J-S23035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 LAWRENCE HARPER                           :
                                           :
                     Appellant             :   No. 1094 EDA 2017

                 Appeal from the PCRA Order March 8, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0615191-1992


BEFORE:    SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                         FILED MAY 16, 2018

      Appellant, Lawrence Harper, appeals from the March 8, 2017, order

entered in the Court of Common Pleas of Philadelphia County, which denied

Appellant’s fourth petition filed under the Post-Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546, following an evidentiary hearing. After a careful

review, we affirm.

      This Court has previously set forth, in part, the facts and procedural

history underlying this case as follows:

             Appellant was convicted by a jury and sentenced to life in
      prison for the fatal shooting of Kevin Evans. The homicide
      occurred on a Philadelphia street in the early morning hours of
      April 25, 1992. Evans was exiting a restaurant when Appellant
      snatched a gold chain from his neck and then shot him in the head.
      Appellant and another man were observed standing over Evans’s
      body, going through his pockets and then fleeing. Appellant also
      attempted to flee from police when he was arrested several days
      later.


____________________________________
* Former Justice specially assigned to the Superior Court.
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            At trial, the Commonwealth presented two witnesses who
     were on the street the night of the murder. Henry Blakely testified
     that he was across the street from the scene of the crime when
     he heard a gunshot and observed two men standing over the body
     of the decedent. One of the men wore a waist-length black leather
     jacket and held a gun; the other man wore a full-length Los
     Angeles Raiders coat. Blakely saw the armed man in the leather
     jacket rifle through the victim’s pockets. Blakely did not identify
     Appellant as a perpetrator.
             Noel Jackson testified that he was standing outside of the
     restaurant just prior to the shooting and observed Appellant there
     when Evans approached. Jackson knew both Appellant and Evans.
     As the victim entered the restaurant, Jackson watched Appellant
     take a gun from his waistband and heard him declare, “I am going
     to kill that motherfucker.” Jackson began to walk away and as he
     was crossing the street, he heard a shot. Jackson turned and saw
     Appellant and a man he knew as Andre running toward him. He
     saw that Appellant had in his hand a gold chain. He also observed
     that Appellant was wearing a black leather jacket.
            Appellant presented Carl Brooks, an alleged eyewitness at
     trial. Like Blakely, Brooks also was positioned across the street
     from the restaurant at the time of the shooting. He testified to
     seeing two black males, one of whom wore a black coat with
     writing on the back, approach the victim, attempt to rob him and
     shoot him in the head. Brooks identified the shooter as someone
     he knew named Ski-Bop. On cross-examination, Brooks was
     asked by the prosecutor why he had not told homicide detectives
     on the night of the shooting that Ski-Bop was the shooter. He was
     also asked about his familiarity with Appellant and his family, his
     dislike of Ski-Bop, and the fact that he had been brought to court
     by Appellant’s family. Brooks was further cross-examined about
     a conversation he initiated with the prosecutor the day before his
     testimony, wherein he stated that he was afraid of Appellant’s
     family.
           After closing arguments, the prosecutor requested a jury
     charge on accomplice liability. The court granted the request over
     Appellant’s objection. The jury returned a verdict of guilty on all




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       counts[1] and, after a penalty hearing, Appellant was sentenced to
       life in prison.

Commonwealth v. Harper, 660 A.2d 596, 597 (Pa.Super. 1995) (footnote

added).

       Appellant filed a direct appeal in which he contended the trial court erred

in granting the Commonwealth’s request for an accomplice charge, and he

challenged the prosecutor’s cross-examination of defense witness Brooks.

This Court found no merit to Appellant’s issues, and thus, we affirmed his

judgment of sentence.        See id. Appellant filed a petition for allowance of

appeal, which the Supreme Court denied on December 19, 1995. Appellant

did not file a writ of certiorari with the United States Supreme Court.

       On January 14, 1997, Appellant filed his first PCRA petition, counsel was

appointed, and the PCRA court denied the petition. Appellant appealed, and

this Court affirmed. Appellant filed a second PCRA petition on September 5,

2007, and the PCRA court dismissed the petition. Appellant appealed, and

this Court affirmed. On April 25, 2011, Appellant filed a third PCRA petition,

and the PCRA court dismissed the petition. Appellant appealed, and this Court

affirmed. Appellant filed a petition for allowance of appeal, which our Supreme

Court denied on October 11, 2012.


