J-S12018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SAVOY S. ROBINSON,

                            Appellant                No. 2437 EDA 2015


                  Appeal from the PCRA Order of July 28, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0807931-2004


BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED FEBRUARY 18, 2016

        Appellant, Savoy S. Robinson, appeals pro se from an order entered on

July 28, 2015 that denied his third petition for relief filed pursuant to the

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

        The PCRA court ably summarized the pertinent facts as follows:

        On April 13, 2005, [A]ppellant was sentenced to life plus [two
        and one-half to five years’] incarceration after a jury found him
        guilty of first-degree murder and possession of an instrument of
        crime for the shooting death of Geary Turner on July 11, 2004,
        at the Coleman Hall halfway house in Philadelphia.1 A direct
        appeal was taken and the judgment of sentence was affirmed by
        th[is Court] on November 14, 2006. The Supreme Court of
        Pennsylvania denied [A]ppellant’s petition for review on May 17,
        2007. On July 10, 2007, [A]ppellant filed a timely first PCRA
        [petition] which was dismissed on October 3, 2008.            The
        dismissal was affirmed by th[is Court] on November 24, 2009.
____________________________________________


1
    18 Pa.C.S. §§ 2502 and 907, respectively.



*Retired Senior Judge assigned to the Superior Court.
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       Appellant did not file a petition for allowance of appeal to the
       Pennsylvania Supreme Court.             On September 26, 2013,
       [A]ppellant filed his second petition for PCRA relief claiming that
       he [was] entitled to relief based upon the ineffective assistance
       of all prior counsel, the trial [c]ourt’s alleged lack of authority to
       sentence him to a life sentence, and because the trial [c]ourt []
       arbitrarily deprived him of his liberty because [] no sentencing
       order commit[ed] him to the custody of the prison system[.] 2
       Following review and proper notice, [A]ppellant’s petition for
       relief was dismissed as untimely on February 10, 2014. Th[is]
       Court affirmed on January 16, 2015.

       On June 3, 2015, [A]ppellant filed the instant PCRA petition
       asserting that on April 23, 2015, he learned for the first time
       that the charging information in his case was defective and
       vague, and that the [trial c]ourt provided the jury with deficient
       jury instructions, thereby violating his constitutional rights. He
       claimed that this newly discovered information entitle[d] him to
       relief. The [PCRA c]ourt disagreed, and following proper notice,
       on July 28, 2015, [dismissed A]ppellant’s petition [] as untimely.
       This appeal followed.

PCRA Court, 10/22/15, at 1-2 (footnotes in original).

       Appellant alleges on appeal that the PCRA court erred in dismissing his

petition as untimely since he properly invoked the timeliness exception set

forth at 42 Pa.C.S.A. § 9545(b)(1)(ii), pertaining to newly-discovered facts.

Specifically, Appellant claims that, on April 23, 2015, he learned through an

on-staff prison paralegal that the criminal information filed in his case was

vague and deficient in that it did not properly refer to the offense of

first-degree murder. Appellant further claims that, because he was not put

on notice of the charge of first-degree murder, the trial court’s instructions

____________________________________________


2
 Appellant originally filed his second petition on August 1, 2012, but on
September 10, 2013, the petition was withdrawn at Appellant’s request.



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to the jury were erroneous and violated his constitutional rights. Appellant

maintains that he properly invoked the timeliness exception found at

§ 9545(b)(1)(ii) since he filed his petition on June 3, 2015, within 60 days of

learning of the alleged deficiency in his criminal information.

        This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported by evidence of record and is free of legal error. Commonwealth

v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will

not be disturbed unless there is no support for the findings in the certified

record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

We apply a de novo standard of review and a plenary scope of review to

challenges involving questions of law. Commonwealth v. Rykard, 55 A.3d

117, 1183-1184 (Pa. super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013).

        The timeliness of a PCRA petition is a jurisdictional prerequisite. See

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2003).                   A petition

seeking relief under the PCRA, including a second or subsequent petition,

must be filed within one year of the date the judgment is final unless the

petition alleges, and the petitioner proves, that an exception to the time for

filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is

met.3    See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa.

____________________________________________


3
    The exceptions to the PCRA’s timeliness requirement are:

(Footnote Continued Next Page)


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2000). A PCRA petition invoking one of the statutory exceptions must “be

filed within 60 days of the date the claims could have been presented.” Id.;

42 Pa.C.S.A. § 9545(b)(2).          A judgment of sentence becomes final at the

end of direct review, including discretionary review in the Pennsylvania

Supreme Court and the U.S. Supreme Court, or at the expiration of the time

limit for seeking that review. 42 Pa.C.S.A. § 9545(b)(3).

      Appellant’s judgment of sentence became final on August 15, 2007, 90

days after our Supreme Court denied further review and the time for filing a

petition for writ of certiorari with the United States Supreme Court expired.

See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup. Ct. R. 13. Appellant had to file a

PCRA petition on or before August 15, 2008 in order for the petition to be

timely filed. Appellant filed the instant petition on June 3, 2015, nearly eight


                       _______________________
(Footnote Continued)

      (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.A. § 9545(b)(1)(i), (ii), and (iii).



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years after his judgment of sentence became final.      Hence, his petition is

untimely unless he pleads and proves an exception to the PCRA’s time bar.

       Appellant invokes the timeliness exception set forth at 42 Pa.C.S.A.

§ 9545(b)(1)(ii).     This exception arises where the petitioner's underlying

PCRA claim is based on previously unknown facts that could not have been

obtained earlier through the exercise of due diligence. See § 9545(b)(1)(ii).

This statutory exception, like any exception under Section 9545(b)(1), must

be invoked within 60 days of when it first could have been raised. 42

Pa.C.S.A. § 9545(b)(2). Although we may assume, arguendo, that Appellant

filed his petition within 60 days of his April 23, 2015 communication with the

prison paralegal, we are not convinced that Appellant properly invoked the

newly-discovered facts exception.

       Appellant bases his claims on alleged deficiencies in his criminal

information and alleged improprieties in the instructions given to the jury at

the trial.   These materials, however, were readily available and known to

Appellant and his counsel prior to and at the time of trial. Matters of public

record ordinarily do not support the newly-discovered facts exception found

at § 9545(b)(1)(ii). See Commonwealth v. Lopez, 51 A.3d 195, 199 (Pa.

2012); Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006).4


____________________________________________


4
  Appellant’s attempt to rely on our recent decision in Commonwealth v.
Burton, 121 A.3d 1063 (Pa. Super. 2015) is unavailing. At the time of trial,
both Appellant and his counsel had access to the criminal information and
(Footnote Continued Next Page)


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Indeed, careful reflection upon Appellant’s claims reveals that he relies upon

new legal interpretations of the filings lodged in his own criminal case, not

on the discovery of information or documents that were previously unknown

or unavailable to him, despite the exercise of due diligence. It is well-settled

that, “[a] PCRA petitioner cannot avoid the one-year time bar by tailoring

the factual predicate of the claim pled in his PCRA petition in a way that

unmistakably     misrepresents        the   actual   nature   of   the   claim   raised.”

Commonwealth v. Watts, 23 A.3d 980, 985-986 (Pa. 2011), quoting

Commonwealth v. Hackett, 956 A.2d 978, 984 (Pa. 2008).                      Hence, the

PCRA court correctly dismissed Appellant’s petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2016




                       _______________________
(Footnote Continued)

jury instructions filed in this case.             Thus, our analysis in Burton is
inapposite.



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