J-S69032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                        :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                           :        PENNSYLVANIA
                                        :
                                        :
              v.                        :
                                        :
                                        :
 TYRONE THOMAS                          :
                                        :   No. 682 WDA 2017
                   Appellant

                  Appeal from the PCRA Order May 1, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0002359-2011,
                          CP-02-CR-0004968-2010


BEFORE:    BOWES, J., RANSOM, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                 FILED NOVEMBER 21, 2017

      Appellant, Tyrone Thomas, appeals from the order entered in the Court

of Common Pleas of Allegheny County dismissing his second petition filed

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We

affirm.

      This Court previously summarized the history of the case as follows:

      Following his arrest in connection with the March 14, 2010,
      shooting death of a retired firefighter, Mark Barry, Appellant was
      charged in the adult division of the trial court with criminal
      homicide, robbery, carrying a firearm without a license, and
      criminal conspiracy.       Additionally, following his arrest in
      connection with the March 21, 2010 shooting into the occupied
      residence of Portia Smithson, Appellant was charged in the adult
      division of the trial court with two counts of aggravated assault,
      four counts of recklessly endangering another person, one count
      of conspiracy, one count of discharging a firearm into an occupied
      structure, and one count of possessing a firearm by a minor. Upon
      notice by the Commonwealth, the cases were joined, and on July

____________________________________
* Former Justice specially assigned to the Superior Court.
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     2, 2010, Appellant filed a counseled motion seeking to decertify
     the criminal proceedings and transfer the cases to the juvenile
     division.

     Following a hearing on the matter, the trial court denied
     Appellant's motion to decertify the criminal proceedings, and on
     May 2, 2011, Appellant proceeded to a guilty plea hearing....

     The Commonwealth, per the plea agreement, recommended an
     aggregate sentence of 40 to 80 years of imprisonment. The trial
     court accepted the plea and imposed the negotiated sentence. On
     direct appeal, this Court affirmed the trial court's denial of his
     decertification motion.

     Appellant pro se filed a PCRA petition on October 15, 2013, but
     was subsequently granted leave by our Supreme Court to file a
     petition for allowance of appeal nunc pro tunc. The trial court
     initially appointed PCRA counsel, but later entered an order
     staying the PCRA action during the pendency of Appellant's direct
     appeal. Our Supreme Court denied Appellant's petition for
     allowance of appeal on April 4, 2014. Appellant filed another PCRA
     petition on May 6, 2014, stating substantially the same claims as
     in his original petition.

     On September 2, 2014, PCRA counsel filed a motion to withdraw
     as counsel and a letter brief pursuant to Commonwealth v.
     Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v.
     Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On September
     25, 2014, the PCRA court granted counsel leave to withdraw and
     issued a notice of intent to dismiss the petition without a hearing
     pursuant to Pa.R.Crim.P. 907. On February 25, 2015, the PCRA
     court entered an order denying the petition.

     Appellant timely filed a notice of appeal. The PCRA court did not
     order Appellant to file a statement of errors complained of on
     appeal, and none was filed. In lieu of filing an opinion pursuant
     to Pa.R.A.P. 1925(a), the PCRA court pointed to its notice of intent
     to dismiss for its reasons for denying Appellant's petition. On
     appeal, Appellant present[ed] this Court with several arguments
     that his guilty plea was induced by the ineffective assistance of
     plea counsel.




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Commonwealth v. Thomas, No. 483 WDA 2015, unpublished memorandum

at *1 (Pa. Super. filed Sept. 28, 2015). By order and memorandum decision

of September 28, 2015, this Court rejected Appellant’s claims on the merits

and, accordingly, affirmed the order denying Appellant PCRA relief.

      On December 28, 2016, Appellant filed this, his second, PCRA petition,

in which he raised a claim under the newly-discovered fact exception to the

PCRA’s time requirement, namely, that his co-defendant had admitted in a

sworn affidavit to having shot their robbery victim without Appellant’s prior

consent to, or knowledge of, such a plan. On February 9, 2017, the PCRA

court filed a Pa.R.Crim.P. 907 Notice of Intent to Dismiss the petition on

grounds that Appellant’s claim merited no relief.        On February 17, 2017,

Appellant filed a response to the court’s notice in which he reiterated that his

guilty plea represented a miscarriage of justice given his co-defendant’s

assumption of sole responsibility for the murder of their robbery victim.

      On May 1, 2017, the court entered its order dismissing Appellant’s PCRA

petition, relying on reasons set forth in its earlier Rule 907 Notice. Specifically,

the PCRA court determined that co-defendant’s affidavit did not support the

Appellant’s claim, as the facts alleged in the affidavit were nearly identical to

the District Attorney’s summarization of facts at the guilty plea hearing, facts

that sufficiently established Appellant’s guilt for purposes of his plea. This

appeal followed.

      Appellant’s “Statement of Questions Involved” states the following:

      I.    NEWLY DISCOVERED EVIDENCE [AFFIDAVIT].

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       II.    PLEA OF GUILTY UNLAWFULLY INDUCED WHERE THE
              CIRCUMSTANCES MAKE IT LIKELY THAT THE
              INDUCEMENT CAUSED PETITIONER TO PLEAD
              GUILTY.

Appellant’s brief at 2.1

       We set forth our well-settled standard of review:

       On appeal from the denial of PCRA relief, our standard and scope
       of review is limited to determining whether the PCRA court's
       findings are supported by the record and without legal error. Our
       scope of 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 PCRA court level.

Commonwealth v. Lawrence, 165 A.3d 34, 40–41 (Pa. Super. 2017)

(internal citations, quotations, and brackets omitted).

       Before this Court can address the substance of Appellant's claims, we

must determine if this petition is timely.

