J-S85041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
            v.                             :
                                           :
WENDELL HILL,                              :
                                           :
                  Appellant                :           No. 1778 EDA 2016

                   Appeal from the PCRA Order May 26, 2016
              in the Court of Common Pleas of Delaware County,
              Criminal Division, No(s): CP-23-CR-0004112-1983

BEFORE: PANELLA, RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED January 20, 2017

      Wendell Hill (“Hill”) appeals, pro se, from the Order dismissing his fifth

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).     See 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      In its Opinion, the PCRA court set forth the relevant factual and

procedural history as follows:

      [Hill] is currently serving a sentence of life imprisonment
      following his [1984] conviction of second-degree murder and
      robbery following the shooting death of a manager at a Shop-n-
      Bag supermarket in Upper Darby, Delaware County,
      Pennsylvania on March 31, 1983. … At trial, co-conspirator
      [O’neal] Searles, Jr. [(“Searles”)], a former employee of the
      Shop-n-Bag, testified that after he had been fired from the
      supermarket, he had provided information to [Hill] about his
      former boss, the manager of the store, and his procedure for
      depositing revenue from the store at the bank every morning.
      Searles testified about the events surround the shooting and
      admitted that while he had not assisted in the robbery, he had
      taken about half of the proceeds taken from the victim. In
      addition to Searles[’s] testimony, several other eyewitnesses
      identified [Hill] at the scene.
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     [This Court affirmed Hill’s judgment of sentence on March 17,
     1987, and the Pennsylvania Supreme Court denied allocator on
     October 5, 1987. The United States Supreme Court denied Hill’s
     Petition for writ of certiorari on January 11, 1988.           See
     Commonwealth v. Hill, 526 A.2d 812 (Pa. Super. 1987)
     (unpublished memorandum), appeal denied, 532 A.2d 436 (Pa.
     1987) cert. denied, Hill v. Pennsylvania, 484 U.S. 1019
     (1988).] [Hill] has filed numerous petitions [under the PCRA]
     over the years since his conviction, all of which have been
     denied. … [Hill] filed an “After-Discovered Evidence PCRA Petition
     Pursuant to 42 Pa.C.S.[A.] § 9545(b)(1)(ii)” on April 25, 2013,
     which [the PCRA] court denied because it was filed without leave
     of court during the pendency of another PCRA. [Hill] refiled his
     petition for [relief based on] after-discovered evidence on May
     22, 2015. This [P]etition was [Hill’s] fifth under the [PCRA].

     On November 30, 2015, [the PCRA] court issued a notice of
     intent to dismiss [Hill’s P]etition without a hearing upon a finding
     that it lacked jurisdiction to address its merits. On May 26,
     2016[,] the court ultimately dismissed the [P]etition [as
     untimely filed].

PCRA Court Opinion, 7/28/16, at 1-2 (footnotes omitted). Hill also filed a

“Motion   to   receive   discovery   and   inspection   materials   pursuant   to

Pennsylvania Rules of Criminal Procedure[,] Rule 572,” which the PCRA court

denied.

     Hill filed a timely Notice of Appeal and a Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.

     On appeal, Hill raises the following issues for our review:

     I. [Whether t]he trial court erred in dismissing [Hill’s] PCRA
     [P]etition (without a hearing) where [he] clearly met the
     requirements set forth in 42 Pa.C.S.A. § 9545(b)[,] i.e., that the
     affidavits of Anthony Harvin [(“Harvin”)] and Frieda Miller
     [(“Miller”)] constituted after-discovered evidence which proves
     [Hill] established a miscarriage of justice based upon actual
     innocence[?]



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      II. Was the PCRA court’s July 28, 2016[] [O]pinion’s conclusion
      contrary to the official recorded facts of the case?

