J-S36017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                             IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                            Appellee

                       v.

JOHN BUTTS,

                            Appellant                         No. 2207 EDA 2013


                   Appeal from the PCRA Order July 11, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0800501-1994


BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J.*

MEMORANDUM BY JENKINS, J.:                                   FILED AUGUST 20, 2014

        John Butts appeals from an order entered on July 11, 2013 dismissing
                                               1
                                                   petition as untimely. We affirm.

        A jury found Butts guilty of first degree murder and possession of an

instrument of crime.2 On April 3, 1996, the trial court sentenced him to life

imprisonment without the possibility of parole. Butts appealed, and on April

8, 2001, this Court affirmed his judgment of sentence. He did not appeal to

the Pennsylvania Supreme Court.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. § 9541 et seq.
2
    18 Pa.C.S. §§ 2502(a), 907, respectively.
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       On June 14, 2005, Butts filed a PCRA petition, and on April 6, 2006, he

filed an amended PCRA petition. Both petitions alleged after-discovered

evidence consisting of an affidavit from Jaquoy Johnson claiming that she

witnessed the victim holding a firearm moments before the shooting. Trial




the crime, and that her affidavit constitutes after-discovered evidence, an

                                               -year statute of limitations. Id.

       On November 11, 2008, the PCRA court issued a notice of intent to

dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.

Id. at 1-2.3 Butts did not file a response. The notice of intent advised Butts

that the PCRA court intended to dismiss the petition without a hearing on

December 10, 2008, but the record reflects that the court did not file an

order of dismissal.4
____________________________________________


3
  The Clerk of Court did not enter this Pa.R.Crim.P. 907 notice to dismiss
without a hearing on the docket. However, Butts concedes he received the
notice. See Petition Under PCRA to Allow Appeal Nunc Pro Tunc, Exhibit A,
                                                                         d

Pennsylvania Rule of Criminal Procedure 907, stating that the PCRA that I
filed on behalf of my client, Ishmael Jones [also known as John Butts]
                                           ).
4
  Pa.R.Crim.P. 907 imposes two duties on a PCRA court dismissing a petition
without a hearing: (1) delivery of the notice of intent to dismiss without a
hearing to petitioner; and (2) delivery of the order of dismissal. See
Pa.R.Crim.P. 907(1),(4). The trial court delivered to Butts only the notice of
intent to dismiss without a hearing.



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         On April 4, 2011, Butts filed a PCRA petition to allow an appeal nunc

pro tunc, even though the court had not yet dismissed his petition. The court



September 4, 2012, Butts re-filed his PCRA petition, alleging that the same

after-

PCRA counsel sent a letter to the PCRA court stating Butts was still awaiting

the 907 notice and the official dismissal of the petition. Id. at 2. On May 3,

2013, the PCRA court sent a Pa.R.Crim.P. 907 notice of its intent to dismiss

the April 4, 2011 and September 4, 2012 PCRA petitions as time-barred and

devoid of merit. Butts did not file a response, and on July 11, 2013, the

PCRA court orally dismissed all three of the PCRA petitions in open court.5

N.T. 7/11/2013, pp. 3-4; Pa.R.Crim.P. 114(B)(3)(b) (service of order may



appeal, and both Butts and the trial court complied with Pa.R.A.P. 1925.

         Butts filed a timely appeal in which he raises a single issue:

         I.    WHETHER THE PCRA COURT ERRED IN DISMISSING
               THE PCRA PETITION AS UNTIMELY AND WITHOUT
               HOLDING AN EVIDENTIARY HEARING ON THE
               NEWLY   DISCOVERED   EVIDENCE  OF   ACTUAL
               INNOCENCE?


____________________________________________


5

7/11/2013, p. 3. We construe this broad language to dismiss all three of the
petitions pending before the court, those filed on April 6, 2006, April 4,
2011, and September 4, 2012.



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        As a preliminary matter, Butts confuses the burden of proof for PCRA



genuine issue of fact exists [and] it did not satisfy that burden[. Therefore,]

the PCRA [c]ourt erred when it dismissed the PCRA petition without an



had the burden of proving by a preponderance of the evidence that he is

entitled to relief under the PCRA and that his petition is timely. See 42

Pa.C.S.    §   9543(a);     Commonwealth         v.   Jones,   54   A.3d   14,   17



the one-year limitation).

        The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Hackett



Id. A PCRA petition must be filed within one year of the date on which the

judgment of sentence becomes final, unless the petitioner meets one or

more of the limited exceptions set forth in 42 Pa.C.S. § 9545(b)(1). 6 A

____________________________________________


6
    These exceptions 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
(Footnote Continued Next Page)


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discretionary review in the Supreme Court of the United States and the

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



exceptions must be filed within sixty days of the date the claim first could

have been presented. 42 Pa.C.S. § 9545(b)(2).

      Butt



on direct appeal affirming his judgment of sentence. See Pa.R.A.P. 1113(a)

(appellant must file a Petition for Allowance of Appeal to the Supreme Court



had one year, until May 8, 2002, to file a timely PCRA petition. 42 Pa.C.S. §

9545(b)(1). He filed his original petition on June 14, 2005, approximately

three years after the expiration of time for seeking review, and filed the

present petition on April 4, 2011, approximately nine years after the

expiration of time. Therefore, both petitions are untimely.



                       _______________________
(Footnote Continued)

      (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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                                                           atisfies the after-

discovered evidence exception to the one-year statute of limitations.7 See

42 Pa.C.S. § 9545(b)(1)(ii) (excusing late-                               the

facts upon which the claim is predicated were unknown to the petitioner and

could not ha

Specifically, Butts asserts that on the night of the shooting, Johnson



thereafter exit the home holding the same firearm. Trial Court Opinion, at 3.

