J-S39028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

FRANK FLUELLEN

                            Appellant               No. 3063 EDA 2014


                Appeal from the PCRA Order September 19, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0210662-2001


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                            FILED AUGUST 20, 2015

       Frank Fluellen, appeals pro se from the order entered September 19,

2014, in the Court of Common Pleas of Philadelphia County, dismissing his

fourth petition, filed pursuant to the Post Conviction Relief Act (PCRA), as

time-barred.1      Fluellen contends that newly discovered evidence permits

review of his PCRA petition under 42 Pa.C.S. § 9545(b)(1)(ii), a statutory

exception to the PCRA’s time limitation.       Based upon the following, we

affirm.

       The background of this case has been previously discussed by this

Court:

       A prior panel of this Court summarized the relevant facts and
       procedural history of this case as follows.
____________________________________________


1
    42 Pa.C.S. §§ 9541–9546.
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        [On July 26, 2002, Appellant] was convicted by a jury of
        second degree murder, two counts of robbery,
        aggravated assault, kidnapping, criminal conspiracy and
        possession of an instrument of crime.[1] These convictions
        stemmed from the [August 22, 1994] robbery of Marie’s
        Variety Store in Philadelphia, and the related shooting of
        the store manager, Skirvy Powell, and shooting death of
        the store owner, Asley Espuet. Involved in the robbery
        were [Appellant], Robert Holloday, James McIntosh,
        Jermaine Williams, Travis Hall, and several other men.

        [That same day, Appellant] was sentenced to life
        imprisonment for the murder of Espuet, and to lesser
        sentences for the convictions involving Powell, to run
        consecutive to each other, but concurrent to the term of
        life imprisonment for murder.
        ___________________________________
            [1]
            18 Pa.C.S. §§ 2502, 3701, 2702, 2901, 903, and
          907, respectively.
        ___________________________________

     Commonwealth v. Fluellen, 847 A.2d 756 (Pa. Super. 2004)
     (unpublished memorandum) (Fluellen I).

           Appellant filed a timely notice of appeal, and on January
     30, 2004, a panel of this Court affirmed Appellant’s judgment of
     sentence. Id. Appellant did not file a petition for allocatur with
     our Supreme Court. Thereafter, on August 20, 2004, Appellant
     filed a timely pro se PCRA petition, his first. The PCRA court
     subsequently appointed Richard Hoy, Esquire (Attorney Hoy) to
     represent Appellant. On October 13, 2006, Attorney Hoy filed a
     Turner/Finley2 letter requesting leave to withdraw and
     indicating that there were no meritorious issues to be raised on
     Appellant’s behalf.
     ____________________________________________
        2
         Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
        Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
        1988) (en banc).
     ____________________________________________



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            On May 7, 2007, the PCRA court issued notice of its intent
      to dismiss Appellant’s petition, pursuant to Pa.R.Crim.P 907.
      Thereafter, on June 5, 2007, the PCRA court dismissed
      Appellant’s petition and granted Attorney Hoy permission to
      withdraw. On October 29, 2007, Appellant filed a second pro se
      PCRA petition, seeking the reinstatement of his appellate rights
      from the dismissal of his PCRA petition. On October 28, 2008,
      the PCRA court reinstated Appellant’s appeal rights nunc pro
      tunc. Thereafter, on November 25, 2008, the PCRA court sent
      Appellant a letter advising him that, in order to be timely, his
      appeal must be filed no later than November 27, 2008.
      Appellant, however, failed to file an appeal with this Court until
      December 9, 2008.

            Following multiple procedural delays and several changes
      in representation, the PCRA court inexplicably appointed Dennis
      Turner, Esquire (Attorney Turner) to represent Appellant on
      February 1, 2010. On June 1, 2010, Attorney Turner filed a
      Pa.R.A.P. 1925(b) concise statement on Appellant’s behalf.
      Several supplemental Rule 1925(b) statements and addendums
      followed, the last of which was filed on December 10, 2010. On
      September 2, 2011, the PCRA court filed its Rule 1925(a)
      opinion, concluding that all of Appellant’s claims were meritless.
      Thereafter, on October 5, 2012, a panel of this Court quashed
      Appellant’s appeal as untimely. See Commonwealth v.
      Fluellen, 62 A.3d 450 (Pa. Super. 2012) (unpublished
      memorandum) (Fluellen II).

