J-S75033-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

OMAR POWELL,

                         Appellant                   No. 1317 EDA 2014


            Appeal from the PCRA Order entered April 11, 2014,
               in the Court of Common Pleas of Lehigh County,
            Criminal Division, at No(s): CP-39-CR-0002378-2006


BEFORE: ALLEN, LAZARUS, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                         FILED DECEMBER 01, 2014

      Omar Powell (“Appellant”) appeals pro se from the order denying his

serial petition for post-conviction relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The pertinent facts and convoluted procedural history are as follows:

             [Appellant] was arrested on drug charges in July 1996
         in [the victim’s] home. [Appellant’s] trial on those drug
         charges was scheduled for March 3, 1997. [The victim]
         was going to testify at the drug trial that the drugs found
         in her house belonged to [Appellant]. The March 3, 1997
         trial was continued.

            In the early morning hours of March 10, 1997, officers
         from the Allentown Police Department responded to a
         report of a shooting at 7th and Allen Streets. Officers
         found [the victim] lying in the street at that location, dead
         from gunshot wounds to the head.

           On the night and early morning hours prior to the
         murder, [Appellant] had been transporting cocaine and
         guns from New York to Allentown with two friends and an
J-S75033-14


       acquaintance he did not know. While [Appellant] drove on
       7th Street in Allentown, he spotted [the victim]. He drove
       around the block, parked his car and asked one of his
       friends, Reginald Tyson (Tyson) to get out of the car with
       him. [Appellant] and Tyson walked up to [the victim] and
       waited for a car stopped at the light at the intersection
       where [she] was standing to drive off.         Once it did,
       [Appellant] said something to [the victim] and shot her in
       the head. [Appellant] and Tyson ran back to the car,
       stated to their friend waiting in the car that they thought
       [the victim] was dead, and drove to the room where they
       were staying in Allentown. The gun was later taken back
       to New York.

           On March 12, 1997, [Appellant] was arrested for a
       separate incident on charges of possession of a firearm
       without a license. As a result of [the victim’s] death, the
       Commonwealth’s 1996 drug case was significantly
       weakened and the prosecutor offered [Appellant] a plea
       agreement for the drug case and the possession of a
       firearm to run concurrently.

          A federal inmate named Dimitris Smith (Smith) had
       provided statements to the Commonwealth implicating
       [Appellant] in the murder of [the victim]. He had also
       provided investigators with the name of an eyewitness to
       the murder, Tyson, an inmate incarcerated in New York
       state prison.

          [Appellant] was subsequently arrested in 2005 for the
       homicide of [the victim]. Both Smith and Tyson testified
       against [Appellant] at trial and told the jury that
       [Appellant] had killed the victim to prevent her from
       testifying against him in a state drug prosecution.

          In addition to Smith and Tyson, the Commonwealth
       presented three federal inmates as witnesses against
       [Appellant]: Randy Jackson, Kelvin Welmaker and Jamar
       Welmaker.     These witnesses testified that [Appellant]
       confessed to killing [the victim] while they were
       incarcerated together at Lehigh County Prison.

          After a trial by jury, [Appellant] was found guilty of
       Murder in the First Degree on March 29, 2007. On April
       17, 2007, he was sentenced to life in prison.         The
       Pennsylvania Superior Court denied [Appellant’s] direct

                                  -2-
J-S75033-14


        appeal.   A petition for [allocatur] was filed with the
        Pennsylvania Supreme Court; it was also denied.
        [Appellant] filed a pro se PCRA Petition on August 24,
        2009. Counsel was appointed on September 1, 2009, and
        on October 9, 2009, [PCRA] counsel filed an Amended
        PCRA Petition. A hearing on the Amended PCRA Petition
        was held on January 26, 2010, and briefs from [Appellant]
        and Commonwealth were filed thereafter.

