J-S31024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 LARRY DONNELL NICHOLAS                   :
                                          :
                    Appellant             :   No. 2380 EDA 2017

                  Appeal from the PCRA Order July 5, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-1207101-1998


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                             FILED JUNE 05, 2018

      Larry Donnell Nicholas appeals, pro se, from the trial court’s order

dismissing as untimely his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S §§ 9541-9546. After careful review, we affirm.

      On January 11, 2001, a jury convicted Nicholas of first-degree murder

and related firearms offenses. The charges stemmed from the 1998 shooting

death of Victor Garrett. On March 7, 2001, the trial court sentenced Nicholas

to a mandatory term of life imprisonment for murder and consecutive

sentences of 12-24 months’ incarceration for the remaining offenses. Nicholas

filed a timely direct appeal; our Court affirmed his judgment of sentence on

December 13, 2002.      Nicholas did not file an appeal to the Pennsylvania

Supreme Court or the United States Supreme Court.

      Nicholas filed three PCRA petitions on December 17, 2003, January 17,

2008, and August 5, 2008. They were all dismissed. The current petition,
J-S31024-18



filed on May 2, 2017, is his fourth. The court dismissed this latest petition on

July 5, 2017. Nicholas filed a timely notice of appeal. He raises the following

issues for our consideration:

      (1)   Whether the court erred by dismissing [Nicholas’] May 2,
            2017, PCRA petition in which [Nicholas] asserts that he
            qualifies for timeliness exception under 42 Pa.C.S. §
            9545(b)(1)(iii) based on a newly-recognized constitutional
            right that should be applied retroactively to his case on
            collateral review.

      (2)   Whether retrospectively [sic] utilizing post-Burton [sic]
            judicial opinion PCRA petitioner qualified for the exception
            under subsection 9545(b)(1)(ii).

      (3)   Whether retrospectively [sic] utilizing post-Burton [sic]
            judicial opinion PCRA petitioner meritoriously met the 60-
            day timeliness requirement.

      (4)   Whether retrospectively [sic] utilizing post-Burton [sic]
            judicial opinion PCRA petitioner was denied an opportunity
            to present Mr. Willie Singletary as a witness; the PCRA judge
            did not have an opportunity to view Mr. Singletary’s
            demeanor and properly evaluate his credibility.

Appellant’s Pro Se Brief, at 4.

      Nicholas admits that his petition is patently untimely under the PCRA.

Generally, a petition for PCRA relief, including a second or subsequent petition,

must be filed within one year of the date the judgment is final.         See 42

Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Alcorn, 703 A.2d 1054

(Pa. Super. 1997). Here, Nicholas’ judgment of sentence became final under

the PCRA on January 13, 2003 when the time expired for him to file a petition

for allowance of appeal with the Pennsylvania Supreme Court. See Pa.R.A.P.

1113. Thus, Nicholas had until January 13, 2004, to file a timely petition.



                                      -2-
J-S31024-18



Because his petition was filed more than thirteen years later, his petition is

patently untimely.

      There are, however, exceptions to the time requirement. Where the

petition alleges, and the petitioner proves, that an exception to the time for

filing the petition is met, the petition will be considered timely.      These

exceptions include interference by government officials in the presentation of

the claim, newly-discovered facts or evidence, and an after-recognized

constitutional right.   42 Pa.C.S.A. § 9545(b)(1)(i),(ii), and (iii).   A PCRA

petition invoking one of these exceptions must “be filed within 60 days of the

date the claims could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). The

timeliness requirements of the PCRA are jurisdictional in nature and,

accordingly, a PCRA court cannot hear untimely petitions. Commonwealth

v. Robinson, 837 A.2d 1157 (Pa. 2003).

      Invoking section 9545(b)(1)(iii) under the PCRA, the after-recognized

constitutional right exception, Nicholas argues that Commonwealth v.

Burton, 158 A.3d 618 (Pa. 2017), applies retroactively to his case and gives

the PCRA court jurisdiction to consider the merits of his petition.          In

Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017), our Supreme

Court recently held that “the presumption that information which is of public

record   cannot   be    deemed    ‘unknown’    for   purposes   of   subsection




                                      -3-
J-S31024-18



9545(b)(1)(ii)[, the newly-discovered fact exception,1] does not apply to pro

se prisoner petitioners.       Id. (emphasis added).       Nicholas claims that an

affidavit, signed on June 26, 2008, from fellow inmate Willie Singletary

(otherwise known as “Ski”), avers that Singletary was a witness to the murder

and that Nicholas was not the shooter are newly-discovered facts.2

        As the trial court notes, Nicholas’ claim does not involve information

which is of public record; thus, Burton is not applicable to his situation.

Moreover, Nicholas failed to plead and prove how he could not have discovered

“Ski’s” identity and the alleged alibi information earlier through the exercise

of due diligence, especially when a trial witness testified that Ski was present


____________________________________________


1   Pursuant to the newly-discovered fact exception:

        (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:

                                               *   *   *

           (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[.]

42 Pa.C.S. § 9545.
2Nicholas first presented this affidavit in his unsuccessful August 2009 PCRA
petition. On appeal, our Court affirmed the dismissal of the petition, noting
“Nicholas has failed to demonstrate why these ‘facts’ could not have been
ascertained earlier by the exercise of due diligence.” Commonwealth v.
Nicholas, 2845 EDA 2009, at 5 (Pa. Super. filed May 25, 2010) (unpublished
memorandum) (emphasis in original).


                                           -4-
J-S31024-18



at the crime scene. Accordingly, he has failed to plead and prove an exception

to the PCRA’s timeliness requirements.       Thus, the trial court properly

dismissed Nicholas’ untimely petition because the court lacked jurisdiction in

the matter. Robinson, supra.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/18




                                    -5-
