J-S36040-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
D.D.K.,                                  :
                                         :
                 Appellant               :     No. 190 WDA 2015

          Appeal from the PCRA Order Entered December 8, 2014
            in the Court of Common Pleas of Jefferson County,
           Criminal Division, at No(s): CP-33-CR-0000074-2006
                       and CP-33-CR-0000075-2006

BEFORE:    PANELLA, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED JULY 28, 2015

     D.D.K.1 (Appellant) appeals pro se from the December 8, 2014 order

which dismissed his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     In 2006, a jury convicted Appellant at the above two docket numbers

of 89 counts of various crimes, including rape and incest, committed upon

his minor daughters. In 2007, Appellant was given an aggregate sentence

of 220 to 440 years of imprisonment.      Appellant’s judgment of sentence

became final in 2009, after this Court found no merit to the issues raised on

his direct appeal, and our Supreme Court denied his petition for allowance of

appeal.   Commonwealth v. D.D.K., 970 A.2d 471 (Pa. Super. 2009)


1
  Pursuant to Superior Court I.O.P. 424, we do not include Appellant’s name
to protect the confidentiality of the minor victims.

*Retired Senior Judge assigned to the Superior Court.
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(unpublished memorandum), appeal denied, 981 A.2d 218 (Pa. 2009).

Appellant’s first PCRA petition was denied after a hearing, this Court

affirmed, and our Supreme Court again denied his petition for allowance of

appeal.   Commonwealth v. [D.D.K.], 34 A.3d 226 (Pa. Super. 2011)

(unpublished memorandum), appeal denied, 40 A.3d 120 (Pa. 2012).

      On October 20, 2014, Appellant filed at both docket numbers the

petition that is the subject of the instant appeal.     Because the petition

appeared to be untimely filed, the PCRA court issued notice of its intent to

dismiss the petition without a hearing, and Appellant filed a response. On

December 8, 2014, the PCRA court entered an opinion and order denying

Appellant’s petition based upon lack of jurisdiction. Appellant timely filed a

notice of appeal, and both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

      Appellant raises three issues on appeal; however, we need only

address the first: “Did the trial court abuse its discretion by denying

Appellant’s PCRA petition, by deciding that [the] appellate court’s decision

on new precedent case law, did not meet the standard for after discovered

evidence?” Appellant’s Brief at VI (unnecessary capitalization omitted).

      The timeliness of a post-conviction petition is jurisdictional.      See,

e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f




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a PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition.   Without jurisdiction, we simply do not have

the legal authority to address the substantive claims.”).          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 of sentence is final.

Exceptions exist if the petition alleges, and the petitioner proves, that one of

the following exceptions to the time for filing the petition is met:

      (i) the failure to raise the claim previously was the result of
      interference by 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.

42 Pa.C.S. § 9545(b).    Further, for an exception to apply, the claim must be

raised within 60 days of the date on which it became available. 42 Pa.C.S.

§ 9545(c).

      It is clear that Appellant’s 2014 petition is facially untimely: his

judgment of sentence became final in 2009.          Appellant alleges that his

petition meets a timeliness exception because the decisions in Alleyne v.

United States, ––– U.S. –––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and



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Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc),

constitute after-discovered evidence that was not available at the time of

Appellant’s trial. See PCRA Petition, 10/20/2014, at 5 (pages unnumbered);

Appellant’s Brief at 5.

      Appellant’s argument is meritless.     After-discovered evidence is a

substantive claim which may entitle a petitioner to PCRA relief; it is not one

of the exceptions to the one-year time bar. See 42 Pa.C.S. § 9543(a)(2)(vi)

(“To be eligible for relief under this subchapter, the petitioner must plead

and prove by a preponderance of the evidence all of the following: … That

the conviction or sentence resulted from one or more of the following: … The

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.”).2

      Assuming that Appellant intended to use the Alleyne and Newman

cases as the bases for the newly-discovered-facts exception to the timeliness

requirement, that claim is unavailing: “Our Courts have expressly rejected

the notion that judicial decisions can be considered newly-discovered facts



2
  Further, Appellant offers no explanation of how the Alleyne and Newman
decisions constitute “evidence,” exculpate him, or would lead to a different
outcome at trial. See, e.g., Commonwealth v. Carbone, 707 A.2d 1145,
1148 n. 6 (Pa. Super. 1998) (“[T]o sustain a collateral petition for a new
trial on the basis of after-discovered evidence, the evidence must have been
unavailable at trial, it must be exculpatory, and it must be of such a quality
that it would change the outcome of the trial.”).


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which would invoke the protections afforded by section 9545(b)(1)(ii).”

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (citing

Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011)).               Moreover,

Appellant cannot utilize the decisions to satisfy the section 9545(b)(1)(iii)

exception because neither Supreme Court has held that Alleyne applies

retroactively to cases on collateral review, and Newman is not even a

decision of one of the Supreme Courts.

      Appellant’s PCRA petition was filed more than one year after his

judgment of sentence became final and there is no applicable timeliness

exception alleged.      Accordingly, the PCRA court properly dismissed the

petition for lack of jurisdiction.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 7/28/2015




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