J-S67044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARCUS ALLEN MCCAIN,

                            Appellant                No. 1180 MDA 2015


                   Appeal from the PCRA Order June 30, 2015
               in the Court of Common Pleas of Lancaster County
               Criminal Division at Nos.: CP-36-CR-0004953-2009
                            CP-36-CR-0005774-2008


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED JANUARY 06, 2016

        Appellant, Marcus Allen McCain, appeals from the order dismissing his

third petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        A previous panel of this Court summarized the factual and procedural

history of this case as follows:

             [Appellant] entered a negotiated guilty plea on March 15,
        2011 to recklessly endangering another person, simple assault,
        persons not to possess firearm, delivery of controlled substance,
        and criminal conspiracy.[1]    Pursuant to the terms of the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The negotiated plea agreement addressed charges stemming from two
criminal docket numbers. (See McCain, infra at *1 n.1). Relevant to the
instant matter are the recklessly endangering another person, simple
(Footnote Continued Next Page)
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      negotiated plea, the trial court sentenced [Appellant] to seven-
      to-fourteen-years[’] imprisonment.

           [Appellant] filed a [m]otion to [m]odify his sentence on
      March 24, 2011, which the trial court denied on March 28, 2011.
      [Appellant] did not file an appeal and his appeal period expired
      on April 27, 2011.

            On May 11, 2011, [Appellant] filed a pro se petition for
      PCRA relief. The PCRA court appointed counsel, who filed a “No-
      Merit Letter” and a motion to withdraw as counsel. On October
      26, 2011, the PCRA court issued a notice of intent to dismiss the
      PCRA petition without an evidentiary hearing and, on November
      29, 2011, the PCRA court dismissed the petition. [Appellant] did
      not appeal.

             On November 13, 2012, [Appellant] filed a second PCRA
      petition alleging his guilty plea to persons not to possess
      firearms is “null and void” for lack of subject matter jurisdiction.
      On November 27, 2012, the PCRA court issued a notice of its
      intent to dismiss the PCRA petition as untimely, and [Appellant]
      filed objections. On March 13, 2013, the PCRA court issued an
      order dismissing [Appellant’s] second PCRA petition as untimely.
      ...

(Commonwealth v. McCain, No. 593 MDA 2013 at *1-2, unpublished

memorandum (Pa. Super. filed March 25, 2014)) (footnotes omitted). This

Court affirmed the PCRA court’s order on March 25, 2014.

      On August 6, 2014, Appellant, acting pro se, filed the instant, third

PCRA petition, in which he claimed that on July 22, 2014, he received a

statement from Lethan Williams indicating that he witnessed the shooting
                       _______________________
(Footnote Continued)

assault, and firearm charges, which arose from an August 29, 2009 incident
during which Appellant shot at the victim multiple times, causing injury to
his face and forehead. (See N.T. Guilty Plea, 3/15/11, at 12-13; N.T. PCRA
Hearing, 3/31/15, at 45, 52, 54-55).        Two witnesses and the victim
identified Appellant as the shooter. (See N.T. PCRA Hearing, at 54-55).



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and that Appellant was not the shooter. (See PCRA Petition, 8/06/14, at 3).

Appointed counsel filed an amended petition on December 23, 2014,

averring that, in addition to the statement from Williams, “[on] November

12,   2014    [Appellant]     received     an   [a]ffidavit   from   Michael   Mahler.”

(Amended PCRA Petition, 12/23/14, at 3 ¶ 19; see id. at ¶ 18). Attached as

Exhibit B to the petition is the affidavit prepared by Mahler consisting of a

single sentence stating that he was present on the night of the shooting and

that the gunman “was not [Appellant] because I saw the person who fired

the shots.” (Id. at Exhibit B). The PCRA court held a hearing on the matter

on March 31, 2015,2 and entered its order and opinion dismissing the

petition as untimely on June 30, 2015. This timely appeal followed.3

       Appellant raises the following issue for our review: “Whether the

[PCRA] court erred in denying [Appellant’s] amended PCRA when the

testimony of Michael Mahler constituted exculpatory evidence justifying the

award of a new trial under 42 Pa.C.S.A. § 9543(a)(2)(vi)[?]”              (Appellant’s

Brief, at 4) (most capitalization omitted).



____________________________________________


2
  Mahler testified at the hearing. (See N.T. PCRA Hearing, at 7-32).
Williams refused to cooperate with an investigator or accept the subpoena,
and he failed to appear. (See id. at 2, 6, 47-48).
3
  Pursuant to the PCRA court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on July 15, 2015.           See
Pa.R.A.P. 1925(b). The PCRA court filed an opinion on July 27, 2015, in
which it relied on its opinion entered June 30, 2015. See Pa.R.A.P. 1925(a).



