J-S49026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                           Appellee

                      v.

KEVIN WHITE

                           Appellant                      No. 3212 EDA 2013


                 Appeal from the PCRA Order October 16, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-1003183-2003


BEFORE: OLSON, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                             FILED FEBRUARY 02, 2015

      Kevin White appeals, pro se, from the order entered on October 16,

2013, in the Court of Common Pleas of Philadelphia County, denying him

relief, without a hearing, on his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.            The PCRA court denied the

petition as untimely.         White raises three issues in this timely appeal.

Specifically, he claims (1) the PCRA court erred in determining the petition

was untimely, (2) his due process rights were violated when a trial witness

testified   falsely   about     favorable   treatment    he   received   from   the

Commonwealth, and (3) PCRA counsel was ineffective for failing to

investigate claims of trial counsel’s ineffectiveness. After a thorough review

of the submissions by the parties, relevant law, and the certified record, we

affirm.
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       The PCRA court related the factual and procedural history as follows:

       The July 14, 2005 opinion of this court, which details the
       procedural history and facts of this case, is incorporated herein
       by reference.[1] On December 4, 2004, defendant, Kevin White,
       was found guilty of first-degree murder and criminal conspiracy
       by a jury sitting before this court. On February 1, 2005, this
       court sentenced [White] to a mandatory life sentence for first-
       degree murder and a consecutive term of one to two years[’]
       incarceration for criminal conspiracy.      This judgment was
       affirmed by the Superior Court on April 4, 2006. On August 10,
       2006, the Pennsylvania Supreme Court denied allocatur.

       A timely pro se PCRA petition was filed on June 12, 2007. An
       amended counseled petition was filed on July 29, 2008. The
       amended PCRA petition was dismissed by this court on
       December 11, 2008. [White] filed a notice of appeal of this
       court’s December 11, 2008 order on January 7, 2009. The
       Superior Court ordered a remand for an evidentiary hearing on
       whether trial counsel was ineffective. On July 1, 2010, an
       evidentiary hearing was held and this court found that counsel
       was not ineffective. On August 19, 2010 this court denied PCRA
       relief. The Superior Court affirmed the judgment on October 4,
       2011. On March 21, 2012, the Pennsylvania Supreme Court
       denied allocator.

       [White] filed the instant pro se PCRA petition on May 7, 2012.
       For reasons set forth below, this court finds that it is without
       jurisdiction to consider the merits of [White’s] claims and thus
       [White’s] second PCRA petition is dismissed as untimely.

PCRA Court Opinion, 10/16/2013, at 1-2.

       Initially, we note:


____________________________________________


1
  The facts underlying White’s conviction are somewhat intricate. Because
those facts are known to the parties, we will not repeat them here. The
facts may also be found in the Superior Court opinion denying White relief in
his direct appeal. See Commonwealth v. White, 902 A.2d 984, 876 EDA
2005 (Pa. Super. 2006)(unpublished memorandum).



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     Our standard of review of an order denying PCRA relief is
     whether the record supports the PCRA court's determination and
     whether the PCRA court's decision is free of legal error.
     Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super.
     2011) (citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.
     Super. 2005)). The PCRA court's findings will not be disturbed
     unless there is no support for the findings in the certified record.
     Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.
     Super. 2001)).

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014).

     Additionally,

     The PCRA time limitations, and exceptions thereto, are set forth
     in 42 Pa.C.S. § 9545(b)(1)(i)-(iii). That section states:

     (b) Time for filing petition.—

        (1) Any petition under this subchapter, including a second
        or subsequent petition, shall be filed within one year of the
        date the judgment becomes final, unless the petition
        alleges and the petitioner proves that:

        (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.

     To invoke one of these exceptions, the petitioner must plead it
     and satisfy the burden of proof. Commonwealth v. Beasley,
     559 Pa. 604, 741 A.2d 1258, 1261-62 (1999). Additionally, any
     exception must be raised within sixty days of the date that the


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      claim could have been presented. 42 Pa.C.S. § 9545(b)(2). Our
      Supreme Court “has repeatedly stated that the PCRA timeliness
      requirements are jurisdictional in nature and, accordingly, a
      PCRA    court   cannot   hear    untimely   PCRA   petitions.”
      Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125, 1164
      (2009) (citing Commonwealth v. Reinzi, 573 Pa. 503, 827
      A.2d 369, 371 (2003)).

Commonwealth v. Feliciano, 69 A.3d 1270, 1275 (Pa. Super. 2013).

      Here, White concedes that his petition was not filed within the one-

year timeliness requirement.          However, he claims both governmental

interference and after discovered facts as applicable exceptions.        See 42

Pa.C.S. § 9545(b)(1)(i),(ii).

