J-S75008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT OF
                                    :        PENNSYLVANIA
                                    :
          v.                        :
                                    :
                                    :
WILLIAM M. DANIELS                  :
                                    :
                Appellant           :   No. 170 WDA 2017

              Appeal from the PCRA Order January 3, 2017
           In the Court of Common Pleas of Allegheny County
          Criminal Division at No(s): CP-02-CR-0016251-1995

COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT OF
                                    :        PENNSYLVANIA
                                    :
          v.                        :
                                    :
                                    :
WILLIAM MONTROSE DANIELS            :
                                    :
                Appellant           :   No. 171 WDA 2017

              Appeal from the PCRA Order January 3, 2017
           In the Court of Common Pleas of Allegheny County
          Criminal Division at No(s): CP-02-CR-0002083-1997

COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT OF
                                    :        PENNSYLVANIA
                                    :
          v.                        :
                                    :
                                    :
WILLIAM MONTROSE DANIELS            :
                                    :
                Appellant           :   No. 172 WDA 2017

             Appeal from the PCRA Order January 3, 2017
          In the Court of Common Pleas of Allegheny County
         Criminal Division at No(s): CP-02-CR-0002235-1996,
            CP-02-CR-02083-1997, CP-02-CR-02235-1996
J-S75008-17


BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                         FILED JANUARY 12, 2018

       In this consolidated appeal,1 Appellant, William Montrose Daniels,

appeals from three separate orders denying petitions filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.      We affirm.

       This matter involves the September 20, 1994 shooting death of Ronald

Hawkins, a jitney driver, in Pittsburgh’s Northside area.         PCRA Court

Opinion, 5/10/17, at 1-3.

       The facts are summarized as follows. As [Appellant] was
       standing with his companions in the Northside of Pittsburgh,
       someone rode up the street on his bicycle shouting “The OGs is
       coming up in a gray car”. (Trial Transcript, hereinafter “TT”) at
       127,171). [Appellant] retrieved his gun and two of his
       companions (Dale and Thornton) also drew guns. (TT 128,172-
       173). The three men ran toward a dark gray Buick that was
       driven by the victim, who yelled that he was just a jitney driver.
       (TT 129-130, 173-174). [Appellant] and the two other armed
       perpetrators fired their weapons into the car, killing Hawkins.
       The victim had been shot six times in the abdomen and four
       times in the arm.

             During the      trial, Tina Banks      testified for    the
       Commonwealth, stating that the shooting was committed by
       perpetrators that ran on foot to the victim’s car and shot the
       victim many times. Ms. Banks testified that she recognized
       [Appellant] as one of the shooters. Thomas Carr also testified for
       the Commonwealth, stating that he witnessed the shooting and
       it was committed by [Appellant], who, with two other young
       men, ran to the victim’s car and began shooting.
____________________________________________


1The appeals docketed at Superior Court docket numbers 170 WDA 2017,
171 WDA 2017, and 172 WDA 2017 were consolidated sua sponte by this
Court in an order filed on February 9, 2017.




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PCRA Court Opinion, 5/10/17, at 3-4.

              On September 24, 1998, a jury found [Appellant] guilty of
        First Degree Murder[2] [(trial court docket number CP-02-CR-
        0016251-1995)], Violation of the Uniform Firearms Act[3] [(trial
        court docket number CP-02-CR-0002083-1997)], and Criminal
        Conspiracy[4] [(trial court docket number CP-02-CR-0002235-
        1996)]. [Appellant] was acquitted on the charge of Intimidation
        of a Witness. On November 23, 1998, the Honorable Gerard M.
        Bigley imposed an aggregate sentence of life imprisonment, plus
        a consecutive 13½ to 27 years.

              [Appellant] filed numerous appeals and PCRA petitions. On
        December 22, 1998, [Appellant] filed a direct appeal to the
        Pennsylvania Superior Court. Counsel was appointed to
        represent [Appellant]. Judgement was affirmed by the
        Pennsylvania Superior Court on November 27, 2000, and
        allocator was denied by the Pennsylvania Supreme Court on June
        22, 2001. [Appellant] did not appeal to the United States
        Supreme Court.

