J-S23042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                    v.                      :
                                            :
TROY TAQUELL ALVIN                          :
                                            :
                          Appellant         :
                                            :     No. 2792 EDA 2015

                    Appeal from the PCRA Order July 20, 2015
     in the Court of Common Pleas of Northampton County Criminal Division
                       at No(s): CP-48-CR-0001323-2003

BEFORE: PANELLA, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 23, 2016

        Appellant, Troy Taquell Alvin, appeals from the order dismissing his

fifth Post Conviction Relief Act1 (“PCRA”) petition as untimely, after an

evidentiary hearing.     He contends that his 2014 discovery of his personal

state identification card, issued in November 2001, fulfills the after-

discovered evidence requirement and thus overcomes the timeliness bar.

We affirm.

        We adopt the PCRA court’s facts and procedural history. PCRA Ct. Op.,

7/20/15, at 1-4. Appellant timely appealed and timely filed a court-ordered

Pa.R.A.P. 1925(b) statement. Appellant raises the following issues:




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J-S23042-16


         Appellant timely filed his fifth PCRA petition after
         discovering his appearance on his state-issued non-driver’s
         license identification card.

         Appellant’s state-issued non-driver’s license identification
         card was after-discovered evidence that could not have
         been obtained before the conclusion of the trial by
         reasonable diligence; was not merely corroborative or
         cumulative; would not have been used solely for purposes
         of impeachment; and was of such a nature and character
         that a different outcome would have been likely had the
         evidence been introduced.

Appellant’s Brief at 4.

      Appellant contends he discovered his 2001 state-issued identification

card in February 2014, and thus timely filed the instant fifth PCRA petition. 2

on February 26, 2014. He acknowledges he possessed the card prior to trial

“but was unaware of his exact appearance as depicted” on the card. Id. at

11. Appellant claims he could not obtain a copy of the card until recently,

when he could “verify that his photograph on the state ID card [issued in

November 2001] accurately reflected his appearance at the time of the

shooting” in March 2002. Id. at 11-12. We hold Appellant is due no relief.

      Before addressing the merits of Appellant’s claims, we examine

whether we have jurisdiction to entertain the underlying PCRA petition. See

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). “Our standard of

review of a PCRA court’s dismissal of a PCRA petition is limited to examining


2
 Appellant’s PCRA petition is dated February 26, 2014; the court docketed it
on March 3, 2014. See generally Commonwealth v. Wilson, 911 A.2d
942, 944 n.2 (Pa. Super. 2006) (discussing prisoner mailbox rule).



                                     -2-
J-S23042-16


whether the PCRA court’s determination is supported by the evidence of

record and free of legal error.” Commonwealth v. Wilson, 824 A.2d 331,

333 (Pa. Super. 2003) (en banc) (citation omitted). A PCRA petition “must

normally be filed within one year of the date the judgment becomes final . . .

unless one of the exceptions in § 9545(b)(1)(i)-(iii) applies and the petition

is filed within 60 days of the date the claim could have been presented.”

Commonwealth v. Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (citations

and footnote omitted).

      Instantly, Appellant’s judgment of sentence became final on July 3,

2006, ninety days after the Pennsylvania Supreme Court denied his petition

for allowance of appeal.     Appellant filed the instant PCRA petition on

February 26, 2014, almost eight years later. Thus, this Court must discern

whether the PCRA court erred by holding Appellant did not plead and prove

one of the three timeliness exceptions. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii);

Copenhefer, 941 A.2d at 648.

      “[S]ubsection (b)(1)(ii) does not require the petitioner to allege and

prove a claim of ‘after-discovered evidence.’     Rather, it simply requires

petitioner to allege and prove that there were ‘facts’ that were ‘unknown’ to

him and that he exercised ‘due diligence.’”   Commonwealth v. Bennett,

930 A.2d 1264, 1270 (Pa. 2007) (footnote omitted). “Due diligence requires

that [the defendant] take . . . steps to protect his own interests.”

Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001). “If the



                                    -3-
J-S23042-16


petitioner alleges and proves these two components, then the PCRA court

has jurisdiction over the claim under this subsection.” Bennett, 930 A.2d at

1272. As set forth by our Supreme Court:

         To warrant relief, after-discovered evidence must meet a
         four-prong test: (1) the evidence could not have been
         obtained before the conclusion of the trial by reasonable
         diligence; (2) the evidence is not merely corroborative or
         cumulative; (3) the evidence will not be used solely for
         purposes of impeachment; and (4) the evidence is of such
         a nature and character that a different outcome is likely.

Commonwealth v. Dennis, 715 A.2d 404, 415 (Pa. 1998).

      After careful review of the record, the parties’ briefs, and the well-

reasoned opinion by the Honorable Emil Giordano. we affirm on the basis of

the PCRA court’s opinion.     See PCRA Ct. Op. at 6-11 (holding Appellant

failed to (1) plead governmental interference prevented him from obtaining

a copy of his state identification card earlier; (2) establish his due diligence

to procure the card prior to trial; and (3) establish that the outcome of the

trial would have been different if his November 2001 card was introduced

because the murder occurred in March 2002). Accordingly, we agree with

the PCRA court’s determination that Appellant did not properly invoke any

one of the three timeliness exceptions. See Copenhefer, 941 A.2d at 648;

Fahy, 737 A.2d at 223.      Thus, the PCRA court lacked jurisdiction.      See

Fahy, 737 A.2d at 223.      Having discerned no error of law, we affirm the

order below. See Wilson, 824 A.2d at 333.

      Order affirmed.



                                     -4-
J-S23042-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/23/2016




                          -5-
{.
                                                                                                  Circulated 04/29/2016 12:00 PM




                         IN THE COURT OF COMMON PLEAS OF NORTHAMPTON                      COUNTY
                                    COMMONWEALTH OF PENNSYLVANIA
                                            CRIMINAL DIVISION




         COMMONWEALTH         OF PENNSYLVANIA,                                                                   r   .



                  VS.
                                                                            NO. C-48-CR-1323-2003
         TROY T. ALVIN,
                      DEFENDANT.
                                                                                                         :~ ·-




                                                        OPINION

                 Before the Court is Troy Alvin's ("Defendant")     fifth Petition for Post-Conviction

         Collateral Relief ("PCRA Petition" or "Petition"),   which he filed prose on March 3, 2014. As

         more fully set forth below, said Petition is untimely and it does not qualify for any of the

         exceptions to the timeliness requirement     of the PCRA.1 Accordingly, this Court is without

     jurisdiction to consider the merits of Defendant's Petition.


                                   I.      Factual And Procedural      History


                On January   30, 2003, Defendant    was charged    with Criminal   Homicide2    arising out of an

     incident alleged to have occurred on March 11, 2002.3 From February              9, 2004, to February 16,

     2004, Defendant was tried before a jury, and ultimately found guilty of first-degree             murder.

     Thereafter, the Honorable Edward G. Smith ("Judge Smith") sentenced                Defendant to a term of



     1
       42 Pa. C.S.A. § 9545 et seq.
     2
       18 Pa. C.S.A § 2501(A).
     3
       The facts and circumstances surrounding the incident on March 11, 2002, as well as the evidence presented at
     trial which supported Defendant's conviction, can be examined in the Honorable Edward G. Smith's August 8, 2013
     Opinion denying Defendant's fourth PCRA petition.


                                                                                                                         1
    life imprisonment   in a State Correctional   lnstitution.4 On February 26, 2004, Defendant filed a

    Post-Sentence Motion, which was denied by Judge Smith on June 30, 2004. Defendant then

    filed a timely appeal to the Superior Court of Pennsylvania,which deemed Defendant's appeal

    meritless and affirmed his judgment of sentence on June 28, 2005.s

           On June 19, 2006, Defendant filed a prose Motion for Post-Conviction Collateral Relief,

 which was denied following a hearing on August 18, 2006.6 Defendant appealed said denial on

August 23, 2006, and on December 9, 2008, the Superior Court affirmed the Court's denial of

the same.7

           On April 22, 2009, Defendant, proceeding prose, filed a second Motion for Post-

Conviction Collateral Relief.8 After holding a hearing on said petition, the Court granted

Defendant's requested reinstatement of his right to file a petition for allowance of appeal with

the Supreme Court of Pennsylvania, permitting him to challenge the Superior Court's affirming

the denial of his first PCRA petition. Defendant filed said appeal on September 30, 2009, which

the Pennsylvania Supreme Court denied on March 31, 2010.

