J-S47008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

PAUL JOSEPH RODGERS

                        Appellant                     No. 3356 EDA 2016


               Appeal from the PCRA Order October 14, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-1133821-1990


BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                           FILED AUGUST 25, 2017

     Paul Joseph Rodgers appeals from the order, entered in the Court of

Common Pleas of Philadelphia County, dismissing as untimely his fourth

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

Pa.C.S.A. § 9541-6546. After careful review, we affirm.

     In 1991, following a jury trial, Rodgers was convicted of first-degree

murder and carrying a firearm on a public street. In 1992, the trial court

imposed the mandatory sentence of life imprisonment on the murder

conviction and a concurrent term of incarceration on the weapon offense. In

1993, this court affirmed Rodger’s judgment of sentence, Commonwealth

v. Rodgers, 635 A.2d 207 (Pa. Super. 1993) (Table), and in 1994, our

Supreme    Court    denied    his   petition   for    allowance   of   appeal.

Commonwealth v. Rodgers, 646 A.2d 1177 (Pa. 1994) (Table). In 1995,
J-S47008-17



Rodgers filed his first pro se PCRA petition, which the PCRA court denied;

this Court affirmed the PCRA court’s order denying relief.              Rodgers

subsequently filed a second PCRA petition, and this Court again affirmed the

PCRA court’s order denying relief on May 10, 2001. In 2006, Rodgers filed

his third PCRA petition, which the PCRA court dismissed as untimely. This

Court affirmed the dismissal of Rodger’s PCRA petition on March 16, 2010.

On December 20, 2013, Rodgers filed the instant pro se PCRA petition, and

on October 14, 2016, the PCRA court dismissed his PCRA petition as

untimely. On October 21, 2016, Rodgers filed a timely appeal, in which he

raises the following issue:

      Did the [PCRA] court [err] by dismissing [Rodger’s] successive
      PCRA petition as untimely where his incarcerated/indigent status
      impeded his effort to obtain the facts earlier?

Brief of Appellant, at 4.

      [T]he timeliness of a PCRA petition is [] a jurisdictional requisite.
      A PCRA petition, including a second or subsequent petition, shall
      be filed within one year of the date the underlying judgment of
      sentence becomes final. A judgment of sentence 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
      the review. 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. To
      invoke an exception, a petition must allege and the petitioner
      must prove:

            (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 law of this Commonwealth or the
            Constitution or laws of the United States.

                                      -2-
J-S47008-17


             (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.

Commonwealth v. Zeigler, 148 A.3d 849, 853 (Pa. Super. 2016) (internal

quotations and citations omitted) (emphasis added). See also 42 Pa.C.S.A.

§ 9545(b)(1)(i)-(iii), (3).

      A petitioner asserting a timeliness exception must file a petition within

60 days of when the claim could have been presented.             42 Pa.C.S.A. §

9545(b)(2). Additionally, the “newly-discovered facts” exception focuses on

previously unknown facts, not a newly-discovered or a newly-willing

source for previously known facts.           Commonwealth v. Abu-Jamal,

941   A.2d   1263,    1267    (Pa.   2008)   (emphasis   added).       See   also

Commonwealth v. Smallwood, 155 A.3d 1054 (Pa. Super. 2017).

      Instantly, Rodger’s judgment of sentence became final on or about

August 10, 1994, after our Supreme Court denied Rodger’s petition for

allowance of appeal and the period for filing a petition for writ of certiorari in

the United States Supreme Court expired.           42 Pa.C.S.A. § 9545(b)(3).

Rodgers’s pro se petition, filed on December 20, 2013, is therefore patently

untimely by approximately eighteen years. See 42 Pa.C.S.A. § 9545(b)(1).

      Moreover, Rodger’s claim that his petition falls under the PCRA

exception, section 9545(b)(1)(ii), is meritless.       Rodgers avers that the

                                       -3-
J-S47008-17



signed affidavit of Eric Purdy, in which Purdy states that he made himself

unavailable for trial due to fear of retaliation, constitutes newly-discovered

facts pursuant to section 9545(b)(1)(ii).    See Purdy Aff. ¶ 1.     However,

while Purdy’s affidavit reveals his delayed willingness to cooperate, it does

not present any newly-discovered and/or previously unknown facts.        Abu-

Jamal, supra.     Smallwood, supra.        Rather, the affidavit memorializes

observations previously conveyed to the defense and that could have been

ascertained at trial by due diligence. Purdy Aff. ¶ 1 (“[Purdy] stated early on

when the trial first came about to [Rodger’s] attorney or investigator

what I saw[.]”) (emphasis added). Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007) (petitioner must show facts upon which claim is

predicated were unknown to petitioner and could not have been ascertained

by exercise of due diligence). Thus, Rodger’s PCRA petition is not exempt

from the PCRA’s jurisdictional time requirement. Accordingly, the trial court

properly dismissed Rodger’s petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2017




                                     -4-
