J-A03045-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 GREGORY MAURICE WYATT                    :
                                          :
                    Appellant             :   No. 458 MDA 2019

          Appeal from the PCRA Order Entered September 6, 2018
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0003361-2013


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

MEMORANDUM BY DUBOW, J.:                          FILED JANUARY 13, 2020

      Appellant, Gregory Maurice Wyatt, appeals pro se from the September

6, 2018 Order entered in the Dauphin County Court of Common Pleas

dismissing as untimely his Petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we agree that

the Petition was untimely filed and we are, thus, without jurisdiction to review

its claim. We affirm.

      Briefly, the facts underlying Appellant’s conviction stem from the May

27, 2013 murder and robbery of an acquaintance. On June 2, 2014, Appellant

entered a negotiated guilty plea to Third-Degree Murder, Robbery, Possession

of a Firearm by a Prohibited Person, and Carrying a Firearm without a License.

That same day, the trial court imposed an aggregate sentence of 25 to 30

years’ incarceration. Appellant filed a post-sentence Motion to Withdraw Guilty
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Plea, which he withdrew on July 11, 2014.

       Appellant did not file a direct appeal. Appellant’s Judgment of Sentence

thus became final thirty days later on August 11, 2014, upon expiration of the

time to file a direct appeal. See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3).

       On September 8, 2017, Appellant filed pro se, the PCRA Petition at issue,

his second. The PCRA court appointed counsel and eventually permitted

counsel to withdraw pursuant to Turner/Finley.1 On September 6, 2018, the

PCRA court dismissed the PCRA Petition without a hearing after providing

notice pursuant to Pa.R.Crim.P. 907.

       Appellant timely filed a pro se Notice of Appeal. Both Appellant and the

PCRA court complied with Pa.R.A.P. 1925.

       Appellant presents one issue for our review: “[d]id the PCRA court err[]

by dismissing the PCRA petition as untimely?” Appellant’s Br. at 4.

       We review the denial of a PCRA petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error.     Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

However, “[i]t is well-settled that the PCRA’s time restrictions are jurisdictional

in nature.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016)

(citation omitted). Therefore, we must first determine whether we have



____________________________________________


1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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jurisdiction to entertain this PCRA Petition. Commonwealth v. Albrecht, 994

A.2d 1091, 1093 (Pa. 2010).

       As detailed above, Appellant’s Judgment of Sentence became final on

August 11, 2014. Thus, he had until August 11, 2015, to file his PCRA Petition.

See 42 Pa.C.S. § 9545(b)(1). His filing on September 8, 2017, was, therefore,

untimely by more than two years.

       Pennsylvania courts may consider an untimely PCRA petition if the

appellant pleads and proves one of the three exceptions set forth in 42 Pa.C.S.

§ 9545(b)(1). The “newly discovered facts exception” requires the PCRA

petitioner to plead and prove that: (1) the facts upon which the claim was

predicated were unknown; and (2) the facts could not have been ascertained

by the exercise of due diligence. Id.; Commonwealth v. Bennett, 930 A.2d

1264, 1272 (Pa. 2007). Additionally, an appellant who invoked an exception

prior to December 2018 must have filed his claim within 60 days of the date

the claim could have been presented.2 Commonwealth v. Lark, 746 A.2d

585, 588 (Pa. 2000).

       Here, Appellant asserts that he is entitled to relief based on newly

discovered evidence—an affidavit from Anthony Hodge dated August 25,

____________________________________________


2  See 42 Pa.C.S § 9545(b)(2). Effective December 24, 2018, Section
9545(b)(2) now provides that, for claims arising on December 24, 2017, or
after, “[a]ny petition invoking an exception ... shall be filed within one year of
the date the claim could have been presented.”



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2017, which states that on May 27, 2013, he witnessed an unidentified black

male point a gun and fire shots at Appellant and the victim. Appellant’s Br. at

8; PCRA Petition, filed 9/8/17, at Exh. A.3 Appellant explains that he was

previously unable to procure this information from Mr. Hodge because Mr.

Hodge had refused to cooperate with the investigators. Appellant’s Br. at 8-9.

He states that it was only when Appellant and Hodge were living in the same

prison that he was able to obtain this affidavit. Id. at 9. He also asserts that

he filed his PCRA petition within 60 days of receiving this information from Mr.

Hodge. Id. at 8-9.

       This claim does not meet the newly discovered facts exception. Mr.

Hodge’s affidavit indicates that “[o]nce he was away from the area and felt

safe,” Mr. Hodge informed “Josh Salisbury4” of the events he witnessed. PCRA

Petition, filed 9/8/17, at Exh. A. Appellant has not explained why he was

unable to contact Mr. Hodge himself prior to September 2017, or obtain the

newly discovered evidence from Mr. Salisbury. Thus, Appellant has failed to

plead and prove that he could not have ascertained this information by the


____________________________________________


3 Appellant’s PCRA Petition sought relief based on new evidence, Mr. Hodge’s
statement, which he asserted established his innocence. PCRA Petition at 3.

4 PCRA counsel clarified that Josh Salisbury appears to be “Josh Saulsberry,”
who was referenced multiple times in discovery materials. Petition to
Withdraw, filed 4/16/18, Exh. A at 12. Counsel further explained that she
obtained from the Officer of Public Defender an affidavit from Mr. Saulsberry,
dated June 27, 2013, which stated that he had received a call from Mr. Hodge
informing him “that both [Appellant] and [the victim] had been shot.” Id. at
13.

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exercise of due diligence.

      Accordingly, the PCRA court properly concluded that Appellant failed to

plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. §

9545(b)(1), and properly dismissed Appellant’s Petition as untimely.

      We, thus, affirm the denial of PCRA relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2020




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