J-S67020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN BURTON                               :
                                               :
                       Appellant               :   No. 3801 EDA 2017

                 Appeal from the PCRA Order October 20, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0406851-2002


BEFORE:      OTT, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                              FILED MARCH 12, 2019

        Appellant Kevin Burton appeals from the order dismissing his pro se

fourth petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. Appellant asserts that the PCRA court erred by (1) failing to find

that appointed PCRA counsel did not investigate new witnesses,1 (2) applying

an incorrect standard of review to his newly discovered fact claim, (3) failing

to hold a hearing, and (4) accepting counsel’s petition to withdraw under

Turner/Finley.2 We affirm.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   Appellant’s issues have been reordered for ease of disposition.

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S67020-18



       The PCRA court summarized the relevant factual and procedural history

of this matter as follows:

       On October 23, 2003, following a jury trial, [A]ppellant and his co-
       defendant, Carnell Chamberlain, were convicted of first[-]degree
       murder, conspiracy, possession of an instrument of crime [(PIC)]
       and firearms violations, and sentenced to life imprisonment for
       the shooting death of Curtis Cannon (Cannon).[3] Appellant timely
       filed a direct appeal complaining that the [c]ourt erred in denying
       his motions to suppress, that the verdicts were against the weight
       and sufficiency of the evidence, that the [c]ourt erred by admitting
       a juror over his challenge for cause, that the [c]ourt erred by
       refusing to give a Kloiber[4] charge, and, that the [c]ourt erred
       by denying his motion for a mistrial. On May 5, 2005, the Superior
       Court of Pennsylvania, Appeal No. 3507 EDA 2003, affirmed the
       judgment of sentence[.] Appellant’s Petition for Allowance of
       Appeal to the Supreme Court of Pennsylvania was denied on
       December 21, 2005. Appellant’s judgment of sentence became
       final on March 21, 2006.

       On June 14, 2006, [A]ppellant filed a pro se petition for PCRA relief
       claiming that trial counsel was ineffective for failing to move for
       severance; that trial counsel was ineffective for failing to
       undertake a full and adequate investigation of his case or
       otherwise prepare a proper defense strategy; that trial counsel
       was ineffective for failing to object to the prosecutor’s continued
       elicitation of testimony from an alleged eyewitness regarding her
       fear of coming forward with information, where no proper
       foundation was laid; that trial counsel was ineffective for failing to
       object to the Commonwealth’s alleged improper bolstering of its
       witness where the Commonwealth presented information that was
       not before the jury; that appellate counsel was ineffective for
       failing to raise issues of trial court error and trial counsel’s
       ineffectiveness; that the [c]ourt failed to provide a legally
       sufficient jury instruction regarding how to evaluate the act of
____________________________________________


3 18 Pa.C.S. §§ 3701, 903, 907, 6105, 6106, and 6108. Appellant was
sentenced to life in prison for murder, plus five to ten years of incarceration
for conspiracy, 3½ to 7 years of incarceration for firearms violations, and 2½
to 5 years of incarceration for PIC.

4   Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).

                                           -2-
J-S67020-18


        flight; and that he had newly discovered evidence that another
        person admitted to committing the murder.         Attached to
        [A]ppellant’s petition were sworn affidavits from alleged
        witnesses, Hasan McKinney (McKinney) and Edwin Smith (Smith).