____________________________________________


1Specifically, the jury convicted Appellant of first-degree murder, 18 Pa.C.S.A.
§ 2502, robbery, 18 Pa.C.S.A. § 3701, and possession of an instrument of
crime, 18 Pa.C.S.A. § 907.


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      On or about August 12, 2013, Appellant filed the instant pro se PCRA

petition, to which Appellant attached a sworn affidavit, dated July 22, 2013,

from Malik Wilson. In the sworn affidavit, Mr. Wilson indicated the following,

which we set forth verbatim:

            On the date 4-25-92[,] I was standing on the corner of
      Yewdall St. talking to some girls from the club. It was around
      2:15 AM or later when a car pulled up in the middle of the street.
      The guy walk [sic] towards the Chinese store when a tall brown
      skin dude step [sic] to him[;] he was around “5/7” or “5/9”
      wearing a black coat. In seconds, they was [sic] fighting! Then
      the tall dude pulled a gun and shot the guy from the car. The
      dude with the gun ran pass [sic] us. Then I saw who it was[.] His
      name is (Tyelle Peterson) know [sic] as (T.P.) in the streets. He
      ran down Yewdall St. I look [sic] right at him[.] I don’t know him
      personally but his name [is] Ring in the streets [and he is known]
      as a dude who shoots his gun. I saw a flier on a pole around my
      way asking for anybody who had information about that night.
          Right then I knew I had to tell what I saw so I called the
      number on the flier.

Appellant’s PCRA Petition, filed 8/12/13, Exhibit A.

      The PCRA court appointed counsel, who filed an amended PCRA petition

on behalf of Appellant on January 3, 2017. In the amended petition, Appellant

argued that he had after-discovered evidence which exonerated him, and he

sought to invoke the timeliness exception of Subsection 9545(b)(1)(ii).

Appellant indicated his mother posted flyers on telephone poles requesting

that witnesses of the murder step forward. Specifically, he averred the flyers

indicated the following, which we set forth verbatim:

            If there is anyone who might have any information
      concerning an incident that also involved a shooting, the
      discharging of guns, gunfire & or [sic] the actual shooting of a

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        male person.[2] This incident occurred on 54th & [W]oodland Ave.
        on April 25, 1992. The time of which the incident occurred was 2
        am-2:30 am, the incident happened directly in front of the
        Chinese store across the St [sic] from Zena Night Club. If you
        have any information or if you were present or know of anyone
        who was present, knows about the incident/shooting or were
        either contacted by the Philadelphia Police or D.A.’s office or was
        not interviewed but do have something to report or to help the
        accused family & loved ones we ask that you contact this #. . . .
        We strongly believe that our loved one was wrongly convicted of
        a crime he did not do.

Appellant’s Amended PCRA Petition, filed 1/3/17, Exhibit B.

        Appellant attached to his amended PCRA petition a sworn affidavit,

dated May 2, 2016, from his mother.              Therein, his mother indicated the

following, which we set forth verbatim:

              My family and myself [sic] distributed and posted flyers for
        anyone who might have and [sic] information concerning and [sic]
        incident that occurred on 54th & Woodland on April 25, 1992.
              I received a call from Mr. Malik Wilson stating that he saw
        one of the flyers and called the number that was on the flyer[.]
        [T]hat’s how I came in contact with Mr. Wilson. I thank [sic] him
        and that was it.

Id. Exhibit C.

        The matter proceeded to an evidentiary PCRA hearing. At the hearing,

Appellant’s mother, Carolyn Harper, confirmed that Appellant was convicted

of first-degree murder in 1992.           N.T., PCRA hearing, 3/3/17, at 7.   She

testified that, from “2000 on up[,]” she posted flyers on telephone poles and




____________________________________________


2   We recognize that this is an incomplete sentence.

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trees at various times in the vicinity of the murder. Id. at 9. In the flyers,

she indicated that she was seeking information about the murder. Id.

