J-S02028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

AARON EDMONDS TYSON

                         Appellant                    No. 2188 EDA 2016


             Appeal from the PCRA Order entered June 29, 2016
              In the Court of Common Pleas of Monroe County
              Criminal Division at No: CP-45-CR-0000817-2003


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.

MEMORANDUM BY STABILE, J.:                           FILED MARCH 22, 2017

      Appellant, Aaron Edmonds Tyson, appeals pro se from the June 29,

2016, order entered in the Court of Common Pleas of Monroe County,

denying 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 underlying facts and procedural history were recounted in our

previous memorandum issued in connection with Appellant’s second PCRA

petition. See Commonwealth v. Tyson, No. 3176 EDA 2013, unpublished

memorandum 1-5 (Pa. Super. filed July 16, 2014). After this Court affirmed

the denial of his second PCRA petition, Appellant, on May 31, 2016, filed the

instant PCRA petition, his third. On June 29, 2016, the PCRA court denied

Appellant’s third PCRA petition without holding a hearing.          This appeal

followed.
J-S02028-17




      On appeal, Appellant argues the PCRA court erred in denying his PCRA

petition without holding a hearing on the merits of the petition.       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 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 v. Maryland, 373 U.S. 83

(1963) claim separate from consideration of its timeliness).




                                    -2-
J-S02028-17


       Before we can address the merits of the instant appeal, 1 we must

determine whether we have jurisdiction to entertain it. Appellant recognizes

that the instant PCRA petition is facially untimely.           However, Appellant

argues he met one of the exceptions to the general rule on timeliness.

Specifically, he alleges that the “cell phone logs that were obtained by

[Appellant]’s Private Investigator after years of extreme diligence” qualify for

the “Newly Discovered Evidence and After Discovered Evidence” exception.

Appellant’s Brief at 6. Appellant is entitled to no relief, for several reasons.

       For   purposes     of   the   timeliness   exception   under   42   Pa.C.S.A.

§ 9545(b)(1)(ii), Appellant must plead and prove that “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.A.

§ 9545(b)(1)(ii); Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa.

2007) (internal citations and quotations omitted).

       Instantly, Appellant claims that the cell phone logs constitute “new

discovered evidence/after discovered evidence,” but failed to show that the

existence of the cell logs was unknown to him. Similarly, Appellant failed to

state why he could not have discovered them through the exercise of due

diligence. This is fatal to his claim.
____________________________________________


1
  On the merits, Appellant seems to argue a Brady-sounding claim, claiming
that the “prosecution violated [his] federal and state due process rights, by
tampering with and withholding exculpatory evidence via redaction of his
cell-phone logs.” Appellant’s Brief at 8.



                                           -3-
J-S02028-17


      Moreover, in his own PCRA petition, Appellant acknowledges that the

cell phone logs at issue here were in his discovery record, and that those

logs were available to him. Appellant’s Third PCRA Petition, 5/31/16, at 2

(unnumbered).      Furthermore, in his direct appeal, Appellant argued his

counsel was ineffective for “failing to review Appellant’s cell phone records.”

See Commonwealth v. Tyson, 730 EDA 2007, unpublished memorandum

at 17 (Pa. Super. January 11, 2008).         Our Court dismissed said claim

without prejudice to raise it in a PCRA petition. Id. It is unclear whether

Appellant raised that issue in his first PCRA petition. If he did, a review of

the appellate proceedings reveals that Appellant abandoned it on appeal.

See Appellant’s Brief at 3 (brief filed in connection with appeal from denial of

first PCRA petition).   Finally, in his response to the notice of disposition

without a hearing in the instant matter, Appellant stated that he “raised the

claim pertaining to his cell phone logs as evidence as early as the initial pro

se petition and brief.” Response to Notice of Disposition Without Hearing, at

1 (citing PCRA Hearing, 10/4/11). It is clear, therefore, that Appellant knew

of the cell phone logs well before the filing of the instant petition.

Accordingly, Appellant failed to show that the “new facts” exception is

applicable here.

      To the extent Appellant’s claim can be construed as alleging that the

“new fact” is the discovery of the redactions to the logs, Appellant’s claim is

similarly untimely for failing to establish that the redaction of the logs was


                                     -4-
J-S02028-17


unknown to him, or what he did to learn about it.         Appellant’s allegation

that he became aware of the redaction only upon receiving the logs from his

private investigator, even if credible, is insufficient to prove the timeliness

exception.   Indeed, as noted above, Appellant failed to explain why the

redaction could not have discovered earlier despite the fact the logs have

been an essential ground for his continued challenges since his direct appeal,

and that said logs were in his “discovery record” available to him and his

attorneys, presumably prior to his trial. See Notice of Disposition Without

Hearing, 6/2/16, at 1-2.

      Because the instant PCRA petition is untimely, and Appellant failed to

plead and prove that one of the exceptions to the timeliness rule was

applicable, the PCRA court did not err in dismissing the petition without a

hearing. See Commonwealth v. Marshall, 947 A.2d 714, 723 (Pa. 2008)

(“As explained supra, we have concluded that [a]ppellant’s petition was

untimely, and accordingly the PCRA court properly determined that it had no

jurisdiction to entertain it. We therefore also must conclude that the PCRA

court did not err in dismissing [a]ppellant’s petition without a hearing.”).

      Order affirmed.




                                      -5-
J-S02028-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/2017




                          -6-