            The PCRA court denied the petition on June 25, 2010.
        Appellant filed a timely appeal on July 14, 2010. On
        August 13, 2010, Appellant filed a second PCRA petition,
        which was stayed by the [PCRA] court on November 24,
        2010, because Appellant’s first appeal was pending before
        [the Superior] Court. Despite the [PCRA] court’s stay,
        Appellant continued to file documentation which he
        purported to be “amendments” to his second PCRA
        petition. On August 22, 2011, a panel of this Court
        affirmed the trial court’s order [denying post-conviction
        relief]. Appellant’s petition for allowance of appeal by our
        Supreme Court was denied on March 13, 2012.

           On August 30, 2012, Appellant filed a document with
        the PCRA court entitled “Amended Brady Violation issues.”
        After some confusion, it was determined that this
        document was intended to be an addendum to Appellant’s
        August 13, 2010 PCRA petition, which was previously
        stayed due to the pendency of Appellant’s first PCRA
        appeal. Accordingly, after learning that the [Pennsylvania]
        Supreme Court denied Appellant’s petition for allowance of
        appeal with respect to his first PCRA, the PCRA court
        determined that the stay of Appellant’s second PCRA
        petition was no longer in effect and considered the August
        13, 2010 petition (and all subsequent filings) as a second
        PCRA petition. On September 24, 2012, after a review of
        those documents, the [PCRA] court entered an order
        denying and dismissing Appellant’s second PCRA petition
        on the basis that it lacked jurisdiction to consider the
        untimely petition. On October 31, 2012, Appellant filed a
        notice of appeal.

Commonwealth v. Powell, 82 A.3d 463 (Pa. Super. 2013), unpublished

memorandum at 1-4 (citations and footnote omitted).


                                   -3-
J-S75033-14



      We affirmed the PCRA court’s determination that Appellant’s second

PCRA petition was untimely. Powell, supra. On December 17, 2013, our

Supreme      Court   denied   Appellant’s   petition   for   allowance   of   appeal.

Commonwealth v. Powell, 83 A.3d 168 (Pa. 2013).

      The PCRA court summarized the subsequent procedural history as

follows:

              On October 8, 2013, [Appellant] filed the “Motion to
           Vacate Conviction and Dismiss Charge” (motion to vacate)
           presently before the court. In the motion, [Appellant]
           asserts that he obtained new evidence which demonstrates
           his innocence. Because [Appellant] had an appeal from a
           denial of an earlier petition filed under the [PCRA] pending
           before the Superior Court at the time this motion was filed,
           the Honorable Douglas G. Reichley placed a stay on
           proceedings on the motion on October 29, 2013. On
           January 22, 2014, while the stay was still in place,
           [Appellant] filed a pro se amendment to the motion to
           vacate.

                On January 29, 2014, Judge Reichley entered an order
           lifting the stay. He treated the motion to vacate as a PCRA
           petition in that the PCRA is the sole means to obtain
           collateral review and any petition filed after a judgment of
           sentence becomes final will be treated as a PCRA petition.
           Because this was not [Appellant’s] first PCRA petition,
           [Judge Reichley] did not appoint counsel to represent
           [Appellant.] Judge Reichley also gave notice to [Appellant]
           on January 29, 2014, of [his] intention to dismiss
           [Appellant’s] PCRA petition and his amended PCRA petition
           pursuant to Pa.R.Crim.P. 907. The notice explained that
           [Appellant’s] petitions appeared to be untimely.

              On March 4, 2014, [Appellant] filed a response to the
           notice of intent to dismiss. In this response, [Appellant]
           asserted that his PCRA petitions were timely due to the
           “after-discovered evidence” exception to the PCRA’s time
           requirement[.]



                                       -4-
J-S75033-14


           Also on March 4, 2014, [Appellant] filed a petition
        requesting that Judge Reichley disqualify himself from
        these proceedings. By order filed March 11, 2014, Judge
        Reichley granted [Appellant’s] petition to disqualify noting
        that he had represented [Appellant] in the past. This case
        was then reassigned to [the PCRA court].

             On March 31, 2014, [Appellant] filed a motion
        requesting appointment of a judge to review all of Judge
        Reichley’s prior decisions. This motion was moot upon
        filing because the case had already been reassigned[.]
        Furthermore, to the extent [Appellant] was attempting to
        challenge Judge Reichley’s dismissal of one of [Appellant’s]
        earlier PCRA petitions, that decision was previously
        affirmed by the Superior Court.

