J-S61041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CARMEN WOODS                               :
                                               :
                       Appellant               :   No. 3444 EDA 2017

                Appeal from the PCRA Order September 15, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0611411-1982


BEFORE:       BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED DECEMBER 13, 2019

        Appellant, Carmen Woods, appeals from the order entered in the Court

of Common Pleas of Philadelphia County dismissing as untimely his sixth

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. Herein, Appellant contends the PCRA court erred because he

qualified under the newly-discovered fact exception to the PCRA time-bar. We

affirm.

        The PCRA court summarizes the pertinent facts and procedural history,

as follows:

        [I]n November, 1982, Appellant, together with his co-defendant,
        Michael Jones, was tried and convicted in a jury trial before the
        Honorable Albert F. Sabo, for the May 16, 1982 murder of Chester
        Laws, Jr., and the May 18, 1982 shooting at Homer Lane, who
        witnessed the murder. Lane testified at trial and Appellant was

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*   Former Justice specially assigned to the Superior Court.
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     convicted of first-degree murder, aggravated assault, and related
     offenses.

     Following the guilty verdicts, new counsel came into the case and
     numerous rounds of post-trial motions were filed and litigated.
     Among the many issues raised was that Lane intended to recant
     his testimony. An evidentiary hearing was held prior to sentencing
     in accordance with the rules at the time. Lane testified and he did
     not recant his trial testimony. All motions were denied and
     Appellant was then sentenced [to life imprisonment without the
     possibility of parole] in December 1983.        The judgment of
     sentence was affirmed by the Superior Court. Allocatur was
     granted by the Supreme Court[, which] also affirmed the
     judgment of sentence.

     [Thereafter, Appellant filed numerous rounds of Post Conviction
     Hearing Act (“PCHA”) and PCRA appeals predicated on either
     Lane’s recantation that he lied about witnessing the murder
     because Appellant had shot at him, or on prior counsels’ failure to
     call certain witnesses who could have impeached Lane’s
     credibility.  Appellant filed other PCRA petitions deemed
     meritless.]

     On August 17, 2016, Appellant filed the instant PCRA petition, his
     sixth. . . . In Appellant’s instant petition, he alleged his most
     recent PCRA was timely. Appellant once again raised the issue
     that he discovered “new evidence” which would discredit Homer
     Lane. Also, Appellant asserted that the Commonwealth violated
     Brady v. Maryland, 373 U.S. 83 (1983), by failing to disclose
     information to defense and by misrepresenting Mr. Lane’s
     motivation for coming forward and providing testimony. After
     reviewing the pleadings, the record, and the law, and after
     complying with notice and procedural requirements, [the PCRA
     court] dismissed the petition as untimely without addressing the
     merits. The instant timely pro se appeal followed.

PCRA Court Opinion, 3/25/19, at 1, 3-4.

     Appellant presents the following questions for our review:

     1. [Did] Appellant plead[] and prove[] a valid exception to the
        PCRA’s statute of limitations, 42 Pa.C.S. § 9545(b)(1), in that
        subsection (b)(1)(i) is invoked and satisfied?



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        2. [Was] Appellant entitled to a New Trial or further proceedings
           based upon a denial of due process of law as guaranteed under
           the Fifth and Fourteenth Amendments of the Constitution of the
           United States, and Article 1 § 9 of the Pennsylvania
           Constitution, by virtue of the suppression of material
           exculpatory or favorable evidence, and the Commonwealth’s
           failure to correct false testimony[?]

Appellant’s brief, at 2.

        This Court's standard of review regarding an order dismissing 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.

Halley, 870 A.2d 795, 799 n.2 (Pa. 2005).           We will not disturb the PCRA

court's findings unless the certified record does not support such findings.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).

        Before addressing the merits of Appellant’s issues, however, we must

first determine whether the PCRA court correctly concluded that his serial

PCRA petition is untimely.         The timeliness of a post-conviction petition is

jurisdictional. Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa.Super.

2013). Generally, a petition for relief under the PCRA, including a second or

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

becomes final, unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition, set forth at Sections 9545(b)(1)(i),

(ii), and (iii), is met.1 42 Pa.C.S.A. § 9545. A PCRA petition invoking one of

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1   The exceptions to the timeliness requirement are:




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these statutory exceptions must “be filed within 60 days of the date the claims

could have been presented.”          See Hernandez, 79 A.3d 651-52 (citations

omitted); see also 42 Pa.C.S.A. § 9545(b)(2).2 Finally, exceptions to the

PCRA's time bar must be pled in the petition, and may not be raised for the

first time on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.

Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues not raised

before the lower court are waived and cannot be raised for the first time on

appeal).



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       (i)       the failure to raise the claim previously was the result of
                 interference of 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 retroactive.

42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).

2The Pennsylvania legislature recently amended this section of the PCRA to
provide petitioners one year to file a petition invoking a time-bar exception.
See Act of 2018, October 24, P.L. 894, No. 146. This amendment does not
apply to Appellant’s serial petition.




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       Here, it is uncontested that Appellant’s judgment of sentence became

final over thirty years ago pursuant to 42 Pa.C.S.A. § 9545(b)(3).3          Thus,

Appellant’s present PCRA petition, his sixth, filed in 2016, is patently untimely.

Accordingly, the PCRA court was without jurisdiction to address the petition

on its merits unless Appellant satisfied his burden of pleading and proving that

one of the enumerated exceptions applies. See Hernandez, supra.

       Appellant claims his petition meets the PCRA's time-bar exception for

newly discovered facts. This Court has summarized:

       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 of
       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.

       The 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, 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
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3 Section 9545(b)(3) provides, “For purposes of this subchapter, 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.” 42
Pa.C.S.A. § 9545(b)(3).


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      petitioner can present a substantive after-discovered evidence
      claim.

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

and quotation marks omitted).

      Stated differently, subsection 9545(b)(1)(ii)

      “has two components that must be alleged and proved. Namely,
      the PCRA petitioner must establish that: 1) the facts upon which
      the claim is predicated were unknown to him 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.

Id., at 176-77 (quoting Commonwealth v. Bennett, 930 A.2d 1264, 1272

(Pa. 2007) (emphasis in original).

      In support of his newly-discovered fact claim, Appellant argues that a

person working on a documentary project recently furnished him with

information obtained from two articles published in the Philadelphia Inquirer

newspaper on May 19, 1982 and June 3, 1982, respectively, reporting on the

shooting of Chester Laws, Jr. In Appellant’s brief, he maintains the newspaper

articles contained the following exculpatory quotes supplied by the victim’s

father to Philadelphia Inquirer reporters:

      Laws Sr. informed police that he found him a witness to his son’s
      shooting. (Philadelphia Inquirer, May 19, 1982, Robert J. Terry);
      and

      I got hold of him [Homer Lane] and he breaks, then I took him to
      the police. (Philadelphia Inquirer, pg. 5, June 3, 1982, Marguerita
      Delguidice).




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Appellant’s brief, at 7. Specifically, Appellant maintains that such statements

implicated Homer Lane in the shooting of Chester Laws, Jr.

      The PCRA court determined, however, that “[t]his evidence could have

been discovered at any point starting with their publication in 1982. . . . As

these facts were easily discoverable and in the public record for longer than

60 days before this petition was filed, the petition is time-barred, and we lack

jurisdiction   to   address   the   merits.”   PCRA   Opinion,   at   6   (quoting

Commonwealth v. Fisher, 870 A.2d 864, 871 (Pa. 2005)). We agree.

      Appellant was represented by counsel at all relevant stages of his

criminal trial. Why it is that neither counsel nor he were able to discover two

Philadelphia Inquirer newspaper articles reporting on the fatal shooting at

issue and published just one day before, and two weeks after, Appellant’s

arrest, is not explained.     In this regard, we note that this case bears no

similarity to Commonwealth v. Burton, 121 A.3d 1063 (Pa.Super. 2015)

(en banc), in which this Court recognized a pro se petitioner exception to the

due diligence rule in discovering new information in the public domain, as the

information here was available at the very outset of Appellant’s counseled

defense.

      As such, Appellant fails to carry his burden to establish that the articles

were ascertainable no earlier than 60 days prior to his filing of the present

petition, despite the passage of 34 years from the original dates of their

publication in a prominent Philadelphia newspaper.      Accordingly, we discern

no error with the Court’s order dismissing Appellant’s petition as untimely.

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     Order affirmed.

  Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/19




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