRA court and the evidence of record, viewed in the
              light most favorable to the prevailing party at the
              PCRA court level.      The PCRA court’s credibility
              determinations, when supported by the record, are
              binding on this Court. However, this Court applies a
              de novo standard of review to the PCRA court’s legal
              conclusions.

Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)

(en banc) (internal quotation marks and citations omitted), appeal granted,

105 A.3d 658 (Pa. 2014).

       We elect to first address Appellant’s second issue, raised in response

to the PCRA court’s contention that the issues Appellant raised in his fourth

amended PCRA petition are waived because leave to file said amended

petition was not expressly sought by Appellant or granted by the PCRA

court.5 Appellant’s Brief at 33; PCRA Court Opinion, 9/2/14 at 12.

____________________________________________
5
  At the outset, we address Appellant’s first issue, which counters the PCRA
court’s suggestion in its September 2, 2014 opinion, that Appellant has
waived his issues on appeal that challenge the PCRA court’s determination
that the PCRA petition was untimely because his Rule 1925(b) statement
was too vague. PCRA Court Opinion, 9/2/14, at 11-12. In pertinent part,
Appellant’s 1925(b) statement reads that “[t]he [PCRA c]ourt erred in ruling
that [Appellant’s] Fourth Amended PCRA Petition was untimely.” Appellant’s
Rule 1925(b) Statement, 7/14/14, at 2. We note, that the PCRA court did
not promulgate any particular findings or supply any exposition of its
reasons beyond its determination that Appellant’s petition was untimely
when it filed its Rule 907 notice, or its May 21, 2014 order dismissing
Appellant’s PCRA petition. Accordingly, Appellant did not have the PCRA
court’s particular rationale to make a more particularized articulation of his
(Footnote Continued Next Page)

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             Our criminal procedural rules reflect that the PCRA
             judge “may grant leave to amend … a petition for
             post-conviction collateral relief at any time,” and that
             amendment “shall be freely allowed to achieve
             substantial justice.”     Pa.R.Crim.P. 905(A); see
             Commonwealth v. Williams, 573 Pa. 613, 633,
             828 A.2d 981, 993 (2003) (noting that the criminal
             procedural rules contemplate a “liberal amendment”
             policy for PCRA petitions). Nevertheless, it is clear
             from the rule’s text that leave to amend must be
             sought and obtained, and hence, amendments are
             not “self-authorizing.” Commonwealth v. Porter,
             613 Pa. 510, 523, 35 A.3d 4, 12 (2012). Thus, for
             example, a petitioner may not “simply ‘amend’ a
             pending petition with a supplemental pleading.” Id.
             Rather, Rule 905 “explicitly states that amendment
             is permitted only by direction or leave of the PCRA
             Court.” Id. at 523–24, 35 A.3d at 12[.]

Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014).

      Appellant argues that a PCRA court’s implicit acceptance of an

amended      pleading      is   sufficient.         Appellant’s    Brief   at   34,   citing

Commonwealth v. Roney, 79 A.3d 595, 615-616 (Pa. 2013) (noting where

a PCRA court did not “address or … delineate” claims raised in an amended

PCRA petition, it did not “implicitly or explicitly accept” them), cert. denied,

Roney v. Pennsylvania, 135 S. Ct. 56 (2014).                      Instantly, following the

filing of Appellant’s fourth amended PCRA petition on September 6, 2012,

the Commonwealth filed a motion to dismiss it on May 31, 2013.

Subsequently, the PCRA court directed the parties to brief the issues

contained therein and entertained oral arguments on August 5, 2013.
                       _______________________
(Footnote Continued)
issue. Under these circumstances, we decline to find waiver based on the
wording of Appellant’s Rule 1925(b) statement.


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Additionally, by order dated August 12 2013, the PCRA court explicitly

treated Appellant’s July 12, 2012 “Petition for Vacation of Illegal Sentence,”

raising the Miller issues discussed infra, as an amendment to Appellant’s

PCRA petition and held Appellant’s after discovered evidence claims in

abeyance to address all issues together. PCRA Court Order, 8/12/13, at 1.

Finally, on January 8, 2014, the PCRA court granted Appellant’s motion to

further amend his “Petition for Habeas Corpus and/or Post Conviction relief.”

PCRA Court Order, at 1.