           Thereafter, on May 61 2010, Attorney Victor Scomillio filed a third petition for Post-

Conviction Collateral Relief on Defendant's behalf. During the pendency of that petition,

Defendant filed his own prose_ PCRA petition. After an evidentiary hearing, Defendant's third


4
  Judge Smith presided over this matter through the resolution of Defendant's fourth PCRA petition. See infra note
12 for further explanation as to how the instant matter was brought before the undersigned.
5
  On July 28, 2005, Defendant filed a petition for allowance of appeal to the Supreme Court of Pennsylvania which
said Court denied on April 41 2006.
6
  Judge Smith appointed Mark S. Refowich, Esquire as Defendant's counsel for purposes of his first PCRA petition.
7
  Defendant filed a prose Application for Reconsideration of Order on December 29, 2008, which the Superior
Court denied on January 9, 2009. Defendant also filed an Application for Relief in the Superior Court on February
24, 2009, which was denied on March 4, 2009. No petition for allowance of appeal was filed with the Supreme
Court of Pennsylvania.
8
  Judge Smith appointed Victor E. Scomillio, Esquire, as Defendant's counsel for purposes of his second PCRA
petition.

                                                                                                                 2
     PCRA petition was denied by an Order of Court entered on June 11, 2010.9 Subsequently, on

     July 1, 2010, Defendant filed a Notice of Appeal to the Superior Court, which affirmed the

     Court's denial of Defendant's third PCRA petition on October 25, 2011.10

            Defendant filed a fourth prose PCRA petition on June 17, 2013. Accordingly, Judge

     Smith entered a Notice of Intent to Dismiss PCRA Petition without a Hearing on June 25, 2013,

     and on August 8, 2013, entered an Order denying the same.

            On March 3, 2014, Defendant, proceeding prose, filed a fifth Petition for PCRA relief.11

     On April 9, 2014, the instant matter was designated to the undersigned,12 and on May 5, 2014,

    this Court appointed Christopher M. Brett, Esquire to assist Defendant with the instant PCRA

    Petition, and granted Defendant's request to proceed in forma pauperis. After holding a PCRA

    Hearing on August 6, 2014, this Court received correspondence from Defendant seeking a sixty

 (60} day extension in which to file any additional documents relating to the instant PCRA

 Petition. Defendant also set forth that he no longer required the services of Attorney

 Christopher Brett. This Court granted Defendant's request for an extension of time on August

 29, 2014, and an Order of Court was entered on October 2, 2014, by President Judge Stephen



9
 In addition, Judge Smith ordered that Attorney Scomillio be permitted to withdraw as Defendant's counsel.
10
  Defendant filed a petition for allowance of appeal to the Supreme Court of Pennsylvania on November 23, 2011,
which the Court denied on June 26, 2012.
11
   Defendant, in his prose Petition for PCRA relief, asserted prosecutorial misconduct due to his assertion that the
Commonwealth withheld his non-drivers Pennsylvania Department of Transportation State Identification Card
("State ID Card"] which portrayed his picture at the time of the incident. Specifically, Defendant asserted that had
his State identification card been produced at trial to compare to the composite sketch and mug-shots that were
presented, a jury may have been swayed to find him not guilty of murder. The Defendant asserted the exceptions
in 42 Pa. C.S.A. § 9S4S(b)(l)(i) & (ii) to argue that once he came into possession of his State ID card on February 20,
2014, the instant fifth PCRA Petition followed on March 3, 2014, within sixty (60) days of his discovering this "new
evidence".
12
   The undersigned was assigned the instant matter due to the Honorable Edward G. Smith's confirmation to a seat
on the Federal District Court for the Eastern District of Pennsylvania on March 26, 2014. As such, this matter was
originally reassigned to the Honorable Jennifer Sletvold, however, the matter was reassigned for a second time to
the undersigned for final disposition.

