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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 GUY MATTHEWS                             :
                                          :
                    Appellant             :   No. 2700 EDA 2018

           Appeal from the PCRA Order Entered August 16, 2018
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0438784-1990


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY PANELLA, P.J.:                    FILED DECEMBER 06, 2019

      Guy Matthews appeals pro se from the August 16, 2018 order entered

in the Philadelphia County Court of Common Pleas, which dismissed as

untimely his second petition filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. Matthews’s petition is facially

untimely, and although he asserts all three statutory exceptions to the PCRA’s

time-bar, Matthews has failed to prove that any are either valid or applicable.

Therefore, the PCRA court correctly concluded that it lacked jurisdiction to

consider the merits of his appeal. Accordingly, we affirm.

      As recounted by the PCRA court:

      Guy Matthews … was arrested and subsequently charged in
      connection with the [February 2,] 1989 fatal shooting of James
      Sussewell. [Matthews] was tried alongside co-defendant Craig
      Haynes. On August 24, 1990, following a jury trial …, [Matthews]
      was convicted of first-degree murder and related charges. On April
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     4, 1991, the trial court sentenced [Matthews] to life imprisonment
     for first-degree murder.

     On August 19, 1993, the Superior Court affirmed [Matthews’s]
     judgment of sentence. On January 14, 1994, the Pennsylvania
     Supreme Court denied [Matthews’s] request for allowance of
     appeal. [Matthews] did not filed a petition for writ of certiorari to
     the United States Supreme Court.

     On December 19, 1996, [Matthews] filed his first pro se PCRA
     petition. Appointed counsel … subsequently filed an amended
     petition. On October 30, 2002, the PCRA court dismissed
     [Matthews’] counseled petition. On February 20, 2004, the
     Superior Court affirmed the PCRA court’s denial of post-conviction
     relief. On December 3, 2004, the Supreme Court of Pennsylvania
     denied [Matthews’s] request for allocator.

     On March 22, 2016, [Matthews] filed the instant pro se PCRA
     petition. [Matthews] also submitted two supplemental filings[,]
     which were reviewed jointly with his petition. Pursuant to
     Pennsylvania Rule of Criminal Procedure 907, [Matthews] was
     served notice of the PCRA court’s intention to dismiss his petition
     on July 20, 2018[,] and on August 7, 2018, [Matthews] submitted
     a response to [the] PCRA court’s Rule 907 notice. On August 16,
     2018, [the] PCRA court dismissed the instant PCRA petition as
     untimely. On September 5, 2018, the instant notice of appeal was
     timely filed.

PCRA Court Opinion, 1/18/19, at 1-2 (footnotes omitted).

     Matthews raises the following issues for our review:

     1) Did the PCRA court err in finding that the petition did not meet
     the newly discovered fact timeliness exception pursuant to 42
     Pa.C.S.A. § 9545(b)(1)(ii)?

     2) Did the PCRA court err in concluding that the United States
     Supreme Court decision Montgomery v. Louisiana, 136 S. Ct.
     718 (2016), is inapplicable to Matthews’s mandatory life sentence
     without the possibility of parole?




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See Appellant’s Brief, Statement of Questions Involved (unnumbered page).1

       Turning to Matthews’s petition, we note that we review the denial of

post-conviction collateral relief to determine whether the PCRA court’s findings

are supported by the record and free from legal error. See Commonwealth

v. Small, 189 A.3d 961, 971 (Pa. 2018). However, prior to reaching the merits

of Matthews’s claims, we must first consider the timeliness of his PCRA

petition. See Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super.

2014). The time limitations of the PCRA are jurisdictional in nature and, as

such, a court cannot address the merits of an untimely petition. See

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003). All PCRA

petitions “including a second or subsequent petition shall be filed within one

year of the date the judgment [of sentence] becomes final.” 42 Pa.C.S.A. §

9545(b)(1).

