J-A08003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

WALTER KARL MORRIS,

                            Appellant                No. 247 MDA 2014


               Appeal from the Order Entered January 24, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0001441-2008


BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED JUNE 01, 2015

       Appellant, Walter Karl Morris, who was convicted of first-degree

murder on November 21, 2008, purports to appeal from the order entered

on January 24, 2014, that denied his motion for an evidentiary hearing on

his second post-sentence motion.1 We affirm.

       The trial court set forth the relevant facts and procedural history of

this matter as follows:

            After a jury trial, on November 21, 2008, Walter Morris
       was convicted of first degree murder for the shooting of Doug
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*
    Retired Senior Judge assigned to the Superior Court.
1
   While Appellant’s motion was filed after his conviction and judgment of
sentence became final, the motion was not filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. The application
and requirements of the PCRA, as well as the substance of the January 24,
2014 order, will be discussed below.
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     Harris. On December 8, 2008 Appellant was sentenced to an
     aggregate term of life imprisonment.

            Morris appealed his judgment of sentence to the
     Pennsylvania Superior Court which affirmed the sentence in a
     Memorandum Opinion issued on February 22, 2010. On February
     22, 2011 he filed a pro se Petition under the Post-Conviction
     Relief Act (PCRA). Counsel was appointed and, after two (2)
     amended PCRA Petitions were filed, this Court issued an Order
     notifying Morris of its intention to dismiss his petition without a
     hearing as our independent judicial review found no genuine
     issues of material fact and that he was not entitled to the relief
     sought.

            Prior to the issuance of a final order disposing of the PCRA
     Petition, on October 7, 2011, Appellant filed a Post-Sentence
     Motion for a New Trial on the Grounds of After-Discovered
     Evidence (“First Post-Sentence Motion”) alleging that he had
     uncovered after-discovered evidence that his co-defendant,
     Brian Tuckey (“Tuckey”) had confessed to the murder of Doug
     Harris. Appellant requested that this Court schedule an
     evidentiary hearing on the Post-Sentence Motion and stay the
     issuance of a final order on his PCRA Petition until the Motion
     could be considered. This Court held two hearings relative to
     Appellant’s Motion on December 13, 2011 and February 9, 2012.
     In a Memorandum Order issued on April 30, 2012, this Court
     denied Appellant’s Motion for a New Trial and dismissed his PCRA
     petition. The rulings were appealed to the Superior Court which
     affirmed the PCRA Court’s dismissal in an Unpublished
     Memorandum Opinion issued on May 6, 2013.

            Appellant filed a Petition for Allowance of Appeal to the
     Pennsylvania Supreme Court on July 12, 2013, and while the
     Petition was still pending, [on July 31, 2013,] he filed a Second
     Post-Sentence Motion for a New Trial on the Grounds of After-
     Discovered Evidence. This Court took no action on Morris’ Motion
     while the appellate courts retained jurisdiction over the matter.
     Although Appellant made application to the Supreme Court
     requesting remand of the case, on November 19, 2013, the
     application [for remand] was [specifically] denied along with his
     Petition for Allowance of Appeal. Subsequently, Appellant filed a
     Motion for an Evidentiary Hearing on his Second Post-Sentence
     Motion for a New Trial on the Grounds of After Discovered
     Evidence which is the subject of the instant appeal. This Court
     denied Appellant’s Motion on January 24, 2014.

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Trial Court Opinion, 5/2/14, at 1-3 (footnotes omitted).

      At the outset, we note that through procedural mistakes and

voluminous and overlapping filings, this matter has a complex, if not

convoluted, history.    Additionally, we are constrained to highlight that the

order from which Appellant has taken the instant appeal did not actually

dispose of his second post-sentence motion–it merely denied Appellant a

hearing on that motion.         Order, 1/24/14.      However, the trial court

specifically discussed the denial of Appellant’s second post-sentence motion

in its opinion. Trial Court Opinion, 5/2/14, at 9. Apparently, the trial court

intended   to    deny   Appellant’s   second   post-sentence   motion    in   the

January 24, 2014 order.     Moreover, we emphasize that when a trial court

does not rule on a post-sentence motion, that motion is denied by operation

of law 120 days after it is filed.      Pa.R.Crim.P. 720(B)(3)(a); see also

Commonwealth v. Samuel, 102 A.3d 1001, 1003-1004 (Pa. Super. 2014)

(noting that where the trial court did not rule on defendant’s post-sentence

motion within 120 days, it was effectively denied by operation of law). For

these reasons, and in the interests of judicial economy, we deem Appellant’s

second post-sentence motion denied, as we see no utility in remanding this

matter to the trial court for it to issue an order effectuating its stated intent

to deny the motion.

      On appeal, Appellant raises the following issues for this Court’s

consideration:




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       A. Did the trial court deny Appellant due process by failing to
       hold an evidentiary hearing on Appellant’s second post-sentence
       motion for a new trial based on after-discovered evidence which
       consisted of a second witness coming forward with a signed
       statement that Appellant’s co-defendant confessed that he
       committed the murder Appellant was convicted of and that he
       told the Commonwealth about the confession prior to trial but
       the information was withheld from Appellant?

