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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SEAN SULLIVAN                              :
                                               :
                       Appellant               :   No. 2675 EDA 2019

             Appeal from the PCRA Order Entered August 26, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0014636-2011


BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                           FILED AUGUST 4, 2020

        Sean Sullivan appeals pro se from the denial of his second petition for

relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. Specifically, he claims that the PCRA court provided inadequate notice

of its intent to dismiss, and thereafter erred when it dismissed his petition as

untimely. However, Sullivan filed his petition more than one year after his

judgment of sentence became final and he has not pleaded and proven any of

the three exceptions to the PCRA time-bar. Therefore, we affirm.

        On March 1, 2013, following a bench trial, the court convicted Sullivan

of third degree murder1 and related offenses. The conviction arose from a

multi-person prison attack wherein Sullivan and three associates, all inmates,

attacked five other inmates with various weapons resulting in the stabbing

____________________________________________


1   18 Pa.C.S.A. § 2502(c).
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death of Earl Bostic. On May 10, 2013, the trial court sentenced Sullivan to an

aggregate sentence of life without parole. This Court affirmed the judgment

of sentence on April 17, 2015, and our Supreme Court denied the petition for

allowance of appeal on December 8, 2015. Sullivan did not petition the United

States Supreme Court for a writ of certiorari.

          On October 3, 2016, Sullivan filed a timely first PCRA petition. The PCRA

court appointed counsel, who filed a Turner/Finley2 no merit letter and

motion to withdraw as counsel. The PCRA court denied PCRA relief and granted

counsel’s motion to withdraw. This Court affirmed the order denying PCRA

relief.

          On October 25, 2018, Sullivan filed the instant pro se, second PCRA

petition. The PCRA court issued notice of its intent to dismiss the petition

pursuant to Rule of Criminal Procedure 907(1). Sullivan responded to the

notice of intent to dismiss. The PCRA court dismissed the petition as untimely

on August 26, 2019. This timely appeal followed.

          Sullivan raises one question on appeal:

          Did the PCRA court commit an error of law by failing to adequately
          give [Sullivan] notice that his petition was untimely, whereas the
          907 Notice stated “The issues raised in the original and amended
          post conviction relief act petition are without merit;” prejudice
          ensued where [Sullivan] could have sought leave to amend and
          address timeliness?

Sullivan’s Br., at 4.
____________________________________________


2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).


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      Prior to reaching the merits of Sullivan’s claims on appeal, we must first

consider the timeliness of his PCRA petition. See Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014).

      Crucial to the determination of any PCRA appeal is the timeliness
      of the underlying petition. Thus, we must first determine whether
      the instant PCRA petition was timely filed. The timeliness
      requirement for PCRA petitions is mandatory and jurisdictional in
      nature, and the court may not ignore it in order to reach the merits
      of the petition. The question of whether a petition is timely raises
      a question of law. Where the petitioner raises questions of law,
      our standard of review is de novo and our scope of review plenary.

      A PCRA petition is timely if it is “filed within one year of the date
      the judgment [of sentence] becomes final.” 42 Pa.C.S.A. §
      9545(b)(1). “[A] judgment [of sentence] becomes 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 time for seeking the review.”
      42 Pa.C.S.A. § 9545(b)(3). . . .

Commonwealth v. Brown, 141 A.3d 491, 499 (Pa.Super. 2016) (case

citations and some quotation marks omitted).

      Sullivan’s judgment of sentence became final on March 7, 2016, 90 days

after our Supreme Court denied allowance of appeal and Sullivan did not

petition the United States Supreme Court for a writ of certiorari. See 42

Pa.C.S.A. § 9545(b)(3) (judgment of sentence becomes final “at the

conclusion of direct review . . . or at the expiration of time for seeking the

review”); U.S. Sup. Ct. R. 13. Accordingly, Sullivan had until March 7, 2017,

to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). He filed the

instant petition on October 25, 2018. Therefore, it was patently untimely and




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the PCRA court lacked jurisdiction to review it unless Sullivan successfully

pleaded and proved one of the statutory exceptions to the PCRA time-bar.

      The PCRA provides three exceptions to its time bar:

      (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.A. § 9545(b)(1)(i)-(iii). Exceptions to the time-bar must be pled in

the petition, and may not be raised for the first time on appeal. See

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super. 2007). “[Our

Supreme] Court has repeatedly stated it is the appellant’s burden to allege

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

Hawkins, 953 A.2d 1248, 1253 (Pa. 2008).

      In his petition, Sullivan invokes the newly discovered fact exception to

the PCRA time bar. The newly discovered facts exception requires a petitioner

to 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.” 42 Pa.C.S.A. § 9545(b)(1)(ii). Further, a “petitioner must explain

why he could not have obtained the new fact(s) earlier with the exercise of

due diligence.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super.


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2010). Notably, “[t]he focus of the exception is on [the] newly discovered

facts, not on a newly discovered or newly willing source for previously known

facts.” Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (citation,

emphasis, and internal quotation marks omitted).

      Here, Sullivan claimed to be eligible for the newly discovered fact

exception to the PCRA time-bar on account of his newly discovering an

affidavit from a man named Alvin Lloyd who averred that he witnessed the

prison fight, and Sullivan was on the upper floor of the prison at the time—

away from the assault. Therefore, he claims he has pleaded and proven the

exception to the PCRA time-bar. Additionally, Sullivan argues that the PCRA

court erred when its 907(1) notice stated that it intended to dismiss his

petition without a hearing based on lack of merit, and thereafter dismissed

the petition as untimely. See Sullivan’s Br. at 10-11.

      Upon review, we conclude that Sullivan has not proven applicability of

the newly discovered fact exception. The newly discovered “fact” on which

Sullivan relies is Lloyd’s affidavit stating that he saw Sullivan on the top tier

of the prison when the fighting occurred on the lower tier. However, Sullivan

fails to establish why he was not able to obtain Lloyd’s testimony at the time

of trial, or how his location—which he would have known at trial—should be

considered a “newly discovered” fact. For these reasons, Lloyd’s affidavit does

not satisfy the newly discovered fact exception to the PCRA’s time-bar. In

addition, we conclude that the PCRA court’s notation on its 907(1) notice of

intent to dismiss constitutes harmless error. Sullivan’s claim as set forth in his

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petition could not be amended to meet the requisites of the newly discovered

fact exception to the time-bar.3

       The PCRA court properly concluded that it lacked jurisdiction to consider

the merits of Sullivan’s PCRA petition because it was untimely and does not

fall under an exception to the PCRA time-bar. Accordingly, we affirm the PCRA

court’s order dismissing the petition.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/04/2020




____________________________________________


3If Sullivan intended to attempt to establish either the newly discovered fact
or one of the other two exceptions to the PCRA time bar by amending his
petition to include an entirely new claim, he may do so by attempting to
establish the applicability of that exception in a subsequent PCRA petition.

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