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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ANDRE LAMAR YATES                       :
                                         :
                   Appellant             :   No. 1676 WDA 2017

             Appeal from the PCRA Order September 27, 2017
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0005902-2003,
                          CP-02-CR-0014110-2003


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 09, 2018

      Appellant, Andre Lamar Yates, appeals pro se from the September 27,

2017 order dismissing his third petition filed pursuant to the Post-Conviction

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

      On November 14, 2002, Appellant fired several shots at a vehicle

occupied by Edward Powell and Alean Hudson. Hudson died and Powell was

injured as a result of the shooting. Appellant was charged in connection with

the shooting. On November 1, 2004, the trial court sentenced Appellant to

an aggregate term of life imprisonment without the possibility of parole after
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he was convicted of first-degree murder,1 attempted murder,2 and aggravated

assault.3    This Court affirmed Appellant’s judgment of sentence and our

Supreme Court denied allowance of appeal. Commonwealth v. Yates, 902

A.2d 984 (Pa. Super. 2006) (unpublished memorandum), appeal denied, 907

A.2d 1102 (Pa. 2006).

        Appellant filed a pro se PCRA petition and counsel was appointed.

Eventually, the PCRA court denied Appellant’s first PCRA petition and this

Court affirmed. Commonwealth v. Yates, 30 A.3d 532 (Pa. Super. 2011)

(unpublished memorandum). Thereafter, Appellant filed a second, untimely

pro se PCRA petition. The PCRA court found that Appellant satisfied the newly-

discovered fact exception to the PCRA’s timeliness requirement and appointed

him counsel.     It later denied Appellant relief on the merits and this Court

affirmed the denial of relief. Commonwealth v. Yates, 102 A.3d 535, 2014

WL 10965404 (Pa. Super. 2014) (unpublished memorandum).

        On July 17, 2017, Appellant filed this, his third, pro se PCRA petition.

On August 8, 2017, the PCRA court issued notice of its intent to dismiss the

petition without an evidentiary hearing.         See Pa.R.Crim.P. 907.       On


____________________________________________


1   18 Pa.C.S.A. § 2502(a).

2   18 Pa.C.S.A. §§ 901, 2502.

3   18 Pa.C.S.A. § 2702(a)(1).




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September 27, 2017, the PCRA court dismissed the petition.          This timely

appeal followed.4

        Appellant presents two issues for our review:

        1. Did the [PCRA] court err by abusing [its] discretion by[] not
           accepting jurisdiction of Appellant’s meritorious after[-
           ]discovered evidence claim and[] Appellant’s request for an
           investigator to extrapolate exculpatory evidence from
           Appellant’s alibi witness?

        2. Did the PCRA court err by not granting Appellant an evidentiary
           hearing when Appellant found an alibi witness by happenstance
           that would prove Appellant’s actual innocence?

Appellant’s Brief at 2 (complete capitalization removed).5

        In both issues, Appellant argues that the PCRA court erred in finding

that it lacked jurisdiction over the merits of his petition.    “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), appeal denied, 2018 WL 3784694 (Pa. Aug. 8, 2018) (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,



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4 On December 4, 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 December 14, 2017, Appellant filed his concise
statement. On May 1, 2018, the PCRA court issued its Rule 1925(a) opinion.
Appellant included both of his issues in his concise statement.

5   We have renumbered the issues for ease of disposition.

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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 December 11, 2006, 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 instant petition, his third, was filed over 10 years later. Thus, the

petition was patently untimely.

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

three exceptions applies:

      (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.




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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).

      Appellant argues that he satisfied the newly-discovered fact timeliness

exception.

      The newly-discovered fact exception has two components, which
      must be alleged and proved. Namely, the petitioner 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 two
      components, then the PCRA court has jurisdiction over the claim
      under this subsection.

Commonwealth v. Brown, 141 A.3d 491, 500 (Pa. Super. 2016) (citation

omitted).

      Specifically, Appellant argues that he learned of an alibi witness who

could testify that Appellant was in New Jersey at the time of the murder.