        An evidentiary hearing was held on July 6, 2007, where McKinney
        testified, in pertinent part, that he did not see the actual shooting.
        He was present with [A]ppellant, Malik and Little Man in the 3100
        block of Custer Street.[5] Someone informed them that Cannon
        was up the block and they proceeded in that direction. On the
        way, McKinney stopped at the store and [A]ppellant and Little Man
        continued on. While inside the store, McKinney heard gunshots
        and exited the store. When he exited[,] the first person he saw
        was [A]ppellant. Appellant, Malik, Little Man and McKinney all ran.
        McKinney later asked [A]ppellant what happened. McKinney
        testified that, based on [A]ppellant’s response, McKinney assumed
        that Little Man had shot Cannon because Cannon owed him money
        for drugs. In addition, McKinney testified that, while he was
        incarcerated, he was informed that [A]ppellant’s trial was
        upcoming, but did not contact anyone with the information.
        Smith’s proffered testimony was precluded as inadmissible
        hearsay.      The [c]ourt determined that this was not after[-
        ]discovered evidence, that the testimony of Mr. McKinney was
        cumulative and that he was known to [A]ppellant at or prior to the
        time of trial. On August 17, 2007, [A]ppellant’s petition for PCRA
        relief was denied. The Superior Court affirmed on March 27,
        2009[,] and [A]ppellant’s Petition for Allowance of Appeal was
        denied on December 30, 2009.

        On November 5, 2010, [A]ppellant filed a second PCRA petition
        claiming that he was entitled to relief based upon exculpatory
        evidence that had become available, and would have changed the
        outcome of the trial if it had been introduced. Attached to this
        petition were statements from two alleged eyewitnesses, Dawud
        Simmons (Simmons) and John Croon (Croon), both of whom said
        they observed someone other than [A]ppellant shoot Cannon.
        The [c]ourt thoroughly reviewed [A]ppellant’s claims and
        determined that the petition was untimely and failed to properly
        invoke an exception to the timeliness requirement. On June 6,
        2011, a Notice pursuant to Pa.R.Crim.P. 907[,] indicating that the
        petition would be dismissed after twenty days without further
____________________________________________


5   The record does not reveal the full names of Malik and Little Man.


                                           -3-
J-S67020-18


        proceedings, was filed and served on [A]ppellant. In response to
        the Notice, on June 23, 2011, [A]ppellant submitted an
        “Amendment” to his second petition specifically invoking the
        newly discovered evidence exception to the timeliness
        requirement. Notwithstanding, on July 8, 2011, [A]ppellant’s
        second petition for PCRA relief was formally dismissed.[] Dismissal
        was affirmed by the Superior Court on July 12, 2012[.]

        On August 3, 2012, [A]ppellant filed a third petition for PCRA
        relief, again claiming newly discovered evidence. Attached to this
        petition were affidavits from an Antonio Jones, claiming he
        witnessed “Lil Man and another man,” shoot Cannon, and from an
        Edward Glen who claimed that he witnessed, “Lil Man and ‘Rell’”
        shoot Cannon. Following review, on July 17, 2015, [A]ppellant’s
        PCRA petition was formally dismissed without a hearing. On May
        3, 2016, the Superior Court affirmed the dismissal[.] The petition
        for allowance of appeal was denied on November 2, 2016.

        On December 27, 2016, [A]ppellant filed the instant petition, his
        fourth, claiming governmental interference and newly discovered
        exculpatory evidence [that he allegedly received on September 6,
        2016]. Attached to the petition were two exhibits: Exhibit A, was
        an unsigned, undated hand written letter purporting to be from a
        “Junious Diggs (Diggs)” indicating that he shot Cannon and that
        Lil Man never shot at all; an unsigned, undated typed letter
        purporting to be from an Eli Rosa, a cell mate to Diggs, who Rosa
        alleged bragged to him that he shot Cannon, indicating that Diggs
        gave him (Rosa) the letter which [Rosa] mailed to [A]ppellant’s
        mother’s address; and, a hand drawn map of the area where the
        shooting had occurred. Exhibit B was a copy of a letter dated April
        4, 2016[,] from the [c]ourt to Diggs informing Diggs that his letter
        [he had sent to the court indicating he shot Curtis Cannon] was
        forwarded to the Chief of the District Attorney’s Homicide
        Division.[6] . . . PCRA counsel was appointed and, on September
        8, 2017, counsel filed a letter pursuant to [Turner/Finley],
        detailing the nature and extent of his review, listing the issues
        [A]ppellant wished to raise, explaining [that although on first
        blush it may appear as if Appellant had presented information he
        could not have come across sooner, his] issues are meritless[.
        PCRA counsel also indicated] that he had corresponded with
        [A]ppellant and reviewed the applicable law, and it was his
____________________________________________


