J-S74013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TYREE LAWSON

                            Appellant                  No. 763 EDA 2016


                 Appeal from the PCRA Order February 29, 2016
              In the Court of Common Pleas of Montgomery County
                Criminal Division at No(s): CP-46-0000542-2009


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                     FILED OCTOBER 13, 2016

        Appellant appeals pro se from the order entered in the Court of

Common Pleas of Montgomery County dismissing his petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We

affirm.

        In a memorandum decision affirming Appellant’s conviction on direct

appeal, this Court provided the following factual and procedural history:

              [Appellant] was charged with various crimes from a vicious
        home invasion robbery that occurred on June 12, 2006. Early
        that morning, Nancy Hevener went outside to start her husband,
        Joseph Hevener’s, truck while he was showering. Upon opening
        the door to re-enter her home, she was assaulted from behind
        by an assailant with a stocking over his face. As the assailant
        rushed past her into her home, Nancy screamed to her husband.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S74013-16


     Upon responding to his wife’s cries, Joseph noticed two men in
     his kitchen charging him. A melee ensued, with the assailants
     striking both Heveners repeatedly, and ultimately escaping in
     Joseph’s truck.

            After a lengthy investigation, [Appellant] was linked to the
     crime in various ways including DNA evidence, and was arrested
     on January 13, 2009. [Appellant] was represented by a series of
     counsel, but on May 4, 2010, elected to waive his right to
     counsel and to proceed pro se. Thereafter, [Appellant] filed
     several pro se motions. The trial court denied [Appellant’s] pre-
     trial motions, and a jury ultimately found [Appellant] guilty of
     three counts of robbery-serious bodily injury [18 Pa.C.S.A. §
     3701(a)(1)], burglary [18 Pa.C.S.A. § 3502], conspiracy to
     commit robbery [18 Pa.C.S.A. § 903], and conspiracy to commit
     burglary, [18 Pa.C.S.A. § 903].         The trial court sentenced
     [Appellant] to an aggregate term of imprisonment of nineteen to
     sixty years, to run consecutively to any previously imposed
     sentence. [Appellant’s] post-sentence motions were denied by
     the trial court, and [a timely direct appeal followed].

Commonwealth       v.   Lawson,    1705   EDA    2011   (Pa.Super.    8/7/12)

(unpublished memorandum).

     As indicated supra, this Court affirmed Appellant’s judgment of

sentence on direct appeal. Appellant filed with our Supreme Court a petition

for allowance of appeal, which the Court denied. Moreover, Appellant filed

with the United States Supreme Court a petition for writ of certiorari, which

the high Court denied on June 10, 2013.

     On June 18, 2013, Appellant filed a timely pro se PCRA petition and

counsel was appointed to represent him. Counsel sought to withdraw




                                    -2-
J-S74013-16


pursuant to Turner/Finley,1 and after permitting counsel to withdraw, the

PCRA court dismissed Appellant’s PCRA petition on October 7, 2013.               On

October 10, 2013, Appellant filed a pro se petition for writ of habeas corpus,

which the PCRA court treated as a second PCRA petition. By order entered

on October 17, 2013, concluding the petition was prematurely filed, the

PCRA court denied Appellant’s petition without prejudice.

       On October 29, 2013, Appellant filed notices of appeal from the PCRA

court’s October 7, 2013, and October 17, 2013, orders, and this Court

consolidated the appeals.         In an unpublished memorandum decision, this

Court affirmed both orders.         See Commonwealth v. Lawson, 3005 EDA

2013    and    3008     EDA     2013     (Pa.Super.   filed   9/9/14)   (unpublished

memorandum).

