J-S32027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KEVIN BURTON

                            Appellant                No. 2196 EDA 2015


                    Appeal from the PCRA Order July 7, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0406851-2002


BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                                   FILED MAY 03, 2016

        Appellant, Kevin Burton, appeals pro se from the July 7, 2015 order

denying his third petition for relief filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.        Upon careful review, we

affirm.1

        The PCRA court summarized the pertinent factual and procedural

background as follows.

                    On October 23, 2003, Appellant was convicted
              by a jury of First Degree Murder, Conspiracy,
              Possession of an Instrument of Crime (PIC) and
              firearms violations for the shooting death of Curtis
              Cannon. Appellant was sentenced to an aggregate
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    The Commonwealth has not filed a brief in this matter.
J-S32027-16


          sentence of life imprisonment on the same day. On
          November 18, 2003, Appellant filed a direct appeal
          and the judgment of sentence was affirmed on May
          3, 2005. Allocatur was denied on December 21,
          2005. Appellant filed his first PCRA petition on May
          23, 2006, which was dismissed on August 17, 2007.
          The dismissal was affirmed on March 27, 2009 and
          allocatur was denied on December 30, 2009. On
          November 5, 2010, Appellant filed his second PCRA
          petition which was dismissed on July 8, 2011. The
          dismissal was affirmed on July 12, 2012.

                 Appellant then filed this third PCRA petition pro
          se on August 3, 2012, alleging that he had two new
          witnesses, Antonio Jones and Edward Glen, who
          would testify that Appellant did not kill the decedent.
          Appellant then amended his petition on June 13,
          2014. In his amended petition, Appellant essentially
          argued that he could only be convicted of first
          degree murder if the death penalty was a sentencing
          option. He claimed that counsel was ineffective for
          not objecting, and the [trial c]ourt erred when the
          [trial c]ourt informed the jury that this case was not
          a capital case. As this third petition was facially
          untimely, Appellant also argued that he met the
          newly discovered evidence exception because he was
          not legally trained and only recently learned of the
          cases and statutes he cited. Attached to his petition,
          yet not referenced therein, was a page stating that
          Appellant would like to subpoena Savoy Robinson so
          he could testify that his sister, Beatrice Robinson,
          wrongfully convinced her nieces, Alfreda Daise and
          Tuere Rogers, to accuse the Appellant of murder.
          On May 26, 2015, following a thorough review of the
          submissions and the applicable case law, the [PCRA
          c]ourt gave notice of its intent to dismiss the petition
          as untimely. Appellant then filed a response on June
          12, 2015.       In his response, Appellant radically
          altered his argument to one solely addressing newly
          found witnesses. Appellant again listed Mr. Savoy
          Robinson as having information about a plot to frame
          Appellant, but in that iteration the plot included only
          Alfreda Daise and not Tuere Rogers. Appellant also
          identified Mrs. Denise Parker, who would testify that

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              her older brother told her that Appellant was
              incarcerated and she should come forward with
              information that Samuel Burke forced her niece,
              Alfreda Daise, to accuse Appellant of murder.
              Finally, Appellant identified Alfreda Daise, who would
              testify that Samuel Burke forced her to accuse
              Appellant of the murder because Mr. Burke was
              threatening her family.           After reviewing the
              additional submission and reviewing the applicable
              case law, the [PCRA c]ourt dismissed the petition as
              untimely on July 7, 2015. This appeal followed.

PCRA Court Opinion, 10/1/15, at 1-2 (footnotes omitted).2

       On appeal, Appellant frames his issue for our review as follows.

                    Whether the PCRA court erred in dismissing
              Appellant’s pro se PCRA petition filed pursuant to
              Title 42 Pa.C.S. §9545(b)(1)(ii), §9545(b)(1)(iii),
              §9545(b)(2), and §9543(a)(2)(ii).     Whereas the
              Appellant made a strong prima facie showing that a
              miscarriage of justice occurred?

Appellant’s Brief at 5.

