J-S08014-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                    Appellee              :
                                          :
            v.                            :
                                          :
EMMIT GILES,                              :
                                          :
                    Appellant             : No. 1498 EDA 2014

                    Appeal from the PCRA Order July 24, 2012,
                   Court of Common Pleas, Philadelphia County,
                 Criminal Division at No. CP-51-CR-0833361-1989

BEFORE: DONOHUE, WECHT and JENKINS, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED MARCH 19, 2015

      Emmit Giles (“Giles”) appeals the July 24, 2012 order entered by the

Philadelphia County Court of Common Pleas, Criminal Division, dismissing

his third petition filed pursuant to the Post-Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-46, as untimely. We affirm.

      The trial court summarized the relevant facts and procedural history of

this case as follows:

            Following a bench trial, [Giles] was found guilty of
            first-degree murder and sentenced to a term of life
            imprisonment on May 8, 1991 by the Honorable
            Judge Michael Stiles.     [Giles] appealed to the
            Superior Court. On May 27, 1992, the Superior
            Court affirmed the judgment of sentence.        The
            Supreme Court denied allocatur on March 31, 1993.

            Following an unsuccessful petition for federal habeas
            corpus relief, [Giles] filed his first PCRA petition on
            January 3, 1996. Relief was denied on February 16,
            2000, and the Superior Court affirmed the denial on
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            December 7, 2000.        The Supreme Court denied
            allocator on June 5, 2001. On December 10, 2002,
            [Giles] filed his second PCRA petition. This petition
            was dismissed as untimely on October 20, 2003. No
            further appeal was filed.

PCRA Court Memorandum and Order, 7/24/12, at 1-2 (footnote omitted).

      On March 13, 2012, Giles filed his third PCRA petition wherein he

attempted to plead the newly discovered evidence exception to the PCRA’s

timeliness requirements, averring that the police provided false testimony at

his trial and that police hid exculpatory evidence from the trial court. PCRA

Petition, 3/15/12, at 3. On May 31, 2012, the PCRA court filed a notice of

intent to dismiss Giles’ PCRA petition pursuant to Rule 907 of the

Pennsylvania Rules of Criminal Procedure. On June 27, 2012, Giles filed a

response objecting to the PCRA court’s dismissal notice. On July 24, 2012,

the PCRA court dismissed Giles’ PCRA petition as untimely, finding that he

had failed to successfully plead and prove the newly discovered evidence

exception to the PCRA’s timeliness requirements.

      On July 29, 2013, Giles filed his fourth PCRA petition wherein he

alleged that the Philadelphia County Clerk of Courts failed to transmit to this

Court his notice of appeal from the July 24, 2012 order dismissing his third

PCRA petition. On April 9, 2014, the PCRA court granted Giles’ fourth PCRA

petition, reinstating his right to appeal the July 24, 2012 order dismissing his




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third PCRA petition nunc pro tunc.     On May 7, 2014, Giles filed a timely

notice of appeal.1

      “Pennsylvania law makes clear no court has jurisdiction to hear an

untimely PCRA petition.”    Commonwealth v. Monaco, 996 A.2d 1076,

1079 (Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 A.2d

1157, 1161 (Pa. 2003)). A petitioner must file a PCRA petition within one

year of the date on which the petitioner’s judgment became final, unless one

of the three statutory exceptions apply:

            (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). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).     If a petition is untimely, and the

petitioner has not pled and proven any exception, “‘neither this Court nor



1
   We note that Giles has filed a counseled brief with our Court for this
appeal.


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the trial court has jurisdiction over the petition.   Without jurisdiction, we

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

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      Here, Giles’ third PCRA petition is facially untimely and he does not

contest this determination.     Accordingly, we are without jurisdiction to

decide Giles’ appeal unless he pled and proved one of the three timeliness

exceptions of section 9545(b)(1). See Derrickson, 923 A.2d at 468. Here,

Giles attempted to plead the newly discovered evidence exception of section

9545(b)(1)(ii), averring the police provided false testimony at his trial and

also that police hid exculpatory evidence from the trial court. PCRA Petition,

3/15/12, at 3. However, in his appellate brief, rather than making any

argument that he successfully pled and proved the timeliness exception of

section 9545(b)(1)(ii), Giles argues the following issues:

             I.     Did the trial court err in denying [Giles] an
             evidentiary hearing when he alleged a material issue
             of fact?

             II.    Did the trial court err in not appointing the
             [sic] PCRA Counsel for [Giles] in PCRA proceedings in
             the trial court because the defendant was indigent
             and entitled to appointment of counsel in PCRA
             proceedings?

Giles’ Brief at 2.

      “No question will be considered unless it is stated in the statement of

questions involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a). As a



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result, Giles has waived his newly discovered evidence claim.        Waiver is

further supported by the fact that Giles included no argument on the issue in

his appellate brief. See Giles Brief at 6-7. “Where an appellate brief fails to

provide any discussion of a claim with citation to relevant authority or fails

to develop the issue in any other meaningful fashion capable of review, that

claim is waived.”     Commonwealth v. Johnson, 985 A.2d 915, 924

(Pa. 2009)); see also Pa.R.A.P. 2119(a)-(b).          Accordingly, Brown has

waived the issue on appeal.

      Moreover, even if Giles had successfully preserved his argument that

his case falls under the timeliness exception of 9545(b)(1)(ii), we find that it

is without merit.   In his PCRA petition, Giles does not explain what false

testimony police provided at trial or what evidence police kept hidden from

the trial court.    See PCRA Petition, 3/15/12, at 3.       Additionally, Giles

provides no indication of when he discovered this information, preventing

the trial court from determining whether the facts upon which the claim is

predicated were unknown to Giles and could not have been ascertained by

the exercise of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii). The trial

court likewise could not determine whether Giles filed his third PCRA petition

within 60 days of the date the claim could have been presented.            See

42 Pa.C.S.A. § 9545(b)(2).     Therefore, Giles failed to plead and prove an

exception under section 9545(b)(1), and we are without jurisdiction to

address the merits of his appeal.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/19/2015




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