       Matthews’s original judgment of sentence became final on April 14,

1994. This date is ninety days after our Supreme Court denied his request for

allowance of appeal, and Matthews did not seek any further review from the

United States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3) (identifying that

“a judgment of sentence becomes final at the conclusion of direct review,

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


____________________________________________


1 For ease of disposition and since both invoke the same exception section,
we have consolidated Matthews’s issues one and three as included in his
statement of questions involved and have placed the combined issue as the
second to be addressed.

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

the review”); see also U.S. Sup. Ct. R. 13 (indicating that a petition for a writ

of certiorari must be filed with the Clerk of the United States Supreme Court

within ninety days after discretionary review is denied by the state court of

last resort). Accordingly, Matthews’s petition, filed over two decades later, is

patently untimely.2 As such, the PCRA court lacked jurisdiction to review

Matthews’s petition unless he was able to successfully plead and prove an

exception the PCRA’s time-bar.

       To surmount the PCRA’s time-bar, a petitioner must allege and prove

one of three exceptions. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Here, as best

can be discerned, Matthews argues that his petition qualifies for all three

exceptions. Quoted in their entirety, the exceptions provide that:

    (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


____________________________________________


2 When, as here, the judgment of sentence became final prior to January 16,
1996 – the effective date of the 1995 amendments to the PCRA – a first PCRA
petition would be deemed timely filed if it was filed within one year of that
date. See Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999). However, this
grace period does not apply to serial petitions such as this petition. See
Commonwealth v. Crawley, 739 A.2d 108 (Pa. 1999). Further, it is clear
that this petition was not timely filed under this provision in any event.

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              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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Further, even if any of these exceptions

apply, the petition must have been filed within, at most, one year of the date

the claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(2).3

       To the extent Matthews attempts to rely upon the “governmental

interference” exception, see 42 Pa.C.S.A. § 9545(b)(1)(i), by contending

there has been a Brady violation by the prosecution, see 83 S. Ct. 1194

(1963), Matthews has not included this question in his statement of questions

involved. Therefore, our ability to conclude that this subsection is applicable

has arguably been waived. See Pa.R.A.P. 2116(a) (“No question will be

considered unless it is stated in the statement of questions involved or is fairly


____________________________________________


3 On October 24, 2018, the General Assembly amended section 9545(b)(2) of
the PCRA statute to expand the time for filing a petition from 60 days to one
year from the date a claim could have been presented. See 2018
Pa.Legis.Serv.Act 2018-146(S.B. 915), effective December 24, 2018. The
amendment applies only to claims arising one year before the effective date
of this section, i.e., December 24, 2017, or thereafter. Instantly, Matthews
filed his petition in 2016. Therefore, the amendment is inapplicable to
Matthews’s claim.


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suggested thereby.”). However, even on its merits, Matthews has failed to

demonstrate there has been a Brady violation to serve as a foundation for

governmental interference.

      Matthews contends that the piece of evidence withheld from him at trial

was “an interview given to and recorded by Philadelphia police detectives by

a notorious underworld figure named Aaron Jones[,] the leader of [a] gang

faction in Philadelphia.” Appellant’s Brief, at 6. Matthews avers that the Jones

interview specifically names another, and not Matthews, as the person

responsible for the crimes for which he was convicted. See id., at 7. However,

Matthews concedes that Jones named him as a probable participant in the

criminal activity. See id.

      In order to demonstrate a Brady violation, Matthews would need to

show that: 1) the evidence was favorable to the accused, either because it is

exculpatory or because it impeaches; 2) the evidence was suppressed by the

prosecution, either willfully or inadvertently; and 3) prejudice ensued. See

Commonwealth v. Burke, 781 A.2d 1136, 1141 (Pa. 2001) (citation

omitted).

      As best can be discerned, in the interview with police, Jones stated that

he does not know much about a seemingly separate August 10, 1989 shooting

inside the Tobbins Inn because he was not there when it occurred. See Jones

Interview, 8/15/89, at 1 (unpaginated). Speculating, Jones maintained that

Matthews’s co-defendant, Haynes, was “the only one crazy enough to do it.”


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Id. However, Jones indicated that Matthews was probably with him. See id.