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            We begin by noting our well-settled standard of review. 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. The scope of review is limited to the findings of
      the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the trial level. It is
      well-settled that a PCRA court’s credibility determinations are
      binding upon an appellate court so long as they are supported by
      the record. However, this Court reviews the PCRA court’s legal
      conclusions de novo.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

and quotation marks omitted).

      “[W]e must first consider the timeliness of Appellant’s PCRA petition

because it implicates the jurisdiction of this Court and the PCRA court.” Id.

(citation omitted).

            The timeliness of a PCRA petition is a jurisdictional
      requisite. Jurisdictional time limits go to a court’s right or
      competency to adjudicate a controversy.         A PCRA petition,
      including a second or subsequent petition, must be filed within
      one year of the date the underlying judgment becomes final. 42
      Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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 review. 42
      Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super. 2011) (case

citations, quotation marks, and footnote omitted).

      In this case, Appellant’s judgment of sentence became final on April

27, 2011, when his time to file a direct appeal with this Court expired. See

Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had one year

from that date, until April 27, 2012, to file a petition for collateral relief.

See 42 Pa.C.S.A. § 9545(b)(1). Because Appellant filed the instant petition


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on August 6, 2014, it is untimely on its face, and the PCRA court lacked

jurisdiction to review it unless he pleaded and proved one of the statutory

exceptions to the time-bar. See id. at § 9545(b)(1)(i)-(iii).

      Section 9545 of the PCRA provides only three very limited exceptions

to excuse the late filing of a petition:

            (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.

Id.; see also Robinson, supra at 479-80. A PCRA petition invoking one of

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

claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

      Here, Appellant argues the applicability of the “new facts” timeliness

exception set forth in Section 9545(b)(1)(ii), based upon receipt of Mahler’s

affidavit on November 12, 2014.        (See Appellant’s Brief, at 8-9, 14-15).

Appellant claims that, although he may have had conversations with Mahler

outside of the sixty-day period provided by the PCRA indicating that Mahler

had exculpatory evidence, he was not aware of the specifics of Mahler’s

testimony until he received the affidavit.    (See id.).   He further contends


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that, because he filed the amended PCRA petition containing his claim

relating to Mahler on December 23, 2014, he met the PCRA’s sixty-day

requirement. (See id. at 14). We disagree.

            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
     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, 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 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


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            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.

Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015) (case

citations, footnote, emphasis, and most quotation marks omitted).         The

PCRA’s sixty-day time period begins to run from the moment the petitioner

discovers the fact upon which the claim is predicated. See Commonwealth

v. Wilson, 824 A.2d 331, 336 n.9 (Pa. Super. 2003), appeal denied, 839

A.2d 352 (Pa. 2003); see also 42 Pa.C.S.A. § 9545(b)(2).

      Here, at the PCRA hearing, Mahler testified that he first became

acquainted with Appellant in late 2013 in the prison law library, and that

they discussed Appellant’s case on six occasions. (See N.T. PCRA Hearing,

at 9-13). He testified that, during their second or third conversation in late

2013 or very early 2014, he advised Appellant that he witnessed the

shooting and that he knew Appellant was not the shooter. (See id. at 13-

18, 20, 29-30).    Mahler conceded that he waited approximately eleven

months before preparing the affidavit stating Appellant was not the shooter.

(See id. at 18).

      Appellant testified that he was unsure of exactly when he learned of

Mahler’s eyewitness account, but that “[i]t was probably somewhere around

March, April [2014].” (Id. at 40; see id. at 39). Appellant acknowledged

that, when he initially became aware of this information, he did not contact



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prison officials, police, legal aid, or a lawyer to advise that Mahler was an

eyewitness to the shooting and would state that Appellant was not the

gunman. (See id. at 40-43). Despite Appellant’s discussions with Mahler,

his pro se PCRA petition, filed on August 6, 2014, made no mention

whatsoever of Mahler. (See PCRA Petition, 8/06/14, at 1-9). Appellant first

raised the issue regarding Mahler in his amended PCRA petition, filed on

December 23, 2014.       (See Amended PCRA Petition, 12/23/14, at 3 ¶ 19,

Exhibit B).

      Based on this record, we agree with the PCRA court that Appellant filed

his claim predicated on Mahler’s information well beyond sixty days of the

date that he could have presented it, and that he failed to “take reasonable

steps to protect his own interests.”       Brown, supra at 176; See 42

Pa.C.S.A. § 9545(b)(2); (see also PCRA Court Opinion, 6/30/15, at 7).

Appellant’s own testimony makes clear that he was aware of Mahler’s

eyewitness account in March or April of 2014, at least eight months before

he raised the claim in the PCRA court. Therefore, we conclude that the PCRA

court properly dismissed the petition based on its determination that it was

untimely.     See Miller, supra at 992. Accordingly, we affirm the order of

the PCRA court.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2016




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