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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                          :
                                           :
                                           :
 SHAWN T. WALKER,                          :
                                           :
                     Appellant.            :   No. 3379 EDA 2017


               Appeal from the PCRA Order, September 15, 2017,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0527701-1991.


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                       FILED JANUARY 24, 2019

      Shawn T. Walker appeals from the order denying his second petition for

post-conviction relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

42 Pa.C.S.A. §§ 9541-46. We affirm.

      The pertinent facts and procedural history have been summarized as

follows:

              On April 23, 1991, [Walker] forcibly entered the home of
           his former girlfriend, Lisa Johnson, shot and killed a man
           sleeping on the couch, and shot and permanently disabled
           Ms. Johnson. The man sleeping on the couch was Ricardo
           Thomas, a friend of Ms. Johnson’s, who offered to spend the
           night at her home; Ms. Johnson was fearful because
           [Walker] had struck her in the face earlier that day when
           she refused to have sex with him, and then he harassed her
           by phone all evening, demanding to speak to her new
           boyfriend, Tracy “Denzell” Brown. When Mr. Brown left Ms.
           Johnson’s home in the middle of the night, he noticed a car
           parked around the block, later identified as [Walker’s] car.
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       After waiting in his car for about an hour, [Walker] broke
       into Ms. Johnson’s home and shot her and Mr. Thomas.

           [Walker] then took numerous pills and admitted himself
       to the hospital for stomach pain. After [Walker] was treated
       and about to be discharged, police spoke with him, told him
       they wanted to question him regarding the shooting, and
       asked him if he would come to headquarters, emphasizing
       that he was not required to come with them. [Walker]
       agreed to go with the officers, and was transported to the
       station without handcuffs. At the station, after waiving his
       rights, [Walker] confessed he had broken in and shot the
       victims, neither of whom were armed; however, at trial, he
       claimed self-defense, testifying that when he entered Ms.
       Johnson’s home, “her and some guy was on the couch, they
       was hugged up.” [Walker] claimed that as he turned to
       leave, the man got up, punched him, and reached for a gun
       in his waistband, so [Walker] reached for his own gun and
       shot him in self-defense. According to [Walker], the police
       fabricated the portions of his statement that were
       contradicted by his trial testimony.

          The jury convicted [Walker] of first-degree murder. At
       [the conclusion of] the penalty phase, the jury . . .
       sentenced [Walker] to death.

          [Walker] received new counsel and filed a direct appeal,
       claiming, inter alia, the killing constituted, at most,
       voluntary manslaughter because he killed the victim in the
       heat of passion; the verdict was against the weight of the
       evidence because the Commonwealth failed to prove Walker
       possessed malice or specific intent to kill because the killing
       resulted from his mistaken belief he was defending himself;
       and trial counsel was ineffective for failing to object to
       evidence of [Walker’s] prior bad acts. This Court affirmed,
       finding [Walker’s] claims meritless, Commonwealth v.
       Walker, 540 Pa. 80, 656 A.2d 90 (1995), and the United
       States Supreme Court denied certiorari.           Walker v.
       Pennsylvania, 516 U.S. 854, 116 S.Ct. 156, 133 L.Ed.2d
       100 (1995).

          [Walker] filed a timely pro se PCRA petition and received
       new counsel, who filed an amended petition, raising
       numerous claims of trial court error and trial counsel’s
       ineffectiveness. The PCRA court granted a hearing on the


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          sole issue of whether trial counsel was ineffective at the
          penalty phase for failing to adequately investigate and
          present specific mitigation evidence. Before the hearings
          were concluded, however, the presiding judge died, and the
          petition was reassigned to another judge. After several
          appointments of new counsel due to [Walker’s] repeated
          expression of dissatisfaction with each attorney, additional
          hearings were held. The PCRA court concluded [Walker’s]
          penalty phase ineffectiveness claim entitled him to relief,
          and ordered a new penalty phase; the court denied all other
          relief. [Walker] appealed from the denial of his guilt phase
          claims.

Commonwealth v. Walker, 36 A.3d 1, 4-5 (Pa. 2011) (footnotes omitted).1

       Walker raised four guilt-phase claims on appeal, including whether the

Commonwealth violated due process (“Brady claim”) by failing to disclose Mr.

Thomas’ criminal record to the defense.2         The PCRA court had rejected

Walker’s Brady claim because Mr. Thomas had an arrest but no convictions,

and Walker failed to allege that he was aware of the arrest. Our Supreme

Court agreed, and held further that even if Walker had known of Mr. Thomas’

arrest record, such knowledge would not have supported his self-defense

claim, given the “overwhelming evidence that the murder was deliberate and

premeditated.” Walker, 36 A.3d at 10. Finding no merit to any other claim,

the Court affirmed the denial of post-conviction relief.

