J-S02024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SHARKEEN KING

                            Appellant                   No. 89 EDA 2015


                Appeal from the PCRA Order December 2, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004751-2007,
             CP-51-CR-0511211-2004, CP-51-CR-0709011-2006,
                           CP-51-CR-1301509-2006


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

MEMORANDUM BY LAZARUS, J.:                         FILED JANUARY 25, 2016

        Sharkeen King appeals from the order, entered in the Court of

Common Pleas of Philadelphia County, which dismissed his petition filed

pursuant to the Post Conviction Relief Act (PCRA).1       After our review, we

affirm.

        The trial court summarized the facts of this matter as follows:

        On February 15, 2007, [King] came before this [c]ourt and pled
        guilty to Possession with Intent to Deliver (“PWID”) (35 Pa.C.S.
        § 780-113(a)(3)) and Prohibited Possession of a Firearm (18
        Pa.C.S. 6105 (“VUFA § 6105”)), as docketed on CP-51-CR-
        0511211-2004; and PWID, Conspiracy – PWID, and VUFA §
        6105, as docketed on CP-51-CR-0709011-2006. Sentencing was
        deferred for consolidation with [King’s] two open matters.
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1
    42 Pa.C.S. §§ 9541-9546.
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         On April 3, 2007, [King] came before this [c]ourt and pled guilty
         to VUFA § 6105, as docketed on CP-51-CR-1301509-2006.

         On June 15, 2007, [King] came before this Court and pled guilty
         to PWID, Conspiracy – PWID, and VUFA § 6105, as docketed on
         CP-51-CR-00047451-2007.        On that same date, this Court
         sentenced [King] on all four dockets[.]

Trial Court Opinion, 3/24/15, at 1-2.

         King was sentenced to an aggregate of eight to sixteen years’

incarceration followed by three years of probation.      King   filed   a   timely

direct appeal, which was dismissed because a docketing statement was not

filed.    Thereafter, King’s direct appeal rights were reinstated via a pro se

PCRA petition. This Court affirmed King’s judgment of sentence on October

2, 2009. See Commonwealth v. King, 986 A.2d 1258 (Pa. Super. 2009)

(unpublished memorandum).           The Pennsylvania Supreme Court denied

King’s petition for allowance of appeal on April 14, 2010.          Thus, King’s

judgment of sentence became final on July 13, 2010, upon the expiration of

the ninety-day period for filing a writ of certiorari with the United States

Supreme Court. See 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13.

         Following the conclusion of his direct appeal, King filed a timely pro se

PCRA petition (“First PCRA Petition”) and waived his right to counsel. The

PCRA court dismissed the First PCRA Petition without conducting a hearing,

and King filed a timely notice of appeal. However, King failed to file a court-

ordered concise statement of errors complained of on appeal, resulting in

waiver of the issues raised. Additionally, while the matter was pending in

this Court, King requested a remand to the PCRA court based upon newly-


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discovered evidence regarding Philadelphia Police Officers Robert Snyder and

Brian Reynolds. The officers were involved in King’s arrests and were later

charged with making false arrests.

      This Court dismissed King’s PCRA petition on January 9, 2014.         See

Commonwealth v. King, 96 A.3d 1078 (Pa. Super. 2014) (unpublished

memorandum).       This Court also denied King’s request for remand without

prejudice to allow King to raise his claims of newly-discovered evidence in a

subsequent PCRA petition. King did so, filing the instant PCRA petition on

March 6, 2014.

      On appeal, King raises the following issues, verbatim:

      1. The trial court erred in determining that King’s “after
         discovered evidence” concerning the corruption and
         conviction of the arresting officers was meritless because King
         had originally pled guilty. Is King entitled to a remand to the
         trial court – the one and same trial court – that arbitrarily
         concluded King’s claim was meritless because King pled
         guilty, and declined to analyze whether King had any
         plausible evidence to support his assertion?

      2. The trial court erred in refusing to allow King to withdraw his
         plea after his sentencing, which would have enabled the
         correction of a manifest injustice. Is King entitled to have his
         plea withdrawn and/or a remand to the trial court determine
         whether his [a]fter [d]iscovered [e]vidence claim warrants
         relief?

Brief for Appellant, at iv.

      Our standard and scope of review regarding the denial of a PCRA

petition is well-settled.     We review the PCRA court’s findings of fact to

determine whether they are supported by the record, and review its

conclusions of law to determine whether they are free from legal error.

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Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level. Id.