       Thereafter, Appellant filed several pro se PCRA petitions, which the

PCRA court denied.        Appellant did not file a notice of appeal from these

denials. On January 11, 2016, Appellant filed the instant pro se PCRA

petition2 alleging, inter alia, the following:

             On December 23, 2015, approximately fifty-seven months
       after the jury verdicts in this case, [Appellant] discovered
       evidence of the Commonwealth’s principal witness, and
____________________________________________


1
  Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).
2
  Although this petition was time-stamped on January 21, 2016, we shall
treat it as being filed on January 11, 2016, when Appellant handed it to
prison officials. See Commonwealth v. Chambers, 35 A.3d 34 (Pa.Super.
2011) (discussing prisoner mailbox rule).



                                           -3-
J-S74013-16


       otherwise the charged accomplice Andrew Bing (hereinafter “Mr.
       Bing”) testified falsely during [Appellant’s] trial. Specifically,
       during such trial, pro se [Appellant] questioned Mr. Bing if his
       trial testimony was motivated by the Commonwealth’s
       negotiated plea agreement. However, in response, Mr. Bing, in
       a total disregard for the truth, stated: “It wasn’t a negotiated
       agreement.”

              Importantly, Alexander Fulton [State. No. KG-2257] will
       testify (a) that Andrew Bing, the Commonwealth’s principal
       witness, months after [Appellant’s] jury trial admitted to him,
       that because of his trial testimony on the Commonwealth’s
       behalf he served “only” a small amount of prison time; (b) and,
       after explaining to him the circumstances of his case, Mr. Bing,
       attempted to persuade him into testifying against the other
       person and/or persons charged in his case for a lighter sentence.

              The after and/or newly discovered evidence is material and
       exculpatory. It is not merely cumulative of the testimony at
       trial. The facts presented speaks to the fundamental fairness of
       [Appellant’s] trial, which undoubtedly deprived [Appellant] of not
       a perfect trial, but a fair one that may have produced a different
       jury verdict.

             These facts were discovered post-trial and could have not,
       with due diligence, been discovered before trial.

Appellant’s Pro Se PCRA Petition, filed 1/11/16, at 1-2 ¶ 3-6.

       In support of his averments, Appellant attached to his PCRA petition a

page from Appellant’s pro se trial cross-examination of Mr. Bing.3 Appellant

____________________________________________


3
  The relevant portion of Appellant’s trial cross-examination of Mr. Bing is as
follows:
      Q: Mr. Bing, in regards to the injuries that Mr. Hevener
      sustained, you’ll agree with the Commonwealth to testify against
      Mr. Potter and myself, correct?
      A: Yes.
      Q: That was a negotiated agreement, correct?
      A: No, it wasn’t [sic] no deals.
(Footnote Continued Next Page)


                                           -4-
J-S74013-16


also attached to his PCRA petition a copy of what he alleged to be Mr.

Fulton’s affidavit,4 which was dated December 26, 2015. The affidavit

provided verbatim the following:

            On Wednesday [D]ecember 23rd 2015 while in SCI Forest’s
      inmate chow hall I overheard a conversation at the next table
      over with the constant mentioning of the name “Boobie.” I
      interrupted the conversation and asked what Boobie are y’all
      talking about and where is he from. Because I know a Boobie
      that’s from around my way. The guys ask was his real name
      Andrew Bing and was he from 17th and Cumberland ST. I said
      yea that’s him. I then told the guys I lived on Opal St. for 18
      years but I been going around 17th with Boobie [ ] sense I was
      like 12 years old. Boobie like family to me. The guy Ty ask me
      was he home. I told him yea he came back home from the
                       _______________________
(Footnote Continued)

