J-S28036-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                 Appellee              :
                                       :
         v.                            :
                                       :
CHRISTOPHER DOTY,                      :
                                       :
                 Appellant             :    No. 1626 WDA 2016

                 Appeal from the PCRA Order October 17, 2016
                  in the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001370-2008

BEFORE: OLSON, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED JULY 11, 2017

      Christopher Doty (Appellant) appeals from the order entered on

October 17, 2016, which denied his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      A prior panel of this Court offered the following relevant factual and

procedural history of this matter.

             [Appellant] was charged in connection with the April 24,
      2008 assault of Kyle Miles, which left Miles with chronic,
      debilitating injuries.  On January 20, 2009, a jury found
      [Appellant] and two co-defendants guilty of conspiracy and
      aggravated assault. Thereafter, on March 19, 2009, [Appellant]
      failed to appear at a sentencing hearing.         The trial court
      sentenced [Appellant], in absentia, to an aggregate term of 115
      months’ to 232 months’ incarceration. The trial court also
      imposed fees and costs, and further ordered [Appellant] to pay
      $1,500,000 in restitution. While [Appellant] remained at-large,
      his direct appellate counsel filed a timely notice of appeal on
      April 1, 2009, and, thereafter filed a timely statement of errors
      complained of on appeal pursuant to Pa.R.A.P. 1925(b). Law



* Retired Senior Judge assigned to the Superior Court.
J-S28036-17


     enforcement officials eventually apprehended [Appellant] outside
     the Commonwealth.

           On June 9, 2010, a panel of this Court quashed
     [Appellant’s] direct appeal on the basis that he was a fugitive
     during the thirty-day period in which he was permitted to file a
     notice of appeal from his judgment of sentence. See
     [Commonwealth v. Doty, 997 A.2d 1184 (Pa. Super. 2010)
     (Doty I)].

            On March 10, 2011, [Appellant] filed his first pro se PCRA
     petition. Counsel was appointed, who then filed an amended
     PCRA petition. On August 3, 2011, the trial court dismissed
     [Appellant’s] first PCRA petition as untimely.[1] Upon reviewing

1
   The PCRA sets forth the following time requirements for filing a PCRA
petition.

     (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:

                 (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


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     [Appellant’s] first PCRA petition, a panel of this Court concluded
     that, although the PCRA court erred in deeming [Appellant’s]
     first PCRA petition untimely, [Appellant] was still not eligible for
     relief. See [Commonwealth v Doty, 48 A.3d 451 (Pa. Super.
     2012) (Doty II)]. Accordingly, on July 2, 2012, this Court
     affirmed the PCRA court’s dismissal of [Appellant’s] first PCRA
     petition.

            On August 6, 2012, [Appellant] filed [his second] PCRA
     petition. Therein, [Appellant] alleged the discovery of new,
     exculpatory facts in the form of an affidavit from a witness,
     Shawn Williams.      In relevant part, [Appellant] asserts that
     Williams’ testimony impeaches the identity of one of the
     Commonwealth’s witnesses at trial. [Appellant] also alleges that
     the Commonwealth committed a Brady[v. Maryland, 373 U.S.
     83 (1963)] violation, because the Commonwealth was aware of
     Williams’ testimony and should have turned it over to the
     defense. [Appellant] also argues that he was never advised [of
     or] aware of the disadvantages of knowingly or intelligently
     waiving his [appellate rights].

            On September 28, 2012, the PCRA court ordered the
     Commonwealth to file a response to [Appellant’s] second PCRA
     petition…. On May 30, 2013, the PCRA court dismissed
     [Appellant’s] second PCRA petition.

Commonwealth v. Doty, 97 A.3d 814 (Pa. Super. 2014) (unpublished

memorandum at 1-2) (Doty III) (some internal citations, quotation marks,

and footnotes omitted).

     Appellant filed a notice of appeal to this Court, and on appeal we

concluded that his August 6, 2012 petition was untimely filed, and he failed

                 and has been held by that court to apply
                 retroactively.

           (2) Any petition invoking an exception provided in
           paragraph (1) shall be filed within 60 days of the date the
           claim could have been presented.

42 Pa.C.S. § 9545.


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to prove an exception to a timeliness requirement of the PCRA pursuant to

42 Pa.C.S. § 9545(b)(1). Thus, we affirmed the dismissal of that petition.

See Doty III.

      On September 9, 2016, Appellant filed the PCRA petition at issue in

this case. In that petition, Appellant acknowledged the facial untimeliness of

the   petition,   but   asserted   it   was   timely   pursuant   to   42   Pa.C.S.