             On November 16, 2012, Appellant filed a third pro se PCRA
      petition. On January 7, 2013, the PCRA court issued notice of its
      intent to dismiss Appellant’s petition, pursuant to Rule 907.
      Appellant filed a pro se response to the PCRA court’s Rule 907
      notice on January 24, 2013. Thereafter, on March 8, 2013, the
      PCRA court entered an order dismissing Appellant’s third petition
      as untimely.

Commonwealth v. Fluellen, 93 A.3d 497 (Pa. Super. 2013) [1086 EDA

2013] (Pa. Super. 2013) (unpublished memorandum, at 1–4) (footnote 3

omitted). This Court affirmed the denial of relief on Fluellen’s third PCRA

petition. Id.



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       On May 16, 2014, Fluellen filed the present PCRA petition, his fourth.

The PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss, and

Fluellen responded to the notice. Thereafter, the PCRA court dismissed the

petition as untimely, and this appeal followed.2

       In reviewing the denial of PCRA relief, we examine whether the
       PCRA court’s determination is supported by the record and free
       of legal error. The PCRA timeliness requirement, however, is
       mandatory and jurisdictional in nature.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (quotations and

citations omitted), cert. denied, 134 S. Ct. 2695 (2014).

       Fluellen does not dispute that his present petition is facially untimely. 3

See Fluellen’s Brief at 9.         Rather, Fluellen contends he has satisfied a
____________________________________________


2
   Fluellen timely complied with the PCRA court’s order to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal. The issue identified in
the Rule 1925(b) statement was whether “the PCRA court erred in
dismissing the petition as untimely without a hearing [where Fluellen]
plead[ed] and would have been able to prove the existence of newly
discovered evidence[.]” Fluellen’s PCRA Petition, 11/14/2014, at ¶2(A),
citing 42 Pa.C.S. 9545(b)(1)(ii).
3
  Generally, any PCRA petition must be filed within one year of the date a
petitioner’s judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1).
In Fluellen’s prior PCRA appeal, this Court explained:

       In the instant matter, [Fluellen] was sentenced to an aggregate
       term of life imprisonment on July 26, 2002, and this Court
       affirmed his judgment of sentence on January 30, 2004. Thus,
       [Fluellen’s] judgment of sentence became final on February 29,
       2004, when the 30-day period for [Fluellen] to file a petition for
       allocatur with our Supreme Court expired. See 42 Pa.C.S.A. §
       9545(b)(3). Thus, [Fluellen] had until March 1, 2005 to file a
       timely petition. Id. § 9545(b)(1).
(Footnote Continued Next Page)


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statutory exception to the PCRA’s time bar, specifically, 42 Pa.C.S. §

9545(b)(1)(ii). That provision permits review of an otherwise untimely

petition where the petitioner pleads and proves “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. § 9545(b)(1)(ii).

Additionally, the PCRA requires that “[a]ny petition invoking an exception

provided in paragraph (1) shall be filed within 60 days of the date the claim

could have been presented.” 42 Pa.C.S. § 9545(b)(2). “A petitioner fails to

satisfy the 60-day requirement of Section 9545(b) if he or she fails to

explain why, with the exercise of due diligence, the claim could not have

been filed earlier.” Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa.

2001).

        Here, Fluellen’s PCRA petition alleges that “exculpatory evidence” was

unavailable at the time of trial. Fluellen’s PCRA Petition, 5/16/2014, at ¶22.

Fluellen states that Commonwealth witness Travis Hall4 testified that “he had

never testified in anybody else’s case and that Fluellen (Petitioner) was his

first case.” Id. at ¶23. Fluellen states that he learned this testimony was

“false” when he became aware of Commonwealth v. Roney, 79 A.3d 595

                       _______________________
(Footnote Continued)


Commonwealth v. Fluellen, 93 A.3d 497 (Pa. Super. 2013) (unpublished
memorandum, at 7) (citations and footnote omitted).
4
    Travis Hall, a co-conspirator, testified against Fluellen at trial.



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(Pa. 2013). Id. at ¶26. Fluellen avers that in Roney, “Mr. Roney’s Brady[5]

claim focused on the Commonwealth’s interaction with Travis Hall’s

statement to police taken on 9/12/96.”           Id. at ¶24.6     Fluellen maintains

“[t]he inconsistent and possible perj[u]rous testimony of Mr. Hall can now be

exposed as either untruthful or mistaken.”          Id. at ¶25.    He claims “[t]he

perjurous revelation in the Roney case is exculpatory evidence” and “the

PCRA mandates a new trial for the after-discovered facts contained in the

Roney case.” Id. at ¶¶28–29.            Fluellen avers that “[b]ecause this witness

was crucial to the outcome of the case, the failure to reveal the history of

cooperation with the Commonwealth was prejudicial.” Id. at ¶36.

