J-S41019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
                v.                        :
                                          :
                                          :
 MALIK ALSTON                             :
                                          :
                     Appellant            :   No. 3840 EDA 2017

                Appeal from the PCRA Order October 24, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0010385-2007


BEFORE:    GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                            FILED AUGUST 10, 2018

      Appellant, Malik Alston, appeals from the October 24, 2017 order

denying his first petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The factual background of this case is as follows. On March 12, 2007,

Clarence Franklin (“Franklin”) died after being shot in front of Lee’s Market. A

surveillance video from Lee’s Market indicated that Lisa Pilgrim (“Pilgrim”)

witnessed the murder.     Based on Pilgrim’s statement, and other evidence

found at the scene, Appellant’s brother, A’Dreese Alston (“Brother”) was taken

into custody.

      During police questioning, Brother stated that Appellant shot Franklin in

retaliation for Franklin and another man robbing Brother several weeks earlier.

Brother then admitted to firing twice after Brother shot Franklin. Police later


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* Former Justice specially assigned to the Superior Court.
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apprehended Appellant in possession of the firearm that was used to kill

Franklin. Appellant gave a written statement to police in which he admitted

to shooting Franklin.

       The procedural history of this case is as follows. On November 13, 2008,

Appellant was convicted of several offenses including, inter alia, first-degree

murder. On February 6, 2009, the trial court sentenced him to an aggregate

term of life imprisonment without the possibility of parole. This Court affirmed

and our Supreme Court denied allowance of appeal.          Commonwealth v.

Alston, 6 A.3d 558 (Pa. Super. 2010) (unpublished memorandum), appeal

denied, 20 A.3d 482 (Pa. 2011).

       On May 20, 2016, Appellant filed a pro se PCRA petition. Counsel was

appointed and filed an amended petition. On October 24, 2017, the PCRA

court held an evidentiary hearing. At the conclusion of that hearing, the PCRA

court denied the petition. This timely appeal followed.1

       Appellant presents two issues for our review:

       1. [Did Appellant satisfy the newly-discovered fact exception to
          the PCRA’s one-year time bar?]

       2. Did [Brother] present credible evidence which exonerated
          [Appellant?]



____________________________________________


1 On December 13, 2017, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).    On January 20, 2018, Appellant filed his concise
statement. On January 25, 2018, the PCRA court issued its Rule 1925(a)
opinion. Both of Appellant’s issues were included in his concise statement.

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Appellant’s Brief at 3.

      In his first issue, Appellant argues that the trial court erred in concluding

that he failed to satisfy the newly-discovered fact exception to the PCRA’s one-

year time bar. “The timeliness requirement for PCRA petitions is mandatory

and jurisdictional in nature.” Commonwealth v. Montgomery, 181 A.3d

359, 365 (Pa. Super. 2018) (en banc) (cleaned up). “The question of whether

a petition is timely raises a question of law.      Where the petitioner raises

questions of law, our standard of review is de novo and our scope of review

plenary.”   Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa. Super.

2017), appeal denied, 170 A.3d 1007 (Pa. 2017) (citation omitted).

      A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] becomes final.”        42 Pa.C.S.A. § 9545(b)(1).      “[A]

judgment [of sentence] becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.” 42 Pa.C.S.A. § 9545(b)(3). Appellant’s judgment of sentence

became final on July 5, 2011, at the expiration of the time for seeking review

by the Supreme Court of the United States.           See U.S. Sup. Ct. R. 13.

Appellant’s petition was filed over four years later. Thus, the petition was

patently untimely.

      An untimely PCRA petition may be considered if one of the following

three exceptions applies:


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       (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.A. § 9545(b)(1). If an exception applies, a PCRA petition may be

considered if it is filed “within 60 days of the date the claim could have been

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

       In this case, Appellant failed to plead that he satisfied the newly-

discovered fact exception to the PCRA’s one-year time bar.2 To the contrary,

in his amended PCRA petition, Appellant “aver[red] that this is a timely []

PCRA [p]etition.” Appellant’s Amended PCRA Petition, 3/23/17, at 2; see also

Brief in Support of Appellant’s Amended PCRA Petition, 3/23/17, at 2

(Appellant “presented a timely [p]etition”). Moreover, in his brief, Appellant

argues that the elements for after-discovered evidence were established, not


____________________________________________


2 Appellant averred in his petition that he was entitled to relief because of
after-discovered evidence. The newly-discovered fact exception to the PCRA’s
one-year time bar, however, is distinct from the PCRA’s after-discovered
evidence provision. Compare 42 Pa.C.S.A. § 9545(b)(1)(ii) with 42 Pa.C.S.A.
§ 9543(a)(2)(vi); see Commonwealth v. Brown, 141 A.3d 491, 500 (Pa.
Super. 2016) (citations omitted). Proving that there is after-discovered
evidence does not ipso facto mean that a petitioner has satisfied the newly-
discovered fact exception to the PCRA’s timeliness requirement.

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that the factors for the PCRA newly-discovered fact exception under section

9545(b)(1)(ii) were established. Appellant’s Brief at 7-8. Failure to plead the

applicability of a timeliness exception in the PCRA petition renders the PCRA

court without jurisdiction to consider the merits of the petition.            See

Commonwealth v. Derrickson, 923 A.2d 466, 468-469 (Pa. Super. 2007),

appeal denied, 934 A.2d 72 (Pa. 2007).           As Appellant did not plead the

applicability of a timeliness exception in his amended petition, the PCRA court

properly held that it lacked jurisdiction to reach the merits of the petition. 3

       Order affirmed.




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3 Even if Appellant had properly pled the newly-discovered fact exception, he
would not have been able to meet the requirements for this exception. “The
newly-discovered fact exception has two components which must be alleged
and proved. Namely, the petition must establish that: 1) the facts upon which
the claim was predicated were unknown and 2) could not have been
ascertained by the exercise of due diligence. If the petitioner alleges and
proves these components, then the PCRA court has jurisdiction over the claim
under [section 9545(b)(1)(ii)].” Brown, 141 A.3d at 500 (citations omitted).
As the PCRA court aptly noted, Appellant cannot prove that the facts upon
which Appellant’s claim was predicated were unknown since Brother’s
testimony during the PCRA hearing clearly established that Brother and
Appellant knew about Khaleef Laws (“Laws”), the alleged shooter, at the time
of the trial. PCRA Court Opinion, 1/25/18, at 4-5. Additionally, Appellant
would have known that Brother was lying when he testified during the trial
that Laws was the shooter, since Brother and Appellant concocted the story
to tell the police that they were at the scene, that Appellant was the shooter,
and that they would not mention Law. Id. at 3. Accordingly, the first
component for the newly-discovered fact exception cannot be established.

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 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/10/18




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