J-S74002-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                          1   IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                            Appellee

                       v.

KHALID ANDERSON

                            Appellant                           No. 542 EDA 2015


                   Appeal from the PCRA Order January 16, 2015
               In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP- 51 -CR- 0900791 -2002

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

MEMORANDUM BY STEVENS, P.J.E.:                               FILED OCTOBER 24, 2016

         Khalid Anderson ( "Appellant ") appeals, pro        se,   from the order entered

in   the Court of Common Pleas of Philadelphia County dismissing his patently

untimely, serial petition for collateral relief pursuant to the Post Conviction

Relief Act ( "PCRA "), 42 Pa.C.S.A.     §   9541   et seq.   Appellant contends that the

PCRA      court erroneously failed to conduct an evidentiary hearing on his

petition, which sought reinstatement of his first PCRA appeal rights, nunc

pro tunc, on     grounds that   a    breakdown in the courts prevented him from

filing the appeal timely.           Also raised in Appellant's brief is an after -

discovered evidence claim, not previously raised before the PCRA court,

asserting that recantation statements               proffered by his co- conspirators



*    Former Justice specially assigned to the Superior Court.
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overcomes the time -bar that would otherwise apply to the present petition.

We affirm.

      A complete factual and procedural      history pertinent to the present

matter appears in this Court's memorandum decision Commonwealth v.

Anderson,      No. 1354 EDA 2010, (Pa.Super. filed June 7, 2011) (unpublished

memorandum), such that we need not repeat it.                       For present purposes,

suffice it to say that Appellant currently serves       a   term of twenty -six to fifty -

two years' incarceration for convictions of Murder of the Third Degree,

Robbery, and Conspiracy. His convictions arise from             a   drug transaction gone

awry in   a   buyer's home, wherein either he or    a       fellow co- conspirator fatally

shot the buyer, but not before the buyer stabbed each of them multiple

times. The second co- conspirator drove his two cohorts to the hospital for

emergency care, and he later provided authorities with                       a   statement

implicating Appellant as the gunman.      On direct appeal, this Court affirmed

judgment of sentence and the            Pennsylvania           Supreme Court        denied

allowance of appeal.

      In his first PCRA petition, filed pro se on August 10, 2008, Appellant

alleged that trial counsel was ineffective for failing to raise the defense of

self- defense at trial and challenge the weight of the evidence and the length

of his sentence in post- sentence motions. Appointed counsel initially filed an

amended PCRA petition on August 27, 2009, but she followed that with                     a

"no- merit" letter and    a   petition to withdraw served upon the court and

Appellant, and the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to

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dismiss without     a   hearing.       On March 18, 2010,        after receiving no response

from Appellant, the court granted counsel's petition to withdraw and

dismissed Appellant's petition.                 On   April 8, 2010, Appellant filed an

Application for Appointment of Counsel on Appeal with the PCRA court but

did not file Notice of Appeal until May 13, 2010.

      This      Court       ultimately    quashed         his   PCRA    appeal    as   untimely,

determining, first, that the record demonstrated Appellant had received

ample notice of his right to proceed pro se or with privately retained counsel

following PCRA counsel's request to withdraw but prior to the PCRA court's

order. After Appellant filed no response to counsel's petition, the PCRA court

entered its order dismissing Appellant's PCRA petition and, again, informed

Appellant of his right to appeal on             a   pro   se basis or   with retained counsel,

we found.

      On appeal, we found no              merit to Appellant's assertion that he filed         a

belated notice of appeal because both PCRA counsel and the PCRA court

deprived him of notice of his rights following counsel's motion to withdraw.

Specifically,    we         observed     that    counsel's      motion    to     withdraw   was

accompanied by          a    certificate of Proof of Service listing Appellant as an

intended recipient of the motion.               Additional evidence that Appellant was

properly notified of his rights, we determined, lay in his timely filing of an

application for appointment of PCRA appellate counsel following the dismissal

of his petition.      We, therefore, held that Appellant was aware of his rights



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throughout the first   PCRA proceedings and      "simply failed to assert them    in a

timely manner." Id. at 6.

