J-S83025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
             v.                        :
                                       :
                                       :
NICHOLAS A. ROBERTS                    :
                                       :
                   Appellant           :   No. 2168 EDA 2016

                 Appeal from the PCRA Order June 20, 2016
 In the Court of Common Pleas of Montgomery County Criminal Division at
                     No(s): CP-46-CR-0005728-2003


BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY OLSON, J.:                         FILED MARCH 05, 2018

      Appellant, Nicholas A. Roberts, appeals pro se from an order entered

on June 20, 2016 that dismissed his second petition filed under the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely.

After careful review, we affirm.

      The relevant facts and procedural history is as follows.   During the

early morning hours of August 3, 2001, Appellant was driving a Toyota

Camry in Pottstown, Pennsylvania, accompanied by Joel Muir in the rear

passenger seat. Earlier in the evening, Appellant and Muir had engaged in a

verbal altercation with some other men.    Eventually, Appellant and Muir

located a Ford Taurus in which two of the men from the earlier argument

were traveling. Appellant sped up alongside the Taurus and Muir discharged

a firearm into the vehicle, killing Michael Ziegler.   The Commonwealth

charged both Appellant and Muir with first-degree murder, third-degree
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murder, criminal    conspiracy   to   commit   first-degree   murder, criminal

conspiracy to commit third-degree murder, and aggravated assault.

      At a joint trial, Appellant defended the charges by arguing that while

he drove the Camry, the evidence failed to show that he intended to kill the

victim or that he conspired to commit murder. Neither Appellant nor Muir

testified at trial. At the conclusion of trial, the jury convicted both Appellant

and Muir of the aforementioned crimes. The trial court sentenced Appellant

to, inter alia, life imprisonment for first-degree murder. This Court affirmed

Appellant’s judgment of sentence on July 12, 2006 and our Supreme Court

denied further review on January 3, 2007. Accordingly, because Appellant

did not seek review before the United States Supreme Court, his judgment

of sentence became final on April 3, 2007. See 42 Pa.C.S.A. § 9545(b)(3)

(“a judgment 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[ ]”); U.S.Sup.Ct.R. 13(1) (“A petition for a writ of certiorari seeking

review of a judgment of a lower state court that is subject to discretionary

review by the state court of last resort is timely when it is filed with the

Clerk within 90 days after entry of the order denying discretionary review.”);

Commonwealth v. Miller, 102 A.3d 988, 993 (Pa. Super. 2014).

      Appellant filed his first PCRA petition on June 15, 2007, alleging that

trial counsel was ineffective. The PCRA court denied Appellant’s petition on

January 11, 2008.     This Court affirmed the dismissal of Appellant’s first

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petition on August 26, 2009 and our Supreme Court denied Appellant’s

petition for allowance of appeal on July 14, 2010.             Thereafter, Appellant

unsuccessfully litigated a federal petition for habeas corpus.

       Appellant filed the instant PCRA petition on December 10, 2014.1

Although he acknowledged that his petition was filed outside the one-year

time bar set forth in 42 Pa.C.S.A. § 9545(b)(1), Appellant asserted that he

invoked    the    “newly    discovered     fact”   exception   under    42   Pa.C.S.A.

§9545(b)(1)(ii).      To support this claim, Appellant attached notes of the

testimony offered by Muir at a hearing on Muir’s collateral challenge to his

own murder convictions. At the hearing, Muir testified that on the night of

the murder, neither he nor Appellant discussed shooting anyone and “truth

be told, [Appellant] didn’t know I had a gun that night.”              N.T. Joel Muir’s

PCRA Hearing, 1/22/04, at 12.             In addition, Appellant supplemented his

petition with a sworn affidavit by Muir in which Muir confirmed the

exculpatory statements made at his PCRA hearing.

       The PCRA court appointed counsel on January 16, 2015.                 Following

review, counsel petitioned the court for leave to withdraw and attached a

no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.


____________________________________________


1 The PCRA court found that the envelope in which Appellant mailed his
second petition was postmarked December 10, 2014. See, PCRA Court
Opinion, 7/12/17, at 4 n.3, citing Commonwealth v. Crawford, 17 A.3d
1279, 1281 (Pa. Super. 2011) (pro se documents are filed on the date they
are placed into the hands of prison authorities for mailing).



