J-S50038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

BERTRAM WILLIAMS

                          Appellant                   No. 2947 EDA 2014


                Appeal from the PCRA Order October 1, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0812041-1981


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED SEPTEMBER 08, 2015

      Appellant Bertram Williams appeals from the order of the Philadelphia

Court of Common Pleas dismissing as untimely his petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq.        We

affirm.

      On April 15, 1980, Appellant shot and killed the victim outside the

Good Times Lounge, a bar in South Philadelphia. The PCRA summarized the

facts from trial as follows:

          A short time after the crime, [Appellant] was found with a
          .38 caliber revolver in his possession and that same
          revolver was later matched by ballistics examination to the
          weapon used in the murder of [the victim]. During the
          course of his trial, [Appellant] introduced evidence into the
          record that he was working at the time of the shooting as
          a means to create an alibi.

Opinion, 1/16/2015, at 5-6.
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        On January 5, 1982, a jury convicted Appellant of first-degree murder1

and possession of an instrument of crime.2 On February 3, 1983, the trial

court sentenced Appellant to life imprisonment for first-degree murder and a

consecutive term of 2½ to 5 years’ imprisonment for possession of an

instrument of crime.

        Appellant filed a timely notice of appeal.3 On January 17, 1986, this

Court affirmed Appellant’s judgment of sentence.       Appellant did not file a

petition for allocator with the Supreme Court of Pennsylvania.

        On May 13, 1986, Appellant filed his first post-conviction relief

petition.4 The court dismissed the petition without appointing counsel. On

January 20, 1988, this Court reversed and remanded for the appointment of

counsel. The court appointed counsel, who filed an amended petition. On

November 15, 1989, the court dismissed the petition.       On June 15, 1990,

this Court affirmed and, on December 13, 1990, the Supreme Court denied

allocator.


____________________________________________


1
    18 Pa.C.S. § 2502.
2
    18 Pa.C.S. § 907.
3
  While his appeal was pending, Appellant successfully petitioned the trial
court to vacate his sentence until this Court reviewed his claims, but the trial
court reinstated his sentence on December 27, 1983.
4
  Appellant filed the petition under the Post Conviction Hearing Act (“PCHA”),
the PCRA’s predecessor.



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        On August 24, 1992, Appellant filed a second post-conviction petition.5

On September 24, 1992, the trial court dismissed the petition. On February

14, 1994, this Court affirmed and the Supreme Court denied allocatur on

September 20, 1994.

        On June 14, 1996, Appellant filed a third post-conviction petition. On

August 7, 1996, the trial court dismissed the petition. On October 20, 1997,

this Court affirmed and, on May 27, 1998, the Supreme Court denied

allocatur.6

        On October 21, 2013, Appellant filed the current PCRA petition, his

fourth.    On May 20, 2014, the PCRA court issued notice of its intent to

dismiss the petition without a hearing pursuant to Pennsylvania Rule of

Criminal Procedure 907. On October 1, 2014, the PCRA court dismissed the

petition as untimely.

        On October 16, 2014, Appellant filed a timely notice of appeal.    The

trial court did not order Appellant to file a concise statement of errors

complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b), but did issue a memorandum opinion pursuant to Rule

1925(a).

        Appellant raises the following issue on appeal:
____________________________________________


5
    This petition was filed pursuant to the PCRA, which was enacted in 1988.
6
  Appellant also has filed petition for writ of habeas corpus in the United
States District Court for the Eastern District of Pennsylvania.



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         Whether the PCRA court improperly dismissed the petition
         seeking PCRA relief when such petition was filed pursuant
         to [42 Pa.C.S. § 9545(b)(1)(ii)], one of the exceptions to
         the one[-]year statute of limitations set forth in [42
         Pa.C.S. § 9545(b)(1)] and which was filed within 60 days
         of the claim becoming final?

Appellant’s Brief at 4.

      Pursuant to Pennsylvania law, no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa.Super.2010) (citing Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa.2003)). The PCRA provides that a petition, “including a second or

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

becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Monaco, 996 A.2d at

1079; Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). A

judgment is 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. § 9545(b)(3).

      Three exceptions to the PCRA’s time-bar exist. The exceptions allow

for limited circumstances under which a court may excuse the late filing of a

PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079.           The

late filing of a petition will be excused if a petitioner alleges and proves any

of the following:

            (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



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             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).   When invoking an exception to the PCRA

time-bar, the petition must “be filed within 60 days of the date the claim

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

        A jury convicted Appellant on January 5, 1982, the trial court

sentenced him on February 3, 1983, and this Court affirmed on January 17,

1986.     As Appellant conceded, his current petition, filed on October 21,

2013, is facially untimely.