       B. Did the trial court err and abuse its discretion by denying
       Appellant’s second post sentence motion for a new trial based on
       after-discovered evidence where Appellant produced a witness
       who is a cousin of the victim who provided a statement that
       Appellant’s co-defendant confessed to the murder of his cousin
       to him while in prison and he reported the confession to a
       Dauphin county detective before Appellant’s trial and asked the
       detective to relay the information to the prosecutor and defense
       counsel?

       C. Did the trial court err and abuse its discretion by overlooking
       a claim that the prosecution withheld exculpatory evidence by
       denying Appellant’s motion for a new trial based on after-
       discovered evidence without holding a hearing where Appellant’s
       motion contained a claim that a witness came forward with
       information that Appellant’s co-defendant confessed to the
       murder Appellant was convicted of and he reported the
       confession to a Dauphin county detective prior to Appellant’s trial
       and asked the detective to relay the information to the
       prosecutor and defense counsel prior to trial but said confession
       was never provided to Appellant prior to his trial for murder.

Appellant’s Brief at 5 (full capitalization omitted).2

       Before we reach the merits of the issues Appellant raises, we must

first address a jurisdictional issue. In its opinion, the trial court found that

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2
   Appellant claimed in both his first and second post-sentence motions that
Tuckey confessed to killing Doug Harris in a rap song and in casual
conversation while housed at the Dauphin County Prison. Appellant’s Brief
at 14-15.



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Appellant’s second post-sentence motion and request for remand to the trial

court was proper and timely under Pa.R.Crim.P. 720(C) because it concluded

that the underlying motion was filed on direct appeal. Trial Court Opinion,

5/2/14, at 6. As noted above, however, Appellant has pursued to finality his

direct appeal and first PCRA petition.           Accordingly, Appellant’s underlying

second post-sentence motion, filed on July 31, 2013, was filed after the

direct appeal process.            Therefore, Appellant was required to proceed

under the PCRA,3 but he failed to do so.

       Despite Appellant’s procedural misstep in failing to pursue his claim for

relief under the PCRA, and notwithstanding the trial court finding that


____________________________________________


3
    The explanatory comment to Rule 720 provides as follows:

       Unlike ineffective counsel claims, which are the subject of
       Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002),
       [Pa.R.Crim. 720] (C) requires that any claim of after-discovered
       evidence must be raised promptly after its discovery.
       Accordingly, after-discovered evidence discovered during the
       post-sentence stage must be raised promptly with the trial judge
       at the post-sentence stage; after-discovered evidence
       discovered during the direct appeal process must be raised
       promptly during the direct appeal process, and should include a
       request for a remand to the trial judge; and after-discovered
       evidence discovered after completion of the direct appeal
       process should be raised in the context of the PCRA. See
       42 Pa.C.S. § 9545(b)(1)(ii) and (b)(2) (PCRA petition raising
       after-discovered evidence must be filed within 60 days of date
       claim could have been presented). Commonwealth v. Kohan,
       825 A.2d 702 (Pa. Super. 2003), is superseded by the 2005
       amendments to paragraphs (A) and (C) of the rule.

Pa.R.Crim. 720 comment, miscellaneous (emphasis added).



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Appellant’s motion was timely, Appellant was ultimately denied relief.4 It is

well settled that this Court can uphold the trial court’s decision if there is any

proper basis for the result reached. Commonwealth v. Boyles, 104 A.3d

591, 596 (Pa. Super. 2014).               Here, we conclude that the denial of

Appellant’s motion was proper, not on its merits, but because the trial court

lacked jurisdiction.

       As discussed above, Appellant was required to present his claim in a

PCRA petition.     Pa.R.Crim.P. 720(C), comment. However, even if the trial

court had treated Appellant’s second post-sentence motion as a PCRA

petition, no relief was due.

       The timeliness of a PCRA petition is a jurisdictional threshold that may

not be disregarded in order to reach the merits of the claims raised in a

PCRA petition that is untimely. Commonwealth v. Murray, 753 A.2d 201,

203 (Pa. 2000). In order to be considered timely, a first, or any subsequent

PCRA petition, must be filed within one year of the date the petitioner’s

judgment of sentence 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

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4
  We note that, as discussed above, the trial court failed to specifically rule
on the underlying second post-sentence motion in the January 24, 2014
order, but we have deemed the motion denied. Thus, the result is that
Appellant was denied relief on his second post-sentence motion, and as will
be explained herein, we are affirming that denial of relief.



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Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.” 42 Pa.C.S. § 9545(b)(3).

       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. § 9545(b)(1)(i), (ii),

and (iii), is met. The 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

       (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), (ii), and (iii).5

       A petition invoking one of these exceptions must be filed within sixty

days of the date the claim could first have been presented.          42 Pa.C.S.