       Q: It wasn’t a negotiated agreement?
       A: It wasn’t a negotiated agreement.
N.T., 3/7/11, at 75.
4
  While Appellant refers to Mr. Fulton’s “affidavit,” the document in fact
consists of an unsworn declaration which he proffers pursuant to 18
Pa.C.S.A. § 4904 (unsworn falsification to authorities). “Of course, there is a
significant distinction between an affidavit and an unsworn declaration.”
Commonwealth v. Tedford, 598 Pa. 639, 670, 960 A.2d 1, 19 (2008)
(citing Commonwealth v. Hall, 582 Pa. 526, 872 A.2d 1177, 1192 (2005)
(Castille, J., concurring) (“[T]here is a significant distinction between a
sworn affidavit, which is contemplated under this Court's Criminal Rules
governing PCRA practice, and a mere unsworn declaration of a witness.”);
Commonwealth v. Brown, 582 Pa. 461, 872 A.2d 1139, 1168–70 (2005)
(Castille, J., concurring) (affidavit is distinct from other out-of-court
statements because of oath and certification, which convey to declarant
consequences of falsehood, including potential for felony perjury
prosecution; affidavit also conveys to tribunal some level of assurance that
declarant is who he says he is, that declaration is not fraudulent, and that
declarant is willing to stand behind his statement in court)).




                                            -5-
J-S74013-16


       robbery case. He told me he got out fast because he testified
       some guy name Ty and that’s how he got a lighter sentence for
       his own. We was talking about my case and he bragged on how
       he really didn’t due any time and said if I testified in my case I
       may not get any time. Ty told me he was the person that
       Boobie testified on and his real name was Tyree Lawson. After
       we had this conversation Ty ask me would I be willing to put are
       conversation in affidavit and sign my name on it. I agreed.
       Being tho I know Boobie only testified on Ty to get a lighter
       sentence. I feel a tho its the right thing to due, Tell the truth.

Appellant’s Pro Se PCRA Petition, filed 1/11/16, Exhibit B1-2.

       Additionally, Appellant attempted to invoke the timeliness exception of

42 Pa.C.S.A. § 9545(b)(1)(i), claiming certain Commonwealth omissions

constituted     governmental       interference.   Specifically,   he   alleged   the

Commonwealth failed to disclose, prior to Appellant’s trial, Mr. Bing’s August

29, 2008, guilty plea colloquy, and subsequently, the Commonwealth failed

to correct Mr. Bing’s false testimony at Appellant’s March 7, 2011, jury trial

regarding the existence of Mr. Bing’s plea agreement, as allegedly set forth

at the guilty plea colloquy. In support of his averment, Appellant attached

to his PCRA petition a page from Appellant’s pro se trial cross-examination of

Mr. Bing,5 as well as two pages from Mr. Bing’s August 29, 2008, guilty plea

hearing.6

____________________________________________


5
  The relevant portion of Appellant’s trial cross-examination of Mr. Bing is as
follows:
      Q: The charges you agreed to plead out to, can you tell me the
      charges you agreed to plead out to, the charges that were
      negotiated?
      A: Robbery, burglary, and I think it was aggravated assault.
(Footnote Continued Next Page)


                                           -6-
J-S74013-16


      By order entered on February 1, 2016, the PCRA court provided

Appellant with notice of its intent to dismiss Appellant’s petition without an

evidentiary hearing on the basis it was untimely filed. Appellant filed a pro

se response, and by order entered on February 29, 2016, the PCRA court

dismissed Appellant’s petition.         This timely pro se appeal followed, and all

Pa.R.A.P. 1925 requirements have been met.

      Preliminarily, we must determine whether Appellant’s instant pro se

PCRA petition was timely filed.           See Commonwealth v. Hutchins, 760

A.2d 50 (Pa.Super. 2000). “Our standard of review of the denial of PCRA

relief is clear; we are limited to determining whether the PCRA court’s

                       _______________________
(Footnote Continued)

      Q: Do you recall the grading of each charge?
      A: No, I don’t.
      Q: Do you remember the charges you pled guilty to?
      A: Burglary, robbery and aggravated assault.
      Q: During your sentencing hearing, you pled out to 1 charge,
      that was conspiracy?
      A: Yes.
N.T., 3/7/11, at 76.
6
  The relevant portion of Mr. Bing’s guilty plea hearing is as follows:
      [ADA]: He’s pleading guilty to the main bill, count 20, charging
      criminal conspiracy to commit robbery.
            For the record, Your Honor, I am amending the grading to
      a felony of the first degree. The bill actually reflects that it’s a
      misdemeanor of the first degree.
                                      ***
            And we ask that [Mr. Bing] receive a sentence of 3 to 6
      years.
N.T., (Bing) 8/29/08, at 3.
      Also, Appellant points to page 5 of Mr. Bing’s guilty plea hearing
wherein Mr. Bing’s “Guilty Plea Colloquy” was marked as Defense Exhibit D-
1. N.T., (Bing) 8/29/08, at 5.



