J-S80013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :      IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
SHAWN MCKINNEY                         :
                                       :
                   Appellant           :      No. 1533 EDA 2017

                 Appeal from the PCRA Order April 6, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0006444-2002


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

MEMORANDUM BY BOWES, J.:                         FILED JANUARY 16, 2018

        Shawn McKinney appeals from the April 6, 2017 order denying his

third PCRA petition as untimely. We affirm.

        Appellant was charged with first-degree murder and possessing an

instrument of crime in the shooting death of Ronald Anderson on April 11,

2002.    On May 11, 2004, following a five-day bench trial, Appellant was

found guilty on both counts. On June 15, 2004, trial counsel filed a post-

trial motion alleging that Appellant had obtained exculpatory “after-

discovered” evidence provided in a written statement by Valerie Tucker.

That motion was denied.

        Subsequently, Appellant was sentenced to a mandatory sentence of

life imprisonment without parole for murder and a consecutive sentence of

six to twenty-three months incarceration for possessing an instrument of

crime.     Appellant filed a notice of appeal, however, that appeal was
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dismissed    due    to    an     untimely      filed     Rule    1925(b)    statement.

Commonwealth         v.   McKinney,          902   A.2d     979    (Pa.Super.     2006)

(unpublished memorandum).           Thereafter, Appellant’s direct appeal rights

were reinstated following a successful PCRA petition.

     On direct appeal, we affirmed Appellant’s judgment of sentence,

including a specific finding that Ms. Tucker’s proposed testimony did not

constitute “after-discovered” evidence since Appellant was aware of the

existence of the witness prior to trial. Commonwealth v. McKinney, 928

A.2d 1125 (Pa.Super. 2007) (unpublished memorandum). Appellant filed a

petition for allowance of appeal to our Supreme Court, which was denied on

March 12, 2008. Commonwealth v. McKinney, 945 A.2d 168 (Pa. 2008).

     On July 8, 2008, Appellant filed a timely pro se PCRA petition.

Appointed counsel filed an amended PCRA petition, and following Rule 907

notice, Appellant’s petition was dismissed without a hearing on April 21,

2009. Appellant appealed the denial of his PCRA petition, and we affirmed.

Commonwealth v. McKinney, 24 A.3d 454 (Pa.Super. 2011).                             Our

Supreme     Court   denied     Appellant’s    petition    for   allowance   of   appeal.

Commonwealth v. McKinney, 24 A.3d 362 (Pa. 2011).

     On August 22, 2012, Appellant filed his second pro se PCRA petition.

The PCRA court appointed counsel, but, rather than filing an amended PCRA

petition, counsel moved to withdraw his appearance.                The court granted

counsel’s motion to withdraw, and concomitantly filed a Rule 907 notice of

its intent to dismiss. On December 31, 2012, the court denied Appellant’s

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second PCRA petition. Appellant did not appeal that decision. Instead, on

February 23, 2017, Appellant filed the instant PCRA petition, his third,

alleging    that   he   obtained   “newly-discovered”   evidence   purporting   to

establish his actual innocence of the crime charged, which was not presented

to the jury. After providing the requisite notice, the PCRA court dismissed

Appellant’s petition on April 6, 2017.        Appellant filed a timely notice of

appeal to this Court as well as a Rule 1925(b) concise statement of errors

complained of on appeal. The PCRA court authored its Rule 1925(a) opinion,

and this matter is now ready for our review.

      Appellant raises three claims for our consideration:

      1).    Whether, the PCRA Court erred in dismissing [Appellant’s]
             PCRA, where [Appellant] was denied and/or violated his
             rights under the 5th, 6th, 8th & 14th amendment’s. (a) Given
             the recent interpretations of actual innocence claims;
             through “Layered” ineffectiveness of trial, direct appeal,
             and appointed PCRA counsels; where [Appellant’s] due
             process was violated, his right to a fair trial was denied,
             and procedural default “do not” apply to a “gateway” claim
             of actual innocence nor does it apply to a “Free Standing”
             claim of actual innocence.

