J-S72005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KEVIN YELVERTON,

                            Appellant                 No. 3110 EDA 2016


             Appeal from the PCRA Order Entered August 31, 2016
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0104401-2004


BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED FEBRUARY 02, 2018

        Appellant, Kevin Yelverton, appeals pro se from the post-conviction

court’s August 31, 2016 order dismissing, as untimely, his second petition

under the Post Conviction Relief Act (PCRA) 42 Pa.C.S. §§ 9541-9546. After

careful review, we vacate the court’s order and remand for further

proceedings.

        The facts of Appellant’s case were previously summarized by our

Court, as follows:

        On June 9, 2003[,] at approximately 6:30 p.m., Tyrek Nelson
        (hereinafter “Tyrek”), David Nelson, his brother, the deceased
        (hereinafter “David”), and Michael Hinton (hereinafter “Michael”)
        were on Conestoga Street in Philadelphia. [Appellant] (a/k/a
        Gotti) approached David and questioned him about something
        that was stolen from [Appellant’s] apartment. An argument
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*   Former Justice specially assigned to the Superior Court.
J-S72005-17


      ensued, [Appellant] grabbed David by his shirt, and they began
      shoving each other.       Michael intervened and broke up the
      altercation. Tyrek, David, and Michael left the area and walked
      over to 55th Street in Philadelphia.

             The next day, June 10, 2003[,] at approximately 9:00
      p.m., Tyrek and other unknown males were in a dice game on
      Conestoga Street between Poplar Street and Girard Avenue in
      Philadelphia. David joined the dice game and won about twelve
      hundred dollars before he left. Approximately twenty minutes
      after David left the dice game, Tyrek left and walked towards
      54th and Pennsgrove Streets. When he was approximately 60
      feet away from Pennsgrove Street, he heard a gunshot. Upon
      turning onto Pennsgrove Street, he saw a male with braids, later
      identified as [Appellant], standing over another male, later
      identified as David, who was on the ground. He saw [Appellant]
      touch David’s clothing and shoot at him twice. After firing the
      shots, [Appellant] ran across 54th Street through a parking lot.

Commonwealth        v.    Yelverton,    No.   996   EDA    2006,   unpublished

memorandum at 2-3 (Pa. Super. filed Aug. 30, 2007) (quoting Trial Court

Opinion, 7/14/06, at 1-2 (citations to record omitted)).

      Following a jury trial, at which Tyrek Nelson was a key eyewitness for

the Commonwealth, Appellant was convicted of second-degree murder and

possessing an instrument of crime (PIC).       On October 24, 2005, he was

sentenced to life imprisonment, without the possibility of parole, for his

murder conviction, and a consecutive term of 16 to 48 months’ incarceration

for his PIC offense.     On August 30, 2007, this Court affirmed Appellant’s

judgment of sentence, and our Supreme Court denied his subsequent

petition for allowance of appeal. Commonwealth v. Yelverton, 935 A.2d

27 (Pa. Super. 2007) (unpublished memorandum), appeal denied, 946 A.2d

688 (Pa. 2008).



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      Appellant filed his first PCRA petition on December 1, 2008. Counsel

was appointed and filed an amended petition on his behalf. On January 18,

2011, Appellant’s petition was denied without a hearing, and Appellant

timely appealed.    On October 25, 2013, this Court affirmed the order

denying Appellant’s petition, and on April 8, 2014, our Supreme Court

denied his petition for allowance of appeal. Commonwealth v. Yelverton,

No. 1040 EDA 2011, unpublished memorandum (Pa. Super. filed Oct. 25,

2013), appeal denied, 89 A.3d 661 (Pa. 2014).

      On June 6, 2014, Appellant filed the pro se PCRA petition that

underlies the present appeal. Therein, Appellant asserted, inter alia, that he

had obtained new evidence in the form of an affidavit from Tyrek, in which

Tyrek recanted his trial testimony against Appellant.      On July 16, 2014,

Appellant filed an amended petition.         For some unapparent reason,

Appellant’s petition languished in the lower court for two years before the

court issued a Pa.R.Crim.P. 907 notice on July 12, 2016, stating only that

Appellant’s petition “is untimely and does not invoke an exception to the

timeliness provisions of the [PCRA].” Pa.R.Crim.P. 907 Notice, 7/12/16, at

1. On August 1, 2016, Appellant filed a pro se response to the court’s Rule

907 notice, but on August 31, 2016, the court issued an order dismissing his

petition as being untimely-filed.