Further, Jones implicated Haynes “and his people” (presumably inclusive of

Matthews) when “they did the same thing … when they shot up the [V]olvo

and killed the boy. They thought they had [the boy].” Id., at 2 (unpaginated).4

Jones also stated that while no one told him who committed the August 10

shooting, he knew it was Haynes. See id.

       We are not convinced there has been a Brady violation for at least two

reasons. First, the evidence simply does not, in any way, exculpate Matthews

of the crimes he has been found guilty of committing and is, in fact, largely

irrelevant. Although he was speaking to an unrelated shooting, Jones admitted

that he was not there when that shooting occurred nor had he heard from

anybody else as to who committed that shooting. Other than having a mere

uncorroborated hunch that Haynes was the shooter in that instance, Jones,

by his own words, was simply not in a position to attest to Matthews’s

innocence in the February 2 shooting. See Commonwealth v. Bond, 819

A.2d 33, 50 (Pa. 2002) (“A witness’s lack of knowledge about a crime is neither

inculpatory nor exculpatory; it is, by definition, an irrelevancy.”).

       If anything, Jones’s interview adds further support for Matthews’s

involvement or inculpation in the crimes for which he was convicted, as Jones’s



____________________________________________


4 This shooting occurred at 29th & Chalmers. See Jones Interview, at 1.
Matthews was convicted of, inter alia, murder from a fatal shooting occurring
at this intersection.

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statement implicitly places Matthews at the scene of the crime and then

proceeds to describe his participation in the February 2 killing. See Jones

Interview, at 2 (employing the pronoun “they” to describe who shot up the

Volvo and killed the boy after referring to Matthews, by name, in the preceding

sentence and also identifying that Haynes “gets other people to do his shit”).

Simply put, the solitary paragraph in the Jones interview dedicated to what

we have to assume is the February 2 shooting does not provide any support

for the contention that Matthews was not guilty of wrongdoing. Accordingly,

there has been no Brady violation.

      Second, although he was required to do so, Matthews provides no

support to demonstrate that the prosecution suppressed the Jones interview

at or before trial. Instead, Matthews seems to indicate that because this

interview is not contained within the trial-related discovery materials, this

nonexistence inherently means that the prosecution inadvertently suppressed

evidence. However, absent even a singular citation to the trial record, simply

stating that there is an absence of this interview is insufficient to establish a

Brady violation. See Commonwealth v. Copenhefer, 719 A.2d 242, 259

(Pa. 1998) (identifying that an appellant “must prove, by reference to the

record, that evidence was withheld or suppressed by the prosecution”)

(citation omitted). For this reason, too, Matthews’s Brady claim fails.

      Even if there had been inadvertent suppression, “when a Brady claim

is advanced under the PCRA, an appellant can only obtain relief by establishing


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that the violation of his Constitutional right to due process so undermined the

truth-determining process that no reliable adjudication of guilt or innocence

could have taken place.” Id. (citations and quotation marks omitted). Given

the content of the interview itself, which lacks any arguable basis to provide

Matthews with exculpatory information, we find nothing in the record to

support the position that the alleged withholding of the interview prevented

Matthews from advancing his due process rights or that his adjudication of

guilt was somehow unreliable.

      Similarly, in utilizing the same interview, Matthews’s attempt at

overcoming the “previously unknown facts” exception fails, too.

      The [unknown facts] timeliness exception set forth at Section
      9545(b)(1)(ii) has often mistakenly been referred to as the “after-
      discovered evidence” exception. This shorthand reference was a
      misnomer, since the plain language of subsection (b)(1)(ii) does
      not require the petitioner to allege and prove a claim of after-
      discovered evidence. Rather, as an initial jurisdictional threshold,
      Section 9545(b)(1)(ii) requires a petitioner to allege and prove
      that there were facts unknown to him and that he exercised due
      diligence in discovering those facts. Once jurisdiction is
      established, a PCRA petitioner can present a substantive after-
      discovered-evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (internal

citations and quotation marks omitted). We assume, without actually deciding,

that Matthews, having received the Jones interview on February 12, 2018,




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exercised due diligence in asserting this exception.5 However, to constitute

facts that were unknown to a petitioner, the information “must not be facts

that were previously known but are now presented through a newly discovered

source.” Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013).