6   The record does not reveal how Appellant obtained this letter.


                                           -4-
J-S67020-18


     professional opinion that there were no meritorious issues that
     could be raised in an amended petition, and that [A]ppellant was
     not entitled to relief because his petition was time barred. On
     September 18, 2017, following the [c]ourt’s independent review,
     a [R]ule 907 notice of intent to dismiss was filed and served on
     [A]ppellant. Appellant filed a response to the notice averring that
     his petition did in fact overcome the PCRA time bar [and that PCRA
     counsel was ineffective in attempting to withdraw pursuant to
     Turner/Finley]. Attached to the response was an affidavit from
     a Michael Devan, an alleged alibi witness, who claimed he and
     [A]ppellant were together when they heard shots and later
     learned that Cannon was shot, and, when he learned that
     [A]ppellant had been locked up for the murder, he phoned
     [A]ppellant’s trial counsel several times, but no one ever
     contacted him.         The [c]ourt again reviewed the record,
     [A]ppellant’s filings, PCRA counsel’s [Turner/Finley] letter and
     the applicable law, and determined that [A]ppellant was not
     entitled to PCRA relief. On October 20, 2017, [A]ppellant’s
     petition was formally dismissed and PCRA counsel was permitted
     to withdraw. This appeal followed.

PCRA Ct. Op., 1/16/18, at 1-6.

     Appellant filed a timely notice of appeal that was docketed on November

13, 2017. At the same time, Appellant filed a concise statement of errors

complained of on appeal under Pa.R.A.P. 1925(b). The PCRA court filed an

opinion pursuant to Pa.R.A.P. 1925(a) on January 16, 2018.

     Appellant raises the following questions for our review:

     1. Did the PCRA court error/abuse discretion when failing to find
        that counsel failed to investigate new witnesses?

     2. Did the PCRA court error/abuse discretion when it applied the
        [42 Pa.C.S. §] 9543 standard of review, and dismiss[ed
        Appellant’s] petition without a hearing?

     3. Did the PCRA court error/abuse discretion [for failing] to hold
        a hearing to determine[] whether Junious Diggs was credible?

     4. Did the PCRA court error/abuse discretion [accepting]
        counsel’s[] no merit letter, where Appellant [had a] viable
        claim of newly discovered facts (actual innocence), when

                                    -5-
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           Appellant provided an affidavit from Junious Diggs confessing
           to the murder of Curtis Cannon?

        5. Did the PCRA court violate Appellant[’]s constitutional right to
           equal protection, and due process, when failing to find that
           counsel didn’t fully comply with requirements of Finley?[7]

Appellant’s Brief at 7-8.

        In his first issue, Appellant notes that Junious Diggs wrote a letter to

the PCRA court, in which he confessed to murdering Cannon, and that the

PCRA court forwarded the letter to the District Attorney’s office. Id. at 18.

Appellant argues that a Brady8 violation arose because the PCRA court and

the District Attorney’s office did not forward Diggs’ letter to him and that this

failure forms the basis of a governmental interference exception to the PCRA’s

timeliness requirements. Id. Appellant also argues that his PCRA counsel

failed to adequately investigate Junious Diggs, Eli Rosa, and Michael Devan to

determine whether they offered newly discovered facts that would entitle

Appellant to relief. Id. at 17-18.

