J-A25044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    KEITH HARRIS

                             Appellant                No. 1907 EDA 2016


               Appeal from the PCRA Order entered May 18, 2016
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-1202181-1993


BEFORE: OTT, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                         FILED JANUARY 11, 2018

        Appellant, Keith Harris, appeals from the May 18, 2016 order entered in

the Court of Common Pleas of Philadelphia County, dismissing his petition for

collateral relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. Upon review, we affirm.

        The factual and procedural background can be summarized as follows.1

On March 3, 1995, following a jury trial, Appellant was convicted of first degree

murder, possession of an instrument of crime, and criminal conspiracy in

connection with the murder of Wendy Glover in 1993. On November 30, 1995,
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 Unless otherwise stated, the factual and procedural history has been taken
from our memorandum issued in connection with Appellant’s second PCRA
petition. See Commonwealth v. Harris, No. 3025 EDA 2008, unpublished
memorandum (Pa. Super. filed June 8, 2010).
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Appellant was sentenced to a mandatory term of life imprisonment on the

murder conviction, 5 to 10 years on the criminal conspiracy conviction, and

2½ to 5 years on his conviction for possession of an instrument of crime, the

lesser sentences to be served concurrently with Appellant’s life sentence. We

affirmed the judgment of sentence on January 9, 1998. The Supreme Court

denied Appellant’s petition for allowance of appeal on June 4, 1998.

       Appellant timely filed his first PCRA petition, which the PCRA court

denied on June 4, 2001. This Court affirmed the PCRA court’s order on March

26, 2002. The Supreme Court denied Appellant’s petition for allowance of

appeal on August 15, 2002.

       Appellant filed his second PCRA petition on March 2, 2006, which the

PCRA court dismissed on September 24, 2008. We affirmed the PCRA court’s

order dismissing Appellant’s second PCRA petition on June 8, 2010.         The

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

December 1, 2010.

       Appellant filed the instant PCRA petition, his third, on August 8, 2012,

which Appellant amended on August 4, 2015.2 The PCRA court dismissed it

on May 18, 2016. This appeal followed.



____________________________________________


2 The petition, as amended, includes, inter alia, a forensic document examiner
report and a statement (supported by affidavits) from a co-conspirator
exonerating Appellant. We will address the content of the report and the
statement shortly.



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       On appeal, Appellant argues the PCRA court erred in not allowing him

to amend his PCRA petition to supplement the timeliness of his amended

petition and that the PCRA court erred in finding the petition untimely. 3 In

support of the timeliness of his current PCRA petition, Appellant argues that

he met the newly-discovered fact exception to the general timeliness rule on

two grounds.       First, he argues that the report prepared by the forensic

document examiner revealed that the “property seized” section of the three

search warrants issued in connection with the underlying investigation was

authored by one individual. In Appellant’s view, this fact was evidence of law

enforcement misconduct, qualifying as a newly discovered fact. Appellant also

argues that the co-conspirator’s statement allegedly exonerating Appellant

also qualified as a newly-discovered fact. We disagree.

       “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). All PCRA petitions,

“including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final” unless an exception to timeliness

applies.    42 Pa.C.S.A. § 9545(b)(1).           “The PCRA’s time restrictions are

____________________________________________


3 It is undisputed the instant PCRA petition is facially untimely. Appellant’s
sentence became final on September 2, 1998, 90 days after our Supreme
Court denied allocatur. See 42 Pa.C.S.A. § 9545(b)(3), U.S.Sup.Ct. Rule 13.
The only matter at issue here is whether Appellant pled and proved any of the
exceptions to the general timeliness rule. See 42 Pa.C.S.A. § 9545(b)(1).

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jurisdictional in nature. Thus, [i]f a PCRA petition is untimely, neither this

Court nor the [PCRA] court has jurisdiction over the petition.        Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.

2006) (first alteration in original) (internal citations and quotation marks

omitted). As timeliness is separate and distinct from the merits of Appellant’s

underlying claims, we first determine whether this PCRA petition is timely

filed.    See Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008)

(consideration of Brady claim separate from consideration of its timeliness).

         At issue here is the timeliness exception set forth in Section

9545(b)(1)(ii),4 which requires a petitioner to plead and prove two

components: 1) the facts upon which the claim was predicated were

unknown, and (2) these unknown facts could not have been ascertained by

the exercise of due diligence.        See Commonwealth v. Burton, 158 A.3d

618, 638 (Pa. 2017).