      III. [Whether t]he [trial court] erred in dismissing [Hill’s] PCRA
      [P]etition when it failed to give reasons for denying [Hill’s]
      [M]otion for discovery pursuant to Pa.R.Crim.P. [] 572[,]
      wherein [Hill] requested material that was exculpatory in nature
      (i.e., impeachment and direct evidence) that certain witnesses
      were paid money for testimony against [Hill] at trial[?]
      Moreover, [whether] such failure by the trial court to give a
      comprehensive reason why such [M]otion was denied violated
      his Fourteenth Amendment right to due process[?]

Brief for Appellant at 4.

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of the record. We will not disturb a PCRA
      court’s ruling if it is supported by evidence of record and is free
      of legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Initially, under the PCRA, any PCRA petition, “including a second or

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

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment

of sentence becomes 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 the

review.”    Id. § 9545(b)(3).     The PCRA’s timeliness requirements are

jurisdictional in nature and a court may not address the merits of the issues




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raised if the PCRA petition was not timely filed.        Commonwealth v.

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

      Here, Hill’s judgment of sentence became final in January 1988, when

the United States Supreme Court denied Hill’s Petition for writ of certiorari.

See 42 Pa.C.S.A. § 9545(b)(3). Because Hill filed the instant PCRA Petition

more than 20 years after his judgment of sentence became final, his Petition

is facially untimely.

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(1)(i-iii).   Any petition invoking one of these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.”        Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094 (Pa.

2010).

      In his first claim, Hill invokes the exception at 42 Pa.C.S.A.

§ 9545(b)(1)(ii), and asserts that affidavits prepared by Harvin and Miller

constitute new facts that entitle him to PCRA relief. Brief for Appellant at 9,

11.   Harvin, who was charged as Hill’s co-conspirator in an unrelated

robbery, submitted an affidavit stating that Searles was the “lone robber” in

the Shop-n-Bag robbery, and that his arresting detectives offered to drop

the charges against him if he implicated Hill in the Shop-n-Bag robbery.

See id. at 11; see also Harvin Affidavit, 3/28/13. Miller, Hill’s former

girlfriend, submitted an affidavit stating that detectives offered her a reward



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to testify against Hill, and that she “was available and willing to testify to the

above information back then[,] but was not called.”              Miller Affidavit,

4/10/13; see also Brief for Appellant at 11.

      To    prove   the    newly-discovered     facts   exception    at   section

9545(b)(1)(ii), “the petitioner must establish that the facts upon which the

claim was predicated were unknown and could not have been ascertained by

the exercise of due diligence.” Commonwealth v. Brown, 141 A.3d 491,

500 (Pa. Super. 2016) (citation omitted). “Due diligence demands that the

petitioner take reasonable steps to protect his own interests.       A petitioner

must explain why he could not have obtained the new fact(s) earlier with the

exercise of due diligence. This rule is strictly enforced.” Commonwealth

v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010) (citations omitted).

Additionally, “[t]he focus of the exception is on the newly discovered facts,

not on a newly discovered or newly willing source for previously known

facts.”    Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008)

(citation omitted) (emphasis in original).

      Here, Hill claims that he satisfied the due diligence requirement by

submitting the affidavits to the PCRA court immediately after he became

aware of them. Brief for Appellant at 11. However, Hill failed to explain why

he could not have ascertained the new facts sooner with the exercise of due

diligence. See Monaco, 996 A.2d at 1080; see also Brown, 141 A.3d at




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500.   Therefore, Hill failed to plead and prove the newly-discovered facts

exception to the PCRA’s timeliness requirement.

       Hill raises two additional claims, neither of which implicates one of the

exceptions to the PCRA’s timeliness requirement.1         Because Hill did not

successfully invoke any of the exceptions necessary to circumvent the

PCRA’s timeliness requirement, we cannot address the merits of his claims.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/20/2017




1
  Hill did not preserve his second claim in his Pa.R.A.P. 1925(b) Concise
Statement.     See Pa.R.A.P. 1925(b)(4)(vii) (stating that “[i]ssues not
included in the Statement … are waived.”); see also Commonwealth v.
Lord, 719 A.2d 306, 309 (Pa. 1998) (stating that “[a]ny issues not raised in
a 1925(b) statement will be deemed waived.”).


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