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1988) and Commonwealth v. Finley, 50 A.2d 213 (Pa. Super. 1988) (en

banc). The court thereafter issued notice of its intent to dismiss the petition

without a hearing under Pa.R.Crim.P. 907(1). Appellant replied on June 7,

2016, claiming that Muir’s testimony constituted a “newly discovered fact”

that could not have been obtained before the conclusion of trial because Muir

held a Fifth Amendment privilege against self-incriminating testimony.

Appellant also argued that Muir’s statements were not merely corroborative

or cumulative of evidence introduced at trial.      The PCRA court dismissed

Appellant’s petition without a hearing on June 20, 2016.

      Appellant filed a timely notice of appeal on July 5, 2016. Thereafter,

pursuant to court order, Appellant filed a concise statement of matters

complained of on appeal on July 28, 2016.         See Pa.R.A.P. 1925(b).   The

PCRA court issued its opinion on July 12, 2017.

      Appellant raises the following issue for our review:

      Did the PCRA court err in dismissing Appellant’s PCRA petition as
      untimely where [Appellant invoked the newly discovered facts
      exception, 42 Pa.C.S.A. § 9545(b)(1)(ii), to the one-year time
      limitation of the PCRA]?

Appellant’s Brief at 5.


      Appellant concedes that the instant petition for collateral relief is

untimely but maintains that he properly invoked the newly discovered facts

exception to the PCRA’s one-year time bar.            To establish this claim,

Appellant relies on Muir’s testimony from a January 22, 2014 PCRA hearing



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in which Muir alleged that neither he nor Appellant discussed shooting

anyone and that Appellant was unaware that Muir possessed a firearm on

the night of the murder.   Appellant’s position is that Muir’s testimony was

not only unknown to him, it was also unavailable at the time of trial because

Muir had a Fifth Amendment privilege against self-incrimination.      On this

basis, Appellant claims he invoked the timeliness exception set forth at 42

Pa.C.S.A. § 9545(b)(1)(ii) since he did not know what Muir’s testimony

would have been until he received his co-defendant’s confirmatory affidavit.

See Appellant’s Brief at 9. Appellant concludes that the PCRA court erred in

dismissing his second PCRA petition as untimely because Muir’s testimony

was previously unknown and unavailable through the exercise of reasonable

diligence.

         Our task when reviewing an order that dismisses a petition for

collateral relief is to determine whether the PCRA court’s findings are

supported by the record and whether the order denying relief is free of legal

error.    Commonwealth v. Grant, 992 A.2d 152, 156 (Pa. Super. 2010).

The PCRA court may dismiss a petition for collateral relief without holding a

hearing where it determines that the petitioner’s claim are facially devoid of

merit and no purpose would be served by further proceedings. Pa.R.Crim.P.

907(1). Rule 907 authorizes summary dismissal where the petitioner fails to

plead and prove that he has met the PCRA’s timeliness requirements. See

Commonwealth v. Burton, 936 A.2d 521, 527 (Pa. Super. 2007).




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     [Where a petition is] clearly untimely, the courts have “no
     jurisdiction to grant [relief unless the petitioner] can plead and
     prove that one of the exceptions to the time bar provided in 42
     Pa.[C.S.A.] § 9545(b)(i)-(iii) applies.”       Commonwealth v.
     Pursell, []749 A.2d 911, 914–915 (Pa. 2000).             See also
     Commonwealth v. Wilson, 824 A.2d 331 (Pa. Super. 2003)
     (en banc ), appeal denied, []839 A.2d 352 (Pa. 2003).

     Specifically, Section 9545 provides, in pertinent part, the
     following:

     (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:

                                      ***

     (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;

                                      ***

     42 Pa.[C.S.A.] § 9545(b)(1)(i)-(iii).

Burton, 936 A.2d at 524-525. We have observed that, “the focus of [the

exception found at § 9545(b)(1)(ii)] 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

quotations omitted), appeal denied, 125 A.3d 1197 (Pa. 2015).

     Appellant’s contentions in this appeal do not merit relief. At the time

of trial, Appellant knew whether he and Muir discussed a killing on the night

of the murder. Appellant also knew at that time whether he believed Muir


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was in possession of a firearm. As such, Muir’s recent statements constitute

only a newly willing source of previously known facts.        Because such

statements do not trigger the timeliness exception found at § 9545(b)(1)(ii),

the PCRA court correctly dismissed Appellant’s petition.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/18




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