J-S32013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
                                          :
             v.                           :
                                          :
FRANK FLUELLEN                            :
                                          :
                    Appellant             :         No. 2513 EDA 2016

                 Appeal from the PCRA Order July 11, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0210662-2001


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

JUDGMENT ORDER BY GANTMAN, P.J.:                       FILED JUNE 20, 2017

      Appellant, Frank Fluellen, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed as untimely his

fifth petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546.        A jury convicted Appellant on July 26, 2002, of

second degree murder and related offenses in connection with the August

22, 1994 robbery of Marie’s Variety Store in Philadelphia, during which the

store manager was shot and the owner was shot and killed.           The court

immediately sentenced Appellant to life imprisonment for the murder of the

store owner and imposed lesser sentences for the convictions involving the

store manager, to run consecutively to each other and concurrently with the

life sentence.    On January 30, 2004, this Court affirmed the judgment of

sentence. See Commonwealth v. Fluellen, 847 A.2d 756 (Pa.Super.
___________________________

*Former Justice specially assigned to the Superior Court.
J-S32013-17


2004) (unpublished memorandum). Appellant sought no further review, and

the judgment of sentence became final on or about February 29, 2004.

Since then, Appellant unsuccessfully litigated four other PCRA petitions.

      Appellant filed his current petition on or about April 3, 2016, asserting

the new facts exception and new evidence in the form of an affidavit, dated

March 30, 2016, that purportedly exculpates Appellant. Appellant amended

his current petition on May 25, 2016, to add a claim of illegal confinement,

based on the contention of an “unsigned” arrest warrant that renders the

charges, arrest, convictions, and judgment of sentence void ab initio. The

PCRA court issued notice, per Pa.R.Crim.P. 907, of intent to dismiss the

petition.   Appellant responded, and the court dismissed the petition as

untimely on July 11, 2016. Appellant timely filed a notice of appeal on July

27, 2016. The record indicates no concise statement per Pa.R.A.P. 1925(b)

was either ordered or filed.

      Preliminarily, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A

PCRA petition, including a second or subsequent petition, shall be filed within

one year of the date the underlying judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1).    A judgment of sentence is deemed final “at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The


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statutory exceptions to the PCRA time-bar allow very limited circumstances

to excuse the late filing of a petition, and a petitioner asserting an exception

must file the petition within 60 days of when the claim could have been first

presented. 42 Pa.C.S.A. § 9545(b)(1)(i-iii), (b)(2).

      Instantly, Appellant’s judgment of sentence became final on or about

February 29, 2004, as he did not file a petition for allowance of appeal with

the state Supreme Court. See Pa.R.A.P. 1113; 42 Pa.C.S.A. § 9545(b)(3).

Appellant filed the current PCRA petition on April 3, 2016, which is patently

untimely by over eleven years. Appellant attempts to assert the new facts

exception in the form of an “exculpatory” affidavit and an additional claim of

illegal confinement based on his arrest warrant.

      The affidavit from Appellant’s prison mate, Larry Burton, is vaguely

and broadly phrased to challenge the identification trial testimony of

Commonwealth witness James Roberts. The only “new” fact in the affidavit

is Mr. Burton, which fails to satisfy the new facts exception at 42 Pa.C.S.A. §

9545(b)(1)(ii), because Mr. Burton is just a newly-discovered source for

Appellant’s main trial defense of misidentification. See Commonwealth v.

Edmiston, 619 Pa. 549, 570-71, 65 A.3d 339, 352 (2013), cert denied, ___

U.S. ___, 134 S.Ct. 639, 187 L.Ed.2d 423 (2013) (stating facts asserted as

exception (a) must have been unknown to petitioner, (b) could not have

been ascertained by exercise of due diligence, and (c) cannot simply be facts

presented through newly-discovered source).


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       With respect to the allegedly defective arrest warrant, Appellant

attached only a copy of the criminal complaint as Exhibit A to his amended

PCRA    petition.   Therefore,   his   arrest-warrant   claim   was   completely

unsupported. Moreover, Appellant failed to explain when he first discovered

the alleged defect in the arrest warrant or why he did not discover it at an

earlier date. Finally, the arrest warrant contained in the certified record is

signed and dated.    Thus, the alleged defective arrest warrant would not

serve as an exception to the statutory time limits of the PCRA. Accordingly,

Appellant’s PCRA petition remains time-barred, and we affirm.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2017




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