      Both of these timeliness exceptions are predicated on the same claim

that one of the Commonwealth’s witnesses at trial, Hakim Lofton, perjured

himself   when   he   denied    the   existence   of   an   agreement   with   the

Commonwealth that led to the dismissal of charges against Lofton. White

also claims the Commonwealth hid evidence of the agreement. White claims

he first obtained proof of this deception on March 12, 2012, when he

received a copy of Lofton’s court docket from his sister. Accordingly, both

claims of entitlement to timeliness exceptions are predicated on the docket.

He filed the instant PCRA petition on May 7, 2012, which is ostensibly within

the 60 days required by statute.

      Our review of the certified record demonstrates that White has raised

claims regarding Lofton’s testimony in both his direct appeal and in his first

PCRA petition.    See Commonwealth v. White, supra; Pro Se PCRA

petition, 6/12/2007 at 3a (complaining of perjured testimony). In White’s


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direct     appeal,   this   Court   addressed   White’s   complaint   about   the

Commonwealth’s closing argument:

           You know Hakim, [Lofton], he is locked up for robbery, he
           can’t make bail. He is in jail. The one thing, there are no
           secret deals with our office that he is going to get some
           great deal. Everything that happens here is in writing. If I
           give him a deal, it would be on the record. The one thing I
           do guarantee you is, no matter what prison he goes to, he
           will be away from those men, because I owe it to him and
           I owe it to that family to keep at least Hakim safe. What
           he did, he deals with it, and he will have his lawyer playing
           all that game, going…

         N.T., 12/16/04, at 150.

         While appellant posits that these remarks were not supported by
         the record, we disagree because Lofton had testified that he had
         not made a deal with the prosecution to secure his testimony.
         Furthermore, the comments were in fair response to an
         accusation by co-defendant’s counsel that a secret arrangement
         had been made with Lofton.

Commonwealth v. Lofton, 902 A.2d 984, at 12-13.

         This discussion clearly demonstrates that White had concerns about

Lofton’s testimony from the time of trial. White’s putative proof of a secret

deal between the Commonwealth and Lofton is in the form of a docket sheet

from the Municipal Court of Philadelphia County, MC-51-CR-XXXXXXX-2004,

indicating that on January 24, 2005, little more than one month after

White’s conviction and approximately one week prior to White’s sentencing




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on February 1, 2005, all pending charges against Hakim Lofton were

withdrawn by the District Attorney.2

       Entitlement to the after discovered evidence exception is based not

only upon filing the PCRA petition within 60 days of discovering the fact, but

also upon exercising due diligence to discover the fact.      Here, White has

failed to demonstrate how and why, despite his stated concerns regarding

Lofton’s testimony, he was unable to obtain a copy of Lofton’s Municipal

Court docket, a public document, for over seven years. This document was

available to White and his counsel, upon request of the court, even before

White was sentenced.          The failure to obtain the document for such an

extended period of time cannot suffice as due diligence.

       White’s governmental interference claim is that during trial, the

government failed to inform him of the secret deal favoring Lofton. The

alleged proof of this sub rosa agreement is the Municipal Court docket, which

the PCRA court properly determined was not after discovered evidence and

could not support a timeliness exception.



____________________________________________


2
  The immediately prior docket entries indicating two continuances had been
granted to the Commonwealth due to the failure of the complaining witness
to appear. See Docket Entries of 12/20/2004, 1/10/2005. Although not
specifically stated in the docket entries of 1/24/2005, it is likely the charges
were withdrawn due to the failure of the complaining witness to appear. Our
resolution of this matter is not based upon this interpretation of the docket
entries.




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       However, as noted, the docket was available to White even before he

was sentenced. Accordingly, this public information was available to White

for his direct appeal and his first PCRA petition. Accepting, for the sake of

argument, that the government interfered with White by denying, at trial,

the existence of an agreement with Lofton, any such improper concealment

terminated when charges against Lofton were publically dismissed and that

dismissal was noted on the docket in 2005. Because the claim could have

been raised in either the direct appeal or the first PCRA petition, but was

not, the issue is waived.3

       Because White cannot demonstrate entitlement to any of the statutory

timeliness exceptions, the PCRA court was without jurisdiction to address

any of White’s claims. Accordingly, the PCRA court committed no error of

law in dismissing White’s PCRA petition, without a hearing, as untimely.

       Order affirmed.




____________________________________________


3
    Issues waived.—

       For purposes of this subchapter, an issue is waived if the
       petitioner could have raised it but failed to do so before trial, at
       trial, during unitary review, on appeal or in a prior state
       postconviction proceeding.

42 Pa.C.S. § 9544(b).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2015




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