J-S76024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    OMAR POWELL

                             Appellant                No. 1364 EDA 2017


                   Appeal from the PCRA Order March 16, 2017
                 In the Court of Common Pleas of Lehigh County
                Criminal Division at No: CP-39-CR-0002378-2006


BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                        FILED FEBRUARY 12, 2018

        Appellant, Omar Powell, appeals pro se from the March 16, 2017 order

entered in the Court of Common Pleas of Lehigh County, dismissing his

petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. Appellant raises a plethora of claims and sub-

claims for our review.       In essence, however, Appellant disagrees with the

PCRA’s court rejection of the “new fact,” i.e., “newly discovered exculpatory

witness,” as ground for meeting the timeliness requirements under the PCRA.

Upon review, we affirm the order of the PCRA court.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       The procedural background of the instant matter can be summarized as

follows. On March 29, 2007, a jury found Appellant guilty of murder in the

first degree. On April 17, 2007, the trial court sentenced him to life in prison.

After we denied his direct appeal,1 Appellant filed a petition for allowance of

appeal with our Supreme Court. The Supreme Court denied his petition on

July 14, 2008.2

       Appellant filed the instant PCRA petition, his fourth, on July 26, 2016.

In response, the PCRA court appointed counsel to represent Appellant in

connection with Appellant’s latest allegation (i.e., the existence of a witness

exonerating him from the murder).              Appointed counsel, after conducting

further investigation, filed a petition to withdraw from representing Appellant

in the proceedings. On March 16, 2017, the PCRA court granted counsel’s




____________________________________________


1 Commonwealth v. Powell, No. 2285                       EDA   2007,   unpublished
memorandum (Pa. Super. filed July 14, 2008).

2   Commonwealth v. Powell, 959 A.2d 971 (Pa. 2008).



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petition to withdraw and dismissed the instant PCRA petition.          This appeal

followed.3, 4

       “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). All PCRA petitions,

“including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final” unless an exception to timeliness

applies.    42 Pa.C.S.A. § 9545(b)(1).           “The PCRA’s time restrictions are

____________________________________________



3 Appellant filed the instant appeal on April 10, 2017. The trial court docket
shows that four days later, i.e., April 14, 2017, the Clerk of courts sent
Appellant a “notification . . . regarding appeal deficiencies – appealable date,
etc.”. Said notification is not in the record. On April 25, 2017, Appellant filed
another notice of appeal, presumably an amended one, to address problems
with the first notice of appeal.

A review of the first notice of appeal reveals that Appellant erroneously stated
the date of the order being appealed. The notice, however, is proper in all
other aspects, including the docket number. Accordingly, we conclude the
error was harmless and we accept the instant appeal, as amended, filed on
April 10, 2017. See Commonwealth v. Kornicki, 515 A.2d 925 (Pa. Super.
1986) (defect in notice of appeal, which erroneously states which final order
is being appealed from, is harmless error where appeal is otherwise proper).

4 After the filing of the instant appeal, Appellant filed appeals pro se from the
denial of Appellant’s “petition for reopening the record,” and the “motion for
re-appointment of counsel.”         The trial court denied both applications.
Appellant appealed both denials. The appeal was docketed at 1399 EDA 2017.
Upon review, we quashed the appeal pursuant to Pa.R.A.P. 1701(a). We also
noted that the issues raised in that appeal were moot in light of the disposition
of the instant matter.


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jurisdictional in nature. Thus, [i]f a PCRA petition is untimely, neither this

Court nor the [PCRA] court has jurisdiction over the petition.          Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.

2006) (first alteration in original) (internal citations and quotation marks

omitted). As timeliness is separate and distinct from the merits of Appellant’s

underlying claims, we first determine whether this PCRA petition is timely

filed.    See Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008)

(consideration of Brady claim separate from consideration of its timeliness).