        Our review of the denial of PCRA relief is limited to “whether the record

supports the PCRA court’s determination and whether the PCRA court’s

decision is free of legal error.” Commonwealth v. Lawson, 90 A.3d 1, 4

(Pa. Super. 2014) (citation omitted). “A second or subsequent request for

PCRA relief will not be entertained unless the petitioner presents a


____________________________________________


7   We have reordered Appellant’s questions presented for ease of disposition.

8   Brady v. Maryland, 373 U.S. 83 (1963).



                                           -6-
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strong prima facie showing that a miscarriage of justice may have occurred.”

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation

omitted).

      In considering an untimely PCRA, we note that “the timeliness of a PCRA

petition is a jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d

171, 175 (Pa. Super. 2015).         A PCRA petition, “including a second or

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

becomes final” unless the petitioner pleads and proves one of three statutory

exceptions. 42 Pa.C.S. § 9545(b)(1). The three statutory exceptions include

the following:

      (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. § 9545(b)(1)(i)-(iii).     To invoke one of these exceptions, a

petitioner must also file his petition within sixty days of the date the claim

could have been presented.       See 42 Pa.C.S. § 9545(b)(2) (subsequently

amended October 24, 2018, to a one-year time-frame for claims arising on or

after December 24, 2017).




                                      -7-
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       Because Appellant failed to file the instant PCRA petition within one year

after his conviction became final,9 he must satisfy one of the exceptions to the

PCRA time bar. Appellant claims that he meets the governmental interference

exception because the PCRA court and the District Attorney’s office committed

a Brady violation.

       “Although a Brady[10] violation may fall within the governmental

interference exception, the petitioner must plead and prove the failure to

previously raise the claim was the result of interference by government

officials, and the information could not have been obtained earlier with the

exercise of due diligence.”           Abu-Jamal, 941 A.2d at 1268; accord


____________________________________________


9There is no dispute that Appellant’s conviction became final in 2006 and that
Appellant’s current PCRA petition, filed on December 27, 2016, was facially
untimely.

10 In Brady, the United States Supreme Court held that “the suppression by
the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373
U.S. at 87. A defendant must demonstrate the following to establish a
Brady violation: “(1) the evidence was suppressed by the Commonwealth,
either willfully or inadvertently; (2) the evidence was favorable to the
defendant; and (3) the evidence was material, in that its omission resulted in
prejudice to the defendant.” Commonwealth v. Haskins, 60 A.3d 538, 547
(Pa. Super. 2012) (citation omitted). In proving a Brady violation, “[t]he
burden rests with the defendant to prove, by reference to the record, that
evidence was withheld or suppressed by the prosecution. The withheld
evidence must have been in the exclusive control of the prosecution at the
time of trial. Id. (internal quotation marks and citation omitted). However,
“[n]o Brady violation occurs when the defendant knew, or with reasonable
diligence, could have discovered the evidence in question. Similarly, no
violation occurs when the evidence was available to the defense from a non-
governmental source. Id. (citation omitted).

                                           -8-
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Commonwealth v. Smith, 194 A.3d 126, 133 (Pa. Super. 2018).                         In

determining whether a petitioner has acted with due diligence, we have

explained that “[d]ue diligence ‘does not require perfect vigilance and

punctilious care, but merely a showing the party has put forth reasonable

effort’     to   obtain   the   information   upon    which   a   claim   is   based.”

Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016) (citation omitted).

          In Commonwealth v. Chester, 895 A.2d 520 (Pa. 2006), the appellant

discovered that his trial counsel had been arrested for driving under the

influence (DUI) shortly after entering his appearance on behalf of the

appellant. Chester, 895 A.2d at 521. “Shortly after making this discovery,

[the a]ppellant filed his second PCRA petition, claiming, inter alia, that [his]

trial counsel’s arrest created a conflict of interest and that by failing to inform

him of [his] trial counsel's arrest and conflict of interest, the prosecution

violated Brady.” Id. The appellant attempted to invoke the governmental

interference exception to the PCRA time-bar, but our Supreme Court held that

Appellant failed to do so:

