J-S81034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TYREE WALLACE

                            Appellant                  No. 423 EDA 2016


                  Appeal from the PCRA Order January 8, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0407921-1998


BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                   FILED NOVEMBER 15, 2016

        Appellant appeals from the order entered in the Court of Common

Pleas of Philadelphia County dismissing his serial petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.           We

affirm.

        In affirming the denial of Appellant’s fourth PCRA petition, this Court

set forth the relevant facts and procedural history, in part, as follows:

              On November 30, 1999, a jury found Appellant guilty of
        second-degree murder, robbery, conspiracy, and possession of
        an instrument of crime based upon Appellant’s participation in
        the October 27, 1997[,] robbery and murder of Jhon Su Kang.
        Appellant was sentenced to life imprisonment, and, on appeal,
        we affirmed. Commonwealth v. Wallace, [856 EDA 2000]
        (Pa.Super. 2001) [(unpublished memorandum)]. In so doing,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     we extensively analyzed the evidence adduced against Appellant
     at trial, and we now briefly summarize our prior review of the
     Commonwealth’s proof.

           On October 26, 1997, Appellant, Raheem Shackleford, and
     Matthew Corprew decided to rob the Salt & Pepper Deli, which
     was owned by Mr. Kang and located at 1640 Ellsworth Street,
     Philadelphia. Shortly before 10:00 p.m. on Monday, October 27,
     1997, Appellant, Shackleford, and an unidentified female entered
     the store, purchased an item, and left. Mr. Kang and one of his
     employees, Van Griffin, then closed the Salt & Pepper Deli. Mr.
     Kang was walking toward his car and carrying a paper bag when
     Appellant and Shackleford approached him, beat him, shot him,
     and took the bag.

           After the crime, Corprew confessed to police that he
     operated as a lookout for the other two perpetrators. Corprew’s
     statement was admitted into evidence, but was heavily redacted
     so that the portion remaining “contained a single reference to a
     co-defendant which was redacted to read ‘that’s when a guy
     came up to me and asked what was up [and] did I want to get a
     couple dollars[.]’” Id. (unpublished memorandum at 2).

            Mr. Griffin was shown photographic arrays and identified
     Appellant and Shackleford as the two men who entered the store
     just prior to 10:00 p.m. on October 27, 1997. James Davis
     related that the afternoon before the crime, Appellant and
     Shackleford asked him to participate in its commission, but Davis
     declined. That evening, Davis, who lived within blocks of the
     Salt & Pepper Deli, encountered Appellant, Shackleford[,] and
     Corprew. At that time, Shackleford told Davis that he had
     secured a shotgun and revealed a portion of the gun, which was
     protruding from Shackleford’s trousers.       A few days after
     October 27, 1997, Shackleford told Davis that the robbery was
     unsuccessful and that the perpetrators had recovered
     approximately $100.       Commonwealth witness Brian Brooks
     testified that he overheard Corprew and Appellant plan the
     robbery and that, after its commission, Appellant told Mr. Brooks
     that Shackleford shot the victim.

            Appellant, Shackleford, and Corprew proceeded to a joint
     trial. During the course of that proceeding, Corprew elected to
     plead guilty to third degree murder. Appellant was convicted of
     the above-described offenses[,] and [on November 30, 1999, he
     was] sentenced to life imprisonment. After we affirmed

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     Appellant’s judgment of sentence [on April 17, 2001], our
     Supreme Court denied review on August 29, 2001.
     Commonwealth v. Wallace, [226 EAL 2001 (Pa. filed 8/29/01)
     (per curiam order)]. [Appellant did not file a writ of certiorari
     with the United States Supreme Court.]

