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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                           Appellee

                      v.

TRACY E. WATTS

                           Appellant                        No. 2032 EDA 2016


                   Appeal from the PCRA Order June 10, 2016
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0707102-2001

BEFORE:     PANELLA, J., SOLANO, J., and FITZGERALD*, J.

MEMORANDUM BY PANELLA, J.                                    FILED APRIL 06, 2017

        Appellant, Tracy   E.   Watts, appeals from the order denying his second

petition for relief pursuant to the Post Conviction Relief Act ("PCRA"), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        We summarize the relevant facts and procedural history as follows. In

2001, Appellant shot and killed Marquis Henson. Appellant also robbed Mr.

Henson of $3,000.00 before fleeing with          a   cohort. He was apprehended and

brought to trial before    a    jury, which convicted him of first -degree murder,
robbery, conspiracy, and possessing an instrument of crime. Just prior to

sentencing, Appellant agreed, to avoid       a   possible sentence of death by lethal




*   Former Justice specially assigned to the Superior Court.
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injection, to waive his appellate rights in exchange for              a   life sentence.

Appellant signed   a   written colloquy, which the court reviewed with Appellant

prior to accepting his waiver. The court then formally sentenced Appellant on

March 13, 2003, to life imprisonment without parole on Appellant's first -

degree murder conviction.' Appellant attempted to file        a    direct appeal, which

he later withdrew. Appellant then         timely filed his first   PCRA    petition. The

court ultimately dismissed that petition without         a   hearing, and our Court

affirmed the decision. See Commonwealth v. Watts, 2109 EDA 2005 (Pa.

Super., filed January 24, 2007) (unpublished memorandum). Appellant filed

a   writ of habeas corpus, and was denied relief.
        Appellant filed the instant PCRA petition, his second, on October 29,

2010. Following counsel's entry of appearance, Appellant filed an amended

PCRA    petition. Neither writing acknowledged the untimeliness of Appellant's

PCRA    petition, save to say that Appellant purportedly presented "newly -

discovered evidence," without any dates or times of the discovery.

        The PCRA court held     a   hearing, and Appellant presented two witnesses

who claimed to know of      a   close relationship between Appellant's trial counsel

and the victim's father. One witness, Thomas Davis, claimed the two men

frequented the same "motorcycle club" bar. N.T., 6/10/16, at 10. The other




' Appellant was also sentenced   on his remaining charges at that time. As
Appellant previously waived his direct appeal rights, we find his judgment of
sentence became final for our purposes on March 13, 2003.


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witness, James Brooks, whose testimony the court found entirely incredible,

stated he heard    a    close friend of counsel discussing with the victim's father

how Appellant's counsel planned to "throw the case."                    Id.,   at 24. Appellant's

trial counsel testified he did not have           a    relationship with the victim's father,

and that he never agreed to          "throw" Appellant's case. Id., at 40. Appellant
then testified that he had been threatened while in prison during the trial,

and he felt pressured to waive his appellate rights. See                 id., at 51. The        PCRA

court ultimately dismissed Appellant's petition on the merits.

        On appeal, Appellant argues the               trial court erred in denying his PCRA

petition, given his presentation of newly discovered evidence regarding

counsel's conflict of interest.

        As a threshold    matter, we note that the timeliness of                 a PCRA     petition

is a   jurisdictional requisite. See Commonwealth v. Hackett, 956 A.2d 978,

983     (Pa.   2008).    A   court       cannot       hear   an     untimely        petition.   See

Commonwealth v. Flanagan, 854 A.2d 489, 509                         (Pa. 2004). Therefore, a

PCRA     petition must be filed within one year of the date the underlying

judgment becomes final. See 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. See 42 Pa.C.S.A.          §       9545(b)(3).

        Three statutory exceptions to the PCRA's timeliness provisions allow

for very limited circumstances under which the late filing of                   a   petition will be

excused. See 42 Pa.C.S.A.            §   9545(b)(1)(i)-(iii).       A   petitioner asserting       a




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timeliness exception must file       a   petition within 60 days of the date the claim

could have been presented. See 42 Pa.C.S.A.               §   9545(b)(2).

        As noted, Appellant's     judgment of sentence became final on March 13,
2003. Thus, Appellant's petition filed on October 29, 2010, is patently

untimely. The PCRA court did not conduct              a   timeliness inquiry, but rather

dismissed Appellant's petition on the merits.