       [The PCRA requires] a petitioner to file any PCRA petition within
       one year of the date the judgment of sentence becomes final. A
       judgment of sentence becomes final at the conclusion of direct
       review ... or at the expiration of time for seeking review.
       ...

       However, an untimely petition may be received when the petition
       alleges, and the petitioner proves, that any of the three limited
       exceptions to the time for filing the petition, set forth at 42
       Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.[2] A petition
____________________________________________


1 Although inordinately truncated, Appellant’s first question presented does
not warrant dismissal for noncompliance with Pa.R.A.P. 2116(a) (explaining
statement of questions involved must define specific issues for review), where
his argument section adequately develops the issue so as to permit
meaningful judicial review.




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       invoking one of these exceptions must be filed within [60] days of
       the date the claim could first have been presented. In order to be
       entitled to the exceptions to the PCRA's one-year filing deadline,
       the petitioner must plead and prove specific facts that
       demonstrate his claim was raised within the [60]-day timeframe.

Commonwealth v. Lawson, 90 A.3d 1, 4–5 (Pa. Super. 2014) (some

internal citations omitted) (internal quotations omitted).

       Here, Appellant's judgment of sentence became final 90 days after the

Pennsylvania Supreme Court filed its April 4, 2014, order denying Appellant's

petition for allowance of appeal. 42 Pa.C.S.A. § 9545(b)(3) (judgment of

sentence becomes final at the conclusion of direct review or the expiration of

time for seeking the review); Commonwealth v. Feliciano, 69 A.3d 1270,
____________________________________________


2   (b) Time for filing petition.—

(1) Any petition under this subchapter, including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes final,
unless the petition alleges and the petitioner proves that:

       (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)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S.A. § 9545(b)(2).




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J-S69032-17



1275 (Pa. Super. 2013) (defendant's judgment of sentence final ninety days

after Pennsylvania Supreme Court denies allowance of appeal since defendant

has ninety days thereafter to seek discretionary review with United States

Supreme Court). Thus, generally, Appellant would have had to file the instant

petition by July 3, 2015, for it to be timely.

      Filed on December 28, 2016, Appellant’s petition is patently untimely.

Appellant, therefore, attempts to avoid the statutory one-year time-bar by

invoking the “newly discovered fact” exception under Section 9545(b)(1)(ii),

supra.

      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. Due diligence
      demands that the petitioner take reasonable steps to protect his
      own interests. A petitioner must explain why he could not have
      learned of the new fact(s) earlier with the exercise of due
      diligence. This rule is strictly enforced. Additionally, the focus of
      this exception “is on the newly discovered facts, not on a newly
      discovered or newly willing source for previously known facts.”

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015), (internal

quotations and citations omitted), appeal denied, 125 A.3d 1197 (Pa. 2015).

      “The function of a section 9545(b)(1)(ii) analysis is that of a gatekeeper.

Its inquiry, therefore, is limited to considering only the existence of a

previously unknown fact that would allow a petitioner to avoid the strict one-

year time-bar.”    Commonwealth v. Cox, 146 A.3d 221, 229, n.11 (Pa.

2016). We, thus, limit our jurisdictional inquiry to considering whether the

facts were unknown, and, if so, whether the defendant uncovered such facts


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with due diligence, which “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. Burton, 121 A.3d 1063, 1071 (Pa.

Super. 2015) (en banc), aff’d, 2017 WL 1149203 (Pa. 2017).

      Here, the alleged newly-discovered fact appeared in an affidavit written

by Appellant’s co-defendant, Cordell Brown, in which Brown states for the first

time that although Appellant gave him the gun as they approached their

intended robbery victim, Appellant did not know Brown would shoot the victim.

Brown further claims in the affidavit that he lied to investigators when he

implicated Appellant in the plan, since it was Appellant’s gun and Brown did

not want to spend the rest of his life in jail.   According to Appellant, had

Brown’s statement been available to him prior to his guilty plea, he would

have insisted on a jury trial, as the Commonwealth had used Brown’s

incriminating statement against Appellant to leverage a guilty plea.

      As a prefatory matter, we observe that Cordell Brown’s written affidavit

is dated September 26, 2016, whereas Appellant filed the present PCRA

petition more than 60 days later, on December 28, 2016.         However, the

envelope in which Brown’s affidavit was mailed to Appellant at his prison

address bore the date of December 16, 2016. We assume, arguendo, the

envelope serves as proof that Appellant exercised due diligence in filing the

present PCRA petition containing his newly discovered fact claim just twelve




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J-S69032-17



days after receiving Brown’s affidavit.          We turn, then, to the contents of

Brown’s affidavit.

       Appellant’s claim is that the previously unknown “fact” alleged in the

affidavit is that Appellant did not know Brown would use Appellant’s gun to

kill their robbery victim.      Certainly, this “fact” must have been previously

known to Appellant, as it involves his own state of mind at the time of the

crime. Again, the focus of the “newly discovered fact” exception “is on the

newly discovered facts, not on a newly discovered or newly willing source of

previously known facts.”          Brown, supra, 111 A.3d at 176 (quotation

omitted). It may be that Appellant did not learn of Brown’s willingness to

testify on Appellant’s behalf until December 16, 2016, but the discovery of

Brown’s newfound willingness does not demonstrate that the “facts” alleged

in Brown’s affidavit—namely, that Appellant was unaware Brown would shoot

their victim—were previously unknown to Appellant. Therefore, we find the

PCRA court properly dismissed Appellant’s petition for his failure to prove he

qualified under Section 9545(b)(1)(ii)’s time-for-filing exception.3

       Order is AFFIRMED.




____________________________________________


3Because Appellant’s petition is untimely, we lack jurisdiction to reach the
merits of the claims raised herein.

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J-S69032-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2017




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