            On August 14, 2002, Appellant filed a timely PCRA petition,
     counsel was appointed, and counsel filed an amended petition
     raising an allegation that trial counsel was ineffective. After
     conducting a hearing, the PCRA court denied relief, and no
     appeal was filed. On July 17, 2006, Appellant filed a second
     petition, which was dismissed as untimely. An ensuing appeal
     also was dismissed based on Appellant’s failure to file a
     docketing statement.      Pursuant to a third PCRA petition,
     Appellant successfully obtained reinstatement of his appellate
     rights from the denial of his first PCRA petition, and, on June 9,
     2010, we affirmed the denial of the first PCRA petition.
     Commonwealth v. Wallace, [470 EDA 2009 (Pa.Super. filed
     6/9/2010)] (unpublished memorandum).

           Five days later, on June 14, 2010, Appellant filed a fourth
     PCRA petition. He alleged that he was entitled to a new trial
     based upon newly-discovered evidence consisting of two
     affidavits executed by Corprew on March 7, 2007. Appellant
     alleged that he did not discover the existence of the affidavits
     until June 20, 2009, when Shackleford forwarded them to
     him....In the March 7, 2007[,] affidavits, Corprew claimed that
     he acted alone on October 27, 1997, that he shot and robbed
     the victim, and that Appellant and Shackleford were innocent of
     the crimes.

           The PCRA court appointed counsel and scheduled a
     hearing. Prior to the hearing, the Commonwealth provided the
     PCRA court [and PCRA counsel] with documentation that
     indicated that Corprew was mentally ill. The court therefore
     appointed counsel for Corprew and ordered an independent
     competency evaluation of that co-defendant. On December 6,
     2010, after personally evaluating Corprew, a psychiatrist, Dr.
     Pietro Miazzo, concluded that Corprew was delusional and
     incapable of distinguishing between fantasy and reality and that
     Corprew was incompetent.       Thereafter, Appellant asked the
     PCRA court to conduct a competency hearing, which was held on
     October 21, 2011. After that hearing, the PCRA court concurred



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      that Corprew was not competent to testify [at the PCRA
      evidentiary hearing].

            Appellant then submitted a memorandum arguing that
      Corprew’s affidavits should be admitted at a PCRA hearing as
      substantive evidence. Appellant asked that the PCRA court
      determine, based upon the March 7, 2007[,] affidavits, whether
      Appellant was entitled to a new trial. The PCRA court ruled that
      the affidavits were inadmissible hearsay and that they did not
      fall within the exception to the hearsay rule applicable to
      declarations against penal interest....[T]he PCRA court, on March
      30, 2012, dismissed Appellant's June 14, 2010[,] PCRA petition.
      [In an ensuing appeal, this Court affirmed on May 10, 2013.]

Commonwealth v. Wallace, No. 1110 EDA 2012, *1-5 (Pa.Super. filed

5/10/13) (unpublished memorandum).

      On August 7, 2013, Appellant filed another pro se PCRA petition,

which privately-retained PCRA counsel amended. The Commonwealth filed a

motion to dismiss, and on December 7, 2015, the PCRA court provided

Appellant with notice of its intent to dismiss.     Appellant did not file a

response, and by order entered on January 8, 2016, the PCRA court

dismissed Appellant’s August 7, 2013, petition on the basis it was untimely

filed. Appellant filed a timely, counseled notice of appeal, and all Pa.R.A.P.

1925 requirements have been met.

      Preliminarily, we must determine whether Appellant’s instant PCRA

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000).   “Our standard of review of the denial of PCRA relief is

clear; we are limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”        Commonwealth v.



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Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and

quotation marks omitted).

      Pennsylvania law makes it clear that no court has jurisdiction to hear

an untimely PCRA petition.     Commonwealth v. Robinson, 575 Pa. 500,

837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective

January 19, 1996, provide that a PCRA petition, including a second or

subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed

final “at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of the time for seeking review.” 42 Pa.C.S.A. §

9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1).        To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or 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 Pennsylvania after

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               the time period provide in this section and has been
               held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation

omitted).

      In the case before us, Appellant was sentenced on November 30,

1999, and this Court affirmed his judgment of sentence on April 17, 2001.