               Judgment of Sentence became final on September 20,
        2001, and [Appellant] had until September 20, 2002 to file a
        timely PCRA petition. On July 23, 2002, [Appellant] filed his first
        PCRA petition, which was … timely filed. Counsel was appointed
        to represent [Appellant]. This Court dismissed [Appellant’s]
        PCRA petition on July 13, 2004. The Pennsylvania Superior Court
        affirmed the dismissal on July 6, 2005. [Appellant] filed a
        Petition for Allowance of Appeal with the Pennsylvania Supreme
        Court, which was granted for the consideration of one issue. On
        March 8, 2006, the Pennsylvania Supreme Court dismissed the
        issue without prejudice to [Appellant’s] right to raise it in a
        subsequent PCRA Petition.

               On October 24, 2005, [Appellant] filed a 2nd PCRA
        Petition. The PCRA court issued an opinion on December 7,
____________________________________________


2   18 Pa.C.S. § 2501.

3   18 Pa.C.S. § 6106.

4   18 Pa.C.S. § 903.



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     2005, deferring review until after the disposition of the allowance
     of appeal with the Supreme Court.

            On May 19, 2006, [Appellant] filed a counseled
     Supplemental PCRA Petition, which was his 3rd PCRA Petition,
     alleging he was entitled to relief due to the after-discovered
     evidence of the recantation statements of two witnesses. A
     counseled Amended PCRA Petition was filed. This Court held a
     PCRA hearing on July 15, 2008, in which one witness refused to
     testify and the other testified. On July 15, 2008, this Court
     dismissed [Appellant’s] PCRA Petition. The dismissal of
     [Appellant’s] 3rd PCRA Petition was affirmed by the Pennsylvania
     Superior Court on May 5, 2009, and Petition for Allowance of
     Appeal was denied by the Pennsylvania Supreme Court on
     September 30, 2009.

            On or about June 5, 2006, [Appellant] filed a Petition for
     Writ of Habeas Corpus in the U.S. District Court for the Western
     District of Pennsylvania. The Petition was dismissed on
     November 17, 2010, and Certificate of Appealability was denied.

            On July 9, 2013, [Appellant] filed his 4th PCRA Petition.
     Counsel was appointed and Counsel filed a Turner Finley No-
     Merit Letter. In response to the no-merit letter, [Appellant]
     retained different counsel, who petitioned to amend the PCRA
     Petition. The Petition to Amend was granted. On February 11,
     2014, [Appellant] filed a counseled Petition for Habeas Corpus
     Relief. On March 7, 2014, this Court dismissed [Appellant’s] 4th
     PCRA Petition. The dismissal was affirmed by the Pennsylvania
     Superior Court on January 8, 2015. Petition for Allowance of
     appeal was denied by the Pennsylvania Supreme Court on
     August 4, 2015.

            [Appellant] filed the instant pro se PCRA Petition[s] on
     September 26, 2015, which w[ere] his 5th PCRA Petition[s].
     Counsel was appointed but withdr[e]w after Timothy J. Lyon,
     Esquire, entered his appearance on December 4, 2015. Counsel
     filed … Amended PCRA Petition[s at trial court docket numbers
     CP-02-CR-0016251-1995, CP-02-CR-0002235-1996), and CP-
     02-CR-0002083-1997] on April 25, 2016. The Commonwealth
     filed an Answer on May 27, 2016.




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PCRA Court Opinion, 5/10/17, at 1-3.5 Following a hearing, the PCRA court

denied Appellant relief at each of the aforementioned docket numbers on

January 3, 2017. On January 23, 2017, Appellant filed separate notices of

appeal at each docket number, and this Court consolidated those appeals.

       On appeal, Appellant raises the following issue:

       Whether this court should reverse—or, in the alternative,
       vacate—the lower court’s order denying [Appellant] PCRA relief
       where [Appellant] presented credible evidence showing both that
       his attempt to obtain PCRA relief was timely made and that he
       was entitled to such relief.

Appellant’s Brief at 4 (full capitalization omitted).

       When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling
____________________________________________


5  In an effort to clarify the procedural history, we note that Appellant filed
his fifth PCRA petitions on September 26, 2015. However, on February 24,
2016, Appellant filed a counseled PCRA petition seeking to amend the
September 26, 2015 PCRA petitions (“the 2015 PCRA petitions”) and to file a
new PCRA petition (“the 2016 PCRA petitions”). PCRA petition, 2/24/16, at
¶ 45. On March 15, 2016, the PCRA court granted Appellant an enlargement
of time in which to file amendments to the 2015 PCRA petitions and the
2016 PCRA petitions. The PCRA court allowed all of the amendments to be
included in one document. Order, 3/15/16 (emphasis added). Appellant
filed his final amended PCRA petition on April 25, 2016, and this petition was
filed at each of the lower court docket numbers.