          We cannot perceive how [the a]ppellant’s failure to raise his
          claims previously was the result of interference by government
          officials with the presentation of the claims. [The a]ppellant does
          not contend, for instance, that the Commonwealth had exclusive
          control over information regarding trial counsel’s arrest and that
          the Commonwealth denied him access to this information until
          recently. . . . [T]rial counsel’s arrest was a matter of public record
          and was just as available to [the a]ppellant and his previous
          counsel as it was to [the a]ppellant and his current counsel. . . .
          For these reasons, we hold that the PCRA court properly
          determined that [the a]ppellant’s argument under the
          ‘governmental interference’ exception fails.


                                          -9-
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Id. at 524 (emphases omitted).

      In Abu-Jamal, the appellant filed an untimely PCRA petition alleging he

had evidence from two individuals that two Commonwealth witnesses had

perjured themselves at trial. Abu-Jamal, 941 A.2d at 1265. Both witnesses

alleged that the police coerced them into testifying against the appellant. Id.

at 1265-66. The appellant attempted to invoke the governmental interference

exception in Section 9545(b)(1)(i) on the theory that the Commonwealth

committed a Brady violation by failing to disclose “that it was providing false

evidence that implicated [the appellant] in the homicide.” Id. at 1266. Our

Supreme Court held that the appellant could not invoke the governmental

interference exception because the appellant had

      offer[ed] no explanation regarding why [individuals with
      knowledge of the perjury] did not come forward sooner, ha[d]
      already had the opportunity to attack [one witness’] credibility at
      trial, and fail[ed] to explain why the information concerning [the
      other witness] could not have been obtained earlier with the
      exercise of due diligence.

Id. at 1270.

      Here, we note that the PCRA court did not receive Diggs’ letter until April

1, 2016. Appellant alleges that he did not receive a letter from Diggs until

September 6, 2016, while his appeal from the dismissal of his prior PCRA

petition was pending. Appellant was unable to file the instant PCRA petition

until our Supreme Court disposed of his previous PCRA petition by denying his

petition for allowance of appeal on November 2, 2016. By filing his current

PCRA petition on December 27, 2016, Appellant filed it within sixty days of

the date it could have been filed.            See 42 Pa.C.S. § 9545(b)(2);

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Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding that when

a PCRA appeal is pending, “a subsequent PCRA petition cannot be filed until

resolution of review of the pending PCRA petition by the highest state court in

which review is sought, or upon the expiration of the time for seeking such

review”); accord Abu-Jamal, 941 A.2d at 1266-67.

      Although Appellant filed the instant PCRA petition within sixty days of

the date the appeal of his previous PCRA petition was completed, Appellant

failed to establish a time-bar exception based on a Brady claim that the

information regarding Diggs’ involvement in the murder was withheld from

him. Appellant received Diggs’ letter after Rosa sent it to Appellant’s mother,

which demonstrates that the letter was available from a non-governmental

source.   Since Appellant received the letter from Rosa via his mother, the

Commonwealth did not have exclusive control over the information.           See

Chester, 895 A.2d at 524. Thus, there was no Brady violation to form the

basis of a successful governmental interference exception claim.        See id.

Even assuming a Brady violation occurred, Appellant nevertheless received

the information and filed the instant petition within sixty days of his previous

petition’s completion.

      Moreover,    Appellant’s   allegation   that   governmental   interference

prevented him from raising the claim previously regarding Diggs’ involvement

warrants no relief, since in his current PCRA petition, Appellant merely makes

vague statements regarding the due diligence he allegedly exercised.

