J-S47027-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

DONALD CAPERS,

                            Appellant                      No. 3015 EDA 2013


                  Appeal from the PCRA Order October 4, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0080718-1997

BEFORE: MUNDY, OLSON AND WECHT, JJ.

MEMORANDUM BY OLSON, J.:                       FILED AUGUST 12, 2014

        Appellant, Donald Capers, appeals pro se from the order entered on

October 4, 2013, dismissing his third petition filed under the Post-Conviction

                                               -9546. We affirm.

        The   United   States    District   Court   for   the   Eastern   District   of

Pennsylvania summarized the factual and procedural history of this case as

follows:

        On September 23, 1998, a jury convicted [Appellant] of second-
        degree murder[1], robbery[2], and possessing instruments of a
        crime[3]. The [] trial court then sentenced [Appellant] to [an
        aggregate term of] life imprisonment . . . . The charges arose



1
    18 Pa.C.S.A. § 2502(b).
2
    18 Pa.C.S.A. § 3701.
3
    18 Pa.C.S.A. § 907.
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     from the robbery of a store and the murder of its owner, James


     After having his appellate rights reinstated nunc pro tunc,
     [Appellant] appealed to [this Court] in April 2001. On April 23,

     finding his claims were waived because his counsel failed to file a
     [s]tatement of [m]atters [c]omplained of on [a]ppeal as required
     by Pennsylvania Rule of Appellate Procedure 1925(b). [See
     Commonwealth v. Capers, 803 A.2d 788 (Pa. Super. 2002)
     (unpublished memorandum). Appellant] did not seek review of
     this decision from [our] Supreme Court.

     On February 18, 2003, [Appellant] filed a pro se petition under
     [the PCRA]. Appointed counsel filed amended and supplemental

     ineffective for failing to present three alibi witnesses at trial; (2)


     (3) newly-discovered evidence based on an affidavit from a
                                                           which
     he recanted his trial testimony.


     without a hearing, finding: (1) [Appellant] waived his
     ineffectiveness claims by stating during an on-the-record
     colloquy that he was satisfied with his
     and he did not want to call any witnesses at trial, and (2)


     contradictory, was rejected by the jury.      [This Court] affirmed


     appeal on August 30, 2006. [See Commonwealth v. Capers,
     897 A.2d 515 (Pa. Super. 2006) (unpublished memorandum),
     appeal denied, 906 A.2d 538 (Pa. 2006).]

     [Appellant] filed a second PCRA petition on January 17, 2007.
     On December 24, 2009, the PCRA court denied the petition as
     untimely.     While his appeal to [this Court] was pending,
     [Appellant] filed an application for remand [] to the trial court for
     review of newly discovered evidence based on an affidavit from

     someone other than [Appellant] murdered Hurt.

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     On November 30, 2010, [this Court] affirmed the denial of


     file a new PCRA petition raising the issues in his application.
     [Commonwealth v. Capers, 22 A.3d 1082 (Pa. Super. 2010)
     (unpublished memorandum), appeal denied, 23 A.3d 1054 (Pa.
     2011).]

     On June 30, 2011, [Appellant] filed a third PCRA petition,

     affidavit and actual innocence. [On September 29, 2011, the
     PCRA court f
     PCRA petition. See Pa.R.Crim.P. 907(1).]


     PCRA court he filed a petition for federal habeas corpus relief on
     August 14, 2012. In his petition Appellant claimed] (1)
     ineffective assistance of counsel for failing to call three alibi
     witnesses: Erica Little, Tanya Capers, and Rashan Berry; (2) his
     due process rights were violated when the PCRA court failed to
     conduct an evidentiary hearing regardi
     recanting his prior testimony; and (3) ineffective assistance of
     trial, appellate, and PCRA counsel for failing to investigate and
     interview Bonaparte when he gave a statement to the police in
     December 1995 identifying someone other than [Appellant] as

     hearing on the merits of his claims.

Capers v. Walsh, 2012 WL 5389513, *1-2, (E.D. Pa. Oct. 5, 2012),

adopted, 2012 WL 5395797 (E.D. Pa. Nov. 5, 2012).

     On January 22, 2013

denied with prejudice and no certificate of appealability issued.         See




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J-S47027-14


Capers, 2012 WL 5395797.4

petition as untimely on October 4, 2013. This timely appeal followed.5

      Appellant raises one issue on appeal:

      1. Whether the PCRA court erred and/or abused its discretion by

      failing to meet one of the three exceptions of 42 [Pa.]C.S.A.
      § 9545(b)(1).




the underlying petition. Thus, we must first determine whether the instant

                                   Commonwealth v. Smith, 35 A.3d 766,

768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).            The



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

(citation omitted).   Thus, we shall concentrate our attention on whether

Appellant timely filed his PCRA petition and, if not, whether he has raised a



                                                              f the date the




4

request for a certificate of appealability.   Capers v. Walsh, 13-2069 (3d
Cir. Nov. 19, 2013).
5
   The PCRA court did not order Appellant to file a concise statement of
errors complained of on appeal in this matter pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b). However, the PCRA court issued an opinion

4, 2013.
                                     -4-
J-S47027-14


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



from our Supreme Court, his judgment of sentence became final on May 23,

                                                         on June 30, 2011.

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 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)(i-iii).   If an exception applies, a PCRA petition




     Here, Appellant avers that the claims in his petition may be considered

because he satisfied the after-discovered evidence exception.      Appellant


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J-S47027-14

                                                                              -

discovered evidence because, in the affidavit, Bonaparte alleges that an



Appellant. Appellant further claims that the affidavit proves that Daughtry

was lying to police when he gave them a statement incriminating Appellant

as the shooter.    Appellant contends that he exercised due diligence in

obtaining this after-discovered evidence and that he filed the instant petition

within 60 days of June 21, 2011, the date our Supreme Court denied further

                                RA petition.

      Appellant, however, knew these facts at least seven years prior to

raising them in his third PCRA petition on June 30, 2011.         Exhibit B to



first petition) dated August 22, 2004. In that letter, Appellant makes clear

that, at least as early as August 22, 2004, he was aware of a witness named

Bonaparte who possessed potentially exculpatory evidence. The letter also

states that Appellant believed Daughtry provided false testimony to police.

See



                                           Daughtry. Appellant asked counsel

to amend his first petition to include this information in order to state an

after-discovered evidence claim.




                                     -6-
J-S47027-14

      As Appellant knew this information seven years prior to his 2011 PCRA

petition, he has failed to plead and prove that he filed his petition within 60

days of the date he could have made his claim.

was untimely, and he has failed to plead and prove an exception to the



entertain his third PCRA petition. Thus, the PCRA court properly dismissed



      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/12/2014




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