J-S60025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    RAYMEL ADDISON,                            :
                                               :
                      Appellant                :   No. 192 WDA 2017

                Appeal from the PCRA Order December 28, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0011423-2003,
                            CP-02-CR-0013549-2003


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

MEMORANDUM BY DUBOW, J.:                             FILED SEPTEMBER 11, 2017

        Appellant, Raymel Addison, appeals from the December 28, 2016

Order dismissing his third Petition filed pursuant to the Post-Conviction Relief

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

        On October 18, 2005, a jury convicted Appellant of Third-Degree

Murder and a Violation of the Uniform Firearms Act (“VUFA”) 1 after hearing

testimony concerning a July 22, 2003 shooting incident outside a bar in

downtown Pittsburgh.          On January 9, 2006, the trial court sentenced

Appellant on the Murder conviction to a term of 20 to 40 years’ incarceration

and on the VUFA conviction to a concurrent term of 14 months’ to 7 years’


____________________________________________


1
    18 Pa.C.S. § 2502(c) and 18 Pa.C.S. § 6105, respectively.



____________________________________
* Former Justice specially assigned to         the Superior Court.
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incarceration.2     This Court affirmed Appellant’s Judgment of Sentence.

Commonwealth v. Addison, No. 344 WDA 2006 (Pa. Super. filed May 30,

2007) (unpublished memorandum).                  Appellant did not appeal to the

Pennsylvania Supreme Court.             Thus, Appellant’s Judgment of Sentence

became final on June 30, 2007. See 42 Pa.C.S. § 9545(b)(3).

       Appellant then filed two PCRA petitions, neither of which resulted in

relief. On May 10, 2012, Appellant filed the instant PCRA Petition pro se, his

third. Shortly thereafter, the PCRA Court gave Appellant Notice pursuant to

Pa.R.A.P. 907 of its intention to dismiss the Petition without a hearing as

untimely. Appellant filed a Response to the court’s Rule 907 Notice, and on

June 22, 2012, the PCRA court dismissed the Petition.

       Appellant timely appealed. On review, this Court concluded that the

PCRA court had erred as a matter of law by applying the wrong standard of

review to Appellant’s after-discovered evidence claim.           Accordingly, we

vacated the PCRA court’s Order and remanded for application of the correct

standard of review. Commonwealth v. Addison, No. 1144 WDA 2012 (Pa.

Super. filed July 1, 2013) (unpublished memorandum).

       On October 3, 2013, on remand, the PCRA court again issued a Rule

907 Notice informing Appellant of its intention to dismiss his third Petition

without a hearing as meritless and time-barred.            On October 11, 2013,

____________________________________________


2
  The court ordered Appellant to serve these sentences consecutive to an
unrelated federal sentence.



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Appellant requested an extension of time to file a Response to the court’s

Rule 907 Notice, which the court granted, directing Appellant to file his

Response on or before January 29, 2014.

        On January 31, 2014, current counsel entered his appearance on

Appellant’s behalf. No further action occurred on the pending PCRA Petition.

        On August 4, 2015, Appellant filed a pro se “Amended” PCRA Petition,

claiming that he had after-discovered evidence.           He attached an affidavit

from his friend, Ronald Anderson, who stated that he had obtained

documents on June 16, 2015, from the Allegheny County Clerk of Courts

showing that the Commonwealth had offered Michael Brown, a key

Commonwealth witness, a plea deal in exchange for his testimony against

Appellant.     This evidence contradicted Brown’s trial testimony that the

Commonwealth had not offered him anything in exchange for his testimony.

Pro Se Amended Petition, 8/4/15, at ¶¶ 5-6. The court took no action on

this filing.

        After receiving many extensions of time, on December 27, 2016,

Appellant filed a counseled “Response to Notice of Intention to Dismiss and

Final   Amended      Petition    for   Post-Conviction   Relief”   (“Final   Amended

Petition”)3 in which Appellant reiterated his assertion that Brown had lied
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3
 Although the PCRA did not explicitly grant leave to amend the Petition, the
court nonetheless considered the Final Amended Petition that counsel
submitted with the Rule 907 Response as if leave had been granted. See
Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa. Super. 2012) (noting
(Footnote Continued Next Page)


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when he denied that the Commonwealth had offered him a plea agreement

in exchange for his testimony against Appellant.        Final Amended Petition,

dated 12/27/16, at ¶ 7.4            Appellant stated that he had exercised due

diligence in attempting to “retrieve appropriate documentation evidencing

such consideration,” that this information was known and available to the

Commonwealth at all relevant times, and if Appellant had had this

information at the time of trial, he would have used it to impeach Mr. Brown,

thus impacting the jury’s credibility determination..     Id. at ¶¶ 10, 13, 15,

16.

      On December 28, 2016, the PCRA court dismissed Appellant’s Petition,

concluding that Appellant’s issues lacked merit and were time-barred.