Appellant states, for instance, that he had a private investigator “available” to

                                     - 11 -
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him. Mem. of Law in Supp. of Pet. for Relief Pursuant to the PCRA, 12/27/16,

at 10 (unpaginated). In his appellate brief, Appellant makes bald statements

that he could not have discovered that Diggs took credit for Cannon’s murder

before he received the letter from Rosa. Appellant’s Brief at 19-20. Appellant

states that he exercised due diligence in determining who had shot Cannon by

“ask[ing] everyone that he came into contact with, that was from that area,

and also had family members put his story on Facebook and other social media

outlets. Petitioner wrote numerous lawyers, Innocence Projects, the [D]istrict

Attorney’s Office, as well as [g]overnment [o]fficials.” Id. at 15; see also

Appellant’s Resp. to Rule 907 Notice, 10/2/17, at 3 (unpaginated).

      Regarding Diggs, Appellant does not specify the actions he undertook to

determine his involvement in Cannon’s murder. Regarding Devan, the alleged

alibi witness, Appellant states in his appellate brief that he asked family and

friends about Devan’s whereabouts.       Appellant’s Brief at 21.     However,

Appellant does not explain with any further specificity what he did to find

Devan.   Additionally, Appellant asserts that Devan was in contact with his

previous attorney’s office around the time of trial, id., but Appellant does not

explain why he did not bring the claim regarding Devan for more than ten

years after his trial.   Ultimately, Appellant has not demonstrated that he

exercised due diligence in pursuing the governmental interference exception




                                     - 12 -
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to the PCRA’s timeliness requirements.             See Abu-Jamal, 941 A.2d at

1270. Accordingly, we find Appellant’s first issue to be without merit.11

       Next, Appellant asserts that the PCRA court erred by using an incorrect

standard to determine whether his petition meets the requirements of the

newly discovered fact exception to the PCRA’s timeliness requirements, which

resulted in the PCRA court dismissing his petition without a hearing.

Appellant’s Brief at 10, 25.         Appellant asserts that he meets the newly

discovered fact exception to the PCRA’s timeliness requirements because “Mr.
____________________________________________


11To the extent Appellant argues that PCRA counsel should have investigated
Diggs, Rosa, and Devan more thoroughly, he asserts the following: “PCRA
counsel [used] these witnesses[’] incarceration as a crutch. PCRA counsel
[said in his petition to withdraw as counsel] that these witnesses shouldn’t be
heard, because they are or once [were] in prison.” Appellant’s Brief at 22;
see Turner/Finley Letter, 9/8/17, at 11-12.

Indeed, PCRA counsel indicated that in addition to failing to meet one of the
timeliness exceptions, Appellant’s presentation of Diggs’ information would
not be likely to change the outcome of the trial. See Turner/Finley Letter,
9/8/17, at 11. In support of this position, counsel noted that Diggs would
likely have been perceived as telling a story to help a friend “beat the rap”
since he was “an inmate who was a cell mate of a cell mate of petitioner and
who is serving a life sentence.” Id. at 11-12 (citing Commonwealth v.
Bracero, 528 A.2d 936, 941 (Pa. 1987)). We discern no error in PCRA
counsel’s analysis.    Moreover, Appellant does not explain how further
investigation of these potential witnesses would have assisted him in meeting
the requirements of the governmental interference timeliness exception.

We also note that this issue is phrased as an ineffective assistance of counsel
(IAC) claim. Appellant raised counsel’s ineffectiveness in his response to the
PCRA court’s Rule 907 notice of intent to dismiss, in which he alleged that
“[PCRA c]ounsel never investigated any of the witness, nor any of
petitioner[’]s [n]otes [o]f [t]estimony or [d]iscovery.” Appellant’s Resp. to
Rule 907 Notice, 10/2/17, at 5 (unpaginated). However, Appellant has not
argued an IAC claim regarding this issue in his appellate brief, and
accordingly, this issue is waived. See Pa.R.A.P. 2119(a).