      She testified that in 2013 Mr. Wilson, whom she did not know,

responded to one of the flyers. Id. at 10-11. She asked him to provide her

with a sworn affidavit, and he did so on July 22, 2013. Id. at 11. Ms. Harper

denied paying Mr. Wilson any money in exchange for the affidavit. Id. at 12.

Ms. Harper indicated that she then contacted Appellant and told him about the

affidavit. Id. at 12-13.

      On cross-examination, Ms. Harper testified that, over the years, she has

posted or handed out between two hundred and three hundred flyers. Id. at

23.   She indicated that she could not remember exactly when she began

seeking information via the flyers; however, she admitted that Appellant “was

already in jail for a number of years before [she] started to post the [flyers,]”

and it might have been just a little less than ten years after he was convicted

that she began her flyer campaign. Id. at 23-25.

      Malik Wilson testified that, on the night of the murder, he was standing

at the corner of Yewdall Street and Woodland Avenue with two women when

he observed a car stop in the middle of the street. Id. at 65-66. He testified

that a man exited the car, and then he heard two men arguing, observed a

“tussle,” and heard a gunshot. Id. at 66.

      Fearing for his safety, Mr. Wilson ran around the corner and

approximately sixty feet away from the shooting. Id. at 69. The following


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relevant exchange occurred between Appellant’s PCRA counsel and Mr.

Wilson:

     Q: Okay. Then what happened?
     A: We stopped because, you know, we figured, like, we was out
     of harm’s way. Then we saw the guy turn the corner and he come
     running down the block.
     Q: The person that turns the corner and runs down the block, was
     he the shooter?
     A: Yes.
                                    ***
     Q: What if anything did the shooter have in his hands?
     A: I didn’t pay attention to his hands.
     Q: Did you pay attention to his face?
     A: I saw him before around the neighborhood but, like, I didn’t
     really know the guy, but I saw him and knew who he was.
     Q: And who was that person?
     A: Tyelle Peterson
           THE COURT: Do you want to repeat the first name for me,
     please?
           THE WITNESS: T.P. is Tyelle…Tyelle Peterson.
           THE COURT: Okay. Thank you.
                                    ***
     Q: T.P. Okay. Now, Mr. Peterson runs by you, correct?
     A: Yes.
     Q: How far from you was he when he passed you?
     A: We was on one side of the sidewalk and he was on the other.
     Well, one side of the street and he was on the other side of the
     street.
     Q: And approximately what distance was it between you and him
     when he passes you?
     A: About, I’d say about twenty to twenty-five feet.
     Q: Okay. And is there any doubt in your mind that was Tyelle
     Peterson?


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      A: I’m not understanding what your saying.
      Q: In other words, as far as you understood, that was him. Am I
      correct?
      A: Yes.
      Q: Now, you heard argument, correct?
      A: Yes.
      Q: Then you heard the shots, correct?
      A: Yes.
      Q: How do you know Tyelle Peterson was the one that shot Mr.
      Evans, or the person that died?
      A: Because by him jumping in the car and the way he pulled off,
      that’s what automatically made me know that it was him.
      Q: Did you actually see Mr. Peterson shoot? And the person who
      died was a Mr. Evans, so I’ll use his name. Did you actually see,
      besides hearing it, did you actually see Mr. Peterson shoot Mr.
      Evans?
      A: I didn’t quite see it because I wasn’t paying attention to him.
      But, like as we, like, as the car pulled off and we, you know, went
      back up to that way, that’s when we saw the guy laying [sic] there
      on the ground.

Id. at 69-72.

      Mr. Wilson testified that, prior to the shooting, he saw Mr. Peterson exit

the driver’s side of the vehicle, which had stopped in the middle of the road.

Id. at 73-74. He then saw Mr. Peterson and Mr. Evans argue and “tussle.”

Id. Mr. Wilson testified that, after Mr. Peterson ran passed him, Mr. Peterson

jumped back in the car and “peeled off real fast.”      Id. at 75.   Mr. Wilson

testified that he did not inform the police of what he had observed because he

did not want to become involved. Id. However, he testified that he saw a

flyer on a pole and, six years after seeing the flyer, he decided to contact the



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telephone number on the flyer. Id. at 79. Mr. Wilson testified that he spoke

to Ms. Harper, and “a couple of months” later, he gave her a sworn affidavit.