The timeliness requirements of the PCRA petition must be met, even if the

underlying claim is a challenge to the legality of the sentence.            See

Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 2007) (“Although legality

of sentence is always subject to review within the PCRA, claims must still first

satisfy the PCRA’s time limits or one of the exceptions thereto.”) (citing

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)).

         Finally, the exception to the PCRA’s one-year time limit requires

petitioners to file their PCRA petition within sixty days of the date the claim

could have been presented. Thus, petitioners must plead and prove specific

facts demonstrating their claim was raised within the sixty-day time frame of

Section     9545(b)(1)(ii).   See   42    Pa.C.S.A.   § 9545(b)(2);   see   also

Commonwealth v. Hernandez, 79 A.3d 649, 651-52 (Pa. Super. 2013).




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       The instant PCRA petition is facially untimely as he filed it over seven

years after the expiration of the time for a timely filing.5 Appellant argues the

petition meets one of the exceptions to the timeliness general rule, the

previously unknown facts exception set forth in Section 9545(b)(1)(ii).6 In

particular, Appellant argues a previously unavailable witness is now willing to

testify that someone else committed the underlying crime (i.e., murder).

       The PCRA court addressed the claim as follows:

       [The affidavit of witness] appears timely because it was dated July
       1, 2016, and [A]ppellant’s PCRA petition was filed on July 26,
       2016. However, [A]ppellant fails to explain how [witness],
       nineteen (19) years after the murder of [victim], literally appeared
       out of thin air. A review of [Appellant]’s petition merely states
       that [witness] is a “new witness [who] has subsequently become
       available.” [Witness]’s affidavit is only slightly more enlightening
       by her averment that she was “afraid” and “did not want to get
       involved.” In other words, [Appellant] has failed to explain why
       he could not have learned the new facts earlier with the exercise
       of due diligence. [Appellant] will not be permitted to circumvent
       the time-bar without establishing when he first became aware of
       [witness]’s statements. The date on the affidavit does not sustain
       [Appellant]’s burden of pleading and proving that the after-
____________________________________________


5Appellant’s sentence became final on February 11, 2009, after our Supreme
Court denied his petition for allocatur and the expiration of the time for filing
a petition for writ of certiorari in the United States Supreme Court. See 42
Pa.C.S.A. § 9545(b)(3); U.S. Sup.Ct.R. 13. Appellant had one year from that
date to file a timely petition. He filed the instant petition approximately ten
years after that date. The instant PCRA petition is therefore facially untimely.

6 The exception requires a petitioner to plead and prove two components:
1) the facts upon which the claim was predicated were unknown, and (2)
these unknown facts could not have been ascertained by the exercise of due
diligence. See Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017).
Thus, a petitioner must explain why he could not have learned the new facts
earlier with the exercise of due diligence. See Commonwealth v.
Breakiron, 781 A.2d 94, 98 (Pa. 2001).

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      discovered facts exception allows him to avoid the statutory time-
      bar.

PCRA Court Opinion, 6/8/17, at 4-5 (footnotes and citations omitted).

      The PCRA court also noted that the “new facts” alleged in the instant

petition (i.e., someone else committed the underlying murder) was already

brought to the court’s attention in his previous, unsuccessful PCRA petition.

Id. at 5. To this end, the PCRA court properly noted that “[t]he focus of the

exception is on [the] newly discovered facts, not on a newly discovered or

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

Marshall, 947 A.2d 714, 720 (Pa. 2008) (emphasis in original) (citation

omitted). “[Appellant]’s use of [witness] is just another ‘conduit for the same

claim[, which] does not transform his latest source into evidence falling within

the ambit of [Section] 9545(b)(1)(ii).’”   PCRA Court Opinion, 6/8/17, at 5

(quoting Marshall, supra). We agree with the PCRA court’s analysis and

conclusion.   Accordingly, we conclude the PCRA court properly found that

Appellant failed to satisfy the exception set forth in Section 9545(b)(1)(ii).

Therefore, we affirm the order dismissing Appellant’s petition as untimely.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/18




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