J-S15015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

TYZAHAE DAVENPORT

                          Appellant                   No. 1674 EDA 2017


              Appeal from the PCRA Order entered May 8, 2017
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0503141-1996


BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                             FILED JUNE 14, 2018

      Appellant, Tyzahae Davenport, pro se appeals from the August 10, 2017

order of the Court of Common Pleas of Philadelphia County, dismissing his

fourth petition for collateral relief pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

       The factual and procedural background of the instant matter is

uncontested. Briefly, following a bench trial, Appellant was found guilty of two

counts of murder as well as one count each of arson, criminal conspiracy,

aggravated and simple assault, and recklessly endangering another person.

On May 28, 1998, the trial court sentenced Appellant to consecutive terms of

life imprisonment for the murder convictions, plus a concurrent term of five to

ten years’ imprisonment for the conspiracy conviction. On direct appeal, we

affirmed.   See Commonwealth v. Davenport, No. 2825 EDA 1999,
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unpublished memorandum, (Pa. Super. filed June 20, 2000). Appellant did

not file a petition for allowance of appeal to the Supreme Court.

      Subsequently, Appellant filed three PCRA petitions, all of which were

unsuccessful. Appellant filed the instant petition, his fourth, on February 17,

2017, which the PCRA court dismissed as untimely on May 8, 2017.          This

appeal followed.

      On appeal, Appellant argues that the PCRA court erred in dismissing the

instant petition. Specifically, Appellant argues that the PCRA court erred in:

(i) not finding that he properly alleged and proved “newly discovered facts”

supporting the timeliness of the instant petition, (ii) in holding him, a

layperson, to the same standards required for attorneys, and (iii) not

appointing him counsel.

      “[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

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.

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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 Brady1 claim separate from consideration of its timeliness).

         At issue here is the timeliness exception set forth in Section

9545(b)(1)(ii), the newly-discovered facts exception, which 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).

         As noted, under the newly-discovered facts exception, 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).     Due diligence demands the petitioner to take reasonable steps to

protect his own interests. See Commonwealth v. Carr, 768 A.2d 1164,

1168 (Pa. Super. 2001). This standard, however, does not require “perfect

vigilance nor punctilious care, but rather it requires reasonable efforts by

a petitioner, based on the particular circumstances, to uncover facts that may

support a claim for collateral relief.” Commonwealth v. Shiloh, 170 A.3d

553, 558 (Pa. Super. 2017) (citation omitted).

____________________________________________


1   Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).

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       In his brief, Appellant argues he learned that two witnesses, Earl Lilly

(Appellant’s co-conspirator) and Christopher Lee lied to the police about

Appellant’s involvement in the underlying crimes, and that he learned about

the lies sometime between December 22, 2016 and March 9, 2017 as a result

of an investigation conducted by the Innocence Project. Appellant also states

that he filed the instant petition “within 60 days of the date the claim could

have been presented.” Appellant’s Brief at 17. As noted, Appellant filed the

instant petition on February 17, 2017.

       Despite the lengthy dissertation on the law regarding the newly-

discovered facts exception, the entire explanation on how he met the

exception can be summarized as follows.           Appellant learned about the

witnesses’ lies to the police only thanks to the investigation conducted by the

Innocence Project and that “[n]o amount of due diligence would/could

determine when one would finally reveal the truth.” Appellant’s Brief at 17.

       There are a few problems with Appellant’s argument. First, Appellant

was aware of the witnesses’ lies for at least 19 years. Indeed, in his direct

appeal to this Court, Appellant argued that trial counsel was ineffective for

failing to call Lilly, who would have testified that Appellant did not participate

in the underlying crimes.2 Thus, the “facts” raised here as the basis for the

____________________________________________


2We concluded that the claim failed because Appellant did not support it with
a statement that Lilly was available to testify on Appellant’s behalf.
Commonwealth v. Davenport, No. 2825 EDA 1999, unpublished
memorandum at 9 (Pa. Super. filed June 20, 2000).



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instant petition were known to Appellant for many years and he could have

acted on them in a much more timely manner.3               Additionally, Appellant

provides no details on the “the amount of due diligence” he put in pursuing

this matter, despite the fact he “has always maintained his innocence and

knew people were lying.” Id. Accordingly, we conclude Appellant failed to

plead and prove he met the requirements of the newly-discovered facts

exception. The instant petition is therefore untimely.

       As justification for the deficiencies in his handling of the instant petition,

Appellant blames, to no avail, his pro se status. Appellant fails to acknowledge

that

       [u]nder Pennsylvania law, pro se defendants are subject to the
       same rules of procedure as are represented defendants. See
       Commonwealth v. Williams, 586 Pa. 553, 896 A.2d 523, 534
       (2006) (pro se defendants are held to same standards as licensed
       attorneys). Although the courts may liberally construe materials
       filed by a pro se litigant, pro se status confers no special benefit
       upon a litigant, and a court cannot be expected to become a
       litigant’s counsel or find more in a written pro se submission than
       is fairly conveyed in the pleading.

Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014).


____________________________________________


3  Appellant also mentions Lee’s statements as a source of new facts, i.e.,
Appellant was not involved in the crimes. We disagree. Lee’s statements
pertain to facts known to Appellant since, as noted above, at least the time of
trial. Lee’s statements, if anything, are just another conduit for the same
claim. Accordingly, Lee’s statements do not qualify as new facts for purposes
of the newly-discovered facts exception.           See Commonwealth v.
Marshall, 947 A.2d 714, 720 (Pa. 2008) (“[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”) (citation and internal quotation marks
omitted) (emphasis in original).

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      In a related claim, Appellant argues the PCRA court erred in not

appointing him counsel. Appellant was entitled to counsel on his first petition

PCRA petition. See Pa.R.Crim.P. 904(C). The instant petition is his fourth.

Accordingly, he is not eligible for court-appointed counsel.    Additionally, a

PCRA court will appoint counsel on second or subsequent petition when an

evidentiary hearing is required. Pa.R.Crim.P. 904(D). No evidentiary hearing

was required here. The existing record belies Appellant’s contention that he

only recently learned of witnesses’ lies to the police. Because no hearing was

required under the circumstances, the PCRA court did not err in not appointing

counsel for Appellant. Finally, a PCRA court may appoint counsel whenever

the interest of justice requires it. Pa.R.Crim.P. 904(E). Because the instant

petition is untimely and Appellant failed to plead and prove he met the newly-

discovered facts exception, there is no indication in the record that the PCRA

court erred or abused its discretion in not appointing counsel for Appellant in

the instant matter.

      Finally, Appellant argues the PCRA court erred in dismissing his petition

without holding an evidentiary hearing.       As explained supra, we have

concluded that the PCRA court properly found Appellant’s petition untimely,

which deprived the court of the authority to further entertain it. Accordingly,

we conclude that the PCRA court did not err in dismissing Appellant’s petition

without a hearing. See Marshall, 947 A.2d at 723.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/18




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