§ 9545(b)(1)(ii), which provides that “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.” In his petition, Appellant also

asserted that he learned the information that formed the basis of the

petition on July 7, 2016.2

      The PCRA court reviewed the petition, and concluded that Appellant

“failed to plead or prove application of this exception.” Pa.R.Crim.P. 907

Notice, 9/16/2016.      Thus, the PCRA court issued a notice of its intent to

dismiss the petition without a hearing. Appellant responded, and on October

17, 2016, the PCRA court dismissed Appellant’s petition.

      On October 24, 2016, Appellant filed a timely notice of appeal.          The

PCRA court ordered Appellant to file a statement pursuant to Pa.R.A.P.

1925(b).   Appellant filed a statement, where he averred for the first time

that “on July 7, 2016, [another inmate] advised [Appellant] how to regain


2
  While the petition sets forth the PCRA statute and the fact that he has filed
his petition within 60 days from learning newly-discovered facts, he does not
actually assert what these newly-discovered facts are.


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his appellate rights and instructed him to file a PCRA petition for

reinstatement of the right to file a direct appeal nunc pro tunc.” Pa.R.A.P.

1925(b) Statement, 11/15/2016, at ¶ 3. On November 16, 2016, the PCRA

court filed an opinion relying on the rationale set forth in its Pa.R.Crim.P.

907 notice.

      Before we reach the arguments Appellant sets forth on appeal, we

bear in mind that our standard of review of an order dismissing a PCRA

petition is limited to examining whether the PCRA court’s rulings are

supported     by   the   evidence   of    record   and   free   of   legal   error.

Commonwealth v. Brandon, 51 A.3d 231, 233 (Pa. Super. 2012). Under

the PCRA, all petitions must be filed within one year of the date that the

petitioner’s judgment of sentence became final, unless one of three statutory

exceptions applies. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Chester,

895 A.2d 520, 522 (Pa. 2006).        For purposes of the PCRA, a judgment

becomes final at the conclusion of direct review. 42 Pa.C.S. § 9545(b)(3).

      “The PCRA’s time restrictions are jurisdictional in nature.”      Chester,

895 A.2d at 522. “Thus, ‘[i]f a PCRA petition is untimely, neither this Court

nor the trial court has jurisdiction over the petition. Without jurisdiction, we

simply do not have the legal authority to address the substantive claims.’”

Id. (quoting Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa. 2005)).

“The question of whether a petition is timely raises a question of law. Where

the petitioner raises questions of law, our standard of review is de novo and



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our scope of review plenary.” Commonwealth v. Brown, 141 A.3d 491,

499 (Pa. Super. 2016).

      Appellant acknowledges the facial untimeliness of his petition, but

argues that he has proven the newly-discovered facts exception pursuant to

42 Pa.C.S. § 9545(b)(1)(ii).    However, Appellant’s newly-discovered facts

were pled for the first time in his Pa.R.A.P. 1925(b) statement, rather than

in his PCRA petition.     The PCRA requires specifically that the “petition

allege[] … the facts upon which the claim is predicated.” 42 Pa.C.S.

§ 9545(b)(1)(ii) (emphasis added).            Moreover, it is well-settled that

“inclusion of the issue in his Pa.R.A.P. 1925(b) statement will not save it

from being waived because Appellant failed to raise it in the court below, as

required by Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived    and    cannot   be   raised   for    the   first   time   on   appeal.”).”

Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008). Based

on the foregoing, Appellant has neither pled properly nor preserved the basis

upon which he relies to satisfy the newly-discovered facts timeliness

exception.

      Additionally, even if Appellant did not waive the issue, he would not be

entitled to relief.

      The newly-discovered facts exception

             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


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              diligence. If the petitioner alleges and proves these two
              components, then the PCRA court has jurisdiction over the
              claim under this subsection.

Brown, 141 A.3d at 500 (quoting Commonwealth v. Bennett, 930 A.2d

1264, 1272 (Pa. 2007) (internal quotation marks and citations omitted;

emphasis removed)). Appellant’s purported newly-discovered fact is that he

received legal advice from another inmate.         Such an assertion does not

satisfy the aforementioned requirements, as it is not evident that this

information “could not have been ascertained by the exercise of due

diligence.” Id.    Moreover, it is still not clear what type of legal advice

Appellant received, and “[o]ur Courts have expressly rejected the notion

that   judicial   decisions   can   be    considered   newly-discovered   facts.”

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013).              Thus,

even if it had been properly pled, Appellant would not be able to

demonstrate that legal advice he received from another inmate would have

entitled him to relief.

       Thus, we conclude that the PCRA court’s dismissal of Appellant’s PCRA

petition was proper and, accordingly, we affirm the PCRA court’s October 17,

2016 order.

       Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2017




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