                                          - 13 -
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Rosa uncovered the truth. The facts, [which] Mr. Diggs confessed to Mr. Rosa[

were] all unknown until Mr. Rosa came forward[.]”         Id. at 16.   Appellant

specifically argues that the PCRA court erred by evaluating the timeliness of

his petition based upon the requirements of 42 Pa.C.S. § 9543 (describing the

substantive requirements for eligibility for relief under the PCRA) rather than

the timeliness exception in 42 Pa.C.S. § 9545(b)(ii) (indicating the

requirements for establishing the newly discovered fact exception to the

PCRA’s time-bar). See id. at 10, 25.

      The newly discovered fact timeliness exception 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 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.

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

quotation marks and citations omitted). The timeliness exception in 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 petition to allege and prove a claim of “after-discovered
      evidence.” 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. 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


                                     - 14 -
J-S67020-18


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

      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 176-77 (some internal quotation marks, some citations, and footnote

omitted).

      Here, the PCRA court analyzed Appellant’s claim under both Sections

9545 and 9543. First, the PCRA court determined that it lacked jurisdiction

under Section 9545(b)(1)(ii) since Appellant failed to demonstrate that the

information he presents is newly discovered or that he exercised due diligence

in bringing his newly discovered evidence claim. See PCRA Ct. Op., 1/16/18,

at 8-9.     Second, the PCRA court noted that even if it had jurisdiction to

consider this claim, Appellant was not entitled to relief on substantive grounds.

Id. at 9.    In so doing, the PCRA court cited to Section 9543.      Id.   In his

appellate brief, Appellant cites only to the PCRA court’s analysis regarding

Section 9543 to argue that the PCRA court applied the wrong standard. See

Appellant’s Brief at 10.    Since the PCRA court disposed of this issue on



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jurisdictional grounds as set forth in Section 9545,12 see Brown, 111 A.3d at

176-77, Appellant’s argument is without merit.

       Moreover, Appellant provides only vague statements regarding his

exercise of due diligence, as noted above. Without more specificity, we are

unable to disturb the PCRA court’s ruling that Appellant has not put forth

“reasonable effort” to determine the information he relies upon sooner. See

Cox, 146 A.3d at 230; Abu-Jamal, 941 A.2d at 1270.

       Appellant next asserts that the PCRA court erred by not holding a

hearing to determine Diggs’ credibility.           Appellant’s Brief at 14.   Appellant

contends that the court should have held a hearing because he met the

requirements of the newly discovered fact exception to the PCRA time-bar.

Specifically, Appellant argues that he exercised due diligence in determining

who had shot Cannon. Id. at 15. Appellant further asserts that “[t]he PCRA

[court] should have [given] Mr. Diggs an opportunity to proclaim his

wrongdoings, so that the proper assessment could be made on his character,

demeanor, and credibility . . . [n]o matter how long it took. Id. at 16 (citing

Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super. 2014)).

       Appellant asserts that he is entitled to an evidentiary hearing regarding

the merits of his claim. We note that in instances where a PCRA “petition is
____________________________________________


12  We note that the PCRA court should not have addressed Section 9543, since
it found Appellant’s petition to be untimely and therefore lacked jurisdiction to
consider the merits of the petition. See Brown, 111 A.3d at 178 (“Absent
proper jurisdiction, the PCRA court lacked authority to address the substantive
merits of Appellant’s after-discovered-evidence claim.[]”).


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J-S67020-18



determined to be untimely, and no exception has been pled and proven, the

petition must be dismissed without a hearing [on the merits] because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition.” Commonwealth v. Lambert, 57 A.3d 645, 648 (Pa. Super. 2012)

(citation omitted).

      As we have already noted, Appellant has failed to demonstrate that he

exercised due diligence. Accordingly, Appellant failed to plead and prove a

timeliness exception to the PCRA time-bar, and the PCRA court could not hold

a hearing to consider the merits of the petition because it did not have

jurisdiction to do so. See id. Accordingly, we discern no error in the PCRA

court dismissing Appellant’s instant PCRA petition without holding a hearing

to determine Diggs’ credibility.