        We glean from Fluellen’s inartful allegations that he is arguing Hall’s

testimony at the preliminary hearing that he had never testified previously is

“false” because Hall gave a statement to police in September, 1996, in the

Roney case and, had Fluellen known about the Roney statement at trial,

trial counsel could have cross examined Hall regarding his bias in favor of

the Commonwealth.




____________________________________________


5
    Brady v. Maryland, 373 U.S. 83 (1963).
6
  We note the Commonwealth’s position that Fluellen has offered no proof
that the Travis Hall discussed in Roney is the same person who testified
against Fluellen at trial. Commonwealth’s Brief at 10 n.3.




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     The PCRA court did not reach the merits of Fluellen’s petition since the

court determined the petition was untimely, and failed to satisfy the

requirements of Section 9545(b).    Specifically, the PCRA court stated:

     [Fluellen] did allege that his petition was based on facts
     unknown to him during the timely PCRA appeal period.
     However, he did not present evidence to prove why the newly
     discovered facts were unknown to him until May 2014 despite
     the fact the Roney opinion was decided on October 30, 2013.

PCRA Court Opinion, 11/26/2014, at 4–5. The court noted in a footnote that

Fluellen informed the court in his November 13, 2014 Pa.R.A.P. 1925(b)

statement that the Roney decision became available on CD-ROM in the

prison’s law library on February 19, 2014, and he was able to access that

CD-ROM on April 12, 2014.      PCRA Court Opinion, supra, at 5 n.2.        The

court, however, pointed out:

     These contentions were not stated in the May 16, 2014 PCRA
     Petition. Therefore, at the time of this Court’s September 19,
     2014 Order, the petition was untimely as [Fluellen] failed to
     prove why the Roney case was unavailable to him within 60
     days after the case was decided. A “Rule 1925(b) statement of
     matters complained of on appeal is not a vehicle in which issues
     not previously asserted may be raised for the first time.”
     Therefore, this Court declines to analyze evidence for the delay
     outlined in [Fluellen’s] 1925(b) statement when it was statutorily
     required to be included in his fourth PCRA petition.

Id. at 5 n.2 (citations omitted). We agree with the PCRA court’s analysis.

See Breakiron, supra, 781 A.2d at 98 (42 Pa.C.S. § 9545(b)(2) 60-day

requirement not met where petitioner “failed to set forth any evidence as to

when and how he discovered the [information] that the Commonwealth

allegedly withheld from him”);     Commonwealth v. Vega, 754 A.2d 714,

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718 (Pa. Super. 2000) (60-day requirement of Section 9545(b)(2) not met

when petitioner failed to provide date on which he learned of evidence giving

rise to after-discovered evidence claim). Although Fluellen stated in his

Pa.R.A.P. 1925(b) statement that the Roney decision became available in

the prison law library on February 19, 2014, and became available to him on

April 12, 2014, Fluellen’s Rule 1925(b) statement fails to cure the petition.

See Commonwealth v. Reid, 99 A.3d 470, 494 (Pa. 2014) (“Appellant

never raised this claim in any PCRA petition, and first raised it in a

supplemental 1925(b) statement; accordingly, Appellant has waived this

argument.”); Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004)

(claim not raised in PCRA petition cannot be raised for the first time on

appeal, and is “indisputably waived”).           Therefore, there is no basis upon

which to disturb the PCRA court’s decision to dismiss Fluellen’s fourth

petition as untimely.

       Accordingly, we affirm.7


____________________________________________


7
  Because the petition is untimely, no jurisdiction exists to allow review of
Fluellen’s     substantive    after-discovered   evidence     claim.       See
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (“Once
jurisdiction is established, a PCRA petitioner can present a substantive after-
discovered-evidence claim.”). We note, however, that the fact Hall gave a
statement to police in September, 1996, implicating Christopher Roney in a
police officer’s murder during the course of a PNC bank robbery, is not
inconsistent with Hall’s 2001 preliminary hearing testimony that he had not
previously testified in any case. We further note that, at trial, defense
counsel extensively questioned Hall to suggest Hall’s testimony was false
(Footnote Continued Next Page)


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2015




                       _______________________
(Footnote Continued)

and motivated by his desire to obtain reduced sentences in his own cases.
See e.g., N.T., 7/22/2002, at 1392–1400.



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