         As noted, under the above exception, a petitioner must explain why he

could not have learned the new facts earlier with the exercise of

due diligence. See Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa.

2001). Due diligence demands the petitioner to take reasonable steps to

protect his own interests. See Commonwealth v. Carr, 768 A.2d 1164,
____________________________________________


4 Appellant mentions throughout the brief the governmental interference
exception (42 Pa.C.S.A. § 9545(b)(1)(i)). However, the argument is focused
mainly on the after-discovered exception. Accordingly, we will address
Appellant’s argument as raising the after-discovered exception.

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1168 (Pa. Super. 2001). This standard, however, does not require “perfect

vigilance nor punctilious care, but rather it requires reasonable efforts by

a petitioner, based on the particular circumstances, to uncover facts that may

support a claim for collateral relief.” Commonwealth v. Shiloh, 170 A.3d -

553, 558 (Pa. Super. 2017) (citation 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) (emphasis in original) (citation

omitted).

      As noted, Appellant first argues that the forensic analysis of the

“property seized” section of the search warrants issued in connection with the

underlying investigation revealed that those sections of the warrants were

signed by the same person. According to Appellant, this is evidence of forgery

and false testimony by law enforcement, qualifying as newly-discovered fact

exception. Because he timely acted on that information, Appellant argues his

third PCRA petitions is timely under either exception. We disagree.

      As the PCRA court cogently recognized,

      [d]espite [Appellant]’s argument, nothing about the essential
      facts relating to the search warrants have changed. The only new
      evidence is the examiner’s analysis of those facts. Although her
      opinion might be “after-discovered” in the sense that no one
      solicited it for trial, the evidence on which the opinion is based is
      the same today as it was in 1993. Had [Appellant] chosen to do
      so, he could have called expert witnesses to testify in a manner
      consistent with [the report]. Furthermore, [Appellant] did not
      suggest that the technique employed by [analyst] was recently
      developed.


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PCRA Court Opinion, 9/21/16, at 7.

     We agree with the PCRA court’s analysis and conclusion that Appellant

failed to plead and prove the analyst’s report detailed a previously

unascertainable fact.   Id. at 6.

     Appellant next argues that the statement from a co-conspirator

constituted a newly-discovered fact for purposes of the PCRA. The PCRA Court

aptly noted:

     [Appellant] presented an affidavit from co-conspirator Lamonz
     Santos indicating that [Appellant]’s participation in the murder
     was coerced by co-conspirator Robert Innis. Not only was this
     information known to [Appellant] at trial, he was in fact tried
     separately and testified to the actions of his co-conspirators in
     [an] attempt to substantiate his duress defense. Santos’
     statement was therefore merely a new source of this information.

     Additionally, even if Innis’ threats constituted previously unknown
     facts, [Appellant] failed to demonstrate that such facts were
     previously unascertainable with the exercise of due diligence.
     Because both Santos and Innis were known sources of this
     information, [Appellant] was obliged to demonstrate reasonable
     efforts to engage each of them. [Appellant]’s complete failure to
     even acknowledge his obligation with respect to Innis was fatal to
     his petition.

     Furthermore, even the affidavits detailing efforts to obtain Santos’
     cooperation were unsatisfactory. Specifically, the ten-year period
     between 1995 and 2005 was insufficiently addressed.
     [Appellant]’s mother, Rose Harris, indicated that she has been
     “writing Santos since 1995.” Given that Mrs. Harris’ affidavit was
     authored in 2015 and omitted the frequency of her
     correspondence(s), it failed to establish that she had sent any
     letters after her initial attempt in 1995. Santos’ affidavit is equally
     imprecise stating only that [Appellant]’s family has reached out
     on “numerous occasions over the years.”                  [Appellant]’s
     presentment of co-conspirator’s statement and supporting


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     affidavits were therefore unavailing for purposes of 42 Pa. Cons.
     Stat. § 9545(b)(1)(ii).

Trial Court Opinion, 9/21/16, 5-6 (citations omitted).   We agree with the

PCRA court that the information disclosed in the co-conspirator’s statement

was already known to Appellant and that, to the extent it was unknown to

him, Appellant failed to show due diligence in pursuing the matter.

Accordingly, we affirm the order of the PCRA court.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/18




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