       At the outset, we note that when reviewing the propriety of the PCRA

court’s order denying relief, we consider the record “in the light most

favorable to the prevailing party at the PCRA level.”      Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc).          We are limited to

determining whether the evidence of record supports the conclusions of the

PCRA court and whether the ruling is free of legal error. Commonwealth v.

Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012), appeal denied, 64 A.3d 631
____________________________________________


2
  Although the PCRA court did not order Appellant to comply with
Pennsylvania Rule of Appellate Procedure 1925(b), it filed an opinion on
October 1, 2015.



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(Pa. 2013). This Court grants great deference to the PCRA court’s findings

that are supported by the record and will not disturb them unless they have

no support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).        Further, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that petitioner’s claim is

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

from other evidence.    Commonwealth v. Jordan, 772 A.2d 1011, 1104

(Pa. Super. 2001).

      Instantly, because this is Appellant’s third petition for post-conviction

relief, he must meet a more stringent standard.             “A second or any

subsequent post-conviction request for relief will not be entertained unless a

strong prima facie showing is offered to demonstrate that a miscarriage of

justice may have occurred.” Commonwealth v. Burkhardt, 833 A.2d 233,

236 (Pa. Super. 2003) (en banc) (citations omitted), appeal denied, 847

A.2d 127 (Pa. 2004).        “A petitioner makes a prima facie showing if he

demonstrates that either the proceedings which resulted in his conviction

were so unfair that a miscarriage of justice occurred which no civilized

society could tolerate, or that he was innocent of the crimes for which he

was charged.” Id.

      Additionally,   the    timeliness   of   a   post-conviction   petition   is

jurisdictional. Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000).

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


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

is final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.3       See Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545.                A PCRA

petition invoking one of these statutory exceptions must “be filed within 60

days of the date the claims could have been presented.” Id. at 783. See

also 42 Pa.C.S.A. § 9545(b)(2).

        It is uncontroverted that Appellant’s PCRA petition is facially untimely.

Trial Court Opinion, 10/1/15, at 3 (stating, “Appellant’s sentence became

final on March 21, 2006, which was when his time to seek leave to appeal to
____________________________________________


3
    The exceptions to the timeliness requirement are:

              (i) the failure to raise the claim previously was     the
              result of interference of 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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the U.S. Supreme Court ended.                See 42 Pa.C.S.A. § 9545(b)(3);

U.S.Sup.Ct.R. 13”).     Appellant had to file the PCRA at issue by March 21,

2007 for it to be timely.       Appellant filed the instant petition on August 3,

2012, such that it is untimely unless he has satisfied his burden of pleading

and   proving    that     one     of   the    enumerated    exceptions   applies.

Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).

      Instantly, Appellant argues that his third petition is timely pursuant to

Section 9545(b)(1)(ii).     Appellant’s Brief at 7-13.      This Court recently

summarized this exception as follows.

            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 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 the new fact(s)
            earlier with the exercise of due diligence. This rule is
            strictly enforced.    Additionally, the focus of the
            exception is focused on the newly discovered facts,
            not a newly discovered or newly willing source for
            previously known facts.

            The timeliness exception set forth at Section
            9545(b)(1)(ii) has often mistakenly been referred to
            as the “after-discovered evidence” exception. This
            shorthand reference was a misnomer, since the plain
            language of subsection (b)(1)(ii) does not require
            the petitioner to allege and prove a claim of “after
            discovered evidence.”        Rather, as an initial
            jurisdictional  threshold,   Section   9545(b)(1)(ii)
            requires a petitioner to allege and prove that there
            were facts unknown to him and that he exercised
            due diligence in discovering those facts. See 42
            Pa.C.S.A. § 9545(b)(1)(ii).     Once jurisdiction is

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           established, a PCRA petitioner can present a
           substantive after-discovered-evidence claim.     See
           Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be
           eligible for relief under PCRA, petitioner must plead
           and prove by a preponderance of the evidence that
           his conviction or sentence resulted from, inter alia,
           unavailability at the time of trial of exculpatory
           evidence that has subsequently become available
           and would have changed the outcome of the trial if it
           had been introduced). In other words, the “new
           facts” exception at Subsection (b)(1)(ii) 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.

