J-S62001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JAYQUON MASSEY                           :
                                          :
                    Appellant             :   No. 799 WDA 2017

                  Appeal from the PCRA Order May 3, 2017
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0003771-2008


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                      FILED JANUARY 24, 2020

      Jayquon Massey appeals pro se from the denial of his second petition

filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9564

(PCRA), as untimely. Specifically, he claims that the PCRA court erred in

finding that he failed to plead and prove applicability of the newly discovered

fact exception to the PCRA time-bar, and should have granted him relief on

the merits for his ineffective assistance of counsel claim. We affirm.

      In 2008, Appellant was convicted of first-degree murder and related

offenses and sentenced to a mandatory sentence of life imprisonment without

the possibility of parole. This Court affirmed his conviction on direct appeal,

and our Supreme Court denied his petition for allowance to appeal on October

14, 2011. The PCRA court subsequently dismissed Appellant’s first, timely,

counseled PCRA petition on the merits, and this Court affirmed the dismissal.
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       In September 2016, Appellant filed the instant, second PCRA petition

claiming that the Allegheny County District Attorney’s Office withheld

exculpatory crime lab reports. The PCRA court appointed counsel, who filed a

Turner/Finley1 no-merit letter. Thereafter, the PCRA court provided notice of

its intention to dismiss the petition without a hearing because Appellant failed

to meet any of the exceptions to the PCRA time-bar; and granted counsel’s

request to withdraw. The court then dismissed the PCRA petition and this

timely appeal followed.

       On appeal, Appellant raises two questions.

          1. Whether the PCRA court err[ed] in dismissing Appellant’s
             PCRA motion under auspice it lacked jurisdiction to rule on
             a timely filed PCRA under newly discovered fact doctrine
             pursuant to 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii), (2), and
             whether PCRA court err[ed] in not conducting an evidentiary
             hearing to determine if Appellant suffered a complete 14th
             amendment right violation under Brady/Bagley doctrine
             when the court [ac]cepted the PCRA counsel no-merit letter
             as the basis of it[s] dismissal of Appellant’s PCRA motion?

          2. Whether Appellant suffered a 14th amendment violation
             when the district attorney’s office of Allegheny County
             withheld exculpatory and impeaching material evidence in
             violation of Brady/Bagley doctrine, and PCRA counsel’s
             ineffectiveness deprived Appellant a fair opportunity to
             address his Brady/Bagley violation when he filed a no-merit
             letter in contrary to Appellant newly discovered evidence?

Appellant’s Brief, at 5 (most capitalization omitted).

       Our standard of review is well settled. “When reviewing the denial of a

PCRA petition, we must determine whether the PCRA court’s order is
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1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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supported by the record and free of legal error.” Commonwealth v. Smith,

181 A.3d 1168, 1174 (Pa. Super. 2018) (citation omitted). While we are

generally bound by a PCRA court’s credibility determinations, we apply a de

novo standard to our review of the court’s legal conclusions. See id.

      “A PCRA petition, including a second or subsequent one, must be filed

within one year of the date the petitioner’s judgment of sentence became final,

unless he pleads and proves one of the three exceptions outlined in 42

Pa.C.S.[A.] § 9545(b)(1).” Commonwealth v. Jones, 54 A.3d 14, 16 (Pa.

2012) (citation and footnote omitted). A judgment of sentence becomes final

at the conclusion of direct review, or at the expiration of time for seeking such

review. See id. at 17.

      Here, our Supreme Court denied Appellant’s petition for allowance of

appeal on October 14, 2011. Therefore, his judgment of sentence became final

on January 12, 2012, when the ninety-day period for filing a petition for writ

of certiorari with the United States Supreme Court expired. See 42 Pa.C.S.A.

§ 9545(b)(3). Accordingly, Appellant was required to file his PCRA petition by

January 12, 2013. Because his instant petition was dated September 15,

2016, it is patently untimely.

      However, Pennsylvania courts may consider an untimely PCRA petition

if the appellant can plead and prove one of the exceptions to the PCRA’s one-

year time-bar. The PCRA provides three exceptions to its time-bar:

      (i) the failure to raise the claim previously was the result of
      interference by government officials with the presentation of the


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       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

       (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)-(iii). A petitioner asserting one of these

exceptions must file a petition within sixty days of the date the claim could

have first been presented. See 42 Pa.C.S.A. § 9545(b)(2).2 Exceptions to the

time-bar must be pled in the petition, and may not be raised for the first time

on appeal. See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.

2007).

       In his petition, Appellant invokes the newly discovered fact exception.

The newly discovered fact exception “has two components, which must be

alleged and proved. Namely, the petitioner must establish that: 1) the facts

upon which the claim was predicated were unknown and 2) could not have

been ascertained by the exercise of due diligence.” Commonwealth v.

Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (citation, internal quotation marks,

and emphasis omitted). Due diligence requires the petitioner “take reasonable
____________________________________________


2 On October 24, 2018, the General Assembly amended section 9545(b)(2) of
the PCRA statute to expand the time for filing a petition from sixty days to one
year from the date the claim could have been presented. See 2018
Pa.Legis.Serv.Act 2018-146(S.B. 915), effective December 24, 2018.
Importantly, the amendment applies only to claims arising on or after
December 24, 2017. See id. Here, Appellant filed his petition on September
15, 2016. As a result, the sixty day period applies.

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steps to protect his own interests.” Commonwealth v. Monaco, 996 A.2d

1076, 1080 (Pa. Super. 2010) (citations omitted). Furthermore, “[a] petitioner

must explain why he could not have obtained the new fact(s) earlier with the

exercise of due diligence.” Id. “The 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).

       Here, Appellant contends that an affidavit filed on July 25, 2016, by

Michael W. Streily, Esq., constitutes a newly discovered fact, and his petition

was filed within sixty-days of the date the affidavit was filed. See PCRA

Petition, 9/15/19, at 5. Therefore, he claims he has pleaded and proved the

exception to the PCRA time-bar.

       Upon review, we conclude that Appellant has not proven applicability of

the newly discovered fact exception. The newly discovered “fact” on which

Appellant relies is Attorney Streily’s affidavit stating that the forensic lab

report was not available to Appellant via a right to know request.3 However,

Appellant fails to establish why he would not have been able to obtain the

residue testing results at the time of trial. Moreover, Appellant has not

established that the “fact” of the existence of the lab report would have altered
____________________________________________


3 In his affidavit, Attorney Streily states that he is the right to know appeals
officer for the Allegheny County District Attorney’s Office. As such, he
reviewed Appellant’s request for forensic lab reports, and concluded that the
lab reports remain exempt from disclosure under the right to know law.
Appellant purportedly requested the report to establish a defense based on
gunshot residue testing.

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the outcome of his trial. For these reasons, Attorney Streily’s affidavit does

not satisfy the newly discovered fact exception to the PCRA’s time-bar.

      The PCRA court properly concluded that it lacked jurisdiction to consider

the merits of Appellant’s PCRA petition because it was untimely and does not

fall under an exception to the PCRA time-bar. Accordingly, we affirm the PCRA

court’s order dismissing the petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/2020




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