      Given these circumstances, we agree with Appellant that the PCRA

court implicitly accepted Appellant’s fourth amended petition as well as

explicitly granting leave for the subsequent amendments through Appellant’s

“Petition for Vacation of Illegal Sentence.” Accordingly, we do not conclude

Appellant has waived any of his issues on the basis that they were contained

in an unauthorized amended pleading. See Roney, supra; see also, e.g.,

Commonwealth v. Torres, 101 A.3d 781, 781 n.1 (Pa. 2014) (per curiam)

(recognizing that where a PCRA court entertained issues raised in an

amendment to a PCRA, it was implicitly accepted).

      We therefore proceed to address Appellant’s issues challenging the

PCRA court’s determination that his sixth PCRA petition is untimely and that

none of the statutory exceptions apply.         “[I]t is well-settled that … a

question   of   timeliness   implicates   the   jurisdiction   of   our   Court.”

Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa. Super. 2012) (internal


                                     -8-
J-S50030-15


quotation marks and citation omitted), appeal denied, 49 A.3d 442 (Pa.

2012). “It is well settled that [a]ny and all PCRA petitions must be filed [in a

timely   manner]      unless    one    of      three   statutory   exceptions   applies.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061-1062 (Pa. Super. 2011)

(internal quotation marks and citations omitted), appeal denied, 38 A.3d 823

(Pa. 2012). “We have repeatedly stated it is the appellant’s burden to allege

and prove that one of the timeliness exceptions applies.                  Whether [the

a]ppellant has carried his burden is a threshold inquiry prior to considering

the merits of any claim.”         Commonwealth v. Edmiston, 65 A.3d 339,

346 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania,

134 S. Ct. 639 (2013).

       Instantly, it is uncontested that Appellant’s sixth PCRA petition, filed

July 14, 2010, is facially untimely.6 Appellant’s Brief at 39. Specifically, in

his third issue, Appellant asserts that he properly pled the application of

Section 9545(b)(1)(ii)’s newly discovered fact exception to the PCRA’s

timeliness constraints. Appellant’s Brief at 39; 42 Pa.C.S.A. § 9545(b)(1)(ii)

____________________________________________
6
  The 1995 amendments to the PCRA provide that any PCRA petition must
be filed within one year of the date that a defendant’s judgment of sentence
becomes final. 42 Pa.C.S.A. § 9545(b)(3). For judgments that became final
before the effective date of 1995 amendments, a petition must be filed
within one year of the amendments’ effective date of January 15, 1996. 42
Pa.C.S.A. § 9545(b). Here, Appellant’s judgment of sentence became final
on June 29, 1987, at the expiration of the 60 days he had to seek certiorari
review from the United States Supreme Court of our Supreme Court’s April
30, 1987 affirmance of his judgment of sentence on Appellant’s second
direct appeal.


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(providing that it is an exception to the PCRA’s timeliness bar when the

petitioner proves “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”).   In his various amendments to his sixth PCRA

petition, Appellant averred the discovery of new facts in the form of various

witness statements. See generally Fourth Amended PCRA petition, 9/6/12.

            [S]ubsection (b)(1)(ii) has two components, which
            must be alleged and proved. Namely, the petitioner
            must establish that: 1) “the facts upon which the
            claim was predicated were unknown” and 2) “could
            not have been ascertained by the exercise of due
            diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
            added).

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007).                 “Due

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), appeal denied, 50 A.3d 121 (Pa. 2012). Our Supreme

Court has “held that a petitioner must allege and prove previously unknown

‘facts,’ not merely a newly discovered or newly willing source for previously

known facts.”    Edmiston, supra at 353 (internal quotation marks and

citations omitted). A due diligence inquiry is a preliminary one, addressed to

the application of the timeliness exception at Section 9545(b)(1)(ii), and

does not include a merits analysis of the claim. Bennett, supra at 1271-


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1272. This Court has recently clarified “that due diligence requires neither

perfect vigilance nor punctilious care, but rather it requires reasonable

efforts by a petitioner, based on the particular circumstances, to uncover

facts that may support a claim for collateral relief.”    Commonwealth v.

Burton, 121 A.3d 1063, 1071 (Pa. Super. 2015) (en banc) (citations

omitted).     Additionally, the “due diligence inquiry is fact-sensitive and

dependent upon the circumstances presented.” Id. at 1070.

      Instantly, the PCRA court determined that Appellant did not exercise

due diligence in identifying the witnesses and securing the proffered

statements.     PCRA Court Opinion, 9/2/14, at 19.     “[B]ecause [Appellant]

failed to aver why these witnesses could not have been discovered sooner,

this claim should be denied.” Id. Appellant contends that the PCRA court

erred by not conducting a hearing on the issue of Appellant’s exercise of due

diligence. Appellant’s Brief at 39.