       Here, the alleged “fact” can be distilled down into the sentence:

“[Haynes] and his people did the same thing at 29 th & Chalmers when they

shot up the [V]olvo and killed the boy.” Jones Interview, at 1. As stated, supra,

having just mentioned him in the sentence prior, Jones’s reference to “they”

necessarily includes Matthews. Matthews’s contention that the Jones interview

identifies Haynes as the shooter in the incident for which Matthews was

charged is simply unavailing and belies the content of his statement, especially

when Jones emphasizes that Haynes gets other people to do his bidding in

that same paragraph. See Jones Interview, at 1. Therefore, Jones’s

equivocation as to who the actual shooter was, combined with the fact that

Haynes was a charged co-conspirator in the crime, renders the Jones interview

not new information, but known information coming from a newly discovered

source. As such, it is not a previously unknown fact within the meaning of 42


____________________________________________


5 Although Matthews indicates that he obtained the Jones interview on
February 12, 2018, the affidavit attached to his amended PCRA petition states
that his brother, Gill Matthews, “recently obtained the Philadelphia Police
Investigation Interview Record of Aaron Jones. The interview was discovered
by Jackie Chester, an associate with background in security and
investigations, and sent to me via the internet.” Motion to Amend/Supplement
PCRA Petition, Affidavit. There is no indication provided as to when Gill
Matthews first learned of or obtained the Jones interview.

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Pa.C.S.A. § 9545(b)(1)(ii), and Matthews has failed to overcome the

previously unknown facts exception to the PCRA’s time-bar.

      As to Matthews’s assertion that Miller v. Alabama, 567 U.S. 460

(2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016), apply

retroactively to his case and that therefore he can avail himself of 42 Pa.C.S.A.

§ 9545(b)(1)(iii), the retroactivity exception to the PCRA’s time-bar, Matthews

is mistaken. Matthews identifies that his correct birth date is April 8, 1963.

See Appellant’s Brief, at 15. Therefore, on February 2, 1989, Appellant would

have been twenty-five years and ten months old at the time when he

committed his various offenses.

      In Miller, the United States Supreme Court held that “mandatory life

without parole for those under the age of 18 at the time of their crimes violates

the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” 567

U.S. at 465. Some six years later, the Court in Montgomery found that Miller

announced a substantive rule of constitutional law and proceeded to give

Miller retroactive applicability. See 136 S. Ct. at 736. However, neither case

established any kind of precedent for those over the age of eighteen.

      In order for the retroactivity exception to be applicable, there must be:

1) a constitutional right recognized by our Supreme Court or the United States

Supreme Court; and 2) a holding by either our Supreme Court or the United

States Supreme Court that the recognized constitutional right applies

retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(iii). While Matthews “asserts


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that the medical and scientific determinations adopted in Miller are applicable

to him at the age of twenty-five,” our Supreme Court and the United States

Supreme Court have not, in any subsequent opinion, extended the holding of

Miller to encompass any classification or group of people over the age of

eighteen. Absent an extension of Miller or indicia that either court has both

established a new constitutional right and decided to apply it retroactively, we

are without the authority to go beyond the dictates of Miller. In fact, as we

stated recently, “Miller does not afford collateral relief to a petitioner who was

over the age of 18 at the time of his or her offense.” Commonwealth v. Lee,

206 A.3d 1, 4 (Pa. Super. 2019) (en banc); see also Commonwealth v.

Montgomery, 181 A.3d 359, 366 (Pa. Super. 2018) (en banc) (Montgomery

… did not extend Miller’s holding to those individuals who committed

homicides after they reached the age of 18.”).

      Because Matthews has failed to successfully plead or prove that he

meets any of the exceptions to the timeliness requirements of the PCRA, the

court properly concluded that Matthews’s petition was untimely and it had no

jurisdiction to address its merits. Therefore, we affirm the PCRA court’s order.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/19




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