        We, however, will address the timeliness issue based on the single

exception cited in the amended PCRA petition. See also Commonwealth v.

Wilson, 824 A.2d 331, 335          (Pa. Super. 2003) (en banc) ("Since Appellant's

PCRA    petition   is   untimely, our review focuses on whether Appellant has pled

and proven that one of the three limited exceptions to the timeliness

requirements of the PCRA apply.")

        In his amended petition, Appellant purportedly invokes the newly

discovered evidence exception to the PCRA's jurisdictional time bar. See 42

Pa.C.S.A.   §   9545(b)(1)(ii). "In order to be entitled to the exceptions to the

PCRA's one-year filing deadline, the petitioner           must plead and prove specific

facts that demonstrate his claim was raised within the sixty-day time frame

under section 9545(b)(2)." Commonwealth v. Hernandez, 79 A.3d 649,

652 (Pa. Super. 2013) (citation and internal quotation marks omitted;

emphasis added). See also Thomas M. Place, The Post Conviction Relief Act:

Practice and Procedure (2010 ed.),           §   6.01[b] ("The defendant must include

the precise date in his or her petition of when he or she learned of the after-


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discovered evidence to allow the court to determine whether the exception

has been timely invoked.")

         While Appellant vigorously argues that trial counsel was corrupt due to

a    conflict of interest, Appellant fails even to plead, much less prove, that this

discovery and subsequent petition fell within the time allotted by the PCRA.

This is fatal to his claim.      It deprived the     PCRA    court of jurisdiction to

proceed.

         Despite Appellant's failure to include precise dates in order for the

court to evaluate whether the claim was properly filed within 60 days of the

date it could have been presented, the PCRA court nevertheless chose to

conduct an evidentiary hearing. The PCRA court should have simply rejected

Appellant's     petition as untimely. The court should not have held an

evidentiary hearing.

         Appellant failed to address this timeliness issue in the testimony he

presented at the hearing. Moreover, even if Appellant had filed this claim

within 60 days of learning of this newly discovered evidence, he also failed

to    give any reason regarding why he could                not have obtained this

information sooner with reasonable diligence. Given that Mr. Brooks                is

Appellant's cousin, and Mr. Davis        is   Appellant's childhood friend, we find

unavailing Appellant's assertions that any of the purported newly discovered

evidence presented at the evidentiary hearing was unavailable to him prior

to his second PCRA filing.


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      In response to   a   question about whether he had told Appellant about

counsel's alleged plan to "throw the case" prior to 2010, when Appellant filed

the instant petition, Mr. Brooks testified: "I actually seen [Appellant] before

then and I told him then too, but it was      -   I believe I was waiting on him to

do whatever he wanted to do." N.T.,       6/10/16, at 27. Additionally, Mr. Brooks

entirely failed to note    in his   initial affidavit attached to Appellant's PCRA

petition that he ever heard any discussion of        a   plan to "throw" Appellant's

case. The court found Mr. Brooks' testimony incredible.

      Appellant's childhood friend, Mr. Davis, also gave conflicting testimony

how close his relationship was with Appellant and the frequency of their

contact. Contrary to Appellant's assertions that the PCRA court specifically

found Mr. Davis "credible," the transcript from the evidentiary hearing

reveals that the PCRA court actually stated: "[E]ven accepting everything he

said to be true, it doesn't prove [] the cornerstone of the argument."       Id., at
87.

      Given Appellant's failure to prove the timeliness exception, in addition

to Mr. Brooks' testimony that he previously told Appellant about the alleged

conflict, the record demonstrates Appellant was aware of this supposed

ground for relief well before he filed second PCRA petition. The record does

not support the PCRA court's brief footnote stating that it found Appellant

filed his second pro se PCRA petition within 60 days of learning of his trial

counsel's alleged conflict of interest and thus "satisfied the requirements of


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the newly discovered evidence exception to the PCRA's time -bar." PCRA

Court Opinion, 8/22/16, at    2   n.1. However, we may affirm the PCRA court's

decision on any basis. See Commonwealth v. Burns, 988 A.2d 684, 690

n.6 (Pa. Super. 2009) ("[A]n appellate court may affirm the lower court on

any basis, even one not considered or presented in the court below.")

        Appellant has failed to establish that his claims fall within any of the

exceptions to the PCRA's timeliness requirement. Accordingly, we affirm the

dismissal of Appellant's second PCRA petition.

        Order affirmed.

Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 4/6/2017




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