She allegedly saw Butts standing on the outside of the property on the

                  Id. Butts claims that neither he nor his defense team knew



testimony at the time

defeats the finding of first degree murder, because if her testimony is



which the jury could rationally conclude that [Butts] formed a plan to kill

                Id. at 12, 13.

____________________________________________


7

hearing argument by the Commonwealth, to secure an affidavit for the
witness (Jaquoy Johnson) who was to supposedly provide exculpatory
evidence in this case. The [PCRA] court granted the defense sixty (60) days

did not secure an affidavit from Johnson detailing the contours of her
recollection of the events leading up to the shooting, on April 6, 2006, the

verified the accuracy of the information contained in the petition.



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      To obtain relief based upon newly-discovered evidence under the

PCRA,

            a petitioner must establish that: (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. D'Amato, 856 A.2d 806, 823-24 (2004) (internal

citations omitted).



his petition within 60 days of the date his claim of newly discovered evidence

could have been presented. See 42 Pa.C.S. § 9545(b)(2). In his original and

subsequent petitions, Butts failed to specify precisely when the exculpatory

evidence became available and why the evidence was not available at the

time of trial through the exercise of reasonable due diligence. See Petition

Under PCRA to Allow Appeal Nunc Pro Tunc, ¶¶ 8-11.             The record is




acknowledgement of receipt of a subpoena dated February 23, 2006, the

affidavit signed by Johnson is dated April 6, 2006.     On appeal, however,

Butts asserts:


            Johnson dated April 2, 2004. The PCRA petition was



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            filed June 14, 2005 which is within 60 days of the
            discovery of the new information on April 2, 2004.




information on April 2, 2004, rendering the instant petition untimely under



14, 2005 petition was still filed more than 60 days later. Thus, Butts failed to

file the PCRA petition within 60 days of

information. See 42 Pa.C.S. § 9545(b)(2); Commonwealth v. Jones, 54

A.3d 14, 17 (Pa.Super.2012) (PCRA petitioner has the burden to plead and

prove exception to the one-year limitation).

      Nor does Butts demonstrate why he could not have discovered



due diligence. Butts does not state when or how he acted with due diligence

in ascertaining the new information, i.e., what actions he took prior to or

d

testimony. This alone constitutes a basis for denying relief. See, e.g.,

Commonwealth v. Yarris, 731 A.2d 581, 588-91 (Pa.1999) (claim failed

because appellant did not make sufficient proffer of why it took so long to

present claim and therefore did not show that he acted with due diligence).

Butts cites to authorities from other jurisdictions that expound on the due

diligence requirement for prisoners. See                            -13. These

decisions are not binding; nor does he apply their rationale to his case. Id.

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Butts was not incarcerated at the time of trial; thus, these holdings are

patently irrelevant. In short, Butts fails to establish he acted with due

diligence in obtaini



relief would fail because, as the PCRA court reasons, the newly discovered

evidence would not likely compel a different verdict.                        ,

856 A.2d at 823-24. Trial Court Opinion, at 5.

      In Commonwealth v. Holmes, the petitioner claimed the after-

discovered evidence exception applied to his proffer of an affidavit of an

eyewitness who claimed he saw another individual, not the petitioner,

commit the crime. 905 A.2d 507, 511-512 (Pa.Super.2006).         Because the



a reasonable doubt, we held that the affidavit would not have compelled a

different verdict, and thus the evidence failed to satisfy the requirements of

the exception to the PCRA time-bar.

      Here, the PCRA court reasoned:

                 [A]s in the Holmes
            supposed newly discovered evidence would not have
            compelled a different verdict. In his statement on

            gun with the victim and the sound of gunshots
            coming from the steps of the property are

                                                   admitted
            at trial was adequate and sufficient to convict
            [Butts].




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Trial Court Opinion, at 5 (no quote citation in original). Moreover, when we



appeal, we opined:

                  [Butts] fired at least four shots at the fleeing
            victim, who was struck by two of them, one at such
            an angle as to pass through both thighs, and the


            the bullet whi
            determined by the kickback of the gun caused by the
            first, lower shot, there is no definitive means of
            ascertaining which bullet struck first. However, this

            conclusion.

                 In Commonwealth v. Wyche, 467 A.2d 636,
            637 (Pa. Super. 1983), this Court held that even
            though the fatal bullet penetrated a non-vital part of

            properly infer specific intent to kill from the fact that
            the appellant fired multiple shots at the victim. Here,
            as in Wyche, multiple shots were fired. Moreover,
            the lethal shot did in fact strike a vital part of the

            to fire as the victim ran clearly meant that it should
            do. Thus, the evidence was clearly sufficient to
            support the verdict.


Commonwealth v. Butts, 1190 EDA 2000, at *3 (Pa.Super.2001)



reasoning that the evidence was sufficient to support his conviction for first-



different verdict.




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       Order affirmed.8

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2014




____________________________________________


8

evidence was insufficient to convict him of first-degree murder because the
prosecution failed to prove he acted with malice when he shot the victim.
Trial Court Opinion, at 5. Butts does not present this argument on appeal
and thus we find it abandoned. Moreover, this issue was previously litigated
before this Court and, thus, not cognizable. See Commonwealth v. Butts,
1190 EDA 2000 (Pa.Super.2001) (unpublished memorandum); 42 Pa.C.S. §
9543(a)(3); Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa.2009)
(issue previously l                               n issue has been previously


42 Pa.C.S. § 9544(a)(2)).



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