J-S35043-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYREE WALLACE                              :
                                               :
                       Appellant               :   No. 2847 EDA 2019

              Appeal from the PCRA Order Entered August 9, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0407921-1998


BEFORE:      BOWES, J., STABILE, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                              FILED AUGUST 21, 2020

        Appellant, Tyree Wallace, appeals from the order entered August 9,

2019, that dismissed his sixth petition filed under the Post Conviction Relief

Act (“PCRA”)1 without a hearing. We affirm.

        This Court previously set forth the relevant facts and earlier procedural

history of this case, as follows:

           On November 30, 1999, a jury found Appellant guilty of
           second-degree murder, robbery, conspiracy, and possession
           of an instrument of crime based upon Appellant’s
           participation in the October 27, 1997[,] robbery and murder
           of Jhon Su Kang. . . . [O]n appeal, we affirmed.
           Commonwealth v. Wallace, [856 EDA 2000] (Pa.Super.
           2001) [(unpublished memorandum)]. In so doing, we
           extensively analyzed the evidence adduced against


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
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       Appellant at trial, and we now briefly summarize our prior
       review of the Commonwealth’s proof.

       On October 26, 1997, Appellant, Raheem Shackleford, and
       Matthew Corprew decided to rob the Salt & Pepper Deli,
       which was owned by Mr. Kang and located at 1640 Ellsworth
       Street, Philadelphia. Shortly before 10:00 p.m. on Monday,
       October 27, 1997, Appellant, Shackleford, and an
       unidentified female entered the store, purchased an item,
       and left. Mr. Kang and one of his employees, Van Griffin,
       then closed the Salt & Pepper Deli. Mr. Kang was walking
       toward his car and carrying a paper bag when Appellant and
       Shackleford approached him, beat him, shot him, and took
       the bag.

       After the crime, Corprew confessed to police that he
       operated as a lookout for the other two perpetrators.
       Corprew’s statement was admitted into evidence, but was
       heavily redacted so that the portion remaining “contained a
       single reference to a co-defendant which was redacted to
       read ‘that’s when a guy came up to me and asked what was
       up [and] did I want to get a couple dollars[.]’” Id.
       (unpublished memorandum at 2).

       Mr. Griffin was shown photographic arrays and identified
       Appellant and Shackleford as the two men who entered the
       store just prior to 10:00 p.m. on October 27, 1997.
       James Davis related that the afternoon before the crime,
       Appellant and Shackleford asked him to participate in its
       commission, but Davis declined. That evening, Davis, who
       lived within blocks of the Salt & Pepper Deli, encountered
       Appellant, Shackleford[,] and Corprew.      At that time,
       Shackleford told Davis that he had secured a shotgun and
       revealed a portion of the gun, which was protruding from
       Shackleford’s trousers. A few days after October 27, 1997,
       Shackleford told Davis that the robbery was unsuccessful
       and that the perpetrators had recovered approximately
       $100. Commonwealth witness Brian Brooks testified that
       he overheard Corprew and Appellant plan the robbery and
       that, after its commission, Appellant told Mr. Brooks that
       Shackleford shot the victim.

       Appellant, Shackleford, and Corprew proceeded to a joint
       trial. During the course of that proceeding, Corprew elected
       to plead guilty to third degree murder. Appellant was


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       convicted of the above-described offenses[,] and [on
       November 30, 1999, he was] sentenced to life
       imprisonment. After we affirmed Appellant’s judgment of
       sentence [on April 17, 2001], our Supreme Court denied
       review on August 29, 2001. Commonwealth v. Wallace,
       [226 EAL 2001 (Pa. filed 8/29/01) (per curiam order)].
       [Appellant did not file a writ of certiorari with the United
       States Supreme Court.]

       On August 14, 2002, Appellant filed a timely PCRA petition,
       counsel was appointed, and counsel filed an amended
       petition raising an allegation that trial counsel was
       ineffective. After conducting a hearing, the PCRA court
       denied relief, and no appeal was filed. On July 17, 2006,
       Appellant filed a second petition, which was dismissed as
       untimely. An ensuing appeal also was dismissed based on
       Appellant’s failure to file a docketing statement. Pursuant
       to a third PCRA petition, Appellant successfully obtained
       reinstatement of his appellate rights from the denial of his
       first PCRA petition, and, on June 9, 2010, we affirmed the
       denial of the first PCRA petition. Commonwealth v.
       Wallace, [470 EDA 2009 (Pa.Super. filed 6/9/2010)]
       (unpublished memorandum).

