J-S32037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

MWANGI SEKOU,

                            Appellant                     No. 2183 EDA 2015


                   Appeal from the PCRA Order June 24, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-1103481-2002


BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                    FILED MAY 13, 2016

        Appellant, Mwangi Sekou, appeals pro se from the order of June 24,

2015, dismissing his serial, third petition filed pursuant to the Post

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

affirm.

        On February 4, 2004, a jury convicted Appellant of murder of the third

degree and related offenses.         The charges arose from Appellant’s July 19,

2002, shooting of the victim.          On April 8, 2004, the trial court sentenced

Appellant to an aggregate term of incarceration of not less than thirty-five

nor more than seventy-seven years.             This Court affirmed the judgment of

sentence on August 31, 2005. (See Commonwealth v. Sekou, No. 1888
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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EDA 2004 (Pa. Super. filed Aug. 31, 2005) (unpublished memorandum)).

Appellant did not seek leave to appeal to the Pennsylvania Supreme Court.

       Subsequently, Appellant filed two PCRA petitions.        The PCRA court

dismissed each petition and this Court affirmed the dismissals on appeal.

       On October 17, 2014, Appellant filed the instant, pro se, third PCRA

petition.   On May 11, 2015, the PCRA court filed a Rule 907 notice of its

intention to dismiss Appellant’s PCRA petition. See Pa.R.Crim.P. 907(1). On

May 26, 2015, Appellant filed a response. On June 24, 2015, the PCRA court

dismissed Appellant’s third PCRA petition as untimely.          Appellant timely

appealed.1

       Appellant raises one question for this Court’s review:

              Did the PCRA [c]ourt abuse its discretion in its
       determination of whether it had jurisdiction over the PCRA
       petition under the timeliness exception of 42 Pa.C.S. §
       9545(b)(1(ii)?

(Appellant’s Brief, at vi).

       Our standard of review for an order denying PCRA relief is well-settled:

             This Court’s standard of review regarding a PCRA court’s
       order is whether the determination of the PCRA court is
       supported by the evidence of record and is free of legal error.
       Great deference is granted to the findings of the PCRA court, and
       these findings will not be disturbed unless they have no support
       in the certified record.
____________________________________________


1
 The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). The PCRA court filed an
opinion on August 3, 2015. See Pa.R.A.P. 1925(a).




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Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a

trial court has no jurisdiction to entertain the petition.” Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

       Here, Appellant filed his third PCRA petition on October 17, 2014. The

PCRA provides that “[a]ny petition under this subchapter, including a second

or subsequent petition, shall be filed within one year of the date the

judgment becomes final[.]”             42 Pa.C.S.A. § 9545(b)(1).   Appellant’s

judgment of sentence became final on September 30, 2005, thirty days after

this Court affirmed the judgment of sentence and Appellant did not seek

leave to appeal to the Pennsylvania Supreme Court. See Pa.R.A.P. 1113(a);

42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had one year, until October

2, 2006,2 to file a timely PCRA petition. Because Appellant did not file his

current petition until October 17, 2014, the petition is facially untimely.

Thus, he must plead and prove that he falls under one of the exceptions at

Section 9545(b) of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1).

       Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully proves that:

             (i) the failure to raise the claim previously was the result
       of interference by government officials with the presentation of

____________________________________________


2
    September 30, 2006 was a Saturday.



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      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.

Id. at § 9545(b)(1)(i)-(iii).   Further, a petitioner who wishes to invoke any

of the above exceptions must file the petition “within [sixty] days of the date

the claim could have been presented.”            Id. at § 9545(b)(2).      The

Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s

burden to plead and prove that one of the above-enumerated exceptions

applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268

(Pa. 2008), cert. denied, 555 U.S. 916 (2008).