       On July 1, 2016, Walker filed a second pro se PCRA petition, in which he

again alleged that the Commonwealth violated Brady by not producing the
____________________________________________


1 Walker’s sentence was later reduced from death to a term of life
imprisonment.


2   Brady v. Maryland, 373 U.S. 393 (1963).

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victim’s arrest record.   On October 24, 2016, Walker filed a supplemental

petition, citing Dennis v. Secretary, Pennsylvania Department of

Corrections, 834 F.3d 263 (3d Cir. 2016) (en banc) to support his Brady

claim.   The PCRA court appointed counsel, who, on July 12, 2017, filed a

petition to withdraw and “no-merit” letter pursuant to the dictates of

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988)(en banc), because Walker’s Brady

claim was previously litigated in Walker’s first PCRA and time-barred.

Thereafter, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intention to

dismiss Walker’s petition without a hearing. Walker filed a response to both

this Rule 907 notice as well as PCRA counsel’s Turner/Finley letter. By order

entered September 15, 2017, the PCRA court denied Walker’s PCRA petition.

This timely appeal followed. Both Walker and the PCRA court have complied

with Pa.R.A.P. 1925.

      This Court’s standard of review regarding an order dismissing a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.      Commonwealth v.

Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Moreover,

a PCRA court may decline to hold a hearing on the petition if the PCRA court

determines that the petitioner’s claim is patently frivolous and is without a




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trace of support in either the record or from other evidence. Commonwealth

v. Jordan, 772 A.2d 1011, 1104 (Pa. Super. 2001).

        Before addressing the claims Walker raises on appeal, we must first

determine whether the PCRA court correctly concluded that Walker’s PCRA

petition is untimely.

        The   timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

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

is final unless the petition alleges, and the petitioner proves, that an exception

to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.3 42 Pa.C.S.A. § 9545. A PCRA petition


____________________________________________


3   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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), (ii), and (iii).


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invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.” See Hernandez, 79 A.3d

651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).        Finally,

exceptions to the PCRA’s time bar must be pled in the petition, and may not

be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d

521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues

not raised before the lower court are waived and cannot be raised for the first

time on appeal).

      Here, Walker’s judgment of sentence became final on October 2, 1995,

when the United States Supreme Court denied his writ of certiorari. See 42

Pa.C.S.A. § 9545(b)(3). Because Walker filed his second PCRA petition over

twenty years later, it is patently untimely, unless Walker satisfied his burden

of pleading and proving that one of the enumerated exceptions applies. See

Hernandez, supra.

      Walker has failed to establish any exception to the PCRA’s time bar.

Walker did not explicitly raise a time-bar exception in his original filing,

although he did reference Weary v. Cain, 136 S.Ct. 1002 (2016), a recent

U.S. Supreme Court case, which, according to Walker, establishes that

Pennsylvania precedent had misapplied the high court’s decision in Brady,

supra.   In his supplemental petition Walker asserted that he satisfied the

PCRA’s time-bar exception regarding a “newly-recognized constitutional right”




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found at subsection 9545(b)(1)(iii), based upon “the Third Circuit precedential

decision in [Dennis, supra].” Walker’s Brief at 3.

      Initially, the PCRA court found that Walker’s original petition based on

Weary was untimely because it was “filed almost four months after [the

Weary] decision, and [Weary] did not create a newly recognized

retroactive constitutional right.” PCRA Court Opinion, 12/13/17 at 7.

Moreover, the PCRA court found Walker’s reliance upon Dennis to be

misplaced. As the PCRA court noted, Dennis “is not a decision of either the

Supreme Court of the United States or that of Pennsylvania, nor one that

created a newly recognized retroactive constitutional right.”     PCRA Court

Opinion, 12/13/17, at 2.

      As cogently recognized by the PCRA Court, Walker’s “citations to Dennis

and Weary were his attempts to make it sound like the Federal Courts have

changed the constitutional law principles that were applied by our Supreme

Court in his previous [PCRA] appeal.” PCRA Court Opinion, 12/13/17, at 8.

Our review supports the PCRA court’s conclusion.       Thus, the PCRA court

correctly held that Walker’s second PCRA was untimely, and Walker has not

established any time-bar exception. We therefore affirm its order denying

post-conviction relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/19




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