              With his petition, Mr. Jones included certifications
              from counsel and his investigator regarding the
              extraordinary efforts made to find each and every
              witness who provided information included in the
              petition…    and,    in   his    response   to    the
              Commonwealth’s motion to dismiss, [Appellant]
              provided a detailed proffer of the evidence he would
              present at a hearing to establish his diligence…. In
              addition, [Appellant’s] most recent submission on
              this topic — made after the PCRA court raised
              questions about his diligence at an August 2013 oral
              argument on the Commonwealth’s motion —
              included detailed certifications from [Appellant],
              [Appellant’s counsel], and [Appellant’s investigator]
              regarding their efforts to find new evidence in


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              [Appellant’s] case over the years as well as twenty
              letters documenting those efforts.

Id. at 40-41.7

       The PCRA court detailed the relevant witness statements and

summarized the circumstances surrounding their discovery by Appellant.

PCRA Court Opinion, 9/2/14, at 13-16.8             The PCRA court concluded that

Appellant did not present a contested fact demonstrating his exercise of due

diligence in seeking out these witnesses.

              [Appellant’s] assertions belie the fact that he has
              filed numerous prior PCRA petitions that alleged
              witnesses existed who could exonerate him. Despite
              knowing that such witnesses existed [Appellant] has
              failed to aver that he ever made any attempt to
              locate them. In this Court’s view, this was fatal to
              his claim because it shows that [Appellant] did not
              take “reasonable” steps to find any witnesses.

Id. at 18-19.
____________________________________________
7
   The proffered witnesses included co-defendant Michael Long, whose
statement indicates Appellant shot at but did not hit anyone during the
incident; Howard and Darryl Williams, located through neighborhood
inquiries, whose statements indicate they were eyewitnesses and Appellant
was not present during the shooting; Arthur Lynn, who came to Appellant’s
attention via a letter from Robert Perkins, an inmate who met Lynn in
prison, whose statement indicates he was an eyewitness and Appellant was
not present during the shooting; and Andrew Monroe, a friend of Appellant’s
brother, whose statement purports that Monroe knows who the true killers
were. See PCRA Court Opinion, 9/2/14, at 13-16.
8
  The PCRA court noted that Appellant “concedes in his response to the
Commonwealth’s Motion to Dismiss that he did not establish due diligence
with respect to [other witnesses from whom statements were obtained, i.e.,]
Alan Smith, Curtis Anthony, Ivory Rainey, and the victim’s family.” PCRA
Court Opinion, 9/2/14, at 21.



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      As explained by the PCRA court, Appellant’s description of the effort

expended in locating the witnesses and securing the subject statements

does not explain why that effort was not commenced years earlier or

establish the information obtained as unknown. Id. at 20-21. For example,

Appellant was certainly aware the potential of co-defendant Long as an alibi

witness. Accordingly, Long’s statement does not contain unknown facts, but

merely represents a newly located source for the information.             As noted

above, a newly identified source of a known fact does not constitute a

newly-discovered fact for the purposes of Section 9545(b)(1)(ii).                See

Edmiston, supra.

      Additionally, Appellant was aware of the existence of potential

witnesses from the neighborhood of the shooting but failed to aver why

efforts to locate witnesses could not have commenced earlier. Appellant had

averred the existence of such witnesses in his earlier counseled PCRA

petitions, albeit without identifying them.         See generally PCRA Petition,

10/14/93; PCRA Petition, 1/16/97.         As the PCRA court notes, Daryl and

Howard   Williams   were   still   able   to   be    located   by   canvassing   the

neighborhood some 40 years after the crime, and Monroe was a friend of the

family. PCRA Court Opinion, 9/2/14, at 20. With regard to Lynn, the PCRA

court found the failure to produce the purported letter from Perkins resulted

in an insufficient averment of when Lynn’s information was discoverable.

Id.


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      Appellant cites as evidence of his due diligence the fact that he

repeatedly sought relief in the courts despite his attorneys filing no-merit

letters. Appellant’s Brief at 41. We view this argument as an implicit attack

on the effectiveness of prior counsel, which our Supreme Court has held will

not support a newly discovered fact claim. “[T]o the extent that Appellant is

arguing that PCRA counsel’s ineffectiveness was after-discovered ‘fact,’ we

conclude that such a claim will not establish jurisdiction under 42 Pa.C.S.A.

