J-S96041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                    v.

TYRIQUE PATTERSON

                          Appellant                     No. 1029 WDA 2016


              Appeal from the PCRA Order Dated July 1, 2016
              In the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0000295-2003

BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

MEMORANDUM BY SOLANO, J.:                               FILED APRIL 18, 2017

      Appellant, Tyrique Patterson, appeals pro se from the order dismissing

as untimely his seventh petition filed pursuant to the Post Conviction Relief

Act. 42 Pa.C.S. §§ 9541-46. We affirm.

      On June 9, 2003, a jury convicted Appellant of third-degree murder,

robbery of a motor vehicle, and criminal trespass.        On July 22, 2003, the

trial court sentenced him to an aggregate 22½ to 45 years’ incarceration.

Appellant filed a post-sentence motion, as well as a direct appeal.             We

affirmed   Appellant’s     judgment    of    sentence    on     June    4,    2004.

Commonwealth       v.     Patterson,   858   A.2d   1273      (Pa.   Super.   2004)

(unpublished memorandum). Appellant did not file a petition for allowance

of appeal to our Supreme Court.

      Thereafter, Appellant filed a succession of petitions in which he sought

post-conviction relief.     The PCRA court has detailed the “exhaustive
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procedural history which followed [Appellant’s] direct appeal”; we adopt and

incorporate the PCRA court’s recitation of the procedural history for purposes

of this appeal. See PCRA Court Opinion, 8/29/16, at 2-3.

      Most recently, on May 19, 2016, Appellant filed the pro se PCRA

petition presently before us. The PCRA court issued notice of its intention to

dismiss the petition pursuant to Pa.R.Crim.P. 907 on June 1, 2016, and

dismissed the petition on July 1, 2016. This timely appeal followed.

      Appellant states his sole issue on appeal as follows:

              Whether the Trial Court erred or abused its discretion
      when it dismissed Appellant’s Newly-Discovered Evidence Post-
      Conviction Relief Act Petition without holding an evidentiary
      hearing on Appellant’s Brady violation in failing to disclose that
      both the victim and Commonwealth star witness had crimes and
      convictions involving crimen falsi, where genuine issues of
      material fact existed, which, if proven, would entitle Appellant to
      relief.

Appellant’s Brief at 4.

     Our standard of review regarding an order dismissing a petition under

the PCRA is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error.   Commonwealth v. Halley,

870 A.2d 795, 799 n.2 (Pa. 2005).      The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

Moreover, a PCRA court may decline to hold a hearing on the petition if the

PCRA court determines that petitioner’s claim is frivolous and without




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support in either the record or from other evidence.        Commonwealth v.

Jordan, 772 A.2d 1011, 1104 (Pa. Super. 2001).

        To be eligible for post-conviction relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from one or more of the enumerated errors or defects in 42 Pa.C.S.

§ 9543(a)(2), and that the issues he raises have not been previously

litigated.   Commonwealth v. Carpenter, 725 A.2d 154, 160 (Pa. 1999).

An issue has been “previously litigated” if the highest appellate court in

which the petitioner could have had review as a matter of right has ruled on

the merits of the issue, or if the issue has been raised and decided in a

proceeding collaterally attacking the conviction or sentence.       Carpenter,

725 A.2d at 160; 42 Pa.C.S. § 9544(a)(2), (3).

        In addition, the petition must be timely, as the timeliness of a post-

conviction petition is jurisdictional.         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, that an exception to the time for filing the petition, set

forth at 42 Pa.C.S. sections 9545(b)(1)(i), (ii), and (iii), is met. 1 42 Pa.C.S.
____________________________________________


1
    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
(Footnote Continued Next Page)


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§ 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.”

See Hernandez, 79 A.3d 651-52 (citations omitted); see also 42 Pa.C.S.

§ 9545(b)(2).

      Instantly, after this Court affirmed Appellant’s judgment of sentence

on June 4, 2004, Appellant did not petition for allowance of appeal with the

Supreme Court.         Appellant’s judgment of sentence thus became final on

July 6, 2004, after the 30 day period for filing a petition for allowance of

appeal expired. See 42 Pa.C.S. § 9545(b)(3). Because Appellant did not

file the petition at issue until May 19, 2016, his petition was untimely unless

he satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Hernandez, 79 A.3d at 651.

      Within his brief, Appellant claims that he is entitled to an evidentiary

hearing and/or a new trial because the Commonwealth withheld evidence
                       _______________________
(Footnote Continued)

      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. §§ 9545(b)(1)(i), (ii), and (iii).



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from him at trial in contravention of Brady v. Maryland, 373 U.S. 83

(1963).    He therefore invokes the exception for the discovery of facts that

“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). Appellant maintains

that it was not until his sister mailed him documentary evidence of “the

criminal arrest and conviction records of the victim and the Commonwealth

star witness,” which he says he received on April 29, 2016, that he first

learned of the criminal records, and that such records would have supported

his theory of self-defense at trial. See Appellant’s Brief at 11. He says that

he filed his PCRA petition within 60 days of learning of this “new evidence,”

as required by Section 9545(b)(1)(ii) of the PCRA. See Appellant’s Brief at

8-17.

        Appellant’s argument is meritless because it is untimely and was

previously litigated. In reviewing a prior appeal by Appellant from the denial

of one of his earlier PCRA petitions, this Court stated:

          Appellant asserts that the Commonwealth withheld
          evidence from him in the form of the criminal records of
          two Commonwealth witnesses, as well as the criminal
          record of the victim. According to Appellant, his petition
          was timely because “he had no knowledge of this evidence
          or its suppression until he talked with someone with
          knowledge in the institutional law library” on June 8, 2013.
          See Appellant’s Brief at 11-15.

             Appellant has failed to meet his burden of proof of
          establishing the criminal records were in fact exculpatory.
          See, e.g., Commonwealth v. Dickerson, 900 A.2d 407
          (Pa. Super. 2006).



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Commonwealth v. Patterson, 102 A.2d 543 (Pa. Super. 2014) (No. 1515

WDA 2013, unpublished memorandum at 3).               Thus, as in this case,

Appellant argued in his earlier PCRA case that the Commonwealth withheld

criminal records of the victim, Tony Thomas.         In addition, one of the

Commonwealth witnesses whose criminal records were claimed by Appellant

to have been withheld in that earlier matter was Jacob Hackett, the “star

witness” about whose records he complains in this case.        See Appellant’s

Brief in No. 1515 WDA 2103, at 13-14 (March 11, 2014).            In our 2014

decision, this Court rejected Appellant’s contentions regarding the criminal

records of the victim and Jacob Hackett. We also concluded that Appellant’s

contention regarding the alleged withholding of criminal records regarding

Tony Thomas and Jacob Hackett did not satisfy the timeliness exception in

Section 9545(b)(1)(ii). If the contention was untimely in 2014, it certainly is

untimely now.

      Because Appellant’s most recent petition is untimely, and because it

raises claims that were previously litigated, Appellant is not entitled to post-

conviction relief.   We therefore affirm the order denying Appellant’s PCRA

petition.

      Order affirmed.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/2017




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