J-S48006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DEVELL SHORT

                            Appellant                No. 1074 WDA 2014


                  Appeal from the PCRA Order June 10, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0004651-1990
                                          CP-02-CR-0005386-1990


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 20, 2015

        Appellant, Devell Short, appeals from the order entered June 10,

2014, in the Court of Common Pleas of Allegheny County, which dismissed

his sixth Post Conviction Relief Act1 petition as untimely. We affirm.

        A panel of this Court previously summarized the pertinent history of

this case as follows.

        Appellant was convicted of first-degree murder on June 28,
        1991, based on his actions in shooting Tierenzo Morton. The
        court imposed a judgment of sentence of life imprisonment
        without parole on that same date. After the appointment of new
        counsel and the litigation of post-sentence motions, Appellant
        appealed. This Court affirmed the judgment of sentence on
        October 20, 1994, and the Supreme Court denied allowance of
        appeal. Commonwealth v. Short, 654 A.2d 602 (Pa. Super.
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
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     1994) (unpublished memorandum), appeal denied, 657 A.2d
     490 (Pa. 1995).

           Appellant first sought collateral relief on July 9, 1996. The
     court initially appointed the public defender’s office, which
     withdrew based on having represented Appellant during litigation
     of his post-sentence motions and direct appeal. Thereafter, the
     court appointed substitute counsel who filed a motion to
     withdraw and no-merit letter. The PCRA court granted counsel’s
     request on July 3, 1997, but did not issue a notice of intent to
     dismiss until October 30, 1997. In that interim, Appellant filed a
     pro se response asserting a new issue, namely, that a witness
     received leniency in exchange for his testimony. The PCRA court
     then reappointed counsel and directed him to investigate this
     allegation. Counsel again filed a no-merit letter. The court
     again allowed counsel to withdraw. It subsequently issued a
     notice of dismissal and Appellant filed a response. Ultimately,
     the court dismissed Appellant’s first petition on November 24,
     1998. This Court affirmed, and our Supreme Court denied
     allowance of appeal. Commonwealth v. Short, 748 A.2d 1255
     (Pa. Super. 1999), appeal denied, 757 A.2d 931 (Pa. 2000).

           Thereafter, on April 4, 2001, Appellant filed a second
     counseled PCRA petition.      Following the submission of an
     amended petition by Appellant and the Commonwealth’s answer,
     the PCRA court filed a notice of intent to dismiss. A final order
     followed and this Court affirmed on appeal. Commonwealth v.
     Short, 832 A.2d 543 (Pa. Super. 2003) (unpublished
     memorandum).

           Appellant again, with the aid of counsel from his second
     PCRA proceeding, sought PCRA relief on November 26, 2003.
     The court issued a notice of dismissal and a final order. On
     appeal, this Court affirmed and the Supreme Court denied
     allowance of appeal. Commonwealth v. Short, 880 A.2d 12
     (Pa. Super. 2005) (unpublished memorandum), appeal denied,
     887 A.2d 769 (Pa. 2005). On July 17, 2007, Appellant, still with
     the assistance of counsel from his prior two PCRA matters, filed
     his fourth PCRA petition. The court filed a notice of dismissal
     and final order and Appellant appealed.       This Court again
     affirmed and Appellant did not seek further review.
     Commonwealth v. Short, 970 A.2d 478 (Pa. Super. 2009)
     (unpublished memorandum).




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            Appellant, acting pro se, filed his fifth … petition on June 6,
      2011. The court issued Pa.R.Crim.P. 907 notice of intent to
      dismiss on January 18, 2013. Appellant responded, and the
      court filed its final order on February 11, 2013.

Commonwealth v. Short, 96 A.3d 1095 at *1-3 (Pa. Super., filed January

28, 2014) (unpublished memorandum) (footnote omitted).               This Court

affirmed on appeal and Appellant did not seek review with our Supreme

Court. See id.

      Appellant filed the underlying pro se PCRA petition – his sixth – on

March 9, 2014. Appellant filed a supplemental PCRA petition on March 13,

2014, and the Commonwealth filed a response thereto on May 19, 2014.

The PCRA court subsequently issued notice of its intent to dismiss

Appellant’s petition without a hearing, and on June 10, 2014, the court

issued a final order dismissing Appellant’s petition.       This timely appeal

followed.

      Appellant raises a single issue for our review: that “[t]he PCRA court

erred when it failed to conduct an evidentiary hearing before it denied

Appellant’s PCRA petition ruling that the[]newly discovered evidence issue

did not have any merit.” Appellant’s Brief at 3.

      Before we may address the merits of a PCRA petition, we must first

consider the petition’s timeliness because it implicates the jurisdiction of

both this Court and the PCRA court. See Commonwealth v. Williams, 35

A.3d 44, 52 (Pa. Super. 2011), appeal denied, 50 A.3d 121 (Pa. 2012).