      Appellant filed a timely, pro se notice of appeal. Although the PCRA

court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement, the court




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issued a Rule 1925(a) opinion on February 6, 2016.            Herein, Appellant

presents three issues for our review:

       I.     Whether the PCRA court abused its discretion in dismissing
              [] Appellant’s petition for not meeting 42 Pa.C.S.[] §
              9545(b)(2), where the claims under 42 Pa.C.S.[] §
              9545(b)(1)(i) and (ii), were mailed prior to 60-days
              expiring, pursuant to the ‘prisoner’s mailbox rule’…[?]

       II.    Did the PCRA court abuse its discretion by not appointing
              counsel, and granting requested hearing where a prima
              facie showing was presented that if true, [] Appellant was
              factually innocent, thereby meeting the Lawson[1]
              standard where a miscarriage of justice occurred…[?]

       III.   Weather [sic] the PCRA court or/and the PCRA procedures
              as applied in the instant case violate PCRA rules 905,
              907(c)(d), 908, and 42 Pa.C.S.[] § 9545(d), Article I §§ 1,
              9, 11, 14, and 26, of the Pennsylvania Constitution, and[]
              the United States Constitution, Article I § 9, c.1.2, and the
              5th, 6th, 8th, and 14th amendments of the United States
              Constitution, by not allowing [] Appellant a full, fair, and
              adequate procedure to prove innocents [sic]?

Appellant’s Brief at 4 (unnecessary capitalization and quotation marks

omitted).

       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

____________________________________________


1   Commonwealth v. Lawson, 549 A.2d 107 (Pa. 1988).



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

1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded to address the merits of

the petition).   Under the PCRA, any petition for post-conviction relief,

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




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       Here, Appellant’s judgment of sentence became final on July 14, 2008,

at the expiration of the ninety-day period for filing a petition for review with

the United States Supreme Court from his judgment of sentence. See 42

Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes final at

the conclusion of direct review or the expiration of the time for seeking the

review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998)

(directing that under the PCRA, petitioner’s judgment of sentence becomes

final ninety days after our Supreme Court rejects his or her petition for

allowance of appeal since petitioner had ninety additional days to seek

review with the United States Supreme Court).       Thus, Appellant had until

July 14, 2009, to file a timely petition, making his present petition, filed on

June 6, 2014, patently untimely. Accordingly, Appellant must demonstrate

the applicability of one of the above-stated timeliness exceptions.

       In this vein, Appellant contends that he has satisfied both the

governmental interference exception of section 9545(b)(1)(i), and the

newly-discovered fact exception of section 9545(b)(1)(ii), based on an

affidavit provided to him by Tyrek Nelson.2 In that notorized affidavit, dated
____________________________________________


2 Appellant specifically claims on appeal – and argued in his petition below -
that on December 6, 2013, he learned, through family members, that Tyrek
had given his prior PCRA counsel the notorized affidavit, and “that the
substance of this [a]ffidavit was a recantation of Tyrik [sic] Nelson’s trial
testimony.”    Appellant’s Brief at 14.     Appellant further avers that he
“[t]rust[ed] his attorney” would properly handle Tyrek’s affidavit, but he
later discovered that counsel had done nothing with this new evidence,
leaving “Appellant … no choice but to proceed pro se” in filing the present
(Footnote Continued Next Page)


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November 21, 2013, Tyrek stated that Appellant was not the person who

shot and killed his brother, David Nelson. Tyrek further claimed that he lied

to the police when he named Appellant as the shooter because the officers

had offered to “drop charges against [him] if [he] told them what they

wanted to hear[,]” which “was that [Appellant] killed David Nelson.”

Appellant’s PCRA Petition, 6/6/14, at “Exhibit A.”     According to Appellant,

Tyrek’s affidavit constitutes new evidence that Tyrek is recanting his trial

testimony.      Appellant also argues that the affidavit demonstrates the

Commonwealth committed a Brady3 violation by not disclosing the favorable

treatment Tyrek had received in exchange for his implicating Appellant in the

murder.

