J-S27045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 WILLIE STOKES,                            :
                                           :
                    Appellant              :   No. 3437 EDA 2017

              Appeal from the PCRA Order September 29, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0606661-1984


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                           FILED OCTOBER 24, 2018

      Appellant Willie Stokes appeals from the Order dismissing his Petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546, as untimely. We affirm.

      The underlying facts and procedural history are as follows. In 1984, the

trial court sentenced Appellant to a term of life imprisonment after a jury found

him guilty of First-Degree Murder in connection with the 1980 shooting death

of Leslie Campbell. This Court affirmed the Judgment of Sentence, and the

Pennsylvania Supreme Court denied allowance of appeal on April 1, 1987.

Commonwealth v. Stokes, 512 A.2d 54 (Pa. Super. 1986), appeal denied,

527 A.2d 539 (Pa. 1987). He did not seek a writ of certiorari with the U.S.

Supreme Court; thus, his Judgment of Sentence became final on June 1, 1987.

See 42 Pa.C.S. § 9545(b)(3); U.S. Supreme Court Rule 13 (providing that a
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petition for writ of certiorari is deemed timely when filed within 60 days after

discretionary review is denied by the Pennsylvania Supreme Court).1

       Appellant subsequently filed five unsuccessful PCRA Petitions.         On

November 9, 2015, he filed the instant PCRA Petition followed by a

Supplemental PCRA Petition on November 30, 2015, in which he asserted that

in September 2015 he learned through George Sanders that Franklin Lee, who

testified at Appellant’s preliminary hearing and trial, had pleaded guilty shortly

after the 1984 trial to perjury arising out of Lee’s preliminary hearing

testimony.

       The Commonwealth filed a Motion to Dismiss on October 5, 2016.2 The

PCRA court conducted a hearing limited to the timeliness of this sixth Petition.

On August 4, 2017, the PCRA Court filed a Pa.R.Crim.P. 907 Notice indicating

its intent to dismiss the Petition without a hearing on the merits. Appellant




____________________________________________


1U.S. Supreme Court Rule 13, effective January 1, 1990, was preceded by
U.S. Supreme Court Rule 20, which was applicable to the instant case. In
1987, Rule 20 required the filing of a petition for writ of certiorari within 60
days of the order denying discretionary review by the state court of last resort.
2 In its Motion to Dismiss, the Commonwealth asserted not only that the
Petition was untimely without exception, but also that the issue of Lee’s
dishonesty had been litigated in four previous PCRA Petitions, and Appellant
did not explain why he could not have obtained the publically-available
information prior to September 2015 since the dates on the perjury complaint
and information are August 28, 1984, and October 24, 1984, respectively.
Motion to Dismiss, filed 10/05/16, at 8-13.


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did not respond to the Rule 907 Notice, and on September 29, 2017, the PCRA

Court dismissed the Petition. Appellant timely appealed.

      Appellant raises one question for our review: “Whether the PCRA Court

erred by discrediting [Appellant’s] claim that Franklin Lee’s perjury conviction

remained unknown for over thirty years without first holding a hearing?”

Appellant’s Brief at 7.

      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain his PCRA Petition. See

Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008) (explaining that

the timeliness of a PCRA Petition is a jurisdictional requisite).

      Under the PCRA, any petition “including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final[.]” 42

Pa.C.S. § 9545(b)(1).      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). The

PCRA’s timeliness requirements are jurisdictional in nature, and a PCRA court

may not address the merits of the issues raised if the petitioner did not timely

file the PCRA petition. Commonwealth v. Albrecht, 994 A.2d 1091, 1093

(Pa. 2010).

      The instant Petition, filed over thirty years after Appellant’s Judgment

of Sentence became final, is patently untimely.        Pennsylvania courts may


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consider an untimely PCRA petition, however, if the appellant pleads and

proves one of the three exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-

(iii).

         Appellant asserted in his amended PCRA Petition that the newly

discovered fact exception provided in Section 9545(b)(1)(ii) applies because

he learned on September 29, 2015, through a letter from George Sanders,

that Lee had been convicted of perjury shortly after Appellant’s trial for lying

at Appellant’s preliminary hearing in 1984.

         In order to establish a court’s jurisdiction under Section 9545(b)(1)(ii),

a petitioner must plead and prove 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. § 9545(b)(1)(ii).

Due diligence requires that the petitioner take reasonable steps to protect his

own interests. Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa. Super.

2001). In relying on this exception, a petitioner must explain why he could

not have learned the new facts earlier with the exercise of due diligence.