                                                                                                                     3
     G. Baratta vacating the representation       of Attorney Christopher Brett and appointing Matthew

     Deschler, Esquire to represent Defendant.


              On October 8, 2014, Defendant, through his attorney Matthew Deschler, filed a Motion

     for Extension of Time until December 31, 2014, at which time counsel indicated that he would

     file an amended PCRA Petition, a praecipe for an issue-framing conference, and/or a no merit

     letter. This Court granted said request via an Order of Court on October 9, 2014.

             On May 29, 2015, this Court held a hearing on the instant PCRA Petition. At the

     conclusion of said hearing, this Court set a schedule for the parties to file their respective

     briefs.13 Upon examination of said briefs, the record in the instant matter, and the applicable

 law, this matter is ready for disposition.


                                          II.      Applicable Law


            To be eligible for relief under the Post-Conviction Relief Act, the petitioner must plead

 and prove by a preponderance of the evidence the following:


                (2) That the conviction or sentence resulted from one or more of the
                following:

                    (i) A violation of the Constitution of this Commonwealth or the
                    Constitution or laws of the United States which, in the
                    circumstances of the particular case, so undermined the truth-
                    determining process that no reliable adjudication of guilt or
                    innocence could have taken place.

                    (ii) Ineffective assistanceof counsel which, in the circumstancesof
                    the particular case, so undermined the truth-determining process
                    that no reliable adjudication of guilt or innocence could have
                    taken place.



13
     This Court received Defendant's brief on June 26, 2015, and the Commonwealth's brief on June 29, 2015.

                                                                                                              4
                 (iii) A plea of guilty unlawfully   induced where the circumstances
                 make it likely that the inducement caused the petitioner            to plead
                 guilty and the petitioner is innocent.

                 (iv) The improper obstruction by government officials of the
                 petitioner's right of appeal where a meritorious appealable issue
                 existed and was properly preserved in the trial court.

                (v) Deleted by statute.


                (vi) 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.

                (vii) The imposition      of a sentence       greater   than   the    lawful
                maximum.


                (viii) A proceeding in a tribunal without jurisdiction.

            (3) That the allegation of error has not been previously litigated or
            waived.


            (4) That the failure to litigate the issue prior to or during trial. .. , or on
            direct appeal could not have been the result of any rational, strategic
            or tactical decision by counsel.

42 Pa. C.S.A. § 9543(a)(2-4). See also Commonwealth v. Miller, 888 A.2d 624, 630 (Pa. 2005)

(holding that the burden in a PCRA motion is on the petitioner to prove, by a preponderance of

the evidence, one or more of the grounds set forth in 42 Pa. C.S.A. § 9543(a)(2}, (3), and (4)).

       As a general rule, a PCRA petition, including a second or subsequent petition, must be

filed with in one (1) year of the date th at the judgment of sentence becomes final, which is at

the conclusion of direct review, including discretionary review in the Supreme Court of t_he

United States and the Supreme Court of Pennsylvania, or at the expiration oftime for seeking

such review. See 42 Pa. C.S.A. § 9545(b)(l) & (b)(3).

       The one (1) year timing restriction is jurisdictional in nature and must be strictly

                                                                                                   5
     construed.   See Commonwealth         v. Stokes, 959 A.2d 306 (Pa. 2008). However, the PCRA allows

 for the filing of a petition beyond the one year time frame under certain circumstances;

 specifically, that


                    (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)(l){i)-(iii).


                                                  Ill.      Discussion

                                             A.     Timeliness of Petition

           Defendant's judgment of sentence became final on July 3, 2006, ninety (90} days after

the Supreme Court of Pennsylvania denied his petition for allowance of appeal on April 4, 2006.

See U.S. Sup. Ct. R. 13(1).14 Accordingly, Defendant had to file the instant PCRA Petition on or

before July 3, 2007. Since the instant Petition was not filed until March 3, 2014, almost seven

(7) years after his judgment of sentence became final, the instant Petition is facially untimely.

