J-A28027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MAJOR GEORGE TILLERY                       :
                                               :
                       Appellant               :   No. 3270 EDA 2016

                Appeal from the PCRA Order September 26, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0305681-1984


BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

MEMORANDUM BY PANELLA, J.                                 FILED JUNE 11, 2018

       Major George Tillery1 appeals from the order entered in the Philadelphia

County Court of Common Pleas, denying his untimely third petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

       Briefly, Appellant was convicted of first-degree murder, aggravated

assault, possessing an instrument of crime, and two counts of criminal

conspiracy following a jury trial in 1985. The court sentenced him to life

imprisonment. This Court affirmed, and the Pennsylvania Supreme Court

denied allowance of appeal.


____________________________________________


1 Appellant indicates his name is incorrectly listed on this appeal as “George
M. Tillery.” See Appellant’s Brief, at 1. Previous court documents confirm
Appellant has been referred to as “Major George Tillery” throughout associated
proceedings. We have corrected the error.
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      Thereafter,     Appellant   filed   his   first   PCRA   petition,   which   was

unsuccessful. In 2007, Appellant untimely filed his second PCRA petition. In

it, he claimed a timeliness exception to the PCRA based on newly discovered

evidence. Appellant alleged two of the Commonwealth’s witnesses at his trial,

Emanuel Claitt and Robert Mickens, received previously undisclosed favorable

plea deals in exchange for their false testimony. Appellant contended these

plea deals, previously unknown to him, gave the witnesses motive to lie about

Appellant’s involvement in the murder. The PCRA court denied the petition as

untimely, and this Court affirmed.

      Appellant filed this petition, his third, on June 15, 2016. The PCRA court

denied the petition without holding an evidentiary hearing. This appeal is now

properly before us.

      Appellant argues the PCRA court erred in dismissing his petition as

untimely. We review an order dismissing a petition under the PCRA by

examining whether the court’s determination is supported by the evidence of

record and is free of legal error. See Commonwealth v. Halley, 870 A.2d

795, 799 n.2 (Pa. 2005). We will not disturb the court’s factual findings unless

there is no support for them in the certified record. See Commonwealth v.

Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Moreover, a court may decline

to hold a hearing on a petition if it determines the petitioner’s claim is patently

frivolous and is without a trace of support either in the record or from other

evidence. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super.

2001).

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      The timeliness of a post-conviction petition is jurisdictional. See

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges, and the petitioner proves, an exception to

the timeliness requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA

petition invoking one of these statutory “exceptions must be filed within sixty

days of the date the claims could have been presented.” Hernandez, 79 A.3d

at 652 (citing 42 Pa.C.S.A. § 9545(b)(2)). Finally, exceptions to the PCRA’s

time bar must be pled in the petition. See Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007). See also Pa.R.A.P. 302(a).

      Appellant’s judgment of sentence became final on June 3, 1990, when

his time for filing a writ of certiorari with the United States Supreme Court

expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup. Ct. R. 13. Appellant filed

this petition on June 15, 2016—more than 26 years after his judgment of

sentence became final. It is, as he concedes, patently untimely. See

Appellant’s PCRA Petition, filed 6/15/16, at 5. Thus, the PCRA court lacked

jurisdiction to review Appellant’s petition unless he was able to successfully

plead and prove one of the statutory exceptions to the PCRA’s time-bar.

      Appellant attempts to plead both the governmental interference

exception and the newly discovered facts exception. He proffers the same

evidence for both claims: signed affidavits from two witnesses in his case,

Emanuel Claitt and Robert Mickens. In their affidavits, the men aver they

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received favorable plea deals and other favors from the Commonwealth in

exchange for their testimony, and that they lied when asked about any

potential plea deals during Appellant’s trial. Claitt and Mickens also allege

various police detectives and the Assistant District Attorney prosecuting

Appellant’s case repeatedly threatened them with criminal charges, which

coerced them to provide testimony falsely incriminating Appellant.

      To   demonstrate    the   governmental    interference   exception,   “the

petitioner must plead and prove the failure to previously raise the claim was

the result of interference by government officials, and the information could

not have been obtained earlier with the exercise of due diligence.”

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (citation

omitted). To claim the newly discovered facts exception, a petitioner 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). “[D]ue diligence requires

neither perfect vigilance nor punctilious care, but rather it requires reasonable

efforts by a petitioner, based on the particular circumstances, to uncover facts

that may support a claim for collateral relief.” Commonwealth v. Brown,

141 A.3d 491, 506 (Pa. Super. 2016) (citation omitted).

      Appellant devotes much of his brief to disputing the PCRA court’s

dismissal of his petition, on the grounds that Appellant failed to prove he acted

with due diligence. Appellant contends he had no way of knowing before he

received these affidavits that the Commonwealth orchestrated a conspiracy to

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keep him in jail, and requiring him to have investigated this matter in the 31

years between his trial and the filing of this PCRA petition placed an

unreasonable burden on him. Appellant also argues the conditions of his

incarceration prevented him from filing a PCRA petition sooner. Appellant

chronicles his movements between various prisons, as well as stints in solitary

confinement, as evidence that he was unable to file this petition at an earlier

date.

        The Pennsylvania Supreme Court previously evaluated the argument

that prison conditions constitute a timeliness exception to the PCRA, and

rejected it. See Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa.

2010) (holding inmate’s failure to show restricted conditions of incarceration

were illegal prevented him from obtaining timeliness relief under PCRA’s

governmental interference exception).

        Also, Appellant’s contention that he was unable to obtain this

information sooner is belied by his second PCRA petition, filed in 2007. In it,

Appellant accuses the Commonwealth of suborning perjury from Claitt and

Mickens, and he provides various transcripts and letters as proof. While

Appellant’s 2007 petition lacks the signed affidavits from Claitt and Mickens

attached to his current petition, he raises substantially the same arguments

in each. The claims here merely expand on the arguments in the 2007 petition,

and he offers only vague speculation that Claitt and Mickens would have been

unwilling to provide such information before. We find such explanations

unavailing.

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      Consequently, we find Appellant has failed to prove he acted with due

diligence in discovering these allegedly new facts and governmental

interference. Accordingly, we affirm the order dismissing his PCRA petition as

untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/18




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