        In the PCRA court’s Rule 1925(a) opinion, it provides the following

reason for denying Appellant’s petition:

        Pursuant to 42 Pa.C.S.[] § 9545(b)(2), the [c]ourt finds that the
        claims presented in Appellant’s instant PCRA petition were not
        asserted within 60 days of the date they could have been
        presented. Therefore, this petition does not properly invoke one
        of the three exceptions that would extend the one-year time
        limitation. This [c]ourt is without jurisdiction to address the
        matters asserted by Appellant’s instant PCRA petition.
        Therefore, the claims raised in Appellant’s PCRA petition are
        without merit.

PCRA Court Opinion, 2/6/17, at 4-5.

(Footnote Continued) _______________________

petition. Id. See also Memorandum of Law (Attached to Amended PCRA
Petition), 7/16/14, at 30.

3   Brady v. Maryland, 373 U.S. 83 (1963).



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       On appeal, Appellant contends that the PCRA court erred by dismissing

his petition on the sole basis that he did not meet the 60-day requirement of

section 9545(b)(2).       Appellant explains that, while Tyrek’s November 21,

2013 affidavit was first provided to him on December 6, 2013, at that time,

he had a petition for review pending before the Supreme Court from the

denial of his first PCRA petition. Accordingly, Appellant maintains that under

our Supreme Court’s rationale in Commonwealth v. Lark, 746 A.2d 585

(Pa. 2000), he could not file his second petition premised on Tyrek’s affidavit

until his appeal from the denial of his first petition concluded.4

       We agree. In Lark, our Supreme Court held “that when an appellant’s

PCRA appeal is pending before a court, a subsequent PCRA petition cannot

be filed until the resolution of review of the pending PCRA petition by the

highest state court in which review is sought, or upon expiration of the time

for   seeking    such    review.”        Lark,   746   A.2d   at   588;   see   also

Commonwealth v. Porter, 35 A.3d 4, 14 (Pa. 2012) (reiterating Lark’s

holding “that a PCRA trial court cannot entertain a new PCRA petition when a

prior petition is still under review on appeal”). The Lark Court also directed

that “[t]he subsequent petition must … be filed within sixty days of the date

of the order which finally resolves the previous PCRA petition,

____________________________________________


4 We point out that Appellant argued, in his amended PCRA petition filed on
July 16, 2014, that he met the 60-day requirement under the rationale of
Lark, thus preserving the claim before the PCRA court. See Amended PCRA
Petition, 7/16/14, at 3.



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because this is the first ‘date the claim could have been presented.’”            Id.

(quoting 42 Pa.C.S. § 9545(b)(2)) (emphasis added).             Here, the Supreme

Court’s order finally resolving review of Appellant’s first PCRA petition was

issued on April 8, 2014. Appellant filed his present, pro se petition 59 days

later, on June 6, 2014. Therefore, pursuant to the rationale of Lark, it is

clear that the PCRA court erred by concluding that Appellant did not satisfy

the 60-day requirement of section 9545(b)(2).

     Because the PCRA court reached this erroneous conclusion, it did not

evaluate   whether   Tyrek’s   affidavit   satisfies   either   of   the   timeliness

exceptions asserted by Appellant. More specifically, the PCRA court did not

determine whether the information contained in Tyrek’s affidavit was

previously unknown to Appellant and, if so, whether he could have

ascertained that information earlier by the exercise of due diligence.           See

Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017).                      Appellant’s

original petition, and his amended petition filed on July 16, 2010, pled

sufficient information to demonstrate that genuine issues of material fact

surround these determinations.      Accordingly, we vacate the PCRA court’s

order denying Appellant’s petition on the basis of section 9545(b)(2), and

remand his case for the PCRA court to conduct an evidentiary hearing, at

which a record shall be developed regarding Appellant’s due diligence in

obtaining Tyrek’s affidavit, and whether he previously knew of the

information disclosed by Tyrek therein.      Additionally, the PCRA court shall




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appoint counsel to represent Appellant at that proceeding. See Pa.R.Crim.P.

904(D).

      Order vacated. Case remanded for further proceedings.     Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/18




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