Id. at 81-82.

       On cross-examination, Mr. Wilson admitted that, after the car stopped

in the middle of the street, he did not notice that the man who exited the car

was someone he recognized. Id. at 107. Mr. Wilson further admitted that,

although he heard two men arguing before the shooting, he could not see

their faces. Id. at 109.        Mr. Wilson never saw a gun and did not see the

shooting, but as soon as he heard a shot, Mr. Wilson took off running. Id. at

112-14. A man then ran by him and jumped in the car, which had stopped in

the street, and took off. Id. at 115-19. Mr. Wilson testified that sometime

after the shooting he was with a friend, “Chad,” and Chad told him that he

had heard T.P. was the shooter. Id. at 127.

       Following the evidentiary hearing, by order entered on March 8, 2017,

the PCRA court dismissed Appellant’s PCRA petition. This timely, counseled

appeal followed. On April 19, 2017, the PCRA court ordered Appellant to file

a Pa.R.A.P. 1925(b) statement, and on July 3, 2017, counsel filed a statement

on behalf of Appellant.3 The PCRA court filed a responsive Pa.R.A.P. 1925(a)

Opinion on July 13, 2017.


____________________________________________


3Appellant’s counseled Rule 1925(b) statement was untimely filed. However,
“where the trial court addresses the issues raised in an untimely Rule 1925(b)



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       Preliminarily, we must determine whether Appellant’s instant PCRA

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000). “Our standard of review of the denial of PCRA relief is clear;

we are limited to determining whether the PCRA court’s findings are supported

by the record and without legal error.” Commonwealth v. Wojtaszek, 951

A.2d 1169, 1170 (Pa.Super. 2008) (quotation and quotation marks omitted).

       Pennsylvania law makes it clear that no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837

A.2d 1157 (2003).        The most recent amendments to the PCRA, effective

January 19, 1996, provide that a PCRA petition, including a second or

subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed

final “at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

       The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition

must allege and the petitioner must prove:



____________________________________________


statement, we need not remand but may address the issues on their merits.”
Commonwealth v. Brown, 145 A.3d 184, 186 (Pa.Super. 2016).


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      (i)       the failure to raise a claim previously was the result of
                interference    by    government     officials with    the
                presentation of the claim in violation of the Constitution
                or the law of this Commonwealth or the Constitution or
                law 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 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).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).

Moreover, as this Court has often explained, all of the time-bar exceptions are

subject to a separate deadline. Our Supreme Court has held that any petition

invoking an exception must show due diligence insofar as the petition must

be filed within 60 days of the date the claim could have first been presented.

Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d 339 (2013); 42

Pa.C.S.A. § 9545(b)(2).

      In the case sub judice, the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal from his judgment of sentence on

December 19, 1995. Appellant’s judgment of sentence became final 90 days

thereafter, upon expiration of the time to file a writ of certiorari with the United

States Supreme Court.      See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13

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(petition for writ of certiorari must be filed within 90 days of final judgment).

As the instant petition was filed on or about August 12, 2013, it is patently

untimely. See 42 Pa.C.S.A. § 9545(b)(1). As such, the PCRA court lacked

jurisdiction to review the merits of Appellant’s petition unless he pled and

proved that one of the Subsection 9545(b)(1) exceptions was applicable.

      Instantly, Appellant seeks to invoke the timeliness exception of

Subsection 9545(b)(1)(ii), claiming the existence of Malik Wilson as an

eyewitness, as well as the facts disclosed by him, meet the newly-discovered

facts exception.

