J-S03028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYRONE SPELLMAN                            :
                                               :
                       Appellant               :   No. 2925 EDA 2017

                  Appeal from the PCRA Order August 15, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1303283-2006


BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                            FILED FEBRUARY 05, 2019

        Appellant, Tyrone Spellman, appeals pro se from the August 15, 2017

order dismissing his first petition filed pursuant to the Post-Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On September 7, 2006, Appellant was watching a 17-month-old child

while playing a video game. The girl pulled the video game console to the

floor. Appellant was enraged and viciously beat her to death.

        On January 25, 2008, Appellant was convicted of third-degree murder1

and endangering the welfare of a child.2 On March 13, 2008, the trial court

sentenced Appellant to an aggregate term of 22½ to 45 years’ imprisonment.


____________________________________________


1   18 Pa.C.S.A. § 2502(c).

2   18 Pa.C.S.A. § 4304(a)(1).
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This Court affirmed.       Commonwealth v. Spellman, 987 A.2d 824 (Pa.

Super. 2009) (unpublished memorandum).

       On March 8, 2017, Appellant filed a pro se PCRA petition. Counsel was

appointed. Thereafter, counsel moved to withdraw and filed a no-merit letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The

PCRA court issued notice of its intent to dismiss the petition without an

evidentiary hearing. See Pa.R.Crim.P. 907. Appellant filed a response to the

Rule 907 notice and argued, for the first time, that he satisfied a statutory

exception to the PCRA’s timeliness requirement. The response also requested

leave to amend the petition to include that argument. On August 15, 2017,

the PCRA court dismissed the petition and permitted PCRA counsel to

withdraw. This timely appeal followed.3

       Appellant presents one issue for our review:

       [Did Appellant plead and prove the applicability of the newly-
       discovered fact exception to the PCRA’s timeliness requirement?]

Appellant’s Brief at 4.

       Appellant argues that the PCRA court erred in dismissing his petition as

untimely. “The timeliness requirement for PCRA petitions is mandatory and

jurisdictional in nature.” Commonwealth v. Montgomery, 181 A.3d 359,



____________________________________________


3The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal.

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365 (Pa. Super. 2018) (en banc), appeal denied, 190 A.3d 1134 (Pa. 2018)

(cleaned up). “The question of whether a petition is timely raises a question

of law, and where a petitioner raises questions of law, our standard of review

is de novo and our scope of review is plenary.” Commonwealth v. Pew, 189

A.3d 486, 488 (Pa. Super. 2018) (citation omitted).

      A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] becomes final.”       42 Pa.C.S.A. § 9545(b)(1).        “[A]

judgment [of sentence] becomes 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). Appellant’s judgment of sentence

became final on November 18, 2009, at the expiration of the time for seeking

review by the Supreme Court of Pennsylvania. Appellant’s petition was filed

over seven years later. Thus, the petition was patently untimely.

      An untimely PCRA petition may be considered if one of the following

three exceptions applies:

      (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


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       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). If an exception applies, a PCRA petition may be

considered if it is filed “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).

       Appellant argues that he satisfied the newly-discovered fact timeliness

exception.

       The newly-discovered fact exception has two components, which
       must be alleged and proved. Namely, the petitioner must establish
       that: 1) the facts upon which the claim was predicated were
       unknown and 2) could not have been ascertained by the exercise
       of due diligence. If the petitioner alleges and proves these two
       components, then the PCRA court has jurisdiction over the claim
       under this subsection.

Commonwealth v. Brown, 141 A.3d 491, 500 (Pa. Super. 2016) (citation

omitted).4

       Appellant argues that the new “fact” he discovered was that Detective

James Pitts illegally coerced suspects and witnesses to provide statements to

police. He contends that he did not learn of this “fact” until the publication of

two newspaper articles and an evidentiary hearing held in another case.

Hence, according to Appellant, Detective Pitts’ use of these tactics was a new




____________________________________________


4 Both Appellant and the Commonwealth confuse the standard for the newly-
discovered fact exception to the PCRA’s timeliness requirement with the
standard for after-discovered evidence. This Court explained the difference
between the two standards in Brown.

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“fact” that satisfied the newly-discovered fact exception to the PCRA’s

timeliness requirement.

      This argument fails, however, because Appellant concedes in his brief

that both he and his trial counsel were aware of Detective Pitts’ use of these

tactics prior to trial. Specifically, Appellant concedes that Detective Pitts’ use

of these tactics was raised in a suppression hearing held on January 23, 2008,

i.e., prior to trial. Appellant’s Brief at 7. Hence, Appellant failed to plead and

prove that the fact upon which his claim was predicated was unknown.

Accordingly, the PCRA court properly held that it lacked jurisdiction to consider

the merits of his petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/19




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