           Nevertheless, this Court acknowledges that the PCRA provides exceptions to the one-

year filing requirement at 45 Pa. C.S.A. §9545(b)(l), as set forth supra. Accordingly, the PCRA

provides that "[a]ny petition invoking an exception provided in paragraph (1) shall be filed


14
  "A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to
discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after
entry of the order denying discretionary review."

                                                                                                                        6
 within 60 days of the date the claim could have been presented."                42 Pa. C.S.A. § 9545(b)(2}.           It

 is Defendant's      burden to prove that one or more of the timeliness           exceptions     applies, and a

 petitioner     fails to satisfy the sixty (60) day requirement      of§ 9545(b), if he or she fails to explain

 why, with the exercise of due diligence, the claim could not have been filed earlier. See

 Commonwealth         v. MarshalC 947 A.2d 714, 719-20 (Pa. 2008) (citations omitted).


                                        B.        Newly Acquired Evidence

             In support of the instant Petition, Defendant      notes that at the time of trial, the

 Commonwealth         presented   the testimony      of a witness who claimed to have observed            someone

 passing th rough his backyard shortly after the murder. That same witness also assisted the

 police in compiling a composite        sketch of that individual.      However, that witness never

 identified    Defendant    either prior to or at trial. fN.T. 9:7-12, May 29, 2015]. Nevertheless,             as

 Defendant      sets forth in his brief, during his trial testimony,     the witness "endorsed      the

composite       sketch as depicting the individual he observed         in his backyard."   [Def's Br. at page S].

          As such, Defendant      argues that had his State-issued        Photo Identification    Card ("State ID

Card"), which was issued to him on November              6, 2001, been presented       at trial, it would have

shown his physical characteristics           at the time of the March 11, 2002 homicide,         and would have

served to impeach the testimony          of the Commonwealth's          eye-witness   and exonerated      the

Defendant       of the murder charge.

         Before reaching the merits of Defendant's          argument,     the Court must first determine             the

timeliness     of the instant Petition. As stated supra, any petition filed more than one year after a

disposition     becomes    final must establish one of the exceptions        enumerated     in 42 Pa. C.S.A. §

9545(b)(1). In the instant Petition, Defendant seeks to establish the following two grounds: (1}

                                                                                                                       7
 that "the failure to raise the claim previously was the result of interference by government

 officials" and that (2) "the facts upon which the claim is predicated were unknown to the

 petitioner and could not have been [previously] ascertained by the exercise of due diligence."

 42 Pa. C.S.A. §9545(b)(1).

          Regarding Defendant's argument that the failure to raise the instant claim previously

 was the result of interference by government officials, Defendant appears to assert a Brady

 violation by alleging that his State JD Card was in the possession of the Commonwealth                     at the

time of trial and not produced to defense in discovery. See Brady v. Maryland, 373 U.S. 83

 (1963). Under Brady, a defendant may seek and obtain redress for the prosecution's

destruction    or withholding of material evidence in. the defendant's favor. However, in order to

establish a Brady violation, Defendant must prove that {1) the evidence was favorable to the

accused either because it was exculpatory or because it impeaches; (2) the evidence was

suppressed by the prosecution either willfully or inadvertently;              (3) and prejudice ensued.

Commonwealth        v. Lambert, 884 A.2d 848, 854 (Pa. 2005). Here, Defendant has failed to

establish that his State ID Card was ever in the possession of the Commonwealth, which is

certainly a necessary predicate to such a claim.15 As such, the Court rejects Defendant's

assertion of the timeliness exception under 42 Pa.C.S.A.             § 9545(b)(1)(i}.

         Next, the Court must analyze Defendant's claim that the facts upon which his claim is

predicated were unknown to him or could not have been ascertained by due diligence prior to




15
   In fact, in support of his due diligence requirement, Defendant testified th at he made several attempts to obtain
his State ID Card, including reaching out to his family several times. This testimony further belies his contention·
that it was ever in the possession of the Commonwealth. More over, to the extent that he might contend some
interference on the part of PennDOT, he has likewise failed to adduce any evidence in that regard.