Appellant filed the instant timely appeal.        Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

      Appellant raises the following issue on appeal:

      Whether the [PCRA c]ourt erred in refusing to grant an
      evidentiary hearing where documents maintained by the
      [g]overnment were discovered, the same which clearly indicate
      an agreement between the [g]overnment        and the sole
                       _______________________
(Footnote Continued)

that the purpose of a Rule 907 pre-dismissal notice is “to allow a petitioner
an opportunity to seek leave to amend his petition and correct any material
defects, the ultimate goal being to permit merits review by the PCRA court of
potentially arguable claims.”).
4
  Appellant also claimed that Mr. Brown had lied when he denied that he had
been offered a reduced federal sentence in another matter in exchange for
his “assistance and testimony in the within matters.”       Final Amended
Petition, at 8.



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       eyewitness despite repeated denials of the existence of such
       agreement by both the witness in question and the
       [g]overnment at the time of trial[?]

Appellant’s Brief at 4.

       We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.      Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014).    Before addressing the merits of Appellant’s claims, however, we

must first determine whether we have jurisdiction to entertain the

underlying PCRA Petition.         No court has jurisdiction to hear an untimely

PCRA Petition. Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008).

       A PCRA Petition must be filed within one year of the date the

underlying Judgment becomes final; a Judgment is deemed final at the

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

42 Pa.C.S. § 9545(b)(1), (3). However, the PCRA provides exceptions to the

timeliness requirement in certain circumstances. See id. at § 9545(b)(1)(i)-

(iii). For a petitioner to avail himself of one of the exceptions, he must file

his petition within 60 days of the date the claim could have been presented.

See id. at § 9645(b)(2).

       Appellant’s Petition, filed almost five years after his Judgment of

Sentence became final, is facially untimely.5       He attempts to invoke our

____________________________________________


5
 The period in which Appellant could have filed a timely PCRA Petition ended
on June 30, 2008.



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jurisdiction by averring that his claim involves information in the nature of

“after-discovered evidence.” Appellant’s Brief at 11. While this appears to

be an attempt to bring his Petition within the timeliness exception set forth

in Section 9545(b)(1)(ii) allowing for late filing because of unknown “facts,”

our review of Appellant’s Brief reveals that Appellant has utterly ignored the

mandates of subsection (b)(1)(ii) requiring that he establish jurisdiction.

       The timeliness exception set forth in Section 9545(b)(1)(ii) requires a

petitioner to demonstrate he did not know the facts upon which he based his

Petition and could not have learned those facts earlier by the exercise of due

diligence.   Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super.

2015).     “[T]he ‘new facts’ exception at Section 9545(b)(1)(ii) does not

require any merits analysis of an underlying after-discovered-evidence

claim.” Id. at 176. See also Commonwealth v. Bennett, 930 A.2d 1264,

1272 (Pa. 2007) (explaining that a petitioner’s “reliance on Section 9543 as

a basis for asserting an after-discovered-evidence claim under the PCRA, []

did not suspend [his] initial obligation to establish jurisdiction by alleging

and proving (a) the existence of facts that were unknown to him and (b) his

exercise of due diligence in discovering those facts”).6
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6
  Once jurisdiction has been established, 42 Pa.C.S. 9543(a)(2)(vi) provides
that to succeed on an after-discovered evidence claim, the petitioner ust
plead and prove that: (1) the evidence was discovered after trial and could
not have been obtained at or prior to trial through reasonable diligence; (2)
the evidence is not cumulative; (3) it is not being used solely to impeach
credibility; and (4) it would likely compel a different verdict.         See
(Footnote Continued Next Page)


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      This Court’s review of Appellant’s Final Amended Petition indicates that

Appellant neglected to make any attempt to plead and prove the timeliness

exception in Section 9545(b)(1)(ii).             Rather, Appellant exclusively argued

the merits of his “after-discovered evidence” claim, i.e., that had he known

of Brown’s plea agreement, he would have used it for impeachment

purposes, and the jury’s verdict would have been different. Final Amended

Petition, 12/27/16, at ¶ 16.          In his Brief to this Court, Appellant likewise

neglects to establish that the trial court had jurisdiction to consider his

Petition.   Rather, he states only that, after his trial, he “subsequently

became aware of the existence of a plea agreement.” Appellant’s Brief at 8.

He does not specify when he became aware of the agreement in order to

establish that he acted with due diligence in bringing the claim, as required

by subsection (b)(1)(ii).

      Because Appellant failed to plead and prove the application of the

PCRA’s “new facts” exception to the time-bar, the PCRA court was without

jurisdiction to consider Appellant’s Petition.            We are, likewise, without

jurisdiction. Accordingly, we affirm.

      Order affirmed.


                       _______________________
(Footnote Continued)

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). Evidence used
merely for impeachment purposes does not qualify as after-discovered
evidence. Commonwealth v. Wright, 832 A.2d 1104, 1108 (Pa. Super.
2003). Thus, even if Appellant had met the jurisdictional requirements,
Appellant would be entitled to no relief.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2017




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