J-S63007-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                      Appellee              :
                                            :
              v.                            :
                                            :
ANTONIO DADE,                               :
                                            :
                      Appellant             :   No. 3453 EDA 2014

                    Appeal from the PCRA Order October 29, 2014,
                     Court of Common Pleas, Philadelphia County,
                   Criminal Division at No. CP-51-CR-0212731-1989

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED NOVEMBER 04, 2015

      Antonio Dade (“Dade”) appeals pro se from the October 29, 2014

order entered by the Philadelphia County Court of Common Pleas dismissing

his fourth petition filed pursuant to the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9541-9546 (“PCRA”), as untimely.          After careful review, we

affirm.

      The trial court summarized the relevant procedural history of the case

as follows:

                  On March 5, 1990, following a bench trial before
              the Honorable David N. Savitt, [Dade] was found
              guilty of [first-degree murder, aggravated assault,
              reckless    endangerment     and   possessing     an
              instrument of crime]. [Dade] was sentenced to an
              aggregate term of life imprisonment. [Dade]
              appealed, and on August 30, 1991, the Superior
              Court affirmed the judgment of sentence. On March
              23, 1992, the Pennsylvania Supreme Court denied
              allocatur.
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               On October 13, 1992, [Dade] filed his first
           petition for post-conviction relief pursuant to the
           [PCRA]. Counsel was appointed, and on June 6,
           1993, an amended petition was filed. On April 9,
           1996, the petition was denied. The Superior Court
           affirmed the dismissal on January 16, 1997, and the
           Pennsylvania Supreme Court subsequently denied
           allocatur on August 12, 1997.

              On February 21, 2006, [Dade] filed his second
           PCRA petition, which was dismissed on July 14,
           2006. The Superior Court affirmed the dismissal on
           June 4, 2007, and the Pennsylvania Supreme Court
           denied allocatur on October 16, 2007.

             On November 13, 2007, [Dade] filed his third
           PCRA petition, which was dismissed on July 25,
           2008. The Superior Court affirmed the dismissal on
           August 3, 2009, and no further appeal followed.

              [Dade] filed the instant PCRA petition, his fourth,
           on April 3, 2014. After conducting an extensive and
           exhaustive review of these filings, the record, and
           applicable case law, [the PCRA c]ourt determined
           that the instant petition was untimely filed and that
           none of the timeliness exceptions applied. On August
           15, 2014, [the PCRA c]ourt provided [Dade] with a
           Pa.R.Crim.P. 907 [n]otice of [i]ntent to dismiss his
           petition without a hearing, and [Dade] filed a
           [r]esponse on August 28, 2014. [the PCRA c]ourt
           subsequently dismissed the PCRA petition on October
           29, 2014. [Dade] filed a notice of appeal from that
           order.

PCRA Court Opinion, 1/20/15, at 1-2 (pagination added).

     On appeal, Dade raises two issues for our review:

     I.    Did the [PCRA c]ourt err in holding that the proffered
           testimony of Craig Jackson did not meet the
           statutory timel[iness] exception under Title 42
           Pa.C.S. § 9545(b)(1)(ii)?



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      II.   Does the interest of justice require a remand for the
            purpose of taking Craig Jackson’s testimony?

Dade’s Brief at 4.

      We review the denial of a PCRA petition on timeliness grounds

according to the following standard:

                In reviewing the denial of PCRA relief, we
            examine whether the PCRA court’s determination is
            supported by the record and free of legal error. The
            PCRA timeliness requirement, however, is mandatory
            and jurisdictional in nature. The court cannot ignore
            a petition’s untimeliness and reach the merits of the
            petition. Section 9545(b)(1) requires a petitioner to
            file a PCRA petition within one year of the date the
            judgment [became] final.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (internal

citations and quotations omitted). “[A] judgment 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).

      Section 9545(b)(1) of the PCRA provides three statutory exceptions to

the timeliness provisions that allow for very limited circumstances under

which the late filing of a PCRA petition will be excused:

            (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;




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             (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). “Any petition invoking an exception provided in

paragraph (1) shall be filed within [sixty] days of the date the claim could

have been presented.”      42 Pa.C.S.A. § 9545(b)(2).      It is the petitioner’s

burden to plead and prove, by a preponderance of the evidence, that his

facially untimely petition falls under one of the three timeliness exceptions;

that he filed it within sixty days of the date it could have been presented;

and   that   the   information   could   not   have   been    obtained     earlier.

Commonwealth        v.   Williams,   105    A.3d   1234,     1239   (Pa.   2014);

Commonwealth v. Ali, 86 A.3d 173, 178 (Pa. 2014), cert. denied sub

nom., Ali v. Pennsylvania, 135 S. Ct. 707 (U.S. 2014).