      2).    Did the PCRA court err when it determined that [t]he
             petition was without merit; where the after-discovered
             evidence entitles [Appellant] to a new trial based on (a)
             Pennsylvania after-discovered evidence standard, (b) Sixth
             and Fourteenth amendments; right to effective assistance
             of counsel and (c) Fifth, Eighth, and Fourteenth
             amendment; right to due process and a verdict based on
             reliable evidence.

      3).     Whether the adjudication of law; was contrary to, or
              involved an unreasonable application of standard/principle
              of clearly established Federal Law and/or if the decision is


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            based on an “unreasonable determination of facts” i.e., as
            determined by the United States Supreme Court.

Appellant’s brief at v.

       At the outset, we must determine whether we have jurisdiction over

this appeal. A PCRA petition, including a subsequent or serial petition, must

be filed within one year of the date that a defendant’s judgment of sentence

becomes final, unless an exception to the one-year time restriction applies.

42 Pa.C.S. § 9545(b)(1). The statutory time bar is jurisdictional in nature.

If a PCRA petition is untimely, “neither this Court nor the trial court has

jurisdiction over the petition.”    Commonwealth v. Miller, 102 A.3d 988,

992 (Pa.Super. 2014) (citation omitted). Whether a petition is timely is a

matter of law, and thus, our standard of review is de novo, and our scope of

review is plenary.        Commonwealth v. Hudson, 156 A.3d 1194, 1197

(Pa.Super. 2017).

      When a PCRA petition is facially untimely, the petitioner must plead

and prove that one of the statutory exceptions applies. Id. If no exception

applies, then the petition must be dismissed, as we cannot consider the

merits of the appeal. Id. The PCRA reads, in pertinent part:

      (b)      Time for filing petition.-

         (1)    Any petition under this subchapter, including a second
                or subsequent petition, shall be filed within one year of
                the date the judgment of sentence becomes final,
                unless the petition alleges and the petitioner proves
                that:




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                i.      the failure to raise the claim previously was the
                        result of interference by the government officials
                        with the presentation of the claim in violation of the
                        Constitution or law 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.

         (2)          Any petition invoking an exception provided in
                      paragraph (1) shall be filed within 60 days of the date
                      the claim could have been presented.

42 Pa.C.S. § 9545(b)(1) and (2).

      Here, Appellant’s judgment of sentence became final on June 10,

2008, when the ninety-day period to seek review with the United States

Supreme Court expired. Therefore, Appellant had until June 10, 2009, to file

a timely PCRA petition. Appellant filed the instant petition on February 23,

2017, rendering this petition facially untimely.        In order for this Court to

exercise its jurisdiction, Appellant must plead and prove one of the three

statutory exceptions delineated above.

      Appellant appears to invoke the newly-discovered facts exception. He

contends that, following trial, defense counsel located an eyewitness, Valerie

Tucker, who would have provided exculpatory evidence during his trial. He

concedes that he located Ms. Tucker nine days after his trial, but maintains

that, since her purported testimony established his actual innocence, her

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affidavit creates sufficient doubt about his guilt to overcome any procedural

defects   to   his   PCRA   petition.     Further,   he   alleges   that   our   prior

determination, on direct appeal, that Ms. Tucker’s likely testimony was

known to Appellant prior to trial, see McKinney, 928 A.2d 1125, supra at

*20-22, was erroneous since neither the Commonwealth nor Appellant was

able to contact Ms. Tucker prior to trial. As such, Appellant claims, he was

unaware of the substance of Ms. Tucker’s testimony until after trial.

      Even     assuming     Appellant’s   position   is   correct   that   our   prior

adjudication of his claim on direct appeal was erroneous, we find that

Appellant has not pled and proven sufficient facts to overcome the PCRA’s

statutory time-bar.       It is well-established that, in order to utilize an

exception to the PCRA’s time requirement, a petitioner must invoke that

exception “within 60 days of the date the claim could have been presented.”

42 Pa.C.S. § 9545(b)(2). Appellant first raised the claim that Ms. Tucker’s

testimony allegedly established his innocence on June 24, 2004, in his post-

sentence motion.      As the instant PCRA petition was filed on February 23,

2017, well in excess of the sixty-day time limitation to invoke the newly-

discovered facts exception, the PCRA court properly concluded that his

petition was untimely.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/18




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