Commonwealth           v.   Breakiron,     781   A.2d    94,   98   (Pa.   2001);

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010). This

rule is strictly enforced.      Id.    “[T]he ‘new facts’ exception at Section

9545(b)(1)(ii) does not require any merits analysis of an underlying after-

discovered-evidence claim.” Commonwealth v. Brown, 111 A.3d 171, 177

(Pa. Super. 2015) (citation and footnote omitted).


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       In the instant case, after reviewing the case law applicable to the

ascertainment of facts from public records, the PCRA court concluded that

Appellant had not satisfied the due diligence requirement of the newly

discovered fact exception, stating:

       In applying this precedent, this Court simply cannot find that Lee’s
       perjury conviction, as a public record, remained unknown to
       [Appellant] for over thirty years and over the course of many
       counseled post-trial proceedings.        [Appellant] has had the
       assistance of counsel throughout his appeal and several of his six
       PCRA petitions and, as such, does not embody the incarcerated
       pro se petitioner with compromised access to public records
       contemplated in the Bennett[3] and Burton[4] holdings.
       Accordingly, this Court concludes that [Appellant’s] claims of
       newly discovered facts do not satisfy the mandates of 42 Pa.C.S.
       § 9545(b)(1)(ii) and, thus, the instant petition is untimely filed
       and must be dismissed.

PCRA Court Opinion, 9/29/17, at 6-7 (italics in original).

       We agree with the PCRA court’s assessment. Appellant had over thirty

years and the assistance of several lawyers to ascertain the fact of Lee’s

perjury conviction.      He failed to show that he acted with due diligence in

ascertaining that information.



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3  Commonwealth v. Bennett, 930 A.2d 1264, 1274-75 (Pa. 2007)
(concluding that the petitioner had been abandoned by counsel and the public
records at issue were not within the imprisoned petitioner’s access).

4 Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017) (holding that
there is no presumption that a public record imputes knowledge to an
incarcerated pro se petitioner, and directing PCRA courts 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.”).

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       Moreover, Appellant annexed to his PCRA Petition filed January 21,

2005, an affidavit from Lee, dated October 19, 2005, in which Lee stated that

his preliminary hearing testimony was false.           See Commonwealth v.

Stokes, No. 272 EDA 2006 (Pa. Super. filed Oct. 30, 2008). Thus, even if

Appellant was not aware of Lee’s perjury conviction in 1984, Appellant’s 2005

Petition indicates that he knew Lee had perjured himself.         Appellant could

easily have ascertained, with any sort of diligence, the fact that Lee had

suffered punitive consequences because of his perjury before another ten

years had passed.5

       Accordingly, he has failed to prove that his Petition falls within the

timeliness exception provided in 42 Pa.C.S. § 9545(b)(1)(ii).

       Because Appellant’s petition is untimely, this Court is without jurisdiction

to review the merits of his underlying claim.6

____________________________________________


5 In addition, as we noted in 2008, Lee recanted his preliminary hearing
testimony at Appellant’s trial, and admitted that he had lied both to police
officers and under oath. Thus, as we stated in 2008, the fact of Lee’s allegedly
false testimony made under oath is not a new “fact,” and the fact that Lee
suffered consequences for perjuring himself does not make it a new fact that
renders Appellant’s Petition timely.

6 We note that, although the Commonwealth initially filed a Motion to Dismiss
the PCRA Petition acknowledging the courts’ lack of jurisdiction under the
PCRA’s timeliness requirements, in its Appellee Brief it nonetheless requests
a remand for a hearing. The Commonwealth argues that Lee testified at trial
that his preliminary hearing testimony was a lie, and then, after trial, the
Commonwealth charged Lee with perjury for that preliminary hearing
testimony. The Commonwealth now asserts that “[i]f the Commonwealth
believed that Lee's preliminary hearing testimony was false and if the



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       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/18




____________________________________________


Commonwealth never disclosed that fact to the defense, then it would be
inappropriate      to    dismiss    Appellant's     petition     on   procedural
grounds.” Appellee’s Brief at 10-11. The problem with the Commonwealth's
argument is that the Commonwealth is asking us to disregard the fact that
the trial court found that Appellant failed to act with "due diligence” and thus,
lacks jurisdiction to review the PCRA petition. There is no legal authority that
permits this court to ignore the jurisdictional limits that the legislature has
placed on a PCRA petition when the Commonwealth belatedly requests that
we do so. If a petitioner fails to meet the jurisdictional requirements of
Section 9545, we are bound to find that the trial court lacked jurisdiction,
regardless of the change of position of the Commonwealth.


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