        Thus the “new facts” exception at Section 9545(b)(1)(ii)
        does not require any merits analysis of an underlying
        after-discovered-evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015),

appeal denied, 125 A.3d 1197 (Pa. 2015).

     Within his brief, Appellant references “newly discovered information

and/or evidence obtained from Antonio Jones and Edward Glen.” Appellant’s

Brief at 7. He also references unavailable information at trial from “witness

Savoy Robinson … his sister, Mrs. Denise Parker, … and Alfred [sic] Daise, a

former witness for the Commonwealth…” Id. Appellant attaches to his brief

affidavits from Alfreda Daise, Michael Devan, Antonio Jones and Edward

Glen, all of which, inter alia, aver that Appellant did not commit the murder




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which led to his conviction and incarceration. Id. at Appendix C. Appellant

also contends as follows.

                    On February 15, 2015, witness Savoy Robinson
              communicated with his sister, Mrs. Denise Parker,
              via institution phone, whereas Mrs. Parker conveyed
              to her brother, Savoy Robinson, that the shooter of
              the decedent, Curtis Cannon, was a[n] older man
              who nearly shot her son on the day in question. This
              information was not available to this Appellant.
              Alfred[a] Daise, a former witness for the
              Commonwealth, conveyed to her uncle during the
              month of August or September 2015, via institution
              phone, that she was forced to involve this Appellant
              in the shooting death of the decedent, Curtis
              Cannon. None of this information was available to
              this Appellant.

Id. at 8.

      The PCRA court summarily and succinctly explained its rejection of

Appellant’s assertion of “newly discovered information and/or evidence” as

follows.

               Appellant’s first argument was that he has five newly
            found witnesses who either claim he was not the shooter
            or had information concerning a plot to frame him for the
            murder.     Appellant does not meet the newly found
            evidence exception with regard to these witnesses. First,
            Appellant offers no explanation as to why any of the
            witnesses’ testimony was not produced earlier, therefore
            he has not shown he was diligent. Second, the majority of
            the proposed testimony represents inadmissible hearsay.
            Because of these issues, Appellant’s claims regarding his
            newly found witnesses fail to meet the requirements of the
            newly found evidence exception.

PCRA Court Opinion, 10/1/15, at 4.




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       Upon review, we agree with the trial court’s determination that

Appellant has not explained why the witnesses’ testimony was not produced

earlier.4   Accordingly, we conclude that Appellant has not established the

applicability of 42 Pa.C.S.A. § 9545(b)(1)(ii) or any other exception to the

PCRA timeliness requirements.            Because Appellant’s efforts to establish

jurisdiction fail, the PCRA court properly dismissed Appellant’s petition as

untimely.     Commonwealth v. Taylor, 67 A.3d 1245, 1249 (Pa. 2013)

(noting, “PCRA time requirement mandatory and jurisdictional in nature;

court cannot ignore it and reach merits of petition”); Commonwealth v.

Hernandez, 79 A.3d 649, 655 (Pa. Super. 2013) (holding that Superior

Court lacks jurisdiction to reach the merits of an appeal from an untimely

PCRA petition).

       In sum, the PCRA court correctly concluded that Appellant failed to

establish any exception to the PCRA’s time-bar and properly dismissed

Appellant’s third PCRA petition as untimely filed. Accordingly, we affirm the

PCRA court’s July 7, 2015 order.


____________________________________________


4
  Appellant was aware of this requirement to “argue that he could not have
obtained this evidence prior to trial,” where in his second PCRA, Appellant
also asserted that he had exculpatory evidence that was unavailable at trial
from two witnesses, and attached statements from the two alleged
witnesses to that petition, but was ultimately unsuccessful before the PCRA
court and this Court because Appellant, inter alia, did not “argue that he
could not have obtained this evidence prior to trial.” Commonwealth v.
Burton, 55 A.2d 133 (Pa. Super. 2012), unpublished memorandum at 5.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




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