      Our Supreme Court has instructed courts to refer to the time-bar

exception at Subsection 9545(b)(1)(ii) as the newly-discovered facts

exception to avoid confusing the exception with the after-discovered evidence

eligibility-for-relief provision set forth in Subsection 9543(a)(2).        See

Commonwealth v. Burton, 638 Pa. 687, 158 A.3d 618, 628-29 (2017). Our

Supreme Court has explained the difference between the two legal concepts

as follows:

             To qualify for an exception to the PCRA’s time limitations
      under Subsection 9545(b)(1)(ii), a petitioner need only establish
      that the facts upon which the claim is based were unknown to him
      and could not have been ascertained by the exercise of due
      diligence. However, where a petition is otherwise timely, to
      prevail on after-discovered evidence claim for relief under
      Subsection 9543(a)(2)(vi), a petitioner must prove that (1) the
      exculpatory evidence has been discovered after trial and could not
      have been obtained at or prior to trial through reasonable
      diligence; (2) the evidence is not cumulative; (3) it is not being
      used solely to impeach credibility; and (4) it would likely compel
      a different verdict.

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Id. at 629. See Commonwealth v. Brown, 111 A.3d 171, 178 (Pa.Super.

2015) (“The substantive merits-based analysis [of the after-discovered

evidence claim] is more stringent than the analysis required by the ‘new facts’

exception to establish jurisdiction.”). When determining whether a petitioner

established   a   newly-discovered     fact    exception   satisfying   Subsection

9545(b)(1)(ii), the PCRA court is not required to conduct a merits analysis of

an underlying after-discovered evidence claim.        Brown, 111 A.3d at 177.

Therefore, since the two analyses are distinct, a petition may invoke

jurisdiction via the newly-discovered fact exception but fail on the merits of

the underlying after-discovered evidence claim. See id.

      In the case sub judice, the PCRA court improperly conflated the analysis

for the newly-discovered facts exception with the analysis for the after-

discovered evidence eligibility-for-relief provision. Specifically, in its opinion,

the PCRA court set forth the timeliness requirements of the PCRA and noted

that Appellant was seeking to invoke Subsection 9545(b)(1)(ii), which

requires the petitioner to plead and prove “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.”        PCRA Court Opinion, filed

7/13/17, at 3-4. However, the PCRA court then concluded that, in order to

meet this timeliness exception, Appellant was required to prove the four

factors relevant to the after-discovered evidence eligibility-for-relief provision.

See id at 5. In this vein, the PCRA court concluded Mr. Wilson’s PCRA hearing

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testimony was incredible and would not likely compel a different verdict. See

id. at 5-6. Thus, the PCRA court found Appellant did not meet the timeliness

exception. As is evident, instead of examining whether Appellant pled and

proved facts that were unknown to him and could not have been ascertained

by the exercise of due diligence, the PCRA court incorrectly grafted additional

requirements    with   regard    to   Subsection   9545(b)(1)(ii)’s   timeliness

requirement.

      Notwithstanding the PCRA court’s error, we affirm the order dismissing

Appellant’s instant petition.   Even if we assume, arguendo, that Appellant

satisfied the newly-discovered fact time-bar exception set forth in Subsection

9545(b)(1)(ii), as well as the 60-day filing requirement at Subsection

9545(b)(2), Appellant clearly failed to prove the merits of his after-discovered

evidence claim for relief. As the PCRA court points out:

            Wilson identified the alleged shooter as Tyelle Peterson
      (“T.P.”). In so doing, he contradicted the trial testimony of
      defense witness Carl Brooks, who identified the shooter as Ski-
      Bop. Wilson also contradicted the trial testimony of
      Commonwealth witness Noel Jackson, who identified [Appellant]
      as the shooter. All Wilson could say was 20 years after [allegedly]
      witnessing a murder, he did not remember seeing [Appellant] on
      the scene. [His PCRA testimony confirmed that he did not actually
      see the shooting of the victim or see a gun in the hands of Tyelle
      Peterson.]
             Having heard Wilson’s testimony and observing his
      demeanor, the [PCRA] court found that Wilson’s testimony lacked
      credibility. His testimony at trial would not likely compel a
      different verdict.

PCRA Court Opinion, filed 7/13/17, at 5-6 (citations omitted).



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      Based on the aforementioned, the PCRA court did not err in holding that

Appellant failed to prove that Mr. Wilson, or the facts disclosed by him, “would

likely compel a different verdict.” See Burton, supra. As this is a necessary

factor with regard to Appellant’s after-discovered evidence claim, see id., we

affirm the dismissal of Appellant’s PCRA petition on this basis.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/18




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