                                                                                                                     8
     February 20, 2014.


             To warrant relief, after-discovered evidence must meet a four-prong test:


                     {1} the evidence could not have been obtained before the
                     conclusion of the trial by reasonable diligence; (2) the evidence is
                     not merely corroborative or cumulative; (3) the evidence will not
                     be used solely for purposes of impeachment; and (4) the evidence
                     is of such a nature and character that a different outcome is likely.
                     Commonwealth. v. Dennis, 552 Pa. 331, 715 A.2d 404 (1998). At
                     an evidentiary      hearing, an appellant      must show by a
                     preponderance of the evidence that each of these factors has
                     been met in order for a new trial to be warranted.

     Commonwealth      v. Rivera 939 A.2d 355, 359 (Pa. Super. 2007).


            In the instant matter, Defendant has failed to establish the first prong of the foregoing

 test. Although he testified at length with regard to his efforts to obtain his State ID Card after

 trial, he failed to establish that it was not in his possession at the time of trial. In

 Commonwealth         v. Morris,16 the appellant claimed that the Commonwealth          withheld

 exculpatory evidence, and as a result, he qualified for the exception to the PCRA timeliness

 requirement      of 42 Pa. C.S.A. § 9545(b). The court held that appellant failed to make clear that

 trial counsel did not have access to this information· at the time of trial. Morris, 822 A.2d at 696.

 The court further set forth that appellant did not make clear that the information          complained

 of was not available at trial or that defense counsel could not have uncovered this evidence

with reasonable diligence .      .!.fl Thus, appellant   failed to establish whether the claim was raised

within sixty (60) days of the time it could have been presented as required by 42 Pa. C.S.A. §

9545(b)(2), since the evidence was available at the time of trial. Morris, 822 A.2d at 696.

           In the case at bar, Defendant cannot demonstrate that neither he, nor his trial counsel,



16
     Commonwealth v. Morris 822 A.2d 684 (Pa. 2003).

                                                                                                            9
 was denied access to his State ID Card at the time of his trial. Defendant simply articulated        that

 he " ... didn't think to say to [Attorney Sletvold]17 well, get access to my state identification card."

 (N.T. 16:6-14, August 6, 2014]. Defendant never claims that Attorney Sletvold did not have

 access to his State ID Card or that the Commonwealth withheld the same from Attorney

 Sletvold or Defendant.

             Moreover, Defendant has failed to demonstrate that the presentation of his State ID

 Card to the jury likely would have affected the outcome of the trial. As noted, the record

 establishes that Defendant's State ID Card was issued on November 6, 2001, and the.murder in

 this case occurred on March 11, 2002. It is Defendant's contention that had his State ID Card

 been presented at trial, it would have established what he looked like more than four (4)

 months after the photo was taken. This argument is wholly untenable.

            "Evidence is relevant if it logically tends to establish a material fact in the case or tends

to support a reasonable inference regarding a material fact." Commonwealth v. Weaklev, 972

A.2d 1182, 1188 (Pa. Super. 2009). Certainly, evidence of what Defendant looked like four (4)

months prior to the killing could be admissible, but because it may not have any bearing on

what he looked like at the time of the killing, this Court finds it preposterous that the

presentation of his State ID Card could have had any bearing on the outcome of his trial.

            Although nearly two (2) years had elapsed from the killing, the jury was free to observe

Defendant, listen to the description given by the eye-witness, and compare their observations

of Defendant with this description and with the composite sketch presented at trial. Defendant

could have produced any number of photos depicting himself in the time before the killing as


17
     Attorney Robert Sletvold was Defendant's trial counsel.

                                                                                                        10
well as the time after, but certainly, the only relevant and potentially exculpatory          photograph

would be one in close temporal proximity to the time of the killing.

           Due to the above analysis, this Court rejects Defendant's     assertion   of after-discovered

evidence     under 42 Pa. C.S.A. § 9543 (b)(l)(ii).   As such, the instant Petition is deemed untimely.



WHEREFORE,       this Court enters the following Order:




                                                                                                           11
