J-S08028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 WILLIAM C. WILLIAMS,                     :
                                          :
                    Appellant.            :   No. 1410 EDA 2018


                  Appeal from the PCRA Order, May 3, 2018,
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0307231-2000.


BEFORE:    BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                          FILED APRIL 30, 2019

      William C. Williams appeals from the order denying as untimely his serial

petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A.

§§ 9541-46. We affirm.

      The pertinent facts and procedural history are as follows: On February

11, 2000, Williams, while driving a stolen automobile and being pursued by

the police, crashed into another vehicle. The driver of that vehicle was killed,

and its passenger, Daniel Andre, sustained serious bodily injuries. On April

17, 2001, a jury convicted Williams of third-degree murder, aggravated

assault, and related charges.     The trial court sentenced Williams to an

aggregate term of 22 to 44 years of imprisonment. On July 8, 2004, a panel

of this Court affirmed Williams’ judgment of sentence, and our Supreme Court

denied allowance of appeal on February 24, 2005.          Commonwealth v.
____________________________________
* Former Justice specially assigned to the Superior Court.
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Williams, 859 A.2d 838 (Pa. Super. 2004) (unpublished memorandum),

appeal denied, 868 A.2d 1199 (Pa. 2005).

       Williams filed a timely pro se PCRA petition on July 11, 2005. The PCRA

court appointed counsel, and PCRA counsel filed an amended petition.        In

November 2007, the PCRA court appointed new counsel, and new counsel filed

an amended PCRA petition and a supplemental PCRA petition. Williams also

filed a pro se PCRA petition. In March 2009, the Commonwealth filed a motion

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

intention to dismiss Williams’ petition without a hearing. Williams filed a pro

se response.1       By order entered September 30, 2009, the PCRA court

dismissed Williams’ PCRA petition.

       Williams filed a timely pro se appeal. On November 17, 2010, a panel

of this Court affirmed the denial of post-conviction relief. Commonwealth v.

Williams, 22 A.3d 1073 (Pa. Super. 2010) (unpublished memorandum).

Thereafter, Williams filed a pro se PCRA petition in 2011, and again in 2015.

On both occasions, the trial court dismissed the petition and this Court

affirmed.    Among the issues Williams raised in his 2015 petition was the

following claim:

          Whether the PCRA court erred in not invoking jurisdiction
          and granting [Williams’] a new trial as to the aggravated
          assault conviction due to trial counsel ineffectiveness by
____________________________________________


1Williams was permitted to proceed pro se following a hearing pursuant to
Commonwealth v Grazier, 713 A.2d 81 (Pa. 1998).


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         failing to object to The [sic] Commonwealth submitting [Mr.
         Andre’s] medical records into evidence and for eliciting
         hearsay inculpatory testimony/evidence establishing the
         serious bodily injury element without [bringing] in [Mr.
         Andre’s] medical doctor to be confronted by [Williams], both
         violating [Williams’] federal and state constitutional rights
         under the confrontation clause, since this was the earliest
         opportunity to bring this issue to the court and this issue is
         a clear violation of watershed procedural rules effecting the
         fundamental fairness and accuracy of the proceedings?

Commonwealth v. Williams, 168 A.3d 306 (Pa. Super. 2017), unpublished

memorandum at 4-5.       Citing case law that holds ineffective assistance of

counsel claims do not overcome the jurisdictional timeliness requirements of

the PCRA, we rejected Williams’ claim. See id.

      On October 13, 2017, Williams filed the pro se PCRA petition at issue,

his fourth. On April 4, 2018, the PCRA court issued Rule 907 notice of its

intention to dismiss the petition without a hearing because it was untimely,

and Williams failed to plead and/or prove a time-bar exception. Williams filed

a response. By order entered May 3, 2018, the PCRA court dismissed Williams’

fourth petition. This appeal followed. Both Williams and the PCRA court have

complied with Pa.R.A.P. 1925.

      Williams phrases his sole issue on appeal as follows:

             Whether [the] PCRA court erred in denying [Williams] a
         new trial on the aggravated assault conviction when
         [Williams] initially filed this claim in a timely manner in his
         first PCRA petition; but was denied a meaningful review;
         and filed this claim pursuant to 42 Pa.C.S.A. sec.
         9545(B)(1)(ii), based on new Super [sic] intervening law?

Williams’ Brief at 5.


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        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).

        Before addressing the merits of Williams’ issue, we must first determine

whether the PCRA court correctly concluded that his fourth PCRA petition was

untimely filed.

        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

becomes 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.2 42 Pa.C.S.A. § 9545. A PCRA petition
____________________________________________


2   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



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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).3            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, Williams’ judgment of sentence became final on May 25, 2005,

ninety days after our Supreme Court denied Williams’ petition for allowance

of appeal and the time in which to file a petition for a writ of certiorari in the

United States Supreme Court expired.             See 42 Pa.C.S.A. § 9545(b)(3);

U.S.Sup.Ct.R. 13. Thus, Williams had until May 25, 2006, to file a timely PCRA

petition. As he filed the petition at issue in 2017, it is untimely, unless Williams



____________________________________________




       (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).

3 Our legislature recently amended this section of the PCRA to provide
petitioner’s one year to file a petition invoking at time-bar exception. See Act
of 2018, October 24, P.L. 894, No. 146. This amendment does not apply to
Williams’ serial petition.


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has satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Hernandez, supra.

      Williams has failed to plead and prove an exception to the PCRA’s time

bar. Within his petition, Williams cited to the recent United States Supreme

Court’s decision in Buck v. Davis, 137 S.Ct. 759 (2017), as a basis for relief.

In his Rule 907 response, he further explained that the Buck decision

constitutes a newly-discovered fact which, pursuant to Section 9545(b)(1)(ii),

permits him to re-visit his claim of trial counsel ineffectiveness for eliciting

damaging testimony regarding his aggravated assault conviction.             We

disagree.

      Judicial decisions are not newly-discovered facts for purposes of the

PCRA’s time bar exception. Commonwealth v. Watts, 23 A.3d 980, 986-87

(Pa. 2011). Moreover, because the United States Supreme Court’s decision

in Buck, did not create a new constitutional right, but merely applied the

Strickland ineffectiveness standard to counsel’s actions during the penalty

phase of the proceedings in that case, Williams cannot meet the PCRA’s time

bar exception found at Section 9545(b)(1)(iii).      See Commonwealth v.

Feliciano, 69 A.3d 1270, 1277 (Pa. Super. 2013) (rejecting the PCRA

petitioner’s attempt to rely on recent U.S. Supreme Court decisions that did

not recognize new constitutional rights, but, rather merely involved claims of

counsel’s alleged ineffectiveness during the plea bargaining process).




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       In sum, because Williams’ fourth PCRA was untimely and he failed to

prove an exception to the PCRA’s time bar, the PCRA court correctly concluded

it lacked jurisdiction. We therefore affirm the order denying post-conviction

relief.4

       Petition denied. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/19




____________________________________________


4 On November 8, 2018, Williams filed a “Petition for an Stay and Abeyance,”
in which he asks this Court to stay disposition of his appeal so that he can
raise an alleged “new constitutional right” that the United States Supreme
Court recently recognized in Rosales-Mireles v. United States, 138 S.Ct.
1897 (2018). Our review of the Rosales-Mireles decision refutes this claim,
as it did no more than clarify how the federal sentencing guidelines should be
considered in that case. Thus, as this decision would not establish the Section
9545(b)(1)(iii) exception, we deny Williams’ petition.


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