      On January 16, 2013, Appellant filed, pro se, the present second PCRA

petition.   In his petition, he alleged that he was entitled to nunc pro tunc

relief from this Court's quashal of his PCRA appeal because he never

received "legal mail informing him of the [PCRA] court[']s actions in     a   timely
manner due too [sic] D.O.C. procedures [namely, his transfer to               a   new

institution].     Appellant also challenged the legality of his consecutive

sentence, arguing that merger should apply, and the sufficiency of evidence

that he intended on participating      in a    conspiracy to commit robbery or

homicide.       On March 27, 2013, Appellant filed an amended PCRA petition

reiterating his claim for nunc pro   tunc   relief. On April 3, 2014 and, again, on

April 21 2014, Appellant filed with the PCRA court          a   motions to compel

discovery of blood evidence for DNA testing.           The PCRA court, however,

discerned no merit with the issues raised by Appellant and entered an order

on January 16, 2015, dismissing his petition. This timely appeal followed.

      Appellant presents five questions for our review:

      I.        IN VIOLATION OF THE U.S.C.A. 5,6, AND 14, AS WELL AS
                THE DUE PROCESS CLAUSES OF THE PENNSYLVANIA
                PCRA:   DID NOT THE PCRA COURT ERR AND COMMIT
                REVERSIBLE ERROR, WHEN THEY [SIC] FAILED TO
                CONDUCT AN EVIDENTIARY HEARING TO PROPERLY
                ANALYZE THE PETITION AND CONSTRUCT A LAWFULLY
                RECOGNIZED CONCLUSION AND JUDICIAL OPINION AS
                TO WHY THE PETITIONER IS NOT ENTITLED TO THE
                REQUESTED RELIEF WITHIN THE CURRENT PETITION?



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      II.    DID NOT THE PCRA COURT ERR AND COMMIT REVERSIBLE
             ERROR, WHEN THEY [SIC] FAILED TO RECOGNIZE THAT
             PETITIONER'S CURRENT PCRA PETITION INVOKED AN
             EXCEPTION TO THE TIME BAR REQUISITE AND FURTHER
             INVOKED THE COURT[']S JURISDICTION TO ENTERTAIN
             THE PETITION?


      III.   DID NOT THE PCRA COURT ERR AND COMMIT REVERSIBLE
             ERROR WHEN THE FACT -FINDER CONFLATED A MERITS
             ANALYSIS PURSUANT TO 42 C.S.A. § 9543(A)(2)(VI) WITH
             THAT OF A JURISDICTIONAL ANALYSIS AS DETERMINED
             WITHIN THE DUE PROCESS CLAUSES OF 42 Pa.C.S.A. §
             9545(B)(1)(i -iii)?

      IV.    DID  NOT THE     SENTENCING   COURT   ABUSE   ITS
             DISCRETION IN SENTENCING THE APPELLANT TO A FAR
             GREATER   TERM   OF   INCARCERATION,   THAN  HIS
             CONFEDERATE,  WHERE  IT WAS  CLEARLY ESTABLISHED
             THAT APPELLANT'S CONFEDERATE WAS THE ACTUAL
             PERPETRATOR OF THE CRIMINAL ACT?


      V.     DID NOT THE PCRA COURT IMPROPERLY DISMISS THE
             APPELLANT'S PRIOR PCRA PLEADINGS, BY FAILING TO
             ISSUE A PROPER RULE 907 NOTICE, AND DISMISSING
             THE PETITION IN VIOLATION OF PETITIONER'S DUE
             PROCESS RIGHTS?

Appellant's brief at 15 -16.

      "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).

We will not entertain a second or subsequent request for PCRA relief unless

the petitioner makes     a   strong prima facie showing that   a    miscarriage of




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justice may have occurred." Commonwealth v. Marshall, 947 A.2d 714,

719 (Pa. 2008).

     Pennsylvania law mandates that no court has jurisdiction to hear an

untimely PCRA petition.    Commonwealth v. Robinson, 837                 A .2d 1157

(Pa. 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:

     (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


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         period provide in this section and has been held by that court to
         apply retroactively.