      Here, Appellant seeks to invoke the newly-discovered facts exception

codified at 42 Pa.C.S.A. § 9545(b)(1)(ii) and discussed in the Pennsylvania

Supreme Court’s decision in Commonwealth v. Bennett, 930 A.2d 1264

(Pa. 2007), which held that this exception refers not to after-discovered

evidence but to facts that were previously unknown to the petitioner. See

Bennett, supra at 1270; (see also Appellant’s Brief, at 5). The Court in

Bennett also held, in accord with the statutory language, that an appellant

must prove that the facts upon which the claim is predicated could not have

been ascertained earlier through the exercise of due diligence.           See

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Bennett, supra at 1272.      “A petitioner must . . . explain why his asserted

facts could not have been ascertained earlier with the exercise of due

diligence.”   Commonwealth v. Taylor, 933 A.2d 1035, 1041 (Pa. Super.

2007), appeal denied, 951 A.2d 1163 (Pa. 2008) (citation omitted).

      In its August 3, 2015 opinion, the PCRA court dicussed Appellant’s

newly discovered facts claim as follows:

             In [an] attempt to satisfy the PCRA’s timeliness exception,
      [Appellant] invoked section (b)(1)(ii) by presenting the
      purported exculpatory fact that Jonathan Williams perpetrated
      the shooting for which [Appellant] was convicted. This newly
      discovered fact was presented by three individuals who were not
      at the scene of the homicide. See PCRA petition, exhibits A-C.
      According to Ms. Zakiyyah Williams’ certification, Mr. Williams,
      her brother, confessed to her years prior that he perpetrated the
      killing. Ms. Williams also claimed her brother revealed in 2004
      that he intended to turn himself in on an unspecified future date
      and that the [Appellant] was wrongly convicted. Mr. Williams
      was killed in 2004 before fulfilling his supposed plan. Ms.
      Williams further asserted that she approached Ms. Bernadine
      Branch ([Appellant’s] mother) and Ms. Shana Ryles-Sekou
      ([Appellant’s] wife) at a religious service on October 15, 2013 to
      convey her brother’s inculpative message. The certifications of
      Ms. Branch and Ms. Rules-Sekou iterated Ms. Williams’
      conveyance.

            Despite the attached certifications, [Appellant] failed to
      demonstrate that the fact that someone other than himself,
      specifically Jonathan Williams, was the shooter was previously
      unknown. [Appellant] submitted an affidavit of Karif Holloway
      on June 8, 2012, wherein Jonathan Williams is identified as the
      alleged shooter. See [Second] PCRA petition, 7/26/12 exhibit B.
      Furthermore, Mr. Holloway asserted that [Appellant] furnished
      the shooter’s name. Id. The [Appellant’s] prior knowledge of
      the shooter’s identity is further evinced by the affidavit of
      Dennard Hawkins, which asserted that [Appellant] knew the
      shooter. See [Supplemental Amended Second] PCRA petition,
      9/6/12 exhibit A. . . .


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(PCRA Court Opinion, 8/03/15, at 4-5).

      Our independent review of the record corroborates the PCRA court’s

finding that Appellant first raised the claim that Jonathan Williams was the

shooter in his second PCRA petition. (See Second PCRA Petition, 7/26/12,

at Exhibit B; Supplemental Amended Second PCRA Petition, 9/06/12, at

Exhibit A). Thus, Appellant’s current claim is not a newly discovered fact but

rather additional verification of a previously discovered fact.   It is settled

that a newly discovered source for an already known fact does not meet the

requirements of 42 Pa.C.S.A. § 9545(b)(1)(ii).      See Commonwealth v.

Marshall,   947   A.2d   714,   720-21    (Pa.   2008)   (citations   omitted).

Accordingly, Appellant has failed to show that he meets the newly

discovered fact requirement of 42 Pa.C.S.A. § 9545(b)(1)(ii).              See

Johnson, supra at 427.

      Thus, because the record demonstrates that Appellant’s third PCRA

petition is untimely with none of the statutory exceptions to the time bar

proven, we affirm the order of the trial court dismissing Appellant’s PCRA

petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2016




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