       Five days later, on June 14, 2010, Appellant filed a fourth
       PCRA petition. He alleged that he was entitled to a new trial
       based upon newly-discovered evidence consisting of two
       affidavits executed by Corprew on March 7, 2007. Appellant
       alleged that he did not discover the existence of the
       affidavits until June 20, 2009, when Shackleford forwarded
       them to him....In the March 7, 2007[,] affidavits, Corprew
       claimed that he acted alone on October 27, 1997, that he
       shot and robbed the victim, and that Appellant and
       Shackleford were innocent of the crimes.

       The PCRA court appointed counsel and scheduled a hearing.
       Prior to the hearing, the Commonwealth provided the PCRA
       court [and PCRA counsel] with documentation that indicated
       that Corprew was mentally ill.         The court therefore
       appointed counsel for Corprew and ordered an independent
       competency evaluation of that co-defendant.              On
       December 6, 2010, after personally evaluating Corprew, a
       psychiatrist, Dr. Pietro Miazzo, concluded that Corprew was
       delusional and incapable of distinguishing between fantasy
       and reality and that Corprew was incompetent. Thereafter,

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         Appellant asked the PCRA court to conduct a competency
         hearing, which was held on October 21, 2011. After that
         hearing, the PCRA court concurred that Corprew was not
         competent to testify [at the PCRA evidentiary hearing].

         Appellant then submitted a memorandum arguing that
         Corprew’s affidavits should be admitted at a PCRA hearing
         as substantive evidence. Appellant asked that the PCRA
         court determine, based upon the March 7, 2007[,]
         affidavits, whether Appellant was entitled to a new trial. The
         PCRA court ruled that the affidavits were inadmissible
         hearsay and that they did not fall within the exception to the
         hearsay rule applicable to declarations against penal
         interest....[T]he PCRA court, on March 30, 2012, dismissed
         Appellant’s June 14, 2010[,] PCRA petition. [In an ensuing
         appeal, this Court affirmed on May 10, 2013.]

      Commonwealth v. Wallace, No. 1110 EDA 2012, *1-5
      (Pa.Super. filed 5/10/13) (unpublished memorandum).

      On August 7, 2013, Appellant filed another pro se PCRA petition,
      which privately-retained PCRA counsel amended.                  The
      Commonwealth filed a motion to dismiss, and on December 7,
      2015, the PCRA court provided Appellant with notice of its intent
      to dismiss. Appellant did not file a response, and by order entered
      on January 8, 2016, the PCRA court dismissed Appellant’s
      August 7, 2013, petition on the basis it was untimely filed.

Commonwealth v. Wallace, No. 423 EDA 2016, unpublished memorandum

at 1-4 (Pa. Super. filed November 15, 2016). On appeal, this Court affirmed,

id. at 1, and Appellant filed a petition for allowance of appeal to the Supreme

Court of Pennsylvania, which was denied on May 2, 2017.

      On June 19, 2017, Appellant filed his sixth, pro se PCRA petition,

pleading newly-discovered evidence based upon a witness interview report

from Ricky Wilson, who stated that “everyone in South Philadelphia knows

that [Appellant] is an innocent man” and that “many people know that




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James Davis openly confessed to being involved in the murder of Mr. Kang.”

PCRA Petition, 6/19/2017, at 2 & ¶¶ 64, 66-67, 74 & Exhibit “D”.2

       On June 21, 2019, the PCRA court entered a notice of intent to dismiss

all claims without a hearing pursuant to Pa.R.Crim.P. 907 (“Rule 907 Notice”).

On July 18, 2019, counsel entered an appearance on Appellant’s behalf and

filed an amended PCRA petition. On August 9, 2019, the PCRA court dismissed

Appellant’s PCRA petition. On September 13, 2019, Appellant filed this timely

appeal.3

       Appellant presents the following issue for our review:

       Whether the PCRA court erroneously dismissed as untimely
       Appellant Tyree Wallace’s Amended PCRA Petition without a
       hearing where the allegations in the Amended Petition
       demonstrated that [Appellant] had no basis to know that witness
       Ricky Wilson would recant his signed police statement and provide
       exculpatory information undermining the core of the prosecution’s
       case and that [Appellant] diligently filed his Petition after learning
       this information.

Appellant’s Brief at 4.

       “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”


____________________________________________


2 Appellant’s pro se PCRA petition consists of 26 pages, excluding exhibits.
The first nine pages are numbered 1 to 9. The numbering then begins again,
from 1 to 17; the paragraphs in these pages are numbered. For clarity, we
will cite to page numbers when referring to content on the first nine pages
and only to the numbered paragraph when referring to content on the
remaining pages.
3The PCRA court did not order and Appellant did not file a statement of errors
complained of on appeal. The PCRA court did not enter an opinion.