        Appellant maintains his petition qualifies for the newly-discovered

evidence time-bar exception based on the affidavits from Edward Preston

and Robert Hardwick, which are dated September 18, 2013. Mr. Preston’s

affidavit states he was at his house, which was “down the street from” the

Good Times Lounge, at the time of the shooting.        He saw a light-skinned

man, who was about six-feet tall, run past his house.           Mr. Hardwick’s

affidavit states he was inside the Good Times Lounge at the time of the

shooting. When he heard the gunshots, he went to the bar door and saw a




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light-skinned man and a couple of women running from the bar, and did not

see Appellant.

      This Court has explained the newly-discovered evidence exception as

follows:

           The timeliness exception set forth in Section 9545(b)(1)(ii)
           requires a petitioner to demonstrate he did not know the
           facts upon which he based his petition and could not have
           learned those facts earlier by the exercise of due diligence.
           Due diligence demands that the petitioner take reasonable
           steps to protect his own interests. A petitioner must
           explain why he could not have learned the new fact(s)
           earlier with the exercise of due diligence. This rule is
           strictly enforced. Additionally, the focus of this exception
           “is on the newly discovered facts, not on a newly
           discovered or newly willing source for previously known
           facts.”

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

citations omitted).

      Appellant maintains a private investigator discovered Mr. Preston and

Mr. Hardwick and obtained their statements. Appellant, however, does not

explain why he could not have discovered Mr. Preston and Mr. Hardwick at

an earlier date, through the use of a private investigator or otherwise.

Appellant, therefore, fails to establish he could not have obtained any

alleged new facts at an earlier time with the exercise of due diligence.

      Appellant    relies   on   Commonwealth       v.   Davis,   86   A.3d   883

(Pa.Super.2014), claiming it holds that his PCRA petition raising a newly-

discovered evidence claim is timely because it was filed within 60 days of the

date of the affidavits. Appellant’s Brief at 8-9. Davis, however, found the


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appellant acted with reasonable diligence in filing his newly-discovered

evidence claim. This Court did not find the appellant’s petition timely solely

based on the date on the affidavits.

      In Davis, two witnesses testified at trial that, although arrested in the

defendant’s case or other cases, they did not have an agreement that they

would receive favorable treatment if they testified against the defendant. 86

A.3d at 890. At the PCRA stage, the defendant submitted an affidavit from

one witness stating he was promised favorable treatment in exchange for his

trial testimony. Id. at 888-89. The defendant then procured the sentencing

transcripts of both witnesses, which confirmed that the witnesses received

favorable treatment in exchange for their testimony against the defendant.

Id. This Court found the defendant satisfied the newly-discovered evidence

rule, reasoning:

         At no point during the testimony of either witness did the
         Commonwealth interject to clarify that a deal or leniency
         was offered to either Watson and/or Diggs. Therefore,
         Appellant had no reason to seek out transcripts of those
         witnesses’ sentencing hearings in unrelated cases to look
         for evidence of such deals. To conclude otherwise would
         suggest that Appellant should have assumed the
         Commonwealth’s witnesses were committing perjury, and
         the Commonwealth was improperly permitting them to do
         so. Due diligence does not require a defendant to make
         such unreasonable assumptions. See [Commonwealth v.
         Selenski, 994 A.2d 1083, 1089 (Pa.2010)] (defining the
         due diligence required by the Commonwealth in
         Pa.R.Crim.P. 600 issues as “fact-specific, to be determined
         case-by-case; it does not require perfect vigilance and
         punctilious care, but merely a showing that the
         Commonwealth has put forth a reasonable effort”).



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         Instead, Appellant’s efforts were adequately diligent under
         the circumstances of this case. After receiving Watson’s
         affidavit indicating that Watson had received lenient
         treatment by the Commonwealth in exchange for his
         testimony, Appellant acquired the transcripts of Watson’s
         sentencing proceeding. Appellant also acquired the
         transcripts of Diggs’ sentencing proceeding, evincing that
         Appellant acted diligently in suspecting that the
         Commonwealth may have also concealed a deal offered to
         Diggs.     Such efforts by Appellant amounted to due
         diligence in ascertaining this claim.

Id. at 890-91 (emphasis deleted).

       Here, unlike in Davis, Appellant offers no explanation as to why he

could not have obtained information from Mr. Preston and Mr. Hardwick at

an earlier date.   Accordingly, the trial court acted within its discretion in

dismissing Appellant’s PCRA petition as untimely.     See Brown, 111 A.3d

176.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2015




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