      Dade acknowledges that his PCRA petition, filed over twenty years

after his judgment of sentence became final, is facially untimely.            See

Motion for New Trial Based on After-Discovered Evidence and Consolidated

Memorandum of Law, 4/3/14, ¶ 6; Dade’s Brief at 9. He asserts, however,

that he has satisfied the exception to the timeliness requirements in section

9545(b)(1)(ii) through the presentation of a letter sent to him by Craig

Jackson (“Jackson”), which he received within sixty days of filing his fourth



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PCRA petition. Dade’s Brief at 10. In the letter, Jackson states that he was

present on the night of the shooting, and details what he saw and the

aftermath of the shooting, stating:

               I was out there the night that Pliz shot those guys
            that night and because of me seeing that I got shot
            for it. Maybe you know the story being as though
            how close you and Pliz are but just keep this to
            yourself, I don’t know, but, anyway, I was coming
            from Columbia Ave. going back down my way on
            Master Street and I decided to stop at the Chinese
            joint. As I was on my way across the street I saw
            you and two other guys come out of the store. I saw
            one of them pull out a gun and then Pliz come up
            shooting out of nowhere. I don’t know if the dude
            got off a shot or not cause I ran after the first shot.
            A week or so later I see Pliz and ask him about you
            and was he looking out for your and he asked me
            what I was talking about and told me to mind my
            business. I told him that I was there and saw him
            shoot them dudes and that’s when he shot me 3
            times then he sent threatening messages to me
            saying if I brought this up again he would kill me and
            my family. So I never said anything else about it
            being the old me.

PCRA Petition, 4/3/14, at Exhibit A. Dade states that he did not know that

Jackson was present at the time of the shooting and could not have known

until he received the letter from Jackson, as Jackson never told anyone,

other than Pliz, what he saw that night.      Motion for New Trial Based on

After-Discovered Evidence and Consolidated Memorandum of Law, 4/3/14,

¶¶ 8-9, 12; Dade’s Brief at 10-12.

      This Court recently explained the petitioner’s burden of proof for the

newly discovered fact exception to the timeliness requirements:



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                The timeliness exception set forth in Section
            9545(b)(1)(ii) requires a petitioner to demonstrate
            he did not know the facts upon which he based his
            petition and could not have learned those facts
            earlier by the exercise of due diligence. Due diligence
            demands that the petitioner take reasonable steps to
            protect his own interests. A petitioner must explain
            why he could not have learned the new fact(s)
            earlier with the exercise of due diligence. This rule is
            strictly enforced. Additionally, the focus of this
            exception is on the newly discovered facts, not on a
            newly discovered or newly willing source for
            previously known facts.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (internal

citations and quotation marks omitted).

      Thus, the due diligence required of Dade in the case at bar relates to

his ability to learn the facts disclosed in Jackson’s letter – i.e., that another

person was present on the night of the shooting and actually shot the

victims. However, nowhere in either his PCRA petition or his appellate brief

does Dade claim that he was unaware that his friend, Pliz, was present on

the night of the shooting or that someone other than Dade shot the victims.1

Nor does he explain why he could not have learned that there was another

person present who was actively shooting along with him at the time the




1
   The record reflects that Dade testified at trial and admitted that he fired
three shots at the victims from a distance of two to three feet after he
observed one of the victims “reaching into his jacket for something.” N.T.,
3/5/90, at 252-53, 269. Two bullets hit one victim; one bullet hit the other.
Dade raised a claim of imperfect self-defense at trial.



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victims were shot.2 Rather, as stated hereinabove, Dade avers throughout

the memorandum of law accompanying his PCRA petition and his brief on

appeal that he was unaware that Jackson was present on the night of the

shooting and that he could not have discovered Jackson’s presence and

eyewitness account with the exercise of due diligence. See Motion for New

Trial Based on After-Discovered Evidence and Consolidated Memorandum of

Law, 4/3/14, ¶¶ 8-9, 12; Dade’s Brief at 10-12.

     As Dade did not plead and prove that he was unaware that there was

another person present on the night of the shooting who actually shot the

victims, he failed to satisfy his burden of proving the timeliness exception

contained in section 9545(b)(1)(ii).   See 42 Pa.C.S.A. § 9545(b)(1)(ii);

Brown, 111 A.3d at 176; see also Williams, 105 A.3d at 1239; Ali, 86

A.3d at 178. Therefore, we can find no error or abuse of discretion in the

PCRA court’s decision to dismiss Dade’s fourth PCRA petition as untimely.

     Order affirmed.




2
   The record reflects that one of the victims, Kenneth Henshaw, testified
that he saw another person standing with Dade at the time of the shooting,
but that Dade was the one who fired the gun. N.T., 3/1/90, at 112. The
eyewitness, Anthony Massey, testified that he saw Dade fire shots at the
victims and then run away with someone else. Id. at 140, 145.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/4/2015




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