42 Pa.C.S.A.      §   9545(b)(I)(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, 947 A.2d 714, 719 (Pa.

2008) (citations omitted).

        There    is no   dispute that Appellant failed to file the instant second PCRA

petition within the one -year PCRA time -bar. See 42 Pa.C.S.             §   9545(b)(1).
To the extent Appellant attempts to overcome the time -bar by asserting, in

his    first three       questions    presented,    that   newly- acquired   recantation

statements made by his two co- conspirators meets the newly- discovered

fact exception, he fails, for he did not raise this claim before the PCRA court

in    either his initial petition or consolidated amended petition and may not,

therefore, present it for the first time on appeal.             Our Supreme Court has

held that the PCRA "makes clear that where ... the petition is untimely, it is

the petitioner's burden to plead in the petition and prove that one of the

exceptions applies."          Commonwealth v. Beasley, 741 A.2d 1258, 1261
(Pa.     1999)     (emphasis      added);     accord Edmiston, supra            at   346.

Furthermore, "[t]hese exceptions must be specifically pleaded or they may

not be invoked."           Commonwealth v. Liebensperger, 904 A.2d 40, 46
(Pa.Super. 2006),          citing Beasley, supra.          We   have also stated that

generally "[a] new and different theory of relief may not be successfully

advanced for the first time on appeal." Commonwealth v. Santiago, 980

A.2d 659, 666 n. 6 (Pa.Super. 2009) (citation omitted); see also Pa.R.A.P.

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302(a) (stating, "[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal[    ] ").   This claim, accordingly,

fails to trigger the newly- discovered evidence exception to the PCRA time -

bar.'
        In his fourth question presented, Appellant raises     a   challenge to the

discretionary aspects of his sentence, which does not, of course, overcome

the timeliness requirements of the PCRA.        Insofar as the claim may be

construed to raise     a   challenge to the legality of his sentence, it still

commands no merits review, for "[a]lthough legality of sentence is always

subject to review within the PCRA, claims must still first satisfy the PCRA's

time limits or one of the exceptions thereto."      Commonwealth v. Fahy,
737 A.2d 214, 223 (Pa. 1999). See also Commonwealth v. Jackson, 30

A.3d 516 (Pa.Super. 2011).

        For Appellant's fifth and final issue, Appellant contends he was denied

due process when the PCRA court dismissed his first PCRA petition under

Pa.R.Crim.P. 907 without supplying him with proper notice, an event which


' Setting aside the question of whether such recantation statements
represent newly- discovered facts or simply a newly discovered source of
facts, see, e.g., Commonwealth v. Bennett, 930 A.2d 1264, 1270 -1272
(Pa. 2007) (explaining newly discovered fact exception in Section
9545(b)(1)(ii) "requires petitioner to allege and prove that there were 'facts'
that were 'unknown' to him" and that he could not have ascertained those
facts by the exercise of due diligence), we observe that, even if we were in a
position to review the present claim for the first time on appeal, we would
find that Appellant makes no showing that he exercised due diligence in
ascertaining such "facts" and presenting them to the court.


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caused him to file          a   belated appeal which this Court, ultimately, quashed.

He fails to explain, however, how the purported lack of Rule 907 notice

prevented him from filing           a   timely first   PCRA appeal,   particularly where this

Court conducted         a   thorough review of the proceedings before the first PCRA

court and concluded that Appellant possessed ample notice of his right to file

an appeal.        To the extent Appellant seemingly offers this claim as a

governmental interference exception to the PCRA time -bar, therefore, we

find it   meritless.2

     Order is affirmed.
Judgment Entered.




J:seph    Seletyn,
           D.
Prothonotary


Date: 10/24/2016




2   Ifwe were to review the claim on its merits, we would find it previously
litigated, as well, as this Court rejected Appellant's attempt to attribute his
belated appeal to a lack of due notice regarding the dismissal of his claim,
the withdrawal of counsel, and his appellate rights.


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