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Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting

Commonwealth v. Lavar Brown, 196 A.3d 130, 150 (Pa. 2018)).

        The   timeliness     of    a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008) (timeliness of a

PCRA     petition   is   a   jurisdictional    requirement);   Commonwealth          v.

Devon Brown, 943 A.2d 264, 267 (Pa. 2008) (citing Commonwealth v.

Robinson, 837 A.2d 1157, 1161 (Pa. 2003)) (it is “well settled that there is

no generalized equitable exception to the jurisdictional . . . time bar pertaining

to post-conviction petitions”); Commonwealth v. Hernandez, 79 A.3d 649,

651 (Pa. Super. 2013).            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 of sentence is final, unless the petition alleges and the

petitioner proves one of the three exceptions to the time limitations for filing

the petition set forth in section 9545(b) of the statute.            See 42 Pa.C.S.

§ 9545(b)(1).4


____________________________________________


4   The three exceptions to the timeliness requirement are:

        (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



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       This Court previously calculated that Appellant had “until approximately

November 29, 2002, to file a timely PCRA petition.” Wallace, No. 423 EDA

2016, at 6. Appellant filed the current petition on June 19, 2017, more than

a decade late. Therefore, Appellant’s petition was patently untimely.

       Appellant now contends that “his after-discovered evidence claim

concerning Ricky Wilson’s information” qualified for the exception “under 42

Pa. C.S. § 9545(b)(1)(ii) in that ‘the facts upon which the claim is predicated

were unknown to [Appellant] and could not have been ascertained by the

exercise of due diligence.’” Appellant’s Brief at 24; see also PCRA Petition,

6/19/2017, at 2 & ¶ 74.

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned Rule 907 Notice of the Honorable

M. Teresa Sarmina, we conclude that Appellant’s claim merits no relief. The

Rule 907 Notice comprehensively discussed the question of whether the PCRA

court had jurisdiction over Appellant’s sixth PCRA petition and properly

concluded that the court lacked jurisdiction, because the petition failed to

satisfy an exception to the PCRA’s time bar:

       [Appellant] asserts that he has after-discovered evidence
       regarding the proposed testimony of Ricky Wilson (Wilson). In
       the witness interview report associated with his interview, Wilson
____________________________________________


       (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)(i)-(iii).

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     asserts that [Appellant] is innocent and everyone in South
     Phil[adelphia] knows this. Pro se PCRA Petition filed 6/19/17,
     Exhibit D. He asserts that “many people in the neighborhood told
     him James Davis confessed to the murder” and that he moved out
     of South Phil[adelphia] because everyone knew Davis was lying
     about [Appellant] committing the murder. This entire first portion
     of his interview is inadmissible hearsay and speculation and
     cannot be used to satisfy the timeliness requirements of the PCRA.
     Commonwealth v. Santiago, 654 A.2d 1062, 1079-1080
     (Pa.Super. 1992)(Proffered evidence was nothing more than
     unsubstantiated hearsay and rumor inadmissible at trial, and
     there was no evidence that information contained therein would
     have led to discovery of admissible evidence favorable to defense
     if transcripts had been disclosed prior to trial, so defendant was
     not entitled to relief). Similarly, whether Wilson ever told Davis
     that he heard [Appellant] discuss planning the robbery, as Davis
     asserts in his statement to police, is inadmissible hearsay.

     Wilson claims that he never told police that Davis told him that
     [Appellant] committed the murder. [Appellant] fails to elucidate
     his claim regarding Wilson’s falsified statement, asserting that
     Wilson would speak to the Pennsylvania Innocence Project’s Staff
     Investigator, Zach Stem, on a later date and that Mr. Stern would
     show this statement to Mr. Wilson on that date to assess its
     accuracy. However, [Appellant] has not provided any filings since
     his pro se petition which include additional information from
     Wilson. Regardless, [Appellant] was aware of Ricky Wilson and
     his statement to police since the time of trial, as his statement to
     the police was included in discovery to his trial counsel.
     [Appellant] does not assert that Wilson is only now coming
     forward with the information that his statement to police was
     falsified, nor does [Appellant] assert that, had he asked Wilson
     about his statement to police in the twenty-one years between
     when Wilson became a potential witness and when he filed his
     sixth PCRA petition, his answer would have changed. Therefore,
     this claim fails as untimely.

Rule 907 Notice, filed June 21, 2019, at 8-9. Accordingly, we affirm on the

basis of the PCRA court’s Rule 907 Notice.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/20




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