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is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.        Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

       As noted above, the PCRA petitions filed in this matter were

Appellant’s fifth attempt at relief under the PCRA.     We further note that a

PCRA petition must be filed within one year of the date that the judgment of

sentence becomes final. 42 Pa.C.S. § 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. § 9545(b)(3). This time requirement is mandatory and jurisdictional

in nature, and the court may not ignore it in order to reach the merits of the

petition. Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.6 A petition invoking one of these exceptions must be filed


____________________________________________


6   The exceptions to the timeliness requirement are:

(Footnote Continued Next Page)


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within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).        In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,

1167 (Pa. Super. 2001).

      Our review of the record reveals that Appellant’s judgment of sentence

became final on September 20, 2001, ninety days after the Pennsylvania

Supreme Court denied the petition for allowance of appeal and time expired

for Appellant to seek certiorari in the United States Supreme Court.       42

Pa.C.S. § 9545(b)(3); U.S. Sup.Ct. R. 13. Appellant’s PCRA petitions which

underlie this appeal were filed, at the earliest, on September 26, 2015,


(Footnote Continued) _______________________

      (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)(1)(i), (ii), and (iii).




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fourteen years after Appellant’s judgment of sentence was final.               Thus,

Appellant’s PCRA petitions were patently untimely.

       As previously stated, if a petitioner does not file a timely PCRA

petition, his petition nevertheless may be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file

his petition within sixty days of the date that the exception could be

asserted. 42 Pa.C.S. § 9545(b)(2).

       As an initial matter, we note that Appellant avers that the PCRA court

applied an improper standard when it reviewed Appellant’s instant PCRA

petition. Appellant’s Brief at 33. We are constrained to agree. The PCRA

court concluded that the Appellant’s newly- discovered evidence claim was

not credible, and it denied Appellant’s PCRA petitions on that basis. PCRA

Court Opinion, 5/10/17, at 7, 9, and 10. The PCRA court should have first

determined if the instant PCRA petitions were timely filed pursuant to the

newly-discovered-facts exception of Section 9545(b)(1)(ii).7             Indeed, the

analyses     and    requirements       for     claims   concerning   newly-discovered

evidence and claims of newly-discovered facts are distinct:

____________________________________________


7  See Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016) (stating that
the timeliness requirement of the PCRA is jurisdictional in nature, and a
court may not address the merits of any claim raised unless the petition was
timely filed).




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      the newly-discovered facts exception to the time limitations of
      the PCRA, as set forth in subsection 9545(b)(1)(ii), is distinct
      from the after-discovered evidence basis for relief delineated in
      42 Pa.C.S. § 9543(a)(2). To qualify for an exception to the
      PCRA's time limitations under subsection 9545(b)(1)(ii), a
      petitioner need only establish that the facts upon which the claim
      is based were unknown to him and could not have been
      ascertained by the exercise of due diligence. However, where a
      petition is otherwise timely, to prevail on an after-discovered
      evidence claim for relief under subsection 9543(a)(2)(vi), a
      petitioner must prove that (1) the exculpatory evidence has
      been discovered after trial and could not have been obtained at
      or prior to trial through reasonable diligence; (2) the evidence is
      not cumulative; (3) it is not being used solely to impeach
      credibility; and (4) it would likely compel a different verdict.

Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017) (emphases

added).

      However, it is well settled that our Court may affirm a decision of the

PCRA court on any correct basis.     See Commonwealth v. Ahlborn, 683

A.2d 632, 641 n.14 (Pa. Super. 1996) (“This Court may affirm the PCRA

court’s decision upon any correct basis.”).   With this principle in mind, we

continue with our analysis.

      Appellant argues that the PCRA petitions underlying the instant appeal

were timely pursuant to the newly-discovered facts exception enumerated in

section 9545(b)(1)(ii). Appellant’s Brief at 32. Appellant avers that in late

December of 2015, he learned that Ms. Tiara Horn (“Horn”) and Mr. Jacques

Early (“Early”) witnessed the murder for which Appellant was convicted. Id.

These witnesses stated that the shooting was a “drive-by” shooting and not

a walk-up shooting as the Commonwealth’s witnesses stated. Id. at 14, 32,


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38.   Specifically, in Early’s affidavit, he alleged that he saw the shooting.