Appellant filed a petition for allowance of appeal, which our Supreme Court

denied on August 29, 2001.       Thereafter, Appellant did not seek further

review in the United States Supreme Court.      Accordingly, his judgment of

sentence became final for PCRA purposes on or about November 29, 2001,

upon expiration of the time to seek certiorari with the United States

Supreme Court.      See U.S.Sup.Ct.R. 13 (allowing ninety days to file a

petition for certiorari). Thus, Appellant had one year from that date, or until

approximately November 29, 2002, to file a timely PCRA petition. See 42

Pa.C.S.A. § 9545(b).      However, Appellant did not file his instant PCRA

petition until August 7, 2013, and therefore, it is patently untimely. See 42

Pa.C.S.A. § 9545(b)(1).

      This does not end our inquiry, however, as Appellant asserts he is

entitled to the timeliness exception of 42 Pa.C.S.A. § 9545(b)(1)(ii) on the

basis of “the newly-discovered evidence that Corprew had serious chronic

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mental health problems which rendered him incompetent and his [1998]

statements to police inadmissible [at Appellant’s trial].” Appellant’s Brief at

7-8. Our Supreme Court has unequivocally explained that “the exception set

forth in subsection (b)(1)(ii) does not require any merits analysis of the

underlying claim.” Commonwealth v. Abu–Jamal, 596 Pa. 219, 941 A.2d

1263, 1268 (2008).       Rather, the exception only requires a petitioner to

prove that the facts were unknown to him and that he exercised due

diligence in discovering those facts.   Commonwealth v. Breakiron, 566

Pa. 323, 781 A.2d 94, 98 (2001) (rejecting attempt to invoke section

9545(b)(1)(ii) because appellant failed to offer any evidence that he

exercised due diligence in obtaining facts upon which his claim was based).

      “Due diligence demands that the petitioner take reasonable steps to

protect his own interests. A petitioner must explain why he could not have

learned the new fact(s) earlier with the exercise of due diligence. This rule

is strictly enforced.”    Commonwealth v. Williams, 35 A.3d 44, 52

(Pa.Super. 2011) (citations omitted).

      Additionally, as this Court has often explained, all of the time-bar

exceptions are subject to a separate deadline.

      The statutory exceptions to the timeliness requirements of the
      PCRA are also subject to a separate time limitation and must be
      filed within sixty (60) days of the time the claim could first have
      been presented. See 42 Pa.C.S.A. § 9545(b)(2). The sixty (60)
      day time limit . . . runs from the date the petitioner first learned
      of the alleged after-discovered facts. A petitioner must explain
      when he first learned of the facts underlying his PCRA claims and
      show that he brought his claim within sixty (60) days thereafter.

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Williams, 35 A.3d at 53 (citation omitted).

      Here, in finding Appellant did not meet his burden, the PCRA court

focused on Section 9545(b)(2), concluding Appellant failed to demonstrate

that he presented his claim within sixty days of the time the claim could first

have been presented. See 42 Pa.C.S.A. § 9545(b)(2). In this regard, the

PCRA court noted the record reveals that, in his fourth PCRA petition,

Appellant argued he had newly-discovered evidence in the form of two

affidavits from Corprew in which Corprew claimed he acted alone in the

robbing and shooting of the victim. During the litigation of Appellant’s fourth

PCRA petition, prior to the scheduled September 3, 2010, evidentiary

hearing, the Commonwealth informed PCRA counsel that Corprew was

mentally ill.   PCRA Court’s Opinion, filed 4/13/16, at 6-7.         During a

December 6, 2010, competency hearing, Dr. Miazzo informed the PCRA

court that Corprew had schizophrenia, and accordingly, on October 21,

2011, the PCRA court ruled that Corprew was not competent to testify at an

evidentiary hearing as to Appellant’s fourth PCRA petition.       Id. at 6-7.

      Based on these facts, the PCRA court concluded that, as of at least

September 3, 2010, when the Commonwealth submitted to Appellant’s

previous PCRA counsel records of Corprew’s mental incapacity, Appellant had

reason to know of Corprew’s long history of mental illness, which pre-dated

his 1998 statement to the police.    Id. at 7.   Accordingly, the PCRA court

reasoned that Appellant’s inclusion of the claim within his August 7, 2013,

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petition was not within sixty days of date the claim could have been

presented as required under Section 9545(b)(2), to invoke any of the

timeliness exceptions under Section 9545(b)(1).

