J-S27023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    NAREE ABDULLAH                             :
                                               :
                      Appellant                :   No. 2029 EDA 2016

                   Appeal from the PCRA Order May 17, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0601182-1995


BEFORE:       GANTMAN, P.J., OTT, J. and PLATT, J.*

MEMORANDUM BY OTT, J.:                                     FILED MAY 23, 2017

        Naree Abdullah appeals from the order entered May 17, 2016, in the

Philadelphia County Court of Common Pleas, denying, as untimely, his

second petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1

Abdullah seeks relief from the judgment of sentence of an aggregate term of

life imprisonment imposed on May 13, 1996, after his jury conviction of

second-degree murder, robbery (three counts) and conspiracy,2 for his

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*
    Retired Senior Judge assigned to the Superior Court.
1
   See 42 Pa.C.S. §§ 9541-9546. Although this is technically Abdullah’s third
petition, his direct appeal rights were reinstated, nunc pro tunc, as a result
of his first petition. Therefore, this is only the second petition Abdullah has
filed after his judgment of sentence became final.
2
    See 18 Pa.C.S. §§ 2502(b), 3701, and 903, respectively.
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participation in the 1993 robbery of a market in North Philadelphia that

resulted in the death of the store owner. On appeal, Abdullah contends the

PCRA court erred in dismissing his petition as untimely filed without first

conducting an evidentiary hearing on his claim of newly discovered evidence.

For the reasons below, we affirm.

       The facts underlying Abdullah’s arrest and conviction are well-known

to the parties and need not be recited herein. For our purposes, we note

Abdullah was one of five co-conspirators charged with the crimes, although

he was not the shooter.         See Commonwealth v. Abdullah, 880 A.2d 2

[1799 EDA 2004] (Pa. Super. 2005) (unpublished memorandum at 1-2),

appeal denied, 890 A.2d 1055 (Pa. 2005).         On March 13, 1996, a jury

convicted Abdullah of the above-stated charges, and he was sentenced, on

May 13, 1996, to an aggregate term of life imprisonment.

       On June 12, 2001, a panel of this Court affirmed Abdullah’s sentence

on direct appeal nunc pro tunc, and the Supreme Court subsequently denied

his petition for review.3 See Commonwealth v. Abdullah, 779 A.2d 1213

(Pa. Super. 2001) (unpublished memorandum), appeal denied, 796 A.2d

313 (Pa. 2002).




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3
  Abdullah’s initial direct appeal was dismissed based on his failure to file a
brief.   However, as noted supra, his direct appeal rights were later
reinstated, nunc pro tunc, when he sought, and was granted, PCRA relief.



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       In July of 2002, Abdullah filed a timely PCRA petition, asserting he was

entitled to a new trial on the basis of newly discovered evidence, specifically

that co-defendant, Demond Jackson, was willing to recant his trial testimony

implicating Abdullah, and two other co-defendants would corroborate his

new    testimony.       See     Abdullah,      supra,   880   A.2d   2   (unpublished

memorandum at 3). The PCRA court conducted an evidentiary hearing, but

later dismissed Abdullah’s petition.           On appeal, a panel of this Court

affirmed, refusing to interfere with the PCRA court’s credibility determination

regarding the recantation testimony. See id. (unpublished memorandum at

7-9). The Pennsylvania Supreme Court again denied Abdullah’s petition for

review. See Commonwealth v. Abdullah, 890 A.2d 1055 (Pa. 2005).

       On December 23, 2013, Abdullah filed the instant PCRA petition, pro

se, again asserting he was entitled to relief based upon newly discovered

evidence. He attached to his petition two affidavits, one from witness, Zahir

Wise, and one from non-testifying co-defendant, Gregory Womak, both of

which stated Abdullah was not involved in the robbery and shooting. 4             He

subsequently filed an amended and a supplemental request for relief on July

22, 2015, and August 24, 2015, respectively. On April 8, 2016, the PCRA

court sent Abdullah notice of its intention to dismiss his petition as untimely


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4
 We note that on appeal, Abdullah has abandoned his claim regarding
Womack’s affidavit.