§ 9545(b)(2). In order to be entitled to the exceptions to the PCRA’s one-

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5
   To obtain relief on a claim of newly-discovered evidence under the PCRA,
a petitioner must demonstrate: (1) the evidence has been discovered after
trial and it could not have been obtained at or prior to trial through
reasonable diligence; (2) the evidence is not cumulative; (3) it is not being
used solely to impeach credibility; and (4) it would likely compel a different
verdict. Commonwealth v. Brown, 111 A.3d 171, 177 n.4 (Pa. Super.
2015).



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year filing deadline, “the petitioner must plead and prove specific facts that

demonstrate his claim was raised within the sixty-day time frame” under

section 9545(b)(2).   Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa.

Super. 2001).

      Our review of the record reflects that Appellant’s judgment of sentence

became final on March 25, 2010, thirty days after the time expired for

Appellant to file a petition for allowance of appeal with the Pennsylvania

Supreme Court. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113. Pursuant to the

PCRA, Appellant had one year, or until March 25, 2011, in which to file a

timely PCRA petition. Here, Appellant’s second post-sentence motion, even

if considered a PCRA petition, is patently untimely as it was not filed until

July 31, 2013.

      As stated previously, when a petitioner does not file a timely PCRA

petition, that petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file

his petition within sixty days of the date that the exception could be

presented. 42 Pa.C.S. § 9545(b)(2).

      Here, Appellant claimed in his second post-sentence motion that

Michael Cefala, an inmate at the Dauphin County Prison in 2008, heard

Appellant’s co-defendant, Brian Tuckey, confess in a rap song about killing

Doug Harris. Appellant alleged it was not until July 3, 2013, that he learned


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that Tuckey confessed to Mr. Cefala.     While Appellant arguably presented

this claim of newly-discovered evidence within sixty days of discovery in his

July 31, 2013 motion, this newly-discovered evidence was exactly the same

evidence he presented in his first post-sentence motion.         Thus, it is

axiomatic that this evidence is not new. The fact that Appellant purports to

present this same confession through a second witness does not alter the

fact that this “new” evidence was already known to Appellant and had been

previously raised and found lacking in merit.

      In his first post-sentence motion, Appellant claimed he learned of

Tuckey’s confession through Jaason McAllister. Trial Court Opinion, 5/2/14,

at 5-6. The trial court held hearings and took testimony on this claim. It

concluded as follows:

      This court does not find the testimony of Jaason McAllister
      convincing or credible.    McAllister never came forward with
      whatever information regarding a murder he thought he had and
      his testimony was inconsistent.       Additionally, Brian Tuckey
      unequivocally repudiated the alleged confession.

Trial Court Opinion, 4/30/12, at 6.

      Now, Appellant is attempting to present the same evidence that he

raised before.     Here, the alleged confession would be cumulative of

Appellant’s defense theory from trial, it would be used to impeach Tuckey’s

prior testimony, and because there were eyewitnesses establishing that

Appellant was the shooter, it is unlikely the result of the proceedings would

be different.   Thus, even if we concluded that Appellant satisfied the first



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prong of the newly-discovered evidence test from Brown, he fails to satisfy

the second, third, and fourth prongs. As Appellant has not presented newly-

discovered evidence, he has failed to satisfy the newly-discovered evidence

exception to the PCRA time bar. Commonwealth v. Taylor, 67 A.3d 1245,

1249 (Pa. 2013). Thus, even if the trial court had treated Appellant’s second

post-sentence motion as a PCRA petition, it was untimely, and no exception

applied.    Consequently, because the PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief.         See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

hear untimely petition).         Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition.                    See

Commonwealth           v.   Bennett,      930      A.2d   1264,   1267   (Pa.   2007)

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).6

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6
   Even if Appellant had satisfied the requirements for an exception to the
PCRA time bar, no relief would be due. Appellant avers that he is entitled to
a new trial based on a claim of newly-discovered evidence. Appellant’s Brief
at 14. The test for determining whether a petitioner is entitled to a new trial
based on newly-discovered evidence is the same as the four-prong test from
Brown, which we addressed above. See Commonwealth v. Lyons, 79
A.3d 1053, 1068 (Pa. 2013) (A trial court should grant a motion for new trial
on the ground of after-discovered evidence where producible and admissible
evidence discovered after trial: (1) could not have been obtained prior to the
end of trial with the exercise of reasonable diligence; (2) is not merely
corroborative or cumulative evidence; (3) is not merely impeachment
(Footnote Continued Next Page)


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      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2015




                       _______________________
(Footnote Continued)

evidence; and (4) is of such a nature that its use will likely result in a
different verdict on retrial.). As we discussed, the alleged confession would
be cumulative of Appellant’s defense theory from trial, it would be used to
impeach Tuckey’s prior testimony, and because there were eyewitnesses
establishing that Appellant was the shooter, it is unlikely the result of the
proceedings would be different. Thus, even if we concluded that Appellant
satisfied the first prong from Lyons, he fails to satisfy the second, third, and
fourth prongs.



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