§ 9545(b)(1)(ii).” Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 786

(Pa. 2000).

      Based on our review of the record, we agree with the PCRA court’s

determination that Appellant has not presented sufficient facts in dispute

establishing his due diligence in securing the witness statements or that the

information contained therein was truly unknown as opposed to being

merely offered by a “newly discovered or newly willing source.” Edmiston,

supra. Accordingly we discern no abuse of discretion by the PCRA court in

determining Appellant failed to adequately plead due diligence or in declining

to hold a hearing. See Williams, supra.

      Appellant alleges in his fourth issue the PCRA court erred in evaluating

Appellant’s Brady claim relative to information alleged to have been

withheld by the Commonwealth about a gun found where co-defendant Long




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directed them to look.9        Appellant’s argument centers on the PCRA court’s

alternative discussion on the merits of the Brady claim and whether the

withheld information was material.

       However the PCRA court determined Appellant’s Brady claim was

untimely and did not fall under either the newly discovered fact or

governmental        interference      timeliness    exceptions   under   Sections

9545(b)(1)(i) and (ii). Again, the PCRA court determined Appellant failed to

establish he acted with due diligence in discovering the information. PCRA

Court Opinion, 9/2/14, at 22.             Noting Appellant was aware of Long’s

statement, the PCRA court stated, “in those statements Long referred to

Stewart and told police about the gun at Stewart’s house. Consequently,

because [Appellant] was aware of this information he certainly could have

investigated Stewart and the gun well prior to his filing of his most recent

petition.”   Id. The PCRA court also determined that, to the extent Appellant

asserted the governmental interference exception, he failed to raise the

claim within 60 days of when it could have been discovered as required by

42 Pa.C.S.A. § 9545(b)(2).            Id.      Because Appellant has provided no
____________________________________________
9
   Specifically, Appellant alleged the Brady violation consisted of the
following. Appellant’s initial statements to the police included conflicting
descriptions of a gun he said his co-defendant fired toward the victim.
Subsequent statements from Long indicated the weapon was at the
residence of Gary Stewart. The gun retrieved by the police from the Stewart
residence was determined not to be the murder weapon and statements
from Stewart indicated the same. The information about the gun retrieved
from Stewart’s residence and Stewart’s statement was not provided to
Appellant by the Commonwealth. Appellant’s Brief at 49-50.


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argument in his brief challenging the PCRA court’s timeliness grounds for

rejecting his Brady claim within the instant PCRA petition, we conclude he

has waived the issue on appeal.        See Commonwealth v. Treiber, 121

A.3d 435, 461 (Pa. 2015) (holding appellant waived PCRA Brady claim

where he did not show why the claim could not have been raised earlier).

     In his fifth and sixth issues, Appellant avers the PCRA court erred in

rejecting his “independent actual innocence claim.” Appellant’s Brief at 56.

The PCRA court noted that such a claim does not obviate the jurisdictional

time-bar of the PCRA.     PCRA Court Opinion, 9/2/14, at 25-26.            Appellant

asserts that the PCRA court’s premise was faulty and that he was actually

asserting an independent right, citing federal habeas corpus precedent.

Appellant’s Brief at 57-58.     Our Supreme Court has long rejected such

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

     Appellant’s remaining issues pertain to his Miller legality of sentencing

issue and the application of the newly established constitutional right

exception   to   the   timeliness   requisites   of   the   PCRA   under    Section

9545(a)(1)(iii). However, our Supreme Court has held that Miller has not

been held to apply retroactively.      Commonwealth v. Cunningham, 81

A.3d 1 (Pa. 2014), cert denied, Cunningham v. Pennsylvania, 134 S. Ct.




                                      - 16 -
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2724 (2014).      As a result, Appellant cannot invoke the new constitutional

right exception to the time-bar.10

       For all the foregoing reasons, we conclude the PCRA court correctly

determined that Appellant’s sixth PCRA petition was untimely filed and none

of the enumerated time-bar exceptions apply. Accordingly, the PCRA court’s

May 21, 2014 order is affirmed.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2015




____________________________________________
10
    On March 23, 2015, the Supreme Court granted certiorari in
Montgomery v. Louisiana, 135 S. Ct. 1546 (2015), which presents the
Miller retroactivity question. Nonetheless, until the United States Supreme
Court issues its decision, Cunningham remains dispositive of the issue in
Pennsylvania.


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