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filed without first conducting an evidentiary hearing. Although Abdullah filed

a response to the court’s notice, the PCRA court ultimately dismissed the

petition on May 17, 2016.          Abdullah filed a motion for reconsideration on

June 1, 2016, followed by a timely notice of appeal on June 15, 2016.5

       The sole issue Abdullah raises on appeal challenges the PCRA court’s

dismissal of his petition without first conducting an evidentiary hearing.

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted).         Further, a PCRA court may

dismiss a petition “without an evidentiary hearing if there are no genuine

issues of material fact and the petitioner is not entitled to relief.”       Id.

(citations omitted).

       Here, the PCRA court concluded Abdullah’s petition was untimely filed.

See PCRA Court Opinion, 9/22/2016, at 7.

       The PCRA timeliness requirement … is mandatory and
       jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
       1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
       A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa.
       1, 753 A.2d 201, 203 (2000)). The court cannot ignore a
       petition’s untimeliness and reach the merits of the petition. Id.


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5
 The PCRA court did not order Abdullah to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).




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Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

134 S.Ct. 2695 (U.S. 2014).

      A PCRA petition must be filed within one year of the date the

underlying judgment becomes final.       42 Pa.C.S. § 9545(b)(1).       Abdullah’s

judgment of sentence was final on April 10, 2002, 90 days after the

Pennsylvania Supreme Court denied his petition for allowance of appeal from

his direct appeal, and he failed to petition for a writ of certiorari in the United

States Supreme Court.      See id. at § 9545(b)(3); United States Supreme

Court Rule 13. Therefore, Abdullah had until April 10, 2003, to file a timely

petition, and the one before us, filed more than 10 years later, is patently

untimely.

      Nevertheless, an untimely PCRA petition may still be considered if one

of the   three time-for-filing exceptions applies.          See 42     Pa.C.S. §

9545(b)(1)(i)-(iii).   A PCRA petition alleging any of the exceptions under

Section 9545(b)(1) must be filed within 60 days of when the PCRA claim

could have first been brought. 42 Pa.C.S. § 9545(b)(2).

      In the present case, Abdullah asserts his petition meets the timeliness

exception for newly discovered facts found in Section 9545(b)(1)(ii).         This

Court has explained the interplay between the newly discovered facts

exception to the timeliness requirements and a substantive collateral claim

of after-discovered evidence.

            The timeliness exception set forth in Section 9545(b)(1)(ii)
      requires a petitioner to demonstrate he did not know the facts

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     upon which he based his petition and could not have learned
     those facts earlier by the exercise of due diligence.
     Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,
     1271 (2007). Due diligence demands that the petitioner take
     reasonable steps to protect his own interests. Commonwealth
     v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001). A petitioner
     must explain why he could not have learned the new fact(s)
     earlier with the exercise of due diligence. Commonwealth v.
     Breakiron, 566 Pa. 323, 330–31, 781 A.2d 94, 98 (2001);
     Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.
     Super.2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011).
     This rule is strictly enforced. Id. 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. Marshall, 596 Pa. 587,
     596, 947 A.2d 714, 720 (2008) (emphasis in original).

            The timeliness exception set forth at Section 9545(b)(1)(ii)
     has often mistakenly been referred to as the “after-discovered
     evidence” exception. Bennett, supra at 393, 930 A.2d at 1270.
     “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.’” Id.
     Rather,    as   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.        See 42 Pa.C.S.A. §
     9545(b)(1)(ii); Bennett, supra.              Once jurisdiction is
     established, a PCRA petitioner can present a substantive after-
     discovered-evidence claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi)
     (explaining that to be eligible for relief under PCRA, petitioner
     must plead and prove by preponderance of evidence that
     conviction or sentence resulted from, inter alia, unavailability at
     time of trial of exculpatory evidence that has subsequently
     become available and would have changed outcome of trial if it
     had been introduced). In other words, the “new facts” exception
     at:

        [S]ubsection (b)(1)(ii) 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


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          the PCRA court has jurisdiction over the claim under this
          subsection.

