J-S19004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

CORY WILLIAMS,

                         Appellant                   No. 1371 EDA 2015


              Appeal from the PCRA Order Entered April 16, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0353912-1992


BEFORE: BENDER, P.J.E., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED MARCH 23, 2016

      Appellant, Cory Williams, appeals pro se from the post-conviction

court’s April 16, 2015 order denying, as untimely, his petition filed under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.          Appellant

alleges that he meets the ‘after-discovered fact’ exception to the PCRA’s

one-year time-bar. See 42 Pa.C.S. § 9545(b)(1)(ii). After careful review,

we affirm.

      In January of 1992, Brian Brown, Shawn Torres, and Appellant robbed

a Philadelphia grocery store. During the robbery, the owner of the store was

shot and killed.    Appellant also shot at the victim’s wife, but she was

unharmed. Appellant and his cohorts left the store without any merchandise

or money.      Shortly after the robbery, Appellant was arrested and he

confessed his participation in the robbery and murder.
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              On September 18, 1992, following a jury trial [alongside
        codefendants Torres and Brown], [Appellant] was convicted of
        second-degree murder, robbery, aggravated assault, and
        possession of an instrument of crime. On December 7, 1993,
        [Appellant] was sentenced to life imprisonment on the murder
        conviction and an aggregate term of four to eight years’
        incarceration on the remaining charges. On December 2, 1994,
        following a direct appeal, the Superior Court affirmed the
        judgment of sentence. [Commonwealth v. Williams, 655 A.2d
        1050 (Pa. Super. 1994) (unpublished memorandum).]
        [Appellant] did not petition for allowance of appeal.

              [Appellant’s] first PCRA petition, filed on May 20, 1997,
        was dismissed as untimely on January 14, 1998. The lower
        court’s dismissal was affirmed on appeal on February 22, 1999.
        [Commonwealth v. Williams, No. 684 Philadelphia 1998,
        unpublished memorandum (Pa. Super. filed Feb. 22, 1999).][1]
        On October 19, 2000, [Appellant] filed his second PCRA petition.
        [Appellant’s] petition was dismissed, and following appeal, the
        dismissal was affirmed on October 10, 2002. [Commonwealth
        v. Williams, 815 A.2d 1133 (Pa. Super. 2002) (unpublished
        memorandum).]

               [Appellant’s] current petition, his third, was filed pro se on
        October 14, 2010. Pursuant to Pennsylvania Rule of Criminal
        Procedure 907, [Appellant] was served with notice of the court’s
        intention to dismiss his PCRA petition on August 30, 2011. The
        PCRA court thereafter dismissed [Appellant’s] petition as
        untimely on February 24, 2012. On December 5, 2012, the
        Superior Court vacated the order dismissing his petition and
        remanded for reconsideration of the timeliness of the PCRA
        petition. [Commonwealth v. Williams, 64 A.3d 10 (Pa. Super.
        2012) (unpublished memorandum).]                 After reevaluating
        [Appellant’s] petition, the PCRA court served [Appellant] with
        notice of the court’s intention to dismiss his PCRA petition on
        March 9, 2015. The PCRA court dismissed [Appellant’s] petition
        as untimely on April 16, 2015. [Appellant] filed the instant
        notice of appeal to the Superior Court on May 11, 2015.


____________________________________________


1
    We were unable to locate an Atlantic 2d citation for this decision.




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PCRA Court Opinion (PCO), 5/27/15, at 1-2.

      The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. The court filed a Rule

1925(a) opinion on May 27, 2015. Herein, Appellant presents three issues

for our review:

      (I) Did the (PCRA) court err, and commit reversible error, when
      it failed to conduct an evidentiary hearing to establish the
      validity of the after[-]discovered statement, as well as the
      credibility of the witness making the statement?

      (II) Did the (PCRA) court err, and commit reversible error, when
      it dismissed [] Appellants [sic] petition as being untimely
      presented?

      (III) Did court[-]appointed counsel render ineffective assistance
      of counsel to his client, by failing to pursue and investigate the
      newly discovered evidence that was presented in [] Appellant’s
      (PCRA) petition?

Appellant’s Brief at 4.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.    Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.   Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007).    Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of




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the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (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 laws of this Commonwealth or the
            Constitution or laws 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

            (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

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

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, this Court previously determined that Appellant’s judgment of

sentence became final on January 1, 1995.           See Commonwealth v.

