J-S61021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 DARRYL HARRIS,                           :
                                          :
                     Appellant            :   No. 3194 EDA 2017

               Appeal from the PCRA Order August 21, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0358691-1992

BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 18, 2018

        Darryl Harris appeals from the order that denied his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

        The PCRA court offered the following summary of the history of this

case.

               [Appellant] was arrested and subsequently charged in
        connection with the death of Anthony Vaughn on February 7, 1990
        in the city and county of Philadelphia. On March 16, 1993,
        following a jury trial presided over by the Honorable David N.
        Savitt, [Appellant] was convicted of first-degree murder,
        retaliation against a witness, possession of an instrument of a
        crime (“PIC”), and criminal conspiracy. On that same date, the
        trial court sentenced [Appellant] to a mandatory term of life
        imprisonment without parole for the first-degree murder bill and
        deferred sentencing on the remaining bills. On April 21, 1994,
        [Appellant] was sentenced to a concurrent term of years on the
        remaining bills. Following a direct appeal, the Superior Court
        affirmed the judgment of sentence on May 30, 1995, and the
        Pennsylvania Supreme Court denied allocatur on October 27,
        1995. [Commonwealth v. Harris, 664 A.2d 1055 (Pa.Super.
        1995) (unpublished memorandum), appeal denied, 668 A.2d 1124
        (Pa. 1995).]
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             On September 16, 1996, [Appellant] filed his first pro se
       PCRA petition. Counsel was appointed and subsequently filed an
       amended PCRA petition on April 8, 1997, followed by a
       supplemental PCRA petition dated October 21, 1997. The PCRA
       court formally dismissed the petition on October 21, 1997. The
       Superior Court affirmed the PCRA court’s dismissal on June 7,
       1999, and the Pennsylvania Supreme Court denied allocatur on
       December 7, 1999. [Commonwealth v. Harris, 742 A.3d 1144
       (Pa.Super. 1999) (unpublished memorandum), appeal denied,
       749 A.3d 467 (Pa. 1999).]

              [Appellant] filed a second PCRA petition on March 18, 2003.
       On May 30, 2003, [Appellant’s] second PCRA petition was formally
       dismissed as untimely. [Appellant] filed a notice of appeal on June
       26, 2003. On February 4, 2004, the appeal from [Appellant’s]
       second PCRA petition was dismissed by the Superior Court for
       failure to file a brief.

              On August 20, 2012, [Appellant] filed the instant pro se
       PCRA petition, his third. [Appellant] also submitted numerous
       supplemental filings which were reviewed jointly with his 2012
       petition. Pursuant to Pennsylvania Rule of Criminal Procedure
       907, [Appellant] was served notice of the PCRA court’s intention
       to dismiss his petition on June 16, 2017.[1] [Appellant] submitted
       a response to the Rule 907 notice on July 7, 2017. On August 21,
       2017, the PCRA court dismissed his PCRA petition as untimely.

PCRA Court Opinion, at 1-2 (footnotes and unnecessary capitalization

omitted). Appellant filed a timely notice of appeal. The trial court did not

order Appellant to file a statement of errors complained of on appeal, but did

author an opinion pursuant to Pa.R.A.P. 1925(a).

       Appellant presents this Court with two questions.


____________________________________________


1 After an indication that Appellant’s 2012 filing was in “initial review status,”
there was no activity on Appellant’s petition for nearly five years. Indeed, it
was not until Appellant requested documents and filed additional petitions in
2017 that the court took any action.             Such delay, unexplained, is
unacceptable.

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      I.     Whether the PCRA . . . court was in error by way of
      dismissing [A]ppellant’s sub-claims in his subsequent filing for
      collateral review without providing a hearing and appointment of
      counsel prior to dismissal?

      II.   Whether in reviewing the propriety of the PCRA court’s
      dismissal of [A]ppellant’s post-conviction filing, it was an abuse of
      discretion for the PCRA court “to determine and dismiss as a
      subsequent PCRA petition, where [A]ppellant’s claims would not
      be cognizable, if raised in a timely PCRA petition?”

Appellant’s brief at 1 (unnecessary capitalization omitted).

      We begin with a discussion of the relevant law. “When reviewing the

denial of a PCRA petition, our standard of review is limited to examining

whether the PCRA court’s determination is supported by evidence of record

and whether it is free of legal error.” Commonwealth v. Jordan, 182 A.3d

1046, 1049 (Pa.Super. 2018).

      The PCRA court dismissed Appellant’s petition as untimely. It is well-

settled that the timeliness of a post-conviction petition is jurisdictional. See,

e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa.Super. 2013)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006) (“[I]f a

PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition. Without jurisdiction, we simply do not have the

legal authority to address the substantive claims.”)).         Therefore, before

considering whether Appellant raised valid substantive claims, we must

determine whether the petition was timely filed.

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

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of sentence is final unless the petition alleges, and the petitioner proves, that

an exception to the time for filing the petition is met, and that the claim was

raised within sixty days of the date on which it became available. 42 Pa.C.S.

§ 9545(b).

       Appellant acknowledges that the instant petition is facially untimely.