According to Appellant, this alibi witness provided a newly-discovered fact that

conferred jurisdiction over his third PCRA petition. This argument fails for two

reasons. First, Appellant failed to comply with Pennsylvania Rule of Criminal

Procedure 902(D). Second, even if Appellant complied with Rule 902(D), he

failed to plead that he acted with due diligence.

      Rule 902(D) provides that a PCRA petitioner “shall attach to the petition

any affidavits, records, documents, or other evidence which show the facts

stated in support of the grounds for relief, or the petition shall state why they

are not attached.” Pa.R.Crim.P. 902(D) (emphasis added). Failure to attach


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an affidavit from a potential witness constitutes the failure to plead and prove

the facts required to prove a timeliness exception applies and/or that the

petitioner is entitled to relief.     See Commonwealth v. Carson, 913 A.2d

220, 250 (Pa. 2006). In this case, Appellant failed to attach the alleged alibi

witness’ declaration to his third petition and failed to submit it after the PCRA

court issued its Rule 907 notice.6 As Appellant failed to attach the alleged alibi

witness’ affidavit to his petition, or to his response to the PCRA court’s Rule

907 notice, he failed to plead and prove the applicability of the newly-

discovered fact exception.

       Moreover, even if we were to consider the unsworn declaration that

Appellant submitted after he filed the instant notice of appeal, we would

conclude that he failed to plead and prove the applicability of the newly-

discovered fact exception. As noted above, a petitioner must plead and prove

that he acted with due diligence in acquiring the newly-discovered facts he or

she relies on to invoke of this timeliness exception. Brown, 141 A.3d at 500.

In this case, Appellant failed to plead and prove that he acted with due

diligence in acquiring information regarding the alleged alibi witness.




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6 Appellant submitted an unsworn declaration from the alleged alibi witness
after he filed the instant notice of appeal. It is axiomatic that issues not raised
before the PCRA court are waived. Pa.R.A.P. 302(a). In this case, Appellant
did not present the unsworn declaration until the notice of appeal was filed.
Hence, we must analyze Appellant’s claim that he satisfied the newly-
discovered fact exception as though no such unsworn declaration exists.

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      In his PCRA petition, Appellant averred that the alibi witness would

testify that he was playing billiards with Appellant at the time of the shooting.

See Appellant’s Third PCRA Petition, 7/27/17, at 2. If true, Appellant knew of

this alibi witness since the beginning of these criminal proceedings. Appellant

also averred in his PCRA petition that he did not begin searching for this alibi

witness until sometime in 2016. See id. Hence, Appellant failed to act with

due diligence by waiting over 13 years to search for the alibi witness he knew

existed at the time these criminal proceedings began. Accordingly, even if we

were to consider the unsworn declaration submitted after Appellant filed his

notice of appeal, we would conclude that he failed to plead and prove the

applicability of the newly-discovered fact exception to the PCRA’s one-year

time bar.

      Appellant also argues that the PCRA court erred in denying his request

for an investigator. We review the PCRA court’s denial of a request for an

investigator for an abuse of discretion.    Commonwealth v. Bridges, 886

A.2d 1127, 1131 (Pa. 2005) (citation omitted). A PCRA court may appoint an

investigator when a petitioner shows that assistance is reasonably necessary

for the presentation of his or her claim. See Commonwealth v. Howard,

719 A.2d 233, 241-242 (Pa. 1998) (citation omitted). In this case, Appellant

failed to show that an investigator was reasonably necessary for presentation

of his claim. As noted above, Appellant did not attach the alleged alibi witness’

declaration to his PCRA petition. Moreover, even if Appellant had attached the


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unsworn declaration, the averments set forth in Appellant’s petition make

clear that he failed to exercise due diligence in locating the purported alibi

witness and, therefore, the appointment of an investigator would not have

aided the presentation of a viable claim. Accordingly, we conclude that the

PCRA court did not abuse its discretion in denying Appellant’s request for an

investigator and that the PCRA court properly found that it lacked jurisdiction

over the merits of Appellant’s third, untimely PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2018




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