Williams, No. 771 EDA 2012, unpublished memorandum at 1 n.1 (Pa.

Super. filed Dec. 5, 2012). Accordingly, his instant petition, filed on October

14, 2010, was patently untimely and, for this Court to have jurisdiction to




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review the merits thereof, Appellant must prove that he meets one of the

exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b).

        Appellant argues that he meets the ‘after-discovered fact’ exception of

section 9545(b)(1)(ii). In support, he claims that on August 24, 2010, his

codefendant, Shawn Torres, drafted an affidavit stating that he “really saw

[the victim’s wife] do the shooting.”            See Appellant’s Brief at 50

(unnumbered) (“Affidavit of [] Shawn Torres”). Torres gave the affidavit to

Appellant’s brother, who then gave it to Appellant. Appellant filed his PCRA

petition, with Torres’ affidavit attached, within the requisite 60 days of

receiving it.

        The PCRA court initially denied Appellant’s petition on the basis that

Torres’ testimony would not have changed the outcome of Appellant’s trial.2

Appellant appealed, and this Court concluded that,

        the PCRA court conflated the merits of Appellant’s after-
        discovered evidence claim with the requirements of the asserted
        time-bar exception. It is the substantive PCRA claim of after-
____________________________________________


2
    The PCRA court reasoned:
        In previous statements, [Appellant] admitted to the police that
        he participated in the robbery, he had a gun when he was inside
        of the store, and he shot the gun while he was inside of the
        store.   In light of these statements, even if the affidavit
        submitted was true, it would not change the outcome of
        [Appellant’s] trial.
PCRA Court Memorandum and Order, 2/24/12, at 2-3 (unnumbered; citation
to the record omitted).




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      discovered evidence which requires, in part, proof of “[t]he
      unavailability at the time of trial of exculpatory evidence that has
      subsequently become available and would have changed the
      outcome of the trial if it had been introduced.” 42 Pa.C.S. §
      9543(a)(2)(vi) (emphasis added). There is no such requirement
      to establish the application of the time-bar exception.

Williams, No. 771 EDA 2012, unpublished memorandum at 2-3; see also

Bennett, 930 A.2d at 1271-1272 (explaining that section 9545(b)(1)(ii)

“merely requires that the ‘facts’ upon which such a claim is predicated must

not have been known to appellant, nor could they have been ascertained by

due diligence”).   Based on this error by the PCRA court, we remanded

Appellant’s case for the court to reevaluate whether Appellant’s petition

satisfied the timeliness exception of section 9545(b)(1)(ii).

      On remand, the PCRA court (now presided over by a different judge)

concluded that Appellant failed to establish the applicability of this timeliness

exception because he did not plead, let alone prove, that he acted with due

diligence in discovering the information provided by Torres.          The court

reasoned:

             Although [Appellant] invoked the timeliness exception in
      42 Pa.C.S. § 9545(b)[(1)](ii), [he] made no attempt to explain
      why the information purportedly contained in [] Torres’ affidavit
      could not, with the exercise of due diligence, have been obtained
      earlier. [] Torres, who admitted to participating in the robbery
      with [Appellant], testified against [Appellant] at trial. Although
      presumably aware of the fictitiousness of [] Torres’ trial
      testimony, [Appellant] failed to specify what reasonable
      measures, if any, were taken to discover proof of [] Torres’
      perjury. For example, in [Commonwealth v.] Davis, [86 A.3d
      883 (Pa. Super. 2014),] the Superior Court found that the
      petitioner demonstrated due diligence by proffering affidavits
      from several friends and family members who claimed that they
      attempted, albeit unsuccessfully, to locate a witness after the

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      conclusion of trial in order to convince him to admit that he lied
      on the stand. See … Davis, 86 A.3d [at] 891…. In contrast to
      the efforts highlighted in Davis, [Appellant] has utterly failed to
      articulate any efforts comparable to attempting to interview or
      otherwise persuade [] Torres to divulge his fabrication from
      nearly eighteen years prior. Additionally, [Appellant] failed to
      explain[,] in the alternative[,] why such efforts would have been
      unsuccessful. [Appellant’s] complete silence on the issue of due
      diligence was thus insufficient to satisfy his burden of proof
      under section 9545(b)(1)(ii).