PCRA Petition, 2/24/16, Exhibit 1.      Early stated that the shooting was a

“drive-by” shooting, Appellant was not in the car, and Early did not come

forward sooner because he feared for his life.        Id.   Similarly, Appellant

certified that if called to testify, Horn would state that she saw the shooting,

the shooting was a drive-by shooting, and she did not see Appellant in either

vehicle. PCRA Petition, 2/24/16, Exhibit C.

      Appellant argues that he filed the relevant PCRA petitions on February

24, 2016, within sixty days of learning of this newly-discovered facts, and

that these facts could not have been discovered earlier by the exercise of

due diligence due to his incarceration.         Id. at 32-33.   Thus, Appellant

concludes that he has satisfied the newly-discovered-facts exception to the

PCRA time bar. Id. at 32. We disagree.

      As the Commonwealth points out, these “new” facts are not new. The

Commonwealth’s Brief at 18. Appellant included similar testimony in his first

PCRA petition in 2002.      Appellant attached to his first PCRA pettion an

affidavit signed by Jermale Walker. PCRA Petition, 7/23/02 (Exhibit C). The

affidavit read, in relevant part, as follows:

      I, Jermale Walker, the undersigned affiant do hereby declare and
      depose as follows:

      1. My name is Jermale Walker, my date of birth is October 3,
      1974.

      2. I am currently incarcerated at the            State Correctional
      Institution at Graterford, Pennsylvania.

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J-S75008-17



       3. In September of 1994 I was living permanently with my
       mother in the Beltzohover section of the city but staying
       temporarily on the North Side of the city of Pittsburgh.

       4. On September 30 20 1994, I had taken a jitney from the
       Manchester section of the North Side of Pittsburgh to visit a
       woman on Alpine Street in the Mexican War Streets on the North
       Side of the city of Pittsburgh.

       5. As the jitney neared its destination I was preparing to pay the
       driver when a dark automobile pulled up on the right hand side
       of the jitney.

       6. There were three or four occupants of the dark car and they
       were shouting and yelling but I was unaware of what they were
       saying or to whom it was directed.

       7. Shortly after the shouting at least two of the occupants pulled
       guns and began shooting in the direction of the jitney.

       8. At this point I jumped into the backseat, opened the driver’s
       side rear door, and fled.

       9. To this day I do not know who was in the car and did the
       shooting. IT WASN’T WILLIAM DANIEL.

       10. I did not make this evidence known to the police because at
       the time of the shooting I was wanted by the police for an
       unrelated crime and knew that if I talked to the police I would be
       arrested.

PCRA Petition, 7/23/02 (Exhibit C, at ¶¶ 1-10).8

       Appellant has failed to establish “that the facts upon which the claim is

based were unknown to him and could not have been ascertained by the

exercise of due diligence.” Burton, 158 A.3d at 629. Indeed, the “facts”
____________________________________________


8 Underscoring       represents     the    portions   of   the   affidavit   that   were
handwritten.



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Appellant deems as new, were available in 2002. We note that our Supreme

Court has made clear that in order to satisfy the newly-discovered-facts

exception set forth in section 9545(b)(1)(ii), a PCRA petitioner must allege

and prove previously unknown facts and not merely a newly-discovered or

newly-willing source for previously known facts.             Commonwealth v.

Edmiston, 65 A.3d 339, 352 (Pa. 2013). Here, as in Edmiston, Appellant

relies on new sources of previously knowable facts and not on a “newly-

discovered fact.” Therefore, Appellant’s claim does not satisfy the exception

of Section 9545(b)(1)(ii).

      Because Appellant’s claim failed to satisfy the exception to the PCRA’s

jurisdictional time bar, the PCRA court was without jurisdiction to consider

the merits of Appellant’s petitions. See Commonwealth v. Fairiror, 809

A.2d 396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction

to hear an untimely petition). Likewise, we lack the authority to address the

merits of any substantive claims raised in Appellant’s PCRA petitions. See

Commonwealth        v.   Bennett,    930      A.2d   1264,   1267   (Pa.   2007)

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”). Accordingly, we affirm the PCRA court’s orders dismissing

Appellant’s PCRA petitions, albeit on jurisdictional grounds.

      Orders affirmed.

      Judge Musmanno joins the Memorandum.

      Judge Ott concurs in the result.


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J-S75008-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2018




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