                                            -7-
J-S74013-16


findings     are    supported   by   the    record   and   without   legal   error.”

Commonwealth v. Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008)

(quotation and quotation marks omitted).

      Pennsylvania law makes it clear that no court has jurisdiction to hear

an untimely PCRA petition.        Commonwealth v. Robinson, 575 Pa. 500,

837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective

January 19, 1996, provide that a PCRA petition, including a second or

subsequent petition, shall 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, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of the 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).           To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)          the failure to raise a claim previously was the result of
                   interference    by    government     officials with    the
                   presentation of the claim in violation of the Constitution
                   or the law of this Commonwealth or the Constitution or
                   law of the United States;

      (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


                                           -8-
J-S74013-16


      (iii)    the right asserted is a constitutional right that was
               recognized by the Supreme Court of Pennsylvania after
               the time period provide in this section and has been
               held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).

      Here, on direct appeal, this Court affirmed Appellant’s judgment of

sentence, and our Supreme Court denied Appellant’s subsequent petition for

allowance of appeal. The United States Supreme Court denied Appellant’s

petition for writ of certiorari on June 10, 2013. Thus, Appellant’s judgment

of sentence became final on that date. See Commonwealth v. Mitchell,

___ Pa. ___, 141 A.3d 1277, 1280-81 (2016); 42 Pa.C.S.A. § 9545(b)(3).

Since Appellant filed the current PCRA petition on January 11, 2016, more

than two years after his judgment of sentence became final, the petition is

patently untimely under the PCRA. See 42 Pa.C.S.A. § 9545(b)(1);

Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780 (2000)

(holding a PCRA petition filed more than one year after judgment of

sentence becomes final is untimely and the PCRA court lacks jurisdiction to

address the petition unless the petitioner pleads and proves a statutory

exception to the PCRA time-bar).

      Appellant initially attempts to invoke the timeliness exception of 42

Pa.C.S.A. § 9545(b)(1)(ii), claiming the facts disclosed in Mr. Fulton’s

                                      -9-
J-S74013-16


affidavit meet the newly-discovered facts exception. The Supreme Court has

previously explained that the newly-discovered fact exception in Section

9545(b)(1)(ii) requires a petitioner to allege and prove that there were

“facts” that were “unknown” to him and that he could not have ascertained

those facts by the exercise of “due diligence.” Commonwealth v. Bennett,

593 Pa. 382, 930 A.2d 1264, 1270-72 (2007). A petitioner must allege and

prove previously unknown “facts,” not merely a newly discovered or newly

willing source for previously known facts. Marshall, supra.

     Moreover,    “[d]ue   diligence     demands   that   the   petitioner   take

reasonable steps to protect his own interests. A petitioner must explain why

he could not have learned the new fact(s) earlier with the exercise of due

diligence. This rule is strictly enforced.” Commonwealth v. Williams, 35

A.3d 44, 52 (Pa.Super. 2011) (citations omitted).

     Additionally, as this Court has often explained, all of the time-bar

exceptions are subject to a separate deadline.

     The statutory exceptions to the timeliness requirements of the
     PCRA are also subject to a separate time limitation and must be
     filed within sixty (60) days of the time the claim could first have
     been presented. See 42 Pa.C.S.A. § 9545(b)(2). The sixty (60)
     day time limit . . . runs from the date the petitioner first learned
     of the alleged after-discovered facts. A petitioner must explain
     when he first learned of the facts underlying his PCRA claims and
     show that he brought his claim within sixty (60) days thereafter.