Appellant’s brief at 4. However, Appellant argues that his petition satisfied

the timeliness exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(ii) and (iii).2

Invoking the latter subsection (new, retroactive constitutional right),

Appellant contends that his petition was timely filed within sixty days of the

United States Supreme Court’s decisions in Miller v. Alabama, 567 U.S. 460

(2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Appellant’s

brief at 5.

       In Miller, the Court held that the application of mandatory sentences of

life imprisonment without possibility of parole to individuals who were



____________________________________________


2 Those exceptions apply if the petitioner raises within sixty days of the date
the claim could have been presented, and proves:

       (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).

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juveniles at the time they committed homicides was unconstitutional. Miller,

supra at 470. In Montgomery, the Court determined that Miller announced

a new substantive rule of law that applies retroactively. Montgomery, 136

S. Ct. at 736.

      Appellant was not a juvenile at the time of Vaughn’s murder; rather, he

was twenty-two years old.     Accordingly, Miller and Montgomery are not

applicable to Appellant’s sentence. See Commonwealth v. Furgess, 149

A.3d 90, 94 (Pa.Super. 2016) (“[P]etitioners who were older than 18 at the

time they committed murder are not within the ambit of the Miller decision

and therefore may not rely on that decision to bring themselves within the

time-bar exception in Section 9545(b)(1)(iii).”). Hence, subsection (b)(1)(iii)

does not provide a basis for the exercise of jurisdiction to entertain the merits

of Appellant’s untimely petition.

      Appellant also argues that his petition met the newly-discovered facts

exception provided in subsection (b)(1)(ii). Appellant’s brief at 9.

      [I]n determining whether a petitioner qualifies for the exception
      to the PCRA’s time requirements pursuant to subsection
      9545(b)(1)(ii), the PCRA court must first determine whether “the
      facts upon which the claim is predicated were unknown to the
      petitioner.” In some cases, this may require a hearing. After the
      PCRA court makes a determination as to the petitioner’s
      knowledge, it should then proceed to consider whether, if the facts
      were unknown to the petitioner, the facts could have been
      ascertained by the exercise of due diligence, including an
      assessment of the petitioner’s access to public records.

Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017).




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      The newly-discovered fact that Appellant contends supports the

timeliness exception is that Hassan Bilal, a witness for the Commonwealth at

Appellant’s 1993 trial, had a “‘cozy’ relationship” with law enforcement and

the Philadelphia DA’s office.   Appellant’s brief at 9.   Specifically, Appellant

asserts that he discovered that Bilal was given favorable treatment by the

Commonwealth in its case against Bilal in exchange for his testimony against

Appellant and others. Id. at 10-11.

      In support of his claim, Appellant relies upon representations made at

Bilal’s 1993 sentencing hearing, statements made by the prosecution in an

unrelated 1994 case about Bilal’s cooperation, and a 2003 Pennsylvania

Supreme Court decision discussing a claim made regarding Bilal’s status as “a

regular jailhouse informant” by a defendant in another case. Id. at 11-19

(citing N.T. Bilal Sentencing, 3/19/93; N.T. Nocentino Trial, 5/26/94; and

Commonwealth v. McGill, 832 A.2d 1014, 1019 (Pa. 2003)).

      Appellant claimed that he “became aware of Bilal’s undisclosed dealings

through his PCRA counsel as he (counsel) failed to utilize such evidence in a

meaningful way.”    Supplemental PCRA petition, 5/26/17, at 3A. Appellant

does not offer a date for his acquisition of the information. However, it is clear

that he knew the facts at issue twenty years ago, as Appellant’s claims

regarding Bilal’s cooperation in other cases were raised and litigated by

Appellant in a 1997 PCRA petition. See Commonwealth v. Harris, 4784

Phil. 1997 (Pa.Super. June 7, 1999) (unpublished memorandum at 2-3).


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Hence, the record is clear that Appellant did not file his 2017 petition within

sixty days of discovering the facts upon which his claim is based, and Appellant

cannot satisfy the subsection (b)(1)(ii) timeliness exception. Therefore, the

PCRA court did not err in concluding that Appellant’s petition was untimely

and that he failed to invoke an applicable exception.

      Appellant also contends that the PCRA court erred in not appointing

counsel and scheduling a hearing. Appellant’s brief at 1. We disagree.

      “The PCRA court has discretion to dismiss a petition without a hearing

when the court is satisfied that there are no genuine issues concerning any

material fact, the petitioner is not entitled to post-conviction collateral relief,

and no legitimate purpose would be served by further proceedings.”

Commonwealth v. Holt, 175 A.3d 1014, 1017-18 (Pa.Super. 2017).                  As

discussed above, Appellant did not plead facts that necessitated a hearing.

      Moreover, because this was not Appellant’s first petition and no hearing

was required, he had no right to the appointment of counsel.                  See

Pa.R.Crim.P. 904(D) (“On a second or subsequent petition, when an

unrepresented defendant satisfies the judge that the defendant is unable to

afford or otherwise procure counsel, and an evidentiary hearing is

required . . . the judge shall appoint counsel to represent the defendant.”)

(emphasis added).     Accordingly, the PCRA court did not err in dismissing the

petition without a hearing and without appointing counsel.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/18




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