       Bennett, supra at 395, 930 A.2d at 1272 (internal citations
       omitted) (emphasis in original). Thus, the “new facts” exception
       at Section 9545(b)(1)(ii) does not require any merits analysis of
       an underlying after-discovered-evidence claim. Id. at 395, 930
       A.2d at 1271.

Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015)

(some emphasis added), appeal denied, 125 A.3d 1197 (Pa. 2015).

Accordingly, before we may consider whether Abdullah’s substantive claim of

after-discovered evidence merits relief,6 we must first determine whether he

has established “there were facts unknown to him and that he exercised due

diligence in discovering those facts.” Id. at 176.

       Here, Abdullah argues the affidavit he submitted from Wise satisfies

the newly discovered facts exception to the timeliness requirements, and the

PCRA court erred in dismissing his petition without first conducting an

evidentiary hearing. In the affidavit, Wise attests Abdullah was leading an

Islamic service at the time the crime was committed, and Wise failed to

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6
    To obtain relief based upon a substantive claim of after-discovered
evidence, a petitioner must demonstrate the evidence:

       (1) could not have been obtained prior to the conclusion of the
       trial by the exercise of reasonable diligence; (2) is not merely
       corroborative or cumulative; (3) will not be used solely to
       impeach the credibility of a witness; and (4) would likely result
       in a different verdict if a new trial were granted.

Commonwealth v. Montalvo, 986 A.2d 84, 109 (Pa. 2009) (quotation
omitted), cert. denied, 562 U.S. 857 (2010).




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come forward previously because of his “hard feelings” against Abdullah.

Declaration of Zahir Wise, 9/10/2013, at 1.

       Although Wise signed the affidavit on September 10, 2013, Abdullah

maintains he did not receive the affidavit until November 8, 2013, after

which he filed his petition for relief less than 60 days later on December 17,

2013. See 42 Pa.C.S. § 9545(b)(2). He summarily states the “facts of [his]

claim were previously unknown and could not have been ascertained by the

exercise of due diligence.”        Abdullah’s Brief at 8.    Indeed, he asserts the

discovery of this evidence was “dependent on Mr. Wise coming forward.”

Id. at 9.

       Assuming Abdullah submitted the petition within the requisite 60-day

period,7 we conclude he is entitled to no relief.           The previously unknown

“fact” alleged in the affidavit is that Abdullah was leading a religious service

at the time of the crime.        Indeed, this “fact” had to have been previously

known to Abdullah. As this Court emphasized in Brown, supra, the focus of

the newly discovered facts exception “is on the newly discovered facts, not

on a newly discovered or newly willing source for previously known facts.”

Brown, supra, 111 A.3d at 176 (quotation omitted). Furthermore, as the

PCRA court states in its opinion, Abdullah “does not explain what due


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7
  Abdullah provides no proof that he did not receive the petition until
November 8, 2013.




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diligence he has undertaken to elicit the alleged ‘new information’ in the

intervening eighteen (18) years.”   PCRA Court Opinion, 9/22/2016, at 5.

      Abdullah argues he was entitled to an evidentiary hearing so that he

would have the opportunity to prove his claim. See Abdullah’s Brief at 11.

Indeed, he maintains that, after listening to Wise’s testimony, the court

“could have always chosen to disbelieve Mr. Wise.” Id. We disagree. The

burden was on Abdullah to allege and prove the application of a time-for-

filing exception.   See 42 Pa.C.S. § 9545(b)(1).     Even if we were to find

Abdullah sufficiently alleged he was unaware of Wise’s willingness to testify

on his behalf until November of 2013, we have no hesitation in concluding

Abdullah failed to demonstrate the “facts” in Wise’s affidavit – namely, that

Abdullah had an alibi for the crime – were previously unknown to Abdullah.

Accordingly, we find the PCRA court properly dismissed his petition without

first conducting an evidentiary hearing, and no relief is warranted on appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




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