Williams, 35 A.3d at 53 (citation omitted).




                                       - 10 -
J-S74013-16


        In the case sub judice, assuming, arguendo, Appellant met the initial

60-day threshold,7 we conclude that Mr. Fulton’s affidavit, wherein Mr.

Fulton indicated he allegedly heard Mr. Bing say that he received a lighter

sentence in exchange for testifying against Appellant, does not provide

“unknown facts,” and constitutes, at most, a newly discovered or newly

willing source for known facts. Marshall, supra.

        The record reveals that Appellant has complained to the lower court,

for more than two years prior to filing the instant PCRA petition, that Mr.

Bing lied at Appellant’s trial regarding the existence of a negotiated plea

agreement and, in fact, Mr. Bing received lenient treatment from the

Commonwealth in exchange for testifying against Appellant.

        For instance, in an amended PCRA petition filed on October 7, 2013,

Appellant asserted that, on October 10, 2007, prior to testifying against

Appellant’s co-conspirator, a prosecutor told Mr. Bing “The more you give us,

the more we’ll give you.” Appellant’s Amended PCRA Petition, filed 10/7/15,

at 5.    Appellant further asserted that, on August 29, 2008, Mr. Bing pled

guilty and, upon the request of the prosecutor, received a lenient sentence.

Id. at 6-7.       Appellant attached to his October 7, 2013, amended PCRA

petition copies of Mr. Bing’s August 29, 2008, guilty plea, including the same

____________________________________________


7
  In his instant PCRA petition, Appellant asserted he was provided with Mr.
Fulton’s affidavit on December 23, 2015, and he then filed his PCRA petition
on January 11, 2016.



                                          - 11 -
J-S74013-16


excerpts upon which he presently relies.           Moreover, on May 22, 2015,

Appellant filed a memorandum of law in support of a prior PCRA petition

wherein he reiterated that a prosecutor was overheard whispering to Mr.

Bing that, “The more you give us the more we’ll give you!”               Appellant’s

Memorandum of Law, filed 5/22/15, at 18.

      As the PCRA astutely recognized in its Rule 1925(a) opinion, “The only

difference between [Appellant’s] 2013 [amended petition] and his current

PCRA petition is that in this current PCRA petition [Appellant] has offered an

affidavit from inmate Fulton conveying substantially the same information.”

PCRA Court’s Pa.R.A.P. 1925(a) Opinion, filed 4/26/16, at 10.             We agree

with the PCRA court and conclude that the information contained in Mr.

Fulton’s affidavit did not provide “new facts,” but merely constituted a newly

discovered or newly willing source for purposes of the newly-discovered facts

exception. Marshall, supra.

      Appellant also attempts to invoke the timeliness exception of 42

Pa.C.S.A.    §   9545(b)(1)(i),    claiming   certain   Commonwealth      omissions

constitute   governmental         interference.   Specifically,   he   alleges   the

Commonwealth failed to disclose, prior to Appellant’s trial, Mr. Bing’s August

29, 2008, guilty plea colloquy, and the Commonwealth later failed to correct

Mr. Bing’s false testimony at Appellant’s March 7, 2011, jury trial regarding

the existence of Mr. Bing’s plea agreement, as allegedly set forth during Mr.

Bing’s guilty plea colloquy.


                                        - 12 -
J-S74013-16


     Inasmuch as the record reveals Appellant was aware of Mr. Bing’s

guilty plea colloquy as of October 7, 2013, when he attached excerpts

therefrom to his amended PCRA petition, we conclude Appellant has failed to

meet the threshold requirement of proving he presented his claim of

governmental interference within 60 days of the time the claim could have

first been presented. See Williams, supra.

     For all of the aforementioned reasons, we agree with the PCRA court

that Appellant’s instant PCRA petition is untimely and not subject to any of

the timeliness exceptions.

     Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2016




                                   - 13 -
J-S74013-16




              - 14 -
