J-S43033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

SHAWN TOMLIN

                          Appellant                    No. 2863 EDA 2014


               Appeal from the PCRA Order September 3, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0608751-1998


BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

JUDGMENT ORDER BY GANTMAN, P.J.:                     FILED AUGUST 19, 2015

        Appellant, Shawn Tomlin, appeals from the order entered in the

Philadelphia County Court of Common Pleas, dismissing his serial petition

filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546.    On February 16, 2000, a jury convicted Appellant of third-degree

murder and related offenses.         The court sentenced Appellant on April 26,

2000, to an aggregate term of 26 to 52 years’ imprisonment.           This Court

affirmed    the   judgment   of   sentence    on   October   28,   2002.    See

Commonwealth v. Tomlin, 816 A.2d 336 (Pa.Super. 2002).                 Appellant

timely filed his first PCRA petition on October 28, 2003, which the PCRA

court ultimately denied and this Court affirmed.

        Appellant filed the current PCRA petition pro se on December 10,

2012.    On August 4, 2014, the PCRA court issued Rule 907 notice, and
J-S43033-15


Appellant responded pro se on August 18, 2014. The PCRA court dismissed

Appellant’s petition as untimely on September 3, 2014.       Appellant timely

filed on September 24, 2014, a pro se notice of appeal. No Rule 1925(b)

statement was ordered or filed.

      The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.

denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). A PCRA

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 or at the expiration of time for seeking

review. 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the

timeliness provisions in the PCRA allow for very limited circumstances under

which the late filing of a petition will be excused.         42 Pa.C.S.A. §

9545(b)(1)(i)-(iii). A petitioner asserting a timeliness exception must file a

petition within sixty days of the date the claim could first have been

presented. 42 Pa.C.S.A. § 9545(b)(2). Section 9545(b)(1)(ii) requires the

petitioner to allege and prove facts unknown to him, which he could not

have ascertained by the exercise of due diligence.      See 42 Pa.C.S.A. §

9545(b)(1)(ii).

      Instantly, Appellant’s judgment of sentence became final on November

27, 2002, upon expiration of the time to file a petition for allowance of

appeal with our Supreme Court.       Appellant filed his current petition on


                                    -2-
J-S43033-15


December 10, 2012, more than ten years after the judgment became final;

thus, it is patently untimely.   See 42 Pa.C.S.A. § 9545(b)(1).    Appellant

attempts to invoke the “after discovered facts” exception under Section

9545(b)(1)(ii) by contending a witness had provided Appellant with a

statement of the witness’ version of the events which led to Appellant’s

convictions. Nevertheless, Appellant failed to prove how, with the exercise

of due diligence, he could not have discovered these facts earlier, when the

witness’ unsworn statement indicated he had been with Appellant on the

night of the crimes.      See 42 Pa.C.S.A. § 9545(b)(1)(ii).   Thus, Section

9545(b)(1)(ii) cannot serve to excuse Appellant’s otherwise untimely

petition.   See id.       Accordingly, the PCRA court properly dismissed

Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2015




                                     -3-