           On April 11, 2014, [the PCRA court] entered an order
        denying and dismissing [Appellant’s] PCRA petition and
        amended PCRA petition as untimely. [The PCRA court]
        stated [its] reasons for entering the order in an
        accompanying opinion.

PCRA Court Opinion, 5/22/14, at 2-3 (citations omitted).

     Appellant filed a timely appeal to this Court, in which he challenges the

PCRA court’s determination that he failed to establish an exception to the

PCRA’s time bar.    Both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925.

     This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

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

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).      Moreover, a PCRA court may decline to hold a

                                        -5-
J-S75033-14



hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

       The    timeliness   of   a   post-conviction     petition    is    jurisdictional.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation

omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor

the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction,

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

raised in an untimely petition. Id.

      Generally, a petition for relief under the PCRA, including a second or

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

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;    or    (3)   a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa-Taylor, 753


                                          -6-
J-S75033-14


A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.          Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

       Because Appellant did not file a petition for writ of certiorari with the

United States Supreme Court following our Supreme Court’s denial of

allocatur, for PCRA purposes, Appellant’s judgment of sentence became final

ninety days thereafter, on February 11, 2009. 42 Pa.C.S.A. § 9545(b)(3);

U.S.Sup.Ct.R. 13. Appellant filed the instant PCRA petition over four years

later.1   As a result, his PCRA petition is patently untimely unless he has

satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261

(Pa. 1999).

       Appellant has failed to prove the applicability of any of the exceptions

to the PCRA’s time restrictions. When considering a PCRA petitioner’s claim

that he or she has established an exception to the PCRA’s time bar under

section 9545(b)(1)(ii), the petitioner must establish only that the facts upon
____________________________________________


1
  The PCRA court correctly recognized that Appellant’s motion to vacate was
properly treated under the PCRA. See PCRA Court Opinion, 5/22/14, at 2
(citing Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007)).




                                           -7-
J-S75033-14


which the claim was predicated were unknown to him, and that he could not

have ascertained the facts earlier despite the exercise of due diligence.

Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007).                    The

determination   of   timeliness   does    not   require   a   merits      analysis.

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).

      A petitioner is eligible for relief under the PCRA if he can establish the

“unavailability at the time of trial of exculpatory evidence that has

subsequently become available and would have changed the outcome of the

trial if it had been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi). This Court

has explained the test to be applied to such a claim as follows:

            To obtain relief based on after-discovered evidence, an
         appellant must demonstrate that the evidence: (1) could
         not have been obtained prior to the conclusion of the trial
         by the exercise of reasonable due diligence; (2) is not
         merely corroborative or cumulative; (3) will not be used
         solely to impeach the credibility of a witness; and (4)
         would likely result in a different verdict if a new trial were
         granted.

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (citation

omitted).    “The test is conjunctive; the appellant must show by a

preponderance of the evidence that each of these factors has been met in

order for a new trial to be warranted.” Id. Moreover, “when reviewing the

decision to grant or deny a new trial on the basis of after-discovered

evidence, an appellate court is to determine whether the PCRA court

committed an abuse of discretion or error of law that controlled the outcome

of the case.” Id.

                                     -8-
J-S75033-14



     In rejecting Appellant’s claim, the PCRA court explained:

           The evidence offered by [Appellant] to invoke the
       exception is an affidavit prepared by Rodney “Sha”
       Houston. According to [Appellant], he first met Houston in
       September of 2013 while both men were incarcerated at
       the Federal Correctional Institution in Fairton, New Jersey.
       [Appellant] learned that Houston had information about his
       homicide case so he asked Houston to prepare an affidavit.
       In the affidavit, Houston claims that he was traveling in a
       car with “Haitian Mike” Anderson and Dimitrus Smith on
       the night [the victim] was killed. Houston wrote that, at
       some point that night, the car stopped and the two other
       men exited the vehicle while Houston remained inside.
       When the two men returned, they told Houston that
       Anderson had killed [the victim]. Anderson threatened to
       kill Houston if he told anyone about this.

          The affidavit reiterated a theory advanced by
       [Appellant] at his trial, namely, that Anderson, not
       [Appellant,] murdered [the victim]. On this point, Lavonia
       Warmkessel testified at trial that she witnessed Anderson
       threaten to kill [the victim] and hit her with a gun several
       months prior to the murder. Additionally, Rose Conyers, a
       witness to the murder, testified that she saw Anderson at
       the scene of the crime on the night of the murder. Finally,
       Detective Robert Palmer of the Allentown Police
       Department testified that he investigated the [victim’s]
       murder and, in the course of his investigation, Orlando
       Rodriguez told him that he saw Anderson at the scene
       immediately prior to the shooting. Detective Palmer also
       testified that Anderson was once considered a suspect in
       this murder investigation.

          The Pennsylvania Supreme Court has held that the
       after-discovered facts exception focuses on facts, not on a
       newly discovered or newly willing source for previously
       known facts. Stated another way, a defendant does not
       properly invoke the after-discovered evidence exception by
       merely offering another source for claims previously
       advanced at trial.

          Here, because the affidavit presented by [Appellant]
       simply offers a new source for a claim previously raised at

                                   -9-
J-S75033-14


        trial, it cannot constitute after-discovered evidence for
        purposes of the exception. As to that claim, the jury
        evaluated it and rejected it.

            [Appellant’s] claim of after-discovered evidence failed
        for another reason. The claims made by Houston in the
        affidavit were contradicted by several other witnesses to
        the homicide. At trial, Reginald Tyson testified against
        [Appellant] as an eyewitness to the murder and told the
        jury that he saw [Appellant] shoot and kill [the victim].
        Dimitrus Smith testified that he was driving in a car with
        [Appellant] and Tyson on the night of the killing. He
        witnessed [Appellant] leave the car with a gun to pursue
        [the victim] and he then saw [Appellant] return five
        minutes later. [Appellant] said, “I think she’s dead.” The
        Commonwealth also presented three federal inmates as
        witnesses against [Appellant]. They were Randy Jackson,
        Kevin Welmaker and Jamar Welmaker. These witnesses
        testified that [Appellant] confessed to killing [the victim]
        while they were incarcerated together at Lehigh County
        Prison. Considering the abundance of inculpatory evidence
        presented at trial, Houston’s affidavit only offers some
        contradictory testimony as to the events surrounding [the
        victim’s] killing. The affidavit does not, as [Appellant]
        contends, demonstrate his “actual innocence” and cannot
        be the basis for relief under the PCRA.

PCRA Court Opinion, 5/22/14, at 5-7 (citations omitted).

     Our review of the record supports the PCRA court’s conclusions, and

Appellant’s claims to the contrary are unavailing.   As to the PCRA court’s

first conclusion, we agree that, at best, Houston’s affidavit represents a

“newly willing” source of already known facts rather than “newly-discovered”

evidence. See generally, Commonwealth v. Marshall, 947 A.2d 714 (Pa.

2008). Our review of the record further supports the PCRA court’s second

conclusion that, because Houston’s testimony would do no more than

impeach testimony from several witnesses at trial, he is unable to meet the


                                   - 10 -
J-S75033-14



factors outlined in Foreman, supra. In addition, we note that Appellant’s

request for a remand to test Houston’s credibility is not necessary, since his

credibility is not at issue.   Abu Jamal, supra.        Finally, as cogently

recognized by the PCRA court, we reject Appellant’s reference in his

appellate brief to “federal case law regarding federal habeas corpus petitions

[because it is] inapplicable to the issues at hand.”    PCRA Court Opinion,

5/22/14, at 4.

      In sum, for all of the above reasons, the PCRA court correctly

determined that it lacked jurisdiction to consider Appellant’s untimely PCRA

petition. We therefore affirm the PCRA court’s order denying Appellant post-

conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2014




                                    - 11 -