PCO at 3-4.

      Our review of the record confirms that Appellant failed to explain, in

his petition, why he could not have obtained Torres’ affidavit earlier by

exercising due diligence.           Appellant described his discovery of Torres’

statement, as follows:

      Through casual conversation, my brother ran into [] Torres and
      learned that he was a codefendant in my case. [] Torres told my
      brother that he has never revealed the facts in the attached
      affidavit to anyone, but that he had to get this burden off his
      chest. My brother secured the attached affidavit and sent it to
      me, and now I am submitting it to this Honorable Court as
      “newly discovered evidence.”

Appellant’s Pro Se PCRA Petition, 10/14/10, at 3.

      Appellant’s own statements in his petition indicate that Torres was

willing   to   tell   Appellant’s   brother,   during   ‘casual   conversation,’   the

information contained in the affidavit. Appellant did not describe any efforts

he made, prior to Torres’ conversation with Appellant’s brother, to locate

Torres or obtain the information he provided in his affidavit. He also does

not state why he failed to make such efforts, or why they would have been




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futile.3 Accordingly, the record supports the PCRA court’s determination that

Appellant failed to prove that the information provided by Torres could not

have been ascertained earlier with due diligence.

       We also point out that Appellant did not assert in his petition (or on

appeal) that he did not previously know the pertinent fact stated in Torres’

affidavit, i.e., that the victim’s wife shot the victim.   Because Appellant

essentially concedes that he was at the scene of the robbery, we can

presume that he, too, saw the victim’s wife shoot the victim.             See

Appellant’s Brief at 32 (conceding that Torres’ affidavit, “does not assert the

innocence of [] [A]ppellant to a full degree,” but it does show that

Appellant’s culpability “does not rise to the level … necessary to sustain the

present conviction[s]”). Our Supreme Court has held that to prove the time-

bar exception of section 9545(b)(1)(ii), “a petitioner must allege and prove

previously unknown ‘facts,’ not merely a ‘newly discovered or newly willing
____________________________________________


3
   Appellant suggests in his brief that he could not obtain Torres’ statement
earlier because Torres was incarcerated.         See Appellant’s Brief at 20.
Appellant also “speculates” that Torres would not have offered the
information contained in the affidavit until after Torres was released from
prison, for fear “of retribution of both police and court authorities….” Id. at
27. Even if we accepted Appellant’s speculative argument, he does not state
when Torres was released from prison to confirm that Appellant’s brother
obtained Torres’ affidavit as soon as possible after Torres’ release.
Moreover, Appellant did not present these assertions in his PCRA petition
and, thus, they are waived for our review. See Pa.R.A.P. 302(a) (“Issues
not raised before the lower court are waived and cannot be raised for the
first time on appeal.”); Commonwealth v. Lambert, 797 A.2d 232, 240-41
(Pa. 2001) (citing Rule 302(a) in concluding that claims not raised in the
appellant’s PCRA petition were waived for appellate review).



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source for previously known facts.’”           Commonwealth v. Edmiston, 65

A.3d 339, 352 (Pa. 2013) (citations omitted).           Arguably, then, Torres’

affidavit simply constitutes a new source for the previously known fact of the

victim’s wife’s involvement in the shooting.

       For these reasons, we agree with the PCRA court that Appellant’s

petition is untimely and he failed to prove the applicability of the ‘after-

discovered fact’ exception of section 9545(b)(1)(ii). Accordingly, the PCRA

court did not err in denying Appellant’s petition.4

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2016


____________________________________________


4
  On February 1, 2016, Appellant filed with this Court a pro se “Motion for
Extraordinary Relief,” asserting that the PCRA court “unlawfully dismissed”
his petition without an evidentiary hearing, and asking that we remand for
the court to conduct a hearing. Motion, 2/1/16, at 3 (unnumbered). Based
on our conclusion that Appellant’s petition is untimely and he fails to prove
the applicability of any timeliness exception, we deny his motion. We also
note that Appellant asks in his motion that we not consider the
Commonwealth’s untimely-filed, appellate brief. In reaching our decision
herein, we have not relied upon the arguments presented by the
Commonwealth; instead, our analysis focused on the PCRA court’s decision,
the certified record, and Appellant’s brief.



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