      In order to be considered timely,

      [a] PCRA petition, including a second or subsequent one, must
      be filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S. § 9545(b)(1).           A
      judgment becomes final at the conclusion of direct review by
      [the Pennsylvania Supreme] Court or the United States Supreme
      Court, or at the expiration of the time for seeking such review.
      42 Pa.C.S. § 9545(b)(3). The PCRA’s timeliness requirements
      are jurisdictional; therefore, a court may not address the merits
      of the issues raised if the petition was not timely filed. The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and

footnote omitted).

      The three statutory exceptions for an untimely petition under the PCRA

consist of the following:

      (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

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      this section and has been held by that court to                apply
      retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, a petition invoking a timeliness

exception pursuant to the statute must “be filed within 60 days of the date

the claim could have been presented.” Id. at § 9545(b)(2).

      Here, the instant PCRA petition was filed on March 6, 2014, well

beyond one year after King’s judgment of sentence became final on July 13,

2010. Thus, the petition is untimely on its face. However, the basis for the

instant petition is newly-discovered evidence regarding false arrests made

by police officers involved in King’s arrests.     As the trial court noted in

finding that King satisfied the exception in section 9545(b)(1)(ii), “even with

due diligence [King] could not have learned [earlier] that two of his arresting

officers were subsequently charged with police corruption” leading to

convictions for both officers. Trial Court Opinion, 3/24/15, at 9.

      At the time King discovered the relevant information regarding his

arresting officers via news articles, the First PCRA Petition was pending and

was not dismissed until January 9, 2014.         “[W]hen 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 the expiration of the time for

seeking such review.”    Commonwealth v. Lark, 746 A.2d 585, 588 (Pa.

2000). Thus, the order dismissing the First PCRA Petition became final on

February 8, 2014, at the conclusion of the time for King to seek review in

our Supreme Court. King filed the instant PCRA petition on March 6, 2014,

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satisfying the requirement to bring his claim within sixty days of the date it

could be presented.       42 Pa.C.S. § 9545(b)(2).   Therefore, we proceed to

address King’s petition on the merits.

       King asserts that he is entitled to relief based upon newly-discovered

evidence.    To obtain an evidentiary hearing2 to determine whether King is

entitled to a new trial, he must demonstrate “the 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(2)(vi).         However, a court may dismiss a PCRA petition

without a hearing when:

       the judge is satisfied from this review [of the petition] that
       there are no genuine issues concerning any material fact
       and that the defendant is not entitled to post-conviction
       collateral relief, and no purpose would be served by any
       further proceedings.

Pa.R.Crim.P. 907(1) (emphasis added).

       The information that King presents is limited to news articles about his

arresting officers indicating they were arrested and convicted of making false

arrests in other cases.          Our Supreme Court has stated that “[w]hile

____________________________________________


2
  A portion of King’s argument involves his assertion that an evidentiary
hearing was held on September 15, 2014, at which he “attempted to present
evidence he obtained pertaining to the arrest and conviction of the arresting
officers.” Brief for Appellant, at viii. We note, however, that the proceeding
King refers to was not an evidentiary hearing, but rather a status conference
in which the PCRA court announced its intention to dismiss the matter
pursuant to Pa.R.Crim.P. 907.



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newspaper articles can alert a party to the possible existence of evidence,

the party must do more than attach the article” to demonstrate evidence

exists that would necessitate a new trial.   Commonwealth v. Castro, 93

A.3d 818, 827 (Pa. 2014).    Here, although the news articles demonstrate

that King’s arresting officers were found guilty of making false arrests, a

serious form of misconduct, King nevertheless fails to proffer any evidence

to show the officers falsely arrested him in his cases. Moreover, King pled

guilty in each of his cases, thereby agreeing to the factual basis for the

charges against him.    The record provides no indication that King did not

make knowing, voluntary, and intelligent pleas.

     Additionally, King has failed to comply with the requirements to obtain

an evidentiary hearing as prescribed in the PCRA:

     Where a petitioner requests an evidentiary hearing, the petition
     shall include a signed certification as to each intended witness
     stating the witness’s name, address, date of birth and substance
     of testimony and shall include any documents material to that
     witness’s testimony. Failure to substantially comply with the
     requirements of this paragraph shall render the proposed
     witness’s testimony inadmissible.

42 Pa.C.S. § 9545(d).

     For the foregoing reasons, King is not entitled to relief regarding his

newly-discovered evidence claim. King’s claim that he should be permitted

to withdraw his guilty pleas is premised upon the same arguments and fails




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to demonstrate manifest injustice3 as is required to withdraw a guilty plea

after sentencing.     Thus, this claim also fails, and the PCRA court properly

dismissed King’s petition without a hearing.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/25/2016




____________________________________________


3
  See, e.g., Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa.
Super. 2002).



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