      Appellant’s final two issues challenge the PCRA court’s acceptance of

counsel’s request to withdraw under Turner/Finley. Appellant asserts that

“PCRA counsel acknowledged in his Turner/Finley [l]etter that [Appellant’s]

petition was timely filed[.]” Appellant’s Brief at 11. Appellant contends that

PCRA counsel used the requirements of Section 9543 rather than Section 9545

to assess his PCRA petition. Id. at 12. On this basis, Appellant asserts that

PCRA counsel failed to properly list all issues with arguable merit and

adequately explain why they are without merit. Id. at 13.

      We note that Appellant has preserved his claim that PCRA counsel’s

Turner/Finley letter was inadequate in his response to the PCRA court’s Rule

907 notice. To withdraw from representation at the PCRA court level,

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J-S67020-18



      counsel must review the case zealously. Turner/Finley counsel
      must then submit a “no-merit” letter to the trial court . . . detailing
      the nature and extent of counsel’s diligent review of the case,
      listing the issues which the petitioner wants to have reviewed,
      explaining why and how those issues lack merit, and requesting
      permission to withdraw.

      Counsel must also send to the petitioner: (1) a copy of the “no-
      merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
      and (3) a statement advising petitioner of the right to proceed pro
      se or by new counsel.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citations

omitted).

      Instantly, PCRA counsel substantially complied with the requirements of

withdrawing under Turner/Finley. PCRA counsel filed a motion to withdraw

as counsel and sent Appellant (1) a copy of his “no-merit” letter detailing PCRA

counsel’s review of the matter and reasoning for determining the issues

Appellant wishes to raise lack merit, (2) a copy of the motion to withdraw,

and (3) a statement advising Appellant of his right to proceed pro se or with

private counsel. See Mot. to Withdraw as Counsel, 9/8/17; see Wrecks, 931

A.2d at 721.

      Regarding Appellant’s argument that PCRA counsel acknowledged that

Appellant filed a timely PCRA petition, we note that PCRA counsel referred to

the fact that Appellant had filed the instant petition within sixty days of the

Pennsylvania Supreme Court’s order denying his petition for allowance of

appeal in his previous PCRA petition. See Turner/Finley Letter, 9/8/17, at

8. Accordingly, PCRA counsel noted that Appellant had met the requirement

to file his instant PCRA petition within sixty days of when the claim could have

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J-S67020-18



been filed. See 42 Pa.C.S. § 9545(b)(2); Lark, 746 A.2d at 588. However,

PCRA counsel did not, and in fact, could not, opine that Appellant met the

requirements of the newly discovered fact exception to the PCRA time-bar

since there was no viable basis to do so, as discussed herein.          See

Turner/Finley Letter, 9/8/17, at 8. Accordingly, this portion of Appellant’s

argument is without merit.

     As to Appellant’s argument that PCRA counsel used the incorrect

standard under Section 9543 to evaluate his newly discovered evidence claim,

we note that PCRA counsel referenced the standard in Section 9543 and noted

that it may appear that “[u]ntil Diggs admitted that he participated in the

incident, there arguably was no way for petitioner to discover that

information.” Id. However, counsel also analyzed Appellant’s claims under

Section 9545.   PCRA counsel concluded that Appellant could not meet the

newly discovered fact exception under Section 9545(b)(1)(ii) because

Appellant previously admitted to being at the murder scene. See id. at 9.

Therefore, Appellant would have been able to present any facts that arose at

the scene to the PCRA court in a timely fashion.   See id.   Because PCRA

counsel analyzed Appellant’s claim based on the correct standard in Section

9545 in addition to comments related to the standard in Section 9543, any

incorrect analysis based upon Section 9543 did not prevent the PCRA court

from properly permitting counsel to withdraw under Turner/Finley.

     Order affirmed.




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J-S67020-18



     Judge Ott joins the memorandum.

     Judge Strassburger concurs in the result.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/19




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