“Pennsylvania law makes clear no court has jurisdiction to hear an untimely

PCRA petition.” Id. (citation omitted). The PCRA “confers no authority upon

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this Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]”

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted).

This is to “accord finality to the collateral review process.”    Id. (citation

omitted).   “A petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition, set forth at 42 Pa.C.S.A. §

9545(b)(1)(i), (ii), and (iii), is met.” Commonwealth v. Harris, 972 A.2d

1196, 1199-1200 (Pa. Super. 2009).         A petitioner asserting a timeliness

exception must file a petition within 60 days of the date the claim could have

been presented. See 42 Pa.C.S.A. § 9545(b)(2).

      There is no dispute that the instant PCRA petition is untimely.

However, Appellant claims that he benefits from the newly discovered facts

exception to the PCRA timebar under Section 9545(b)(1)(ii). We note that,

      [t]he timeliness exception set forth in Section 9545(b)(1)(ii)
      requires a petitioner to demonstrate he did not know the facts
      upon which he based his petition and could not have learned
      those facts earlier by the exercise of due diligence.
      Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,
      1271 (2007). Due diligence demands that the petitioner take
      reasonable steps to protect his own interests. Commonwealth
      v. Carr, 768 A.2d 1164, 1168 (Pa.Super.2001). A petitioner
      must explain why he could not have learned the new fact(s)
      earlier with the exercise of due diligence. Commonwealth v.
      Breakiron, 566 Pa. 323, 330–31, 781 A.2d 94, 98 (2001);
      Commonwealth v. Monaco, 996 A.2d 1076, 1080
      (Pa.Super.2010), appeal denied, 610 Pa. 607, 20 A.3d 1210
      (2011). This rule is strictly enforced. Id. Additionally, the focus
      of this exception “is on the newly discovered facts, not on a
      newly discovered or newly willing source for previously known


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      facts.” Commonwealth v. Marshall, 596 Pa. 587, 596, 947
      A.2d 714, 720 (2008) (emphasis in original).

Commonwealth v. Brown, 111 A.3d 171, 177 (Pa. Super. 2015).

      Appellant maintains that an affidavit from a juror who participated in

his 1991 trial meets the newly discovered fact exception.        The affidavit,

dated November 18, 2013, is from James S. Held. The statement indicates

the following exchange occurred between Held and a private investigator.

      Q: Did the Jury Foreman, Mr. Robert Milliken bring information
      in, into the Jury in the back, while you were deliberating?

      A: Actually he brought it in, while the trial was still going on. I
      think it was about midway. It seemed like it was midway
      through the trial.

      Q: And the Judge was mad about this afterwards?

      A: Oh, yea, definitely.

      Q: So this was during deliberations, he allegedly brought in, uh,
      the definition of intent?

      A: Um hmm.

      Q: Yes or no?

      A: Yes, yes.

      Q: Ok, OK, and also this did affect quite possibly the Jurors’
      deliberation?

      A: Very possible, sure.

      Q: Sir uh, let me ask you one other question, also after the
      deliberation was over, did the Judge get, go into the Defendant’s
      background?

      A: Yes well, initially he thanked us you know, for, for, doing the
      job that we did, and he did, made a comment that uh, that they
      were looking to get him for some time.

See PCRA Petition, Exhibit 1, Held Affidavit.



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      Appellant acknowledges that the issue regarding the juror was known

at the time of trial, and in fact, was the basis for Appellant’s motion for a

mistrial, which the trial court ultimately denied. Appellant now argues that

the affidavit disproves the foreman’s contention at trial that he did not share

the outside legal definitions with other jurors, and that Appellant should

therefore be warranted a new trial.        See Appellant’s Brief at 13.    We

disagree.

      The affidavit fails to satisfy the newly discovered fact exception on

multiple levels. Although Appellant avers that the affidavit “has just recently

become available,” Appellant’s Brief at 23, he does not demonstrate that he

“could not have learned those facts earlier by the exercise of due diligence.”

See Brown, supra. Quite simply, Appellant does not explain why he was

unable to uncover these facts in the preceding 24 years since his conviction.

Appellant further fails to establish that he filed his PCRA petition based on

this evidence within 60 days of the date the claim could have been

presented. See 42 Pa.C.S.A. § 9545(b)(2). The affidavit in question, which

is dated November 18, 2013, memorializes a conversation which occurred on

November 11, 2013.      Appellant did not file the instant PCRA petition until

March 9, 2014 – well over 60 days past the date on which the conversation

occurred.

      For these reasons, Appellant fails to satisfy the newly discovered facts

exception to the PCRA timebar, and his petition is patently untimely.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2015




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