J-S40035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 RICKY WELBORNE                          :
                                         :
                   Appellant             :   No. 3808 EDA 2017

              Appeal from the PCRA Order November 3, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-1100541-2004


BEFORE:    LAZARUS, J., DUBOW, J., and PLATT*, J.

MEMORANDUM BY LAZARUS, J.:                              FILED JULY 25, 2018

     Ricky Welborne appeals, pro se, from the order, entered in the Court of

Common Pleas of Philadelphia County, dismissing his fourth petition filed

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

our review, we affirm.

     On July 26, 2006, a jury convicted Welborne of first-degree murder and

possession of an instrument of crime (PIC). The trial court sentenced Welborne

to a mandatory term of life imprisonment on the murder conviction plus a

concurrent term of 9 to 60 months on the PIC conviction. On appeal, this

Court affirmed the       judgment of sentence.    See    Commonwealth v.

Welborne, 943 A.2d 325 (Pa. Super. 2007) (unpublished memorandum).

Our Supreme Court denied Welborne’s petition for allowance of appeal. See

Commonwealth v. Welborne, 946 A.2d 688 (Pa. 2008).



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       Welborne filed a timely pro se PCRA petition on November 17, 2008.

The PCRA court appointed counsel, who filed an amended petition alleging

ineffective assistance of trial counsel.            The court dismissed the petition on

September      3,   2010;    on   March        7,   2012,   this   Court   affirmed.   See

Commonwealth v. Welborne, 47 A.3d 1236 (Pa. Super. 2012).

       On June 11, 2012, several years after Welborne’s judgment of sentence

became final, he filed a second PCRA petition. On October 3, 2014, the PCRA

court dismissed the petition as untimely. Welborne filed a notice of appeal on

October 22, 2014, and by order dated October 27, 2014, the PCRA court

directed him to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P.1925(b).           Welborne failed to file his Rule 1925(b)

statement, and the PCRA issued a Rule 1925(a) opinion finding Welborne’s

claims waived. This Court agreed, and we affirmed the PCRA court’s order.

See Commonwealth v. Welborne, 3039 EDA 2014 (Pa. Super. filed March

4, 2016) (unpublished memorandum).1                    However, while the appeal was

pending, Welborne filed a third petition. On June 24, 2015, the PCRA court

dismissed that petition as premature in light of the fact that Welborne’s appeal

of the denial of his second petition was pending before this Court.                    See

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (“[W]hen an

appellant’s PCRA appeal is pending before a court, a subsequent PCRA petition
____________________________________________


1 This Court noted that even if Welborne had filed a timely Rule 1925(b)
statement, he would not have been entitled to relief as his petition was
untimely and he failed to allege and prove any of the exceptions to the time
bar set forth in section 9525(b)(l)(i)-(iii).

                                           -2-
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cannot be filed until the resolution of review of the pending PCRA petition by

the highest state court in which review is sought or upon the expiration of

time for seeking such review.”). In its June 24, 2015 order, the PCRA court

instructed Welborne that he must raise his newly-discovered evidence claim

within sixty days of “the date of the order which finally resolves the [second]

PCRA petition, because this is the ‘first date the claim could have been

presented.’” Order, 6/24/15, quoting Lark, 746 A.2d at 588, citing 42 Pa.C.S.

§ 9545(b)(2).

      As noted, this Court affirmed the PCRA court’s order denying Welborne’s

second PCRA petition on March 4, 2016, and Welborne did not file a petition

for permission to appeal with the Supreme Court. Welborne did not file his

petition within 60 days of the March 4, 2016 order, or within 60 days after the

time for filing a petition for permission to appeal. Instead, Welborne filed the

instant petition on June 22, 2017, over one year later.

      In this petition, his fourth, Welborne argues he is entitled to PCRA relief

based on newly-discovered evidence, specifically the December 3, 2014

affidavit of Devin Sheppard, who would offer testimony that he was present

at the scene of the shooting and that Welborne was not the shooter.          We

agree, however, with the Honorable M. Teresa Sarmina, that Welborne failed

to exercise due diligence and, therefore, he has failed to invoke the newly-

discovered evidence exception to the statutory time bar. See 42 Pa.C.S. §

9545(b)(2) (any petition invoking exception under section 9545(b)(1) must

be filed within sixty days of date that claim could have been presented).

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Accordingly, we affirm the PCRA court’s order dismissing Welborne’s PCRA

petition.

      Oder affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/18




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