      Appellant contends that the PCRA court erred in this regard since (1)

the PCRA court failed to recognize that the mental incapacity discovered by

Appellant on September 3, 2010, related solely to Corprew’s mental capacity

to testify at a 2010/2011 PCRA evidentiary hearing, as opposed to his

mental capacity at the time he gave his statement to police in 1998; (2)

even if Appellant learned, as of September 3, 2010, of the mental incapacity

of Corprew to give his 1998 statement to police, Appellant could not present

the claim until after the resolution of his then pending, fourth PCRA petition;

and (3) Appellant did not personally learn that Corprew was mentally

incapacitated when he made his 1998 statement to police until June 27,

2013 “when he finally received a copy of Corprew’s mental health records

from his prior [PCRA] attorney[.]” Appellant’s Brief at 17, 11.

      We find Appellant’s averments to be unavailing. Assuming, arguendo,

Corprew’s mental health records were not available prior to or at the time of

Appellant’s trial, Appellant admits that his PCRA counsel, who litigated his

fourth PCRA petition, had evidence of Corprew’s long history of mental

health disorders, which pre-dated the crime in this case, as of 2010 or 2011.

See Appellant’s Brief at 10-11, 13.         In fact, in his brief, Appellant

acknowledges:


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            It was not until Appellant was granted an evidentiary
      hearing in relation of his June 14, 2010[,] [PCRA] [p]etition that
      Appellant learned for the very first time that Corprew had a long
      history of having several very serious mental health disorders.
      This more likely than not rendered him incompetent to provide
      competent testimony (in the form of his [1998] statement to
      police) at Appellant’s trial.

Appellant’s Brief at 13 (emphasis in original).

      Appellant has failed to explain why his prior PCRA counsel could not

have sought to amend Appellant’s fourth PCRA petition, which was not

dismissed by the PCRA court until March 30, 2012.

      We    find   unavailing   Appellant’s   suggestion   that,   pursuant   to

Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000), he could not

have raised his claim until the appeal of his fourth PCRA petition was

resolved by the highest state court in which review was sought, or upon the

expiration of the time for seeking such review. Appellant’s Brief at 20. Our

Supreme Court’s decision in Lark held only that when new facts are

discovered while the petitioner's previous PCRA petition is pending on

appeal, the petitioner may not file a subsequent PCRA petition until the

appeal process has completed. Id. at 493, 746 A.2d at 588. Our Supreme

Court explained that this is because while the appeal is pending, the PCRA

court “ha[s] no jurisdiction to adjudicate issues directly related to [the]

case[.]”   Id.

      In contrast, the record in the case sub judice reveals Appellant learned

of the facts upon which he bases the claim he seeks to raise while his fourth


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PCRA petition was being heard by the PCRA court.      Thus, Appellant could

have, and indeed should have, sought to amend his PCRA petition and raise

this issue in the PCRA court at that time.    See Pa.R.Crim.P. 905(A) (“The

judge may grant leave to amend or withdraw a petition for post-conviction

collateral relief at any time. Amendment shall be freely allowed to achieve

substantial justice.”).

      Finally, we note Appellant contends that, even if his prior PCRA

counsel knew of Corprew’s long history of mental illness, which pre-dated his

1998 statement to the police, Appellant did not personally learn of Corprew’s

history of mental illness until June 27, 2013, the day he received Corprew’s

mental health records from his prior PCRA counsel (who litigated the fourth

PCRA petition).    However, Appellant has failed to explain why, with the

exercise of due diligence, he could not have received the mental health

records from his prior PCRA counsel in a more timely manner, particularly

given the fact Appellant was clearly on notice that Corprew was incompetent

to testify at the 2010/2011 PCRA evidentiary hearing relative to his fourth

PCRA petition. See Williams, supra.

      For all of the foregoing reasons, we affirm.

      Affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2016




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