J-S74010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TIMOTHY DAVID A/K/A TYRONE                 :
    DAVIS                                      :
                                               :   No. 2308 EDA 2019
                       Appellant               :

               Appeal from the PCRA Order Entered July 12, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-1209481-1999


BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED JANUARY 31, 2020

        Appellant, Timothy David A/K/A Tyrone Davis, appeals pro se from the

post-conviction court’s July 12, 2019 order dismissing, as untimely, his

petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. We affirm.

        On June 9, 2000, a jury convicted Appellant of three counts each of

attempted murder and aggravated assault, as well as single counts of

possessing an instrument of crime and criminal conspiracy. These convictions

were premised on evidence that Appellant and two cohorts initiated a gun

battle on a residential street in Philadelphia, during which three people —

including a four-year-old child — were shot. On October 4, 2000, Appellant

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*   Former Justice specially assigned to the Superior Court.
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was sentenced to an aggregate term of 35 to 70 years’ incarceration for his

convictions. Due to procedural circumstances we need not discuss herein, it

was not until November 14, 2005, that we affirmed Appellant’s judgment of

sentence on direct appeal. Commonwealth v. Davis, 890 A.2d 1096 (Pa.

Super. 2005) (unpublished memorandum). Our Supreme Court denied his

subsequent petition for allowance of appeal on May 9, 2006. Commonwealth

v. Davis, 989 A.2d 1069 (Pa. 2006).

      Over the ensuing years, Appellant filed several PCRA petitions, all of

which were denied. On April 26, 2017, he filed the pro se petition underlying

the present appeal. Therein, he claimed that he had discovered the new fact

that his “co-defendant[,] Bruce Wayne Burdine[,] will testify that [Appellant]

did no shooting.” PCRA Petition, 4/26/17, at 3. Appellant further averred

that, “[a] third party investigating on [his] behalf obtained a statement from

Mr. … Burdine.”   Id. at 4.   Appellant did not attach that statement to his

petition, but he claimed that he was “waiting for a copy of Mr. Burdine’s

affidavit, and [he would] promptly forward it to the court within 60 days of

the docketing of this PCRA [petition].” Id. at 5. However, Appellant never

filed any supplement to his petition containing Mr. Burdine’s affidavit.

      Nearly two years later, on March 12, 2019, the PCRA court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition.     While

Appellant filed a response to the court’s Rule 907 notice arguing that Mr.

Burdine’s affidavit was ‘new evidence,’ he again failed to attach the affidavit




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to his response. Consequently, on July 12, 2019, the court issued an order

dismissing his petition.

      Appellant filed a timely, pro se notice of appeal.     The court filed a

Pa.R.A.P. 1925(a) opinion on August 23, 2019. Herein, Appellant states a

single issue for our review: “Whether the PCRA court erred when denying

[Appellant] an evidentiary [hearing], based on an affidavit providing evidence

that [Appellant] did not have a gun, nor did [he] plan on shooting anyone.”

Appellant’s Brief at 3.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.     Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007) (stating PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded to address the merits of the petition). Under the PCRA,

any petition for post-conviction relief, including a second or subsequent one,

must be filed within one year of the date the judgment of sentence becomes

final, unless one of the following exceptions set forth in 42 Pa.C.S. §

9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--



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          (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, at the time Appellant’s petition

was filed, section 9545(b)(2) required that any petition attempting to invoke

one of these exceptions “be filed within sixty days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).1

       Here, Appellant’s judgment of sentence became final on August 7, 2006,

ninety days after our Supreme Court denied his petition for allowance of

appeal. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence

becomes final at the conclusion of direct review or the expiration of the time

for seeking the review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa.

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1 A recent amendment to section 9545(b)(2), which became effective on
December 24, 2018, changed the language to require that a petition “be filed
within one year of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2). That amendment only applies to claims arising on or after
December 24, 2017.

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Super. 1998) (directing that under the PCRA, petitioner’s judgment of

sentence becomes final ninety days after our Supreme Court rejects his or her

petition for allowance of appeal since petitioner had ninety additional days to

seek review with the United States Supreme Court). Thus, Appellant had until

August 7, 2007, to file a timely petition, making his present petition filed in

April of 2017 facially untimely.      Consequently, for this Court to have

jurisdiction to review the merits thereof, Appellant must prove that he meets

one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S. §

9545(b).

      Appellant argues that he meets the after-discovered evidence exception

of section 9545(b)(1)(ii) based on the affidavit he received from Mr. Burdine,

which he has attached to his appellate brief. In that affidavit, Mr. Burdine

states, in pertinent part, that Appellant was not with him during the shooting.

He also explains that he did not testify about Appellant’s innocence at trial

because he “was advised by [his] attorney to remain silent….” Appellant’s

Brief at Exhibit B (Mr. Burdine’s Affidavit). According to Appellant,

      [t]he affidavit by Mr. Burdine establishes newly discovered facts,
      that if known by [Appellant], and used at trial, … would have
      undermined the testimony used to convict. Equally important, the
      affidavit would have given reasonable expectation that the co-
      defendant’s trial counsel impeded Mr. Burdine from testifying at
      the trial. His testimony exonerates [Appellant] of any criminal
      intent to murder, assault, or any other criminal act.

Appellant’s Brief at 6.

      Problematically, Appellant never presented Mr. Burdine’s affidavit to the

PCRA court. Thus, the affidavit is not part of the certified record, and we may

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not consider it in assessing if Appellant has met a timeliness exception. See

Bennyhoff v. Pappert, 790 A.2d 313, 318 (Pa. Super. 2001) (stating “[i]t is

black letter law in this jurisdiction that an appellate court cannot consider

anything which is not part of the record in [the] case”). Without the affidavit,

we discern no error in the PCRA court’s denying Appellant’s petition without a

hearing.

      In any event, even had Appellant provided the PCRA court with the

affidavit, we would affirm the court’s order denying him relief. The record

demonstrates that Mr. Burdine informed police of Appellant’s innocence in a

statement made prior to trial, a fact which Appellant knew and acknowledged

in at least two prior PCRA petitions.      See PCRA Petition, 5/14/10, at 4

(acknowledging that Mr. Burdine gave an “initial statement in which he stated

that [Appellant] was not one of the individuals that was with him during the

shooting”); PCRA Petition, 8/20/12, at 5 (recognizing “[Mr.] Burdine[’s] initial

police statement, stating that [Appellant] was not one of the individuals that

was with him during the shooting”).      Thus, Mr. Burdine’s current affidavit

attesting to Appellant’s innocence is merely a new source of a previously

known fact. Commonwealth Marshall, 947 A.2d 714, 720 (Pa. 2008) (“The

focus of the [after-discovered fact] exception is on [the] newly discovered

facts, not on a newly discovered or newly willing source for previously known

facts.”) (internal quotation marks omitted; emphasis added).

      Moreover, even if the ‘new fact’ were the affidavit itself (and not the

fact(s) set forth therein), Appellant does not explain why he could not have

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obtained Mr. Burdine’s affidavit earlier. Clearly, Appellant knew, at least as

early as 2010, that Mr. Burdine told police that Appellant was innocent. Thus,

Appellant must explain why he could not have obtained the affidavit from Mr.

Burdine setting forth this exonerating information earlier than 2017. Appellant

has failed to meet this burden of establishing